(a) Specific Relief Act (I of 1877)---
----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.XIV, R.I & O.XLI, R.31---Suit for declaration and possession- of property---Document relied upon by plaintiffs to establish their claim, had been satisfactorily proved through statements of witnesses produced by them---All said witnesses were subjected to' lengthy and searching cross-examination, but they faced test of cross-examination successfully---Both Courts below had rightly clinched the factual controversy, had dealt with the matter in a threadbare manner and came to concurrent conclusion after due application of independent mind, which could not be disturbed in revisional ,jurisdiction---No misreading and non-reading of evidence by Courts below had been pointed out---Trial Court as well as Appellate Court had elaborately discussed every aspect of case and had dealt with same in detail, leaving no room for further consideration---Appellate Court below had dealt with and decided issue involved in the case, in a careful manner giving its findings on all points of controversy and no prejudice seemed to have been caused to the defendants---Issues had been framed in view of pleadings of parties' and no important or vital issue appeared to have escaped notice of Trial Court---Giving issue-wise findings by Appellate Court was not the requirement of law under O.XLI, R.31, C.P.C. as Appellate Court was to state the points for determination, give its decision thereon and reasons for said decision be also mentioned---Issues framed by Trial Court fully reflected the pleadings of parties and no important issue appeared to have escaped notice of Trial Court, causing prejudice to defendants---Parties were fully alive to the controversy involved and sufficient material was brought on the file in support of their respective contentions---Both Trial Court as well as Appellate Court below had taken a rightful decision which was in consonance with evidence on file---Reasonings recorded by Courts below in decreeing suit were in consonance with evidence on record and no prejudice seemed to have been caused to petitioners---No misreading and non-reading of evidence was proved and judgments of the Courts below were not shown to have been tainted with any illegality or irregularity in absence of which no interference was permissible in revisional jurisdiction of High Court.
(b) Civil Procedure Code (V of 1908)---
----S. 115---Revisional jurisdiction of High Court---Scope---Findings on question of fact or law recorded by competent Court of law/jurisdiction, could not be interfered with in revisional jurisdiction, unless those findings suffered 'from jurisdictional defect, illegality or material irregularity---Jurisdiction of High Court to interfere with concurrent findings of fact in revisional jurisdiction under S.115, C.P.C. was very limited---High Court in exercise of said jurisdiction could only interfere with orders of subordinate Courts on the grounds that Courts below have assumed jurisdiction which did not vest in them or had failed to exercise jurisdiction vested in them by law or they had acted with material irregularity affecting its jurisdiction in the case---Process of examination of evidence for upsetting a concurrent finding of fact in exercise of power under S.115, C.P.C., was neither permissible nor warranted by law-- Interference with a finding of fact of Courts below by High Court in exercise of its revisional jurisdiction under S.115, C.P.C. could only be justified if such finding was result of perverse appreciation of evidence on record---Wrong or erroneous conclusion on a question of fact by the Courts below, was not open to interference by High Court in exercise of its jurisdiction under S.115, C.P.C.---High Court, while examining a concurrent finding of fact recorded by Courts below, in exercise of its revisional jurisdiction under S.115, C.P.C., had to attend to reasons given by Courts below in support of such finding and misreading, non-reading or perverse appreciation of evidence, had to be discovered in the reasoning of the Courts below to justify interference in exercise of its revisional jurisdiction.
Sudhangshu Bimal Biswas v. MD. Mustafa Chowhary 1968 SCMR 213; Niaz Din v. S.M. Azhar and another 1968 SCMR 221; Jehandar and another v. Bazir Khan and others 1990 MLD 83; Mst. Sughran Bibi and others v. Land Acquisition Collector, Narowal and another 1988 CLC 936; Sardar Gurbakhsh Singh v. Gurdial Singh and another AIR 1927 PC 230; K.S. Agha Mir Ahmad Shah and others v. Agha Mir Yaqub Shah and others PLD 1957 (W.P.) Kar. 258 and Mst. Nur Jehan Begum through Legal representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 ref.
(c) Civil Procedure Code (V of 1908)---
----O. XLI, R.31---Specific Relief Act (I of 1877), Ss.8 & 42---Suit for declaration and possession---Judgment of Appellate Court---Contents of judgment---Appellate Court was alive to the situation and issue involved had been dealt with and decided in a careful manner---Appellate Court had given its findings on all points of controversy and no prejudice seemed to have been caused to defendants---Issues had been framed in view of pleadings of parties and no important or vital issue appeared to have escaped notice of Trial Court---Giving issue-wise findings by Appellate Court, was not the requirement of law under O.XLI, R.31, C.P.C.---Appellate Court was to state points for determination, give decision thereon and along with reasons for said decision---If Appellate Court chalked out a point of controversy and gave its findings thereon, which were duly supported by reasoning, then Appellate Court would be said to have given its judgment in accordance with provisions of O.XLI, R.31, C.P.C.
Umer Din v. Ghazanfar Ali and 2 others 1991 SCMR 1868 and Mst. Husna Bano v. Faiz Muhammad and another 2000 CLC 709 ref.
(d) Civil Procedure Code (V of 1908)---
----O. XIV, R.1, O.XX, R.5 & O.XVIII, R.1---Framing of issues---Duty and obligation of Courts was to frame issues on the basis of divergent pleadings of parties---Each material proposition should be reflected in distinct issue and point raised in one issue should not be stretched in other issue---Basic and fundamental duty of the Trial Court was to settle proper issues for decision---In case of omission on its part, litigant party was equally responsible to invite attention of Courts for supplying such deficiency---Every material proposition affirmed by one party and denied by other, was to be put to issue so that parties should lead evidence and to avoid prejudice being caused to either side due to absence of material issues---Mandate of O.XIV, R.I, C.P.C. revealed that it was incumbent upon the Court to frame issues, in the light of controversies raised in the pleadings of the parties---Issues of law and facts were to be illustrated clearly, to enable the parties to understand the points at issue to support their respective claims by relevant evidence on all material points---Object of framing issues was to ascertain real issue between the parties by narrowing down the area of conflict and determine between parties where parties differed coupled with the fact that framing of issues was one of the most important stages of the trial in view of O.XIV, R.2 read with O.XX, R.5 and O.XVIII, R.1, C.P.C.
Major (Rtd.) Mazhar Mahmood Khan v. Khushal Khan Jadoon 1995 MLD 316 ref.
Shaikh Wazir Muhammad for Petitioners.
Mian Saadullah Khan Jandoli for Respondent.
Date of hearing: 7th November, 2005.
JUDGMENT
IJAZ-UL-HASSAN KHAN, J.---Sahib Jan (since dead and represented by his legal heirs) and other plaintiffs, instituted suit against Aqeel and his mother Mst. Lal Baha, defendants, in the Court of Illaqa Qazi/Civil Judge, Jandol, District Dir, for declaration of ownership, possession of property in suit with rights of recovery of payment . of produce and injunction against defendants, restraining defendants not to claim ownership etc. The suit property was claimed to have been acquired by the plaintiffs by virtue of inheritance.
2. The defendants appeared in Court and resisted the suit on all grounds, legal as well as factual. The parties were put to trial on as many as eleven issues. After recording such evidence as the parties wished to adduce, learned trial Judge, accepted claim of the plaintiffs and allowed suit, vide judgment and decree, dated 21-11-2003, maintained in appeal by District Judge/Zilla Qazi Dir, vide judgment, dated 13-10-2004. Feeling aggrieved, the petitioners have filed instant revision petition, which is before me for adjudication.
3. Representing the petitioners, Sheikh Wazir Muhammad, Advocate contended with vehemence that the impugned judgments and decree of the Courts below are lacunic and suffer from the vice of misreading and non-reading of evidence on record; that trial Court has net properly framed the issues which are in the nature of omnibus and this fact was also not noted by the First Appellate Court and in fact the First Appellate Court has countersigned the judgment of the trial Court without adverting to Order XIV, rule 1, C.P.C., therefore, impugned judgment of First Appellate Court is in violation of Order XIV, rule 1, C.P.C.; that the provisions of Order XLI, rule 31, C.P.C. have been seriously violated in this case and the Courts below have decided the case in violation of the parameters prescribed by the superior Courts, therefore, this Court has ample jurisdiction to interfere in the concurrent finding of fact arrived by both the Courts below while exercising powers under section 115, C.P.C. To substantiate the contentions, reliance was placed on Sudhangshu Bimal Biswas v. MD. Mustafa Chowhary 1968 SCMR 213; Niaz Din v. S.M. Azhar and another 1968 SCMR 221; Jehandar and another v. Nazir Khan and others 1990 MLD 83; Mst. Sughran Bibi and others v. Land Acquisition Collector, Narowal and another 1988 CLC 936; Sardar Gurbakhsh Singh v. Gurdial Singh and another AIR 1927 PC 230 K.S. Agha Mir Ahmad Shah and others v. Agha Mir Yaqub Shah and others PLD 1:57 (W.P.) Kar. 258 and Mst. Nur Jehan Begum through Legal representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300.
4. Appearing on behalf of the respondents, Mr. Saadullah Khan Jandoli, Advocate, on the contrary, supported the impugned judgments and decrees of the Courts below and stated that the same are unexceptionable and do not suffer from any legal and factual infirmity warranting interference of this Court in its revisional jurisdiction.
5. I have heard in detail the arguments of learned counsel for the parties in the light of the material on the file.
6. Although this Court is not called upon to reappraise the evidence on record in exercise of its revisional jurisdiction, yet, in the interest of justice, I have gone through the evidence and find that the reasoning recorded by the. Courts below are in consonance with the evidence on record and no prejudice seems to have been caused to the petitioners. The document in question (Exh. P. W .1 / 1) dated 13-10-1979 heavily relied upon by the respondents to substantiate their claim, has been satisfactory proved through the statements of Bacha Mir Waris and Mushtaq. All these witnesses were subjected to lengthy and searching A cross-examination but they .faced the test of cross-examination successfully. Both the Courts below have rightly clinched the factual controversy, have dealt with the matter in a thread bare manner and came to the concurrent conclusion after due application of independent mind, which cannot be disturbed in revisional jurisdiction. The learned counsel has failed to point any illegality by way of misreading and non-reading of the evidence by the Courts below. The trial Court as well as the Appellate Court have elaborately discussed every aspect of the case and have dealt with the same in detail, leaving no room for further consideration. It is settled law that findings on question of fact or law recorded by competent Court of law/jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularity. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. is, very limited. The High Court in exercise of its jurisdiction under section 115, C.P.C. can only interfere with the orders of the subordinate Courts on the grounds, that the Courts below assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity affecting its jurisdiction in the case.
7. The process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under section 115, C.P.C. in my view is neither permissible nor warranted by law. As earlier pointed out by me, interference with a finding of fact of the Courts below by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. could only be justified if such finding is the result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under section 115, C.P.C. I may also mention here that the High Court while examining a concurrent finding of fact recorded by the Courts B below in exercise of its revisional jurisdiction under section 115, C.P.C. has to attend to the reasons given by the Courts below in support of such finding and misreading, non-reading or perverse appreciation of evidence has to be discovered in the reasonings of the Courts below to justify interference in exercise of its revisional jurisdiction.
8. The next objection raised on behalf of the petitioners regarding non-compliance of the provisions of Order XLI, rule 31, C.P.C. is equally without force. Learned Appellate Court was alive to the situation and the issue involved has been dealt with and decided in a careful manner. The Appellate Court has given its findings on all the points of controversy and no prejudice seems to have been caused to the petitioners. The issues have been framed in view of the pleadings of the parties and no important or vital issue appears to have escaped notice of the trial Court. So far as the question of giving issue-wise findings by the Appellate Court is concerned, the same is not the requirement of law as under Order XLI, ruled 31, C.P.C., the Appellate Court is to state the points for determination, give its decision thereon and reasons for the said decision be also mentioned. If the Appellate Court chalked out a point of controversy and gave its findings thereon which are duly supported by reasoning, then the Appellate Court would be said to have given its judgment in accordance with the provisions of Order XLI, rule 31, C.P.C. Umer Din v. Ghazanfar Ali and 2 others 1991 SCMR 1868 and Mst. Husna Bano v. Faiz Muhammad and another 2000 CLC 709.
9. Adverting to the last objection, regarding omission on the part of the trial Court to formulate necessary issues, it is duty and obligation of the Courts to frame issues on the basis of the divergent pleadings of the parties. It is also settled principle of law that each material proposition should be reflected in distinct issue, point raised in one issue should not be stretched in other issue as per law laid down in Major (Rtd.) Mazhar Mahmood Khan v. Khushal Khan Jadoon 1995 MLD 316. It is basic and fundamental duty of the trial Court to settle proper issues for decision, nonetheless, in case of omission on its part litigant party 'was equally responsible to invite the attention, of Court for supplying such deficiency. Every material proposition affirmed by one party denied by the other to be put to issues so that the parties to lead evidence and to avoid prejudice being caused to either side due to absence of material issues. The mandate of Order XIV, rule 1, C.P.C. reveals that it is incumbent upon the Court to frame issues, in the light of the controversies raised in the pleadings of the parties. Issues of law and facts are to be illustrated clearly, to enable the parties to understand the point at issue to support their respective claims by relevant evidence on all material points. In the instant case, I find that the issues framed by the trial Court fully reflect the pleadings of the parties and no important issue appears to have escaped notice of the trial Court, causing prejudice E to the petitioners. The parties were fully alive to the controversy involved and sufficient material was brought on the file in support of their respective contentions. The object of framing issues is to ascertain real issue between the parties by narrowing down the area of conflict and determine between the parties where the parties differ coupled with the fact that the framing of issues is one of the most important stage of the F trial in view of Order XIV, rule 2, C.P.C. read with Order XX, rule 5 and Order XVIII, rule 1, C.P.C. The case-law cited on behalf of the petitioners is distinguishable and has no bearing on the controversy involved.
In view of what has gone above, it follows that the learned trial Judge as well as the learned Appellate Court have taken a rightful decision which is in consonance with the evidence on the file. No misreading or non-reading of evidence is proved and at the same time, the judgments of the Courts below are not shown to have been tainted with any illegality or irregularity in absence of which, no interference is permissible in revisional jurisdiction of this Court. There is no merit in this revision which is accordingly dismissed with no order as to costs.
H.B.T./587/P?????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.
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