SHAUKAT NAWAZ Versus MANSAB DAD

1. USMAN ALI SHAH, J.‑ ‑This appeal by leave, against the judgment dated 17‑11‑1981 of the Peshawar High Court, Circuit Bench Abbottabad, has arisen in the following circumstances:‑

2. Muhammad Iqbal respondent No.2 herein owned land measuring 24 kanals and 2 marlas, comprised in khasra Nos.615 and 617 situate in Pind Kamal Khan, Tehsil Haripur. By mutation No.377 attested on 8‑8‑1973, he gave in exchange 2/120 share out of the said land to Mansabdad respondent No.1 herein. Thereafter, by mutation No.396 attested on 11‑10‑1973, he sold the remaining 98/120 share to the said respondent No.1. The appellant herein pre‑empted both the transactions on the ground of contiguity. He alleged that the entire suit land was sold for Rs.11,920 and the mutation No.377 was given the colour of exchange, in order to defeat his right of pre‑emption. In their written statement respondents Nos.1 and 2 repudiated the allegation of the appellant. The learned trial Judge framed various issues upon the pleadings of the parties and recorded their evidence thereupon. It may be pointed out that on conclusion of evidence of the parties the appellant and respondent No.2/vendor filed a compromise deed to the effect that the entire land was sold and there was no exchange. On examination of the evidence, the learned trial Judge preferred the evidence of the appellant and decreed the suit in his favour on payment of Rs.4,578.90, vide his judgment dated 19‑1‑1977. Thereafter, the respondent filed appeal in the District Court and a learned Additional District Judge who heard the appeal dismissed the same vide his judgment dated 3-12‑1977. Aggrieved by the judgments of the two Courts below, respondent No.1 filed a revision in the High Court and a learned Single Judge accepted the revision and dismissed the suit of the appellant, vide his judgment dated 17‑11‑1981.

3. Leave was granted by this Court to the appellant to determine the point whether the learned Single Judge of the High Court in exercise of his revisional jurisdiction, was justified to interfere with the concurrent findings of fact of the two Courts below.

4. We have heard the learned counsel for the parties and gone through the evidence on record. The learned Single Judge of the High Court was not influenced by the compromise deed reached between the appellant and respondent No.2 that the entire suit land was sold to respondent No.1, therefore, he set aside the finding of the two Courts below in this behalf. The learned counsel for the appellant contended that the High Court, in the exercise of its revisional jurisdiction under section 115, C.P.C., was not justified to interfere with the concurrent finding of the two Courts below. We have not been able to appreciate this contention in the facts and circumstances of this case. It may be observed that it is not always correct that the High Court will not interfere with the concurrent findings of the two Courts below in the exercise of its revisional jurisdiction under section 115, C.P.C. If it is found that the two Courts below, while giving their finding on a question of fact, have committed material irregularity or have omitted to read evidence on a point which has resulted in miscarriage of justice, the High Court will have the occasion to re‑examine the question and give its own finding on that question in the exercise of revisional jurisdiction.

5. In the present case, it is a matter of record that by mutation No.377 respondent No.2 gave in exchange 2/120 share to respondent No.1. Respondent No.2 adhered to this position not only in the written statement jointly filed by him alongwith respondent No.1,, but also in his statement before the trial Court he in unequivocal terms stated that he had given 2/120 share of the suit land in exchange to respondent No.1. Thus, in these circumstances, the compromise deed filed jointly by the appellant and respondent No.2 after the close of evidence will not commend to the senses of a reasonable man. The only impression that can be formed about the compromise deed is that the appellant prevailed upon respondent No.2 and was able to win ‑over respondent No.2 in his favour but this would not benefit him in view of the overwhelming evidence which unmistakably shows that respondent No.2 first gave in exchange out of the suit land 2/120 share to respondent No.1 and thereafter he sold the remaining 98/120 shares of land to him. Mutations were attested about both these transactions. The learned Single Judge of the High Court was therefore right in holding that respondent No.1 had improved his status and as he became co‑sharer in the suit land, the pre‑emption suit of the appellant against respondent No.1 must fail.

6. In the circumstances and for the foregoing reasons, we find that there is no merit in the appeal and is dismissed with costs.

7. M.I. /S‑123/S Appeal dismissed.