HAKIM-UD-DIN through L.Rs. and others Versus FAIZ BAKHSH

CH. IJAZ AHMED, J.--- The brief facts out of which the present petition arises are that original owner of the land in question namely Hassoo son of Wadaya sold the land in question to the present petitioners/vendee defendant through oral Mutation No.4031 dated 21.8-1973. Faiz Bakhsh, Ghulam Hussain sons of Hassoo filed suit for possession through pre-emption against the petitioners in the Court of Civil Judge, Layyah on 22-10-1973 on the ground that they are co-owners in the estate in question. Muhammad Yar also filed a suit for possession through pre-emption in the Court of Civil Judge, Layyah against the petitioner on 31-7-1974 on the ground that he is the son of the original owner/vendor. The contents of the plaints reveal that land in question was sold by one Hassoo in favour of petitioners through verbal mutation dated 21-8-1973 for consideration of Rs.15,000 but in order to damage the rights of the pre-emption the sale price was fictitiously incorporated in the mutation as Rs.30,000. Petitioners filed written statement, controverted the allegations levelled in the plaints. The trial Court after recording the evidence of the parties, decreed the suit of both the rival pre-emptors vide judgment dated 14-5-1979 in the following terms:

"In view of my findings above the suit of the plaintiff is decreed first and the suit of the rival pre-emptor is decreed secondly. The plaintiff is directed to deposit the decretal amount Rs.30,000 including that 1/5 pre-emptive amount if any on or before 21-6-1979 failing which the suit of the plaintiff would be deemed to have been dismissed. hi case the plaintiff fails to deposit the decretal amount within time the rival pre-emptor is directed to deposit the decretal amount Rs.30,000 including the 1/5 pre-emptive amount if any on or before 21-7-1979 failing which the suit of the rival pre-emptor would deemed to have been dismissed."

2. Muhammad Yar son of original owner vendor did not deposit the amount of Rs.30,000 upto 31st June, 1979, therefore, his suit stands dismissed whereas the rival pre-emptor Faiz Bakhsh respondent No.1 deposited the decretal amount before 21-7-1979, therefore, his suit was decreed. Petitioners being aggrieved filed appeal in the Court of Additional District Judge, Layyah who .accepted the same vide its judgment and decree, dated 6-4-1983. Respondent being aggrieved filed civil revision in the Lahore High Court, Multan Bench which was accepted vide impugned judgment, dated 5-3-2006 wherein the judgment of the Additional District Judge was set aside and the judgment of the trial Court dated 14-5-1979 was restored. Hence, this petition.

3. The learned counsel for the petitioners submits that learned First Appellate Court had decided Issue No.8 in favour of the petitioners with cogent reasons whereas the learned High Court had reversed the finding of the First Appellate Court in revision petition without any justification. He further maintains that judgment of the First Appellate Court is based on reasoning and logic whereas the learned High Court had reversed the same without adverting to the reasoning of the First Appellate Court. He further maintains that First Appellate Court had reversed the finding of the trial Court after reappraising the evidence on record while exercising power under section 96 of C.P.C. whereas the learned High Court had reversed the finding of the First Appellate Court while exercising revisional power under section 115, C.P.C. Learned counsel for the petitioners further maintains that respondent/plaintiff did not appear before the trial Court to prove the contents of its plaint and failed to produce evidence to prove his case in terms of contents of plaint. This fact was not considered by the learned High Court. He further maintains that respondent No.1 had not produced a single witness to prove his claim of superior right of pre-emption.

4. The learned counsel for the respondents supported the impugned judgment and further submits that First Appellate Court had reversed the finding of the trial Court on Issue No.8 in spite of the fact that the petitioners had not taken the said ground in their written statements and said ground was not taken in memorandum of appeal. The trial Court after appreciation of evidence on record had rightly decreed the suit which was reversed by the First Appellate Court by misreading and non-reading of the evidence on record. He further maintains that respondent has proved superior right as evident from the findings of the trial Court and the learned High Court in the impugned judgment. The findings of both the Courts below are in consonance with the evidence on record. He further submits that learned High Court had given finding of fact against the petitioners after perusing the documentary as well as oral evidence on record.

5. We have considered the submissions made by the learned counsel for the parties and perused the record. It is-an admitted fact that respondent did not appear before the trial Court to prove the contents of the plaint. It is a settled law that pleadings of the parties are not substitute of evidence and it being not a substantive evidence, the averments made in the pleadings would carry no weight unless proved from the evidence in Court or admitted by the other party. The respondent No.1 failed to prove the factum of his superior right of pre-emption, therefore, trial Court as well as learned High Court had erred in law to decree the suit of the respondent. It is also settled law that initial burden of proof is on the party who alleges in the plaint or written statement of its claim. See Muhammad Sajjad Hussain's case 19911 SCMR 703 and Muhammad Siddique's case 2001 SCMR 1443. It is a settled law that written statement/plaint is not substitute of evidence. The aforesaid principles are supported by the following judgments:--

(i) Mst. Khair-un-Nisa's case PLD 1972 SC 25, (ii) Mst. Zarina's case PLD 1995 Kar. 388, (iii) Noor Muhammad's case PLD 1989 Lah, 31, (iv) Mst. Sakina's case 1986 CLC 288, (v) Falak Sher's case 1992 MLD 1879, (vi) Mst. Sakina's case PLJ 1986 Kar. 456, (vii) Nizam-ud-Din's case 1991 CLC 1937 and (viii) Faqir Muhammad's case PLD 2003 SC 594.

6. It is proper to mention here that respondent did not produce any evidence to prove the contents/pleas/stand taken in the plaint by him. Therefore, all the contentions raised by the learned counsel of the respondent or finding of the trial Court as well as the learned High Court are based on misreading and non-reading of the record. As regards the finding of the learned Additional District Judge on Issue No.8 is concerned, it may be noticed that in his capacity as Appellate Court, the learned Additional District Judge possessed the jurisdiction to come to his own conclusion, on the basis of evidence adduced before the trial Court by the parties and resultantly, he could competently reverse the finding of the trial Court on the questions of fact involved in Issue No.8. It is established proposition of law that finding on questions of law or fact, howsoever, erroneous the same may be recorded by a Court of competent jurisdiction, cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C., unless H such findings suffer from jurisdictional defect, illegality or material irregularity. The Privy Council while interpreting section 115 has laid the following principle in N.S. Venkatagiri Ayyangar's case PLD 1949 PC 26:--

"This section empowers the High Court to satisfy itself upon three matters; (i) that the order of the subordinate Court is within its jurisdiction; (ii) that the case is one in which the Court ought to exercise jurisdiction; and (iii) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by con-miffing some error of Procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon question of fact or law."

7. The learned High Court has reversed the finding of the First Appellate Court in violation of the aforesaid dictum laid down by the P.C. which was approved by this Court in various pronouncements. See Ghulam Qadir's case PLD 1988 SC 625. It is a basic and fundamental principle of administration of justice that in case there is a conflict between the judgment of the trial Court and the First Appellate Court, then normally judgment of the First Appellate Court is to be given preference over the judgment of the Trial Court, unless and until the judgment of the First Appellate Court is based on misreading or non-reading or in violation of the principles laid down by the superior Courts while exercising power by the learned High Court under section 115, C.P.C. In the case in hand, the learned High Court has interfered with in the findings recorded by the First Appellate Court without any justification and logic as mentioned hereinabove. The respondent has failed to prove his case as mentioned above, therefore, substantial justice has been done between the parties in view of judgment of the First Appellate Court, therefore, learned High Court has erred in law to interfere in the findings of fact recorded by the First Appellate Court while exercising power under section 115, C.P.C.

8. For what has been discussed above, this petition is converted into appeal and the same is allowed. Consequently, the, judgments of the trial Court as well as the learned High Court are set aside and the judgment of the First Appellate Court is restored with no order as to costs.

S.A.K./H-3/SC ??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.