MUHAMMAD SAIN Versus MUHAMMAD DIN
AJMAL MIAN, J.--- This is an appeal with the leave of this Court against the judgment dated 25-1-1992 of a learned Single Judge of the Lahore High Court passed in Civil Revision No. 1528 of 1982 filed by the respondent against the judgment/decree dated 5-10-1982 of the learned Additional District Judge, Sialkot, in Civil Appeal No.57 of 1982 reversing the judgment/decree dated 8-12-1980 of the learned Civil Judge, Shakargarh, in Civil Suit No.83 of 1980, allowing the same by setting aside the above appellate judgment/decree and restoring the trial Court's judgment/decree, whereby the respondent's suit in respect of the suit land was decreed. Leave to appeal was granted to consider the contention of the learned counsel for the appellant, whether the learned Judge in chambers was justified in reversing the finding of the learned Appellate Court in exercise of revisional jurisdiction.
2. The brief facts are that the suit land measuring 64 Kanals 9 Marlas was sold by Noor Din to the appellant through registered sale-deed dated 13-2-1979. The respondent filed aforesaid pre-emption suit on the ground that he was collateral of the above vendor and as such had superior right of pre-emption. The above suit was resisted by the appellant; it was denied that the respondent was collateral of the vendor as alleged. The learned trial Court, on the basis of pleadings of the parties, framed five Issues. In support of the claim in suit, the respondent examined P.W.1 Sultan Ali son of Ghaus Muhammad, P.W.2 Noor Muhammad son of Sadar Din, and himself as P.W.3. Whereas the appellant examined D.W.1 Ch. Zulfiqar Ali, Advocate, who acted as Oath Commissioner in respect of Exh.D.1, D.W.2 Muhammad Siddiq son of Hashim Ali, D.W.3 Muhammad Bakhsh son of Shahabuddin, D.W.4 Muhammad Hussain son of Shukar Din, D.W.5 Khurshid Alam and himself as D.W.6.
3. The learned trial Court, after hearing the learned counsel for the parties by its aforesaid judgment/decree, decreed the respondent's suit by holding that the respondent had superior right of pre-emption as collateral of the above vendor. The appellant filed aforementioned civil appeal, which was allowed. It was held that the respondent failed to prove his above alleged superior right of pre-emption. Then, the respondent filed above civil revision, which was allowed by the learned Judge in Chambers as stated above. It was held that the finding of the learned Appellate Court was based on misreading of evidence of D.W.3 and also non-consideration of the testimony of P.W.1 and P.W.2. Thereupon, the appellant filed a petition for leave to appeal, which was granted for the above reason.
4. In support of the above appeal, Mr. Mahmood A. Qureshi, learned AOR appearing for the appellant, has vehemently contended that the learned Judge in Chambers while exercising revisional jurisdiction was not justified in interfering with the finding of fact recorded by the appellate Court.
5. We have perused the judgments of the Courts below as well as the evidence brought on record by the parties with the assistance of the learned counsel for the parties. It may be observed that it is true that a revisional Court generally cannot interfere with a finding of fact recorded by an Appellate Court unless the above finding of fact is based on misreading of evidence or omission to consider material evidence or is contrary to evidence. In the present case, the learned Judge in Chambers found that the learned appellate Court reversed the finding of fact recorded by the trial Court by misreading of evidence of D.W.3 and by not considering the evidence of P. W.1 and P.W.2. If the above ground is correct, then the learned Judge in Chambers was justified in interfering with the above appellate judgment/decree.
6. Mr.Mahmood A. Qureshi has vehemently contended that since Noor Din was alive, it was incumbent on the respondent to have produced him as a witness in order to prove his relationship. His further submission was that on the contrary the appellant produced Exh.D.1 through P.W.1, which is a statement on oath of aforesaid Noor Din, wherein he has denied the relationship with the respondent. The respondent in his statement before the Court has given cogent reasons for non-production of Noor Din. Both the Courts i.e. the trial Court as well as the learned Appellate Court had not relied upon Exh.D.1 produced by the appellant through P.W.1. It was open to the appellant to have produced Noor Din as his witness instead of producing the above alleged Exh.D.1. The respondent in his statement before the trial Court had deposed that Noor Din was his uncle and his grandfather was Dilmir, who was the father of Noor Din as well as the father of his father. The above statement was corroborated by the other two witnesses. The defence witness D.W.3 in his cross-examination admitted that the respondent's father's name was Khoja. Furthermore, he was unable to deny the suggestion of the respondent's counsel that the respondent's father's father was Dilmir. The trial Court was impressed inter alia by the following fact:---
7. The finding recorded by the learned trial court was reversed by the learned Appellate Court as pointed out by the learned Judge in Chambers without considering the effect of the statement of D.W.2 in the cross examination and also the testimony of P.W.1 and P.W.2. We are, therefore, of the view that the learned Judge in Chambers was justified in interfering with the above appellate judgment. The appeal has no merit. It is, accordingly,
A.A/M-3092/S Appeal dismissed.