JALAL KHAN and 10 others vs KHANDOO MALIK and 24 others

1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred seeking leave to appeal against the judgment, dated 25-6-2001 passed by a learned Single Judge of Peshawar High Court, Abbottabad Bench, in a civil revision filed by the present petitioners.

2. ' Brief facts in small compass in the background giving rise to this petition are that petitioners filed a suit against the respondents in the Court of Senior Civil Judge, Kohistan at Batgram, seeking a declaration to the effect that having no concern with the said jungle land, were not entitled to receive Zar-e-Malkana of cut-trees. The petitioners while challenging the validity of agreement between respondents Nos.1 to 21 and 25 inter se, contended that the agreement was ineffective to their rights and accordingly sought declaration with permanent injunction to the effect that the said respondents be restrained from receiving the Zare-Malkana and interfering in their rights in the jungle in question and also prayed for grant of decree for possession of the suit land. The suit was contested by a few respondents whereas the remaining respondents were proceeded against ex parte and ultimately the suit was dismissed by the learned trial Judge vide judgment and decree, dated 22-7-1990. The appeal preferred by the present petitioners was dismissed by the learned District Judge but in the revision petition filed by them in the High Court, a learned Single Judge while setting aside the judgment and decree concurrently passed by the two Courts, remanded the case to the Appellate Court for decision of the appeal afresh. In post-remand proceedings, the petitioners moved an application for appointment of a Local Commission for spot inspection and the Appellate Court in the light of the evidence brought on record by the parties having not felt necessity of appointing the Local Commission, dismissed the appeal vide judgment, dated 14-2-2000. The petitioners being aggrieved of the dismissal of appeal again approached the High Court by way of filing a revision petition which was dismissed by a learned Single Judge of Peshawar High Court, Abbottabad Bench, vide the impugned judgment.

3. Learned counsel for the petitioners contended that there was no evidence on record to establish the exclusive entitlement of the respondents for receiving the Zar-e-Malkana of cut-trees in the jungle in question and that two Courts without taking the pain of ascertaining the correct factual position, held on the basis of presumption, that respondents were legally competent to enter into an agreement inter se and receive the compensation. The petitioners without producing any evidence in support of their claim emphasized before Appellate Court and the High Court that a Local Commission should be appointed to ascertain the correct factual position. The learned counsel, while repeating same contentions before us submitted that non-appointment of Local Commission has caused prejudice to their case. The perusal of record would show that the request of petitioners for appointment of Local Commission was not allowed by the Appellate Court and also by the High Court as sufficient evidence was available on record to decide the case. It appears that petitioners sought appointment of Local Commission for their own convenience as they have not been able to A substantiate their plea through any cogent evidence. We having heard the learned counsel for the petitioners, have not been able to find out any misreading or non-reading of evidence by the Appellate Court therefore, the High Court has rightly declined to interfere in the concurrent findings of fact which would not be open to challenge on the grounds that before the High Court and before this Court in support of present petition.

4. ' This petition having no substance is, accordingly, dismissed leave is refused.