AMANULLAH KHAN YASINZAI, J.--- This Civil Petition under Section 115, CPC is directed against the Judgment and decree dated 26-5-2001 passed by Additional District Judge-IV, Quetta, whereby appeal filed against the Judgment and decree dated 18-7-2000 passed by Senior Civil Judge-I, Quetta, was dismissed and consequently, the suit filed by the petitioner was ordered to be dismissed. .
2. Briefly stated the relevant facts of the case are that initially the petitioner filed a suit for declaration and possession against late Shaukat Hussain predecessor-ininterest of respondents Nos. 1 to 11 and against the respondent Nos. 12 and 13. During pendency of the suit, the respondent Shaukat Hussain dies. Thus his legal heirs i.e. Respondents Nos. 1 to 11 were impleaded as party. It was averred in the plaint that the petitioner had purchased the property bearing Municipal No. 2- 21(1) 678-679 Khasra No. 415 Khatoni No. 242 Khewat No. 167 measuring 349 sq. Ft situated at Teju Mal Lane, Roop Chand Lane, Masjid Road Quetta from its previous owners Yahya Bai and Tahir Ali vide sale-deeds dated 14-9-1993 and 16-4-1992 duly registered with Sub-Registrar Quetta. On the basis of such sale-deeds, the property was transferred in the name of the petitioner in revenue record. It was further averred in the plaint that actual owners Yahya Bai and Tahir Ali had leased out the property to Shaukat Hussain who without the consent of the previous owners sublet the same to respondent Haji Yar Muhammad and Allauddin. It was prayed that possession of the said premises be given to the petitioner. The respondents filed a joint reply repudiating the claim of the petitioner. It was stated in the written statement that the property in dispute belongs to Evacuee Trust Board, out of the pleadings following issues were framed:---
(1) ,Whether the suit is bad for non-joinder of parties as well as cause of action, therefore, the same is liable to be dismissed?
(2) Whether:the suit is not competent u/s. 42 of the Specific Relief Act?
(3) Whether the present suit is time-barred by time in view of Article 120 of the Limitation Act?
(4) Whether the predecessor-in-interest of the plaintiff had never been in possession of the disputed property and Yahya Bhai and Tahir Ali had lost their title in the disputed property?
(5) Whether the defendant No. 1 was in possession of the disputed property as a licensee of predecessor-in-interest of the plaintiff namely Yahya Bhai and Tahir All and without permission or consent of the previous owner the defendant No. 1 has given unauthorized given the possession to the defendants Nos. 2 and 3?
(6) Whether the plaintiff has been purchased the disputed property and has thus become the owner of the same?
(7) Whether the plaintiff is entitled for the relief claimed for?
(8) Relief.
Thereafter following additional issues were also formed,---
(1) Whether Evacuee Trust Property Board is a necessary party to the suit, if so to what effect?
(2) Whether the suit property or any party thereof is an Evacuee Trust Property, if so to what effect?
(3) Whether the defendant No. 1 (Late Shaukat Hussain) was the tenant of Evacuee Trust Property Board in respect of the premises in dispute?
(4) Whether the predecessor-in-interest of defendants Nos. 1 to 11 were inducted into the suit property as Licensee?
(5) Whether the suit has been instituted within time?
3. In support of his contention, the petitioner produced the following witnesses:--- PW-1 Gul Muhammad representative of the Sub-Registrar Office, he tendered documents Ex-P/1 to Ex-P/4, the registered sale-deed executed by Yahya Bai and Tahir Ali respectively in favour of the petitioner regarding the property in dispute.
PW-2 Zohaib Ali, he executed the registered sale-deed in favour of the petitioner as attorney for Yahya Bai and Tahir Ali. He acknowledged his signatures on Ex-P/1 to Ex-P/4.
PW-3 Muhammad Azam representative of the Excise & Taxation Department, he produced PT-1 Form Ex-P/5 regarding the property in dispute.
PW-4 Javed lqbal, Superintendent Board of Revenue, he tendered documents Ex. P/11 to Ex-P/15 being the taxation documents and certificate Ex-P/13 wherein the Khasra number and municipal number of the property is dispute are mentioned.
PVC-5 Khudai Dad Patwari, he produced Fard Ex-P/7, report of the revenue authorities Ex-P/8, inspection report of the property in dispute Ex-P/9 and application filed on 12-1-1992 by the vendors Yahya Bai and Tahir Ali through their attorney for rectification of the record.
PW.6 Shaukat Ali, representative Of the Quetta Municipal Corporation, he produced site plan and building permit Ex-P/16 and Ex-P/17 issued by Municipal Corporation.
PW-7 Shafi Muhammad, Patwari, tendered documents Ex-P/18 to Ex-P/20 being the record of Fard pertaining to the year 1993 showing Yahya Bai and Tahir Ali as the owners and Intiqal Ex-P/19 and Ex. P/20.
PW-8 Ali Muhammad, Patwari, he produced documents Ex-P/21 showing Yahya Bai and Tahir All as owners of the property in dispute during the settlement of 1941 and 1945.
PW-9 Farid Ahmed, Tax Clerk, QMC, he produced documents Ex-P/22 to Ex-P/23 being tax receipts paid by the petitioner regarding the property in dispute.
PW-10 Abdul Qadir, he deposed about the sale transaction and execution of sales-deeds in favour of the petitioner.
PW-11 Mr. Kailash Nath Kohil, he issued notice to the respondents on behalf of the petitioner Ex-P/24.
Statement of the petitioner was recorded in support of his contention.
4. In rebuttal the respondents/defendants produced DW-1 Abdul Samad, he deposed that the respondent No. 1 Shaukat Hussain was tenant in the said premises and now respondent No. 12 and 13 are doing business in the same and are paying rent to the Evacuee Trust Property Board.
DW-2 Muhammad Farooq also deposed that the respondents are doing business in the said premises and none had claimed the ownership of the property in dispute for the last 20 years.
DW-3 Ali Muhammad, produced documents Ex-D/1 in respect of property bearing Khewat No. 150 Khatoni No. 165 Khasra No. 2429 measuring 195 sq ft.
DW-4 Muhammad Yousaf stated that the respondents are tenants in the property in dispute belonging to Evacuee Trust Property Board and Yahya Bai and Tahir Ali had nothing to do with the said property.
DW-5 Farhad Ahmed Tax Clerk, tendered document Ex-D/2 pertaining to property bearing Khasra No. 811,67879 showing Shaukat Hussain predecessor of respondents Nos. 1 and 11.
DW-6 Faiz Muhammad, he tendered document Ex-D/3 being the latest fard of the property bearing No. 194 Khatoni No. 191 Khasra No. 414 measuring 195 sq ft.
DW-7 Muhammad Ali, he deposed that the respondents are doing business in the said premises for the last 25/30 years and none has claimed the ownership of the same and Yahya Bai and Tahir had never visited the property in dispute.
DW-8 Shakil Ahmed, he produced documents Ex-D/4 to Ex-D/30 being agreements between Evacuee Trust Property Board and respondent Shaukat Hussain, certificate regarding the said property wherein Khasra numbers have been mentioned and rent receipts of property bearing municipal No. 2-21/8-A.
5. Shaukat Hussain predecessor-in-interest of respondent stated that he was tenant of the Evacuee Trust Property Board. However, Yahya Bai and Tahir Ali had nothing to do with the property in dispute.
6. Respondent No. 12 Haji Yar Muhammad in his statement stated that he is doing business as partner of Shaukat Hussain who is tenant of Evacuee Trust Property Board.
7. Respondent No. 13 Allauddin also stated that he is partner in the shop and are paying rent to the Evacuee Trust Property Board.
8. Muhammad Aslam, Administrator, Evacuee Trust Property Board, he produced documents Ex- D/32 and Ex-D/33 showing Shaukat. Hussain as tenant.
9. After hearing the parties, the learned Senior Civil Judge-I, Quetta decreed the suit vide Judgment and decree dated 30-4-1997. Being aggrieved from the same, the respondents filed an appeal before the District Judge Quetta which was transferred to the file' of Additional District Judge-II, Quetta who also dismissed the appeal vide Judgment and decree dated 2.12.1998. Thereafter the respondents filed a Revision Petition before this Court which was registered as Civil Revision Petition No. 22/99 and the same was partly accepted and remanded the case to the Court of Senior Civil Judge-I, Quetta with the directions for impleading the Evacuee Trust Property Board as party and re-constituting the issues. On such directions, the Evacuee Trust Property Board was impleaded as party and additional issues were framed. The parties relied upon the evidence already produced by them in the first round and only the representative of Evacuee Trust Property Board appeared and tendered documents Ex-P/32 to Ex-P/33 and thereafter, the learned Senior Civil Judge-I, Quetta dismissed the suit vide Judgment and Decree dated 18-7-2000. Being aggrieved from the same, the petitioner filed an appeal before the District Judge, Quetta which was transferred to the Court of Additional District Judge-IV, Quetta who after hearing the parties upheld the Judgment and decree dated 26-5-2001. Hence the instant Revision Petition.
10. I have heard Mr. Sundar Dass, Advocate for the petitioner, Mr. Tahir Muhammad Khan, Advocate for the respondents Nos. 1 to 13 and Mr, Rashid Awan, Advocate, for the respondent Nos. 14 and 15.
11. Mr. Sundar Dass, learned counsel appearing on behalf of the petitioner, contended that both the Courts below have mis-read and mis-appreciated the documentary evidence produced by the petitioner and have committed a grave illegality and irregularity by rejecting the documents without giving any cogent reasons. Thus serious prejudice has been caused to the case of the petitioner. Learned counsel further contended that both the Judgments and decrees have been passed on the basis of conjectural and erroneous presumptions and wrong assumptions of law and prayed that both the Judgments and decrees be set aside and suit be decreed in favour of the petitioner.
12. Mr. Tahir Muhammad Khan, learned counsel for the respondents Nos. 1 to 13 contended that the Courts below have rightly dismissed the suit of the petitioner on proper appreciation of evidence and cogent reasons have been given in discarding the oral and documentary evidence, thus this Court in revisional jurisdiction may not interfere with concurrent findings of facts arrived at by the Courts below.
13. Mr. Rashid Awan, learned counsel appearing on behalf of Evacuee Trust Property Board, adopting the arguments of Mr. Tahir Muhammad Khan, Advocate, contended that the property in dispute belonged to Evacuee Trust Property Board.
14. Adverting to the contention of Mr. Sundar Dass, learned counsel for the petitioner that the title of the petitioner is based on the registered sale-deed dated 14-91993 and 16-9-1992 executed by Yahya Bai and Tahir All in favour of Haji Jan Muhammad through attorney whereby Yahya Bhai and Tahir All have sold the property in dispute to the petitioner. The learned counsel contended that the property in belonged to vendor Yahya Bai and Tahir Ali. He referred to document Ex-P/21 being the Fard of the property pertaining to the years 1941 and 1945 whereby they were shown as owners of the property in dispute. The old Khewat No. 18 Khatoni No. 81 Khasra No. 2430 and further referred to documents Ex-P/18 fard pertaining to the year 1985 whereby the property still existed in the name of Yaha Bai and Tahir Ali i.e. Khewat No. 167, Khatoni No. 242 Khasra No. 415 and further stated that on the basis of said entries in revenue record, the sale deeds Ex-Pl1 to Ex-P!4 where executed and thereafter, the pronery transferred in the name of petitioner vide Ex-P/19 I e. Mutation dated 19-91993. While referring to the said documents, the learned counsel contended that as far as the ownership of Yahya Bai and Tahir Ali is concerned, the same is proved through the said documents which has not been challenged. He further contended that the Courts below have not appreciated the said documents and had erroneously held that Yahya Bai and Tahir Ali were not the owners of the property in dispute.
Perusal of the aforesaid document would reveal that Yahya Bai and Tahir Ali were the initial owners of the said property even prior to partition of Sub-Continent and the property remained in their names till its transfer in the name of petitioner. It may be mentioned here that the title of Yahya Bai and Tahir from whom the petitioner got his title has never been challenged before any Court of law.
Even during the course of proceedings before the lower Court, the learned Trial Court has erroneously held that the sale-deeds in favour of the petitioner are invalid as the original power- ofattorney of PW-Zohaib Ali was not produced. Suffice it to observe that at the time of registration of sale deeds, the power of attorney was produced before the Sub-Registrar who after considering the same had registered the sale deed which remained unchallenged throughout and on the basis of such sale-deed, the petitioner was recorded as owner in the revenue record vide fard Ex-P/6.
Thus the contention of Mr. Tahir Muhammad Khan learned counsel that Yahya Bai and Tahir Ali and lost their title in the property is repelled.
15. Coming to the next contention that the property in disputed was leased out to Shaukat Hussain predecessorin-interest of respondents Nos. 1 to 11. Learned counsel referred to the documents Ex.P/5 PT-1 Form pertaining to the years 1984 to 1989, whereby the petitioner was shown as recorded owner whereas Shaukat Hussain as a tenant. This PT-1 Form Ex-P/5 has been prepared on the basis of old record whereby Yahya Bai and Tahir Ali were owners from whom the petitioner received the ownership of the property in dispute, which lends support to the plea of petitioner that late Shaukat Hussain was a tenant of previous owners. The contention of learned counsel for the respondents that they were owners of Evacuee Trust Property Board is repelled, for which separate reasons will be given lateron.
16. Mr, Tahir Muhammad Khan, learned counsel for respondents Nos. 1 to 13 strenuously argued that in fact the property in dispute was a Temple which was in possession of. The respondents and the property in dispute in fact never existed. He further argued that with connivance of the revenue authorities, the petitioner and previous owners prepared forged documents. With due respect to the learned counsel for the private respondents, I am unable to subscribe to the said contention. It may be noted that an application Ex-P/10 was submitted by the previous owners through their attorney for rectification of the record wherein it was stated that in the years 1941 and 1945, the property measuring 249 sq. Ft. Was shown as an open piece of land whereas in the settlement in the year 1985, the said property was shown to be a temple. On such application, the Collector directed the revenue authorities to visit the site. The Patwari alongwith Gardawar visited the site and submitted report Ex-P/9 stating therein that on the site the property in dispute is a separate unit and no temple exists. Thus on the basis of the same, Patwari also submitted report Ex-P/18 and thereafter, rectification was made in the revenue record. The learned counsel for the petitioner contended that the property in dispute never belonged to Evacuee Trust Property Board, in this respect Member Board of Revenue issued a certificate that the property in dispute was never an Evacuee Trust Board Property. However the temple has been shown as an Evacuee Trust Property Board vide certificate Ex-P/15 dated 19-6-1994.
17. Certificate. Ex-P/13 was issued by Board of Revenue where it has been certified that the property in dispute never belonged to Evacuee Trust board property, but the same belonged to Yahya Bai and Tahir Ali who sold the same to the petitioner Haji Jan Muhammad.
18. The respondents to support their contention that they are tenants of Evacuee Trust Board, produced documents Ex-D/3 being the fard of the property, shown as Mandar bearing Khewat No. 194 Khatoni No. 291 and Khasra No. 414 measuring No. 195 sq. Ft. And Ex-D/7 to Ex-D/31 being rent receipts issued by Evacuee Trust Property Board regarding property bearing Municipal No. 2-21/8-A which pertains to the Temple. It is pertinent to mentioned that the municipal number of property in dispute is 2-21/8(1). Thus from perusal of the said documents inference can be drawn that the municipal NO. 2- 21/8(1) pertains to Khasra NO. 415 measuring 349 sq. Ft. Whereas the municipal No. 2- 21/8-A pertains to document Ex-D/5 belonging to Evacuee Trust Property Board and the respondents are tenant of the same. Though the representative of the Evacuee Trust Property Board appeared and he produced document Ex-D/32 and Ex-D/33, but it may be mentioned here that the said documents do not pertain to Khasra No. 2-21/8(1) being the property in dispute. Thus the Courts below fall in error in discarding the said evidence and the findings arrived at by both the Courts are based on mis-reading of the afore stated documents and conclusions drawn are on conjectural presumptions and wrong assumption of law. The learned counsel for the respondents was at point to argue regarding PT-I Form Ex-P/5, whereby the petitioner has been shown as owner and respondent Shaukat Hussain was shown as tenant. He only contended that the same are forged documents but it may be mentioned here that none has come forward to challenge the same. Thus the said documents cannot be discarded merely on oral assumptions without anything to the contrary.
19. Mr. Sundar Dass, learned counsel for the petitioner contended that once the Court comes to the conclusion that findings are based on mis-reading of evidence, thus it becomes incumbent on the High Court in revisional jurisdiction to set at naught such findings. In this regard, reference is made to the following case-laws:---
(1) PLD 1994 Supreme Court 162 (Saheb Khan through Legal Heirs vs. Muhammad Pannah).
"But it is well-settled that if a material document or material evidence is not duly considered, the High Court could interfere in revision. It is also settled that if an Appellate. Court bases its decision on a wrong proportion of law the High Court in its revisional jurisdiction could interfere with it."
(2) 2000 SCM R 974 (Samar Gul and others vs. Mohabat Khan and others)
"It is title law that if the concurrent findings of the Courts below are the result of misreading of evidence on the record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C. Put differently, if the issues struck in a given case are found to have been resolved by bringing to bear the oral as well as documentary on such findings by both the Trial Court and the Appellate Court concurrently, then the revisional jurisdiction of the High Court will not be attracted. This assertion by Mr. Azad is not without merit, in party."
(3) 2003 SCM R 286 (Muhammad Bakhsh vs. Ellahi Bakhsh & others)
"We must say at the very outset that the learned Single Judge of the Lahore High Court is not correct in holding that once the concurrent findings are recorded by the two Courts below i.e. The Civil Judge and the learned District Judge, the reversal thereof by the High Court does not fall within the scope of revisional jurisdiction to be exercised by it under section 115, C.P.C. It is pertinent to mention here that this is not ail absolute rule. The High Court is well-empowered to reverse the findings of the Courts below if those are not supported from the record or the Courts below have misread the same resulting into serious miscarriage of justice. In the case of Ma]. Rashid Beg vs. Rehmat Ullah Khan and 4 others (PLD 2001, SC 443) the learned Judges of this Court did not agree that the concurrent findings in any case could not be reversed by the High Court while exercising revisional jurisdiction under section 115, C.P.C. For the reason that the scope of said section was not narrow and limited as argued by the learned counsel. The learned Judges repelled this stance by observing as under:- "We are of the considered opinion that where the concurrent findings are based on conjectural presumptions, erroneous assumptions and wrong proposition of law that can be reversed justifiably by High Court while exercising revisional jurisdiction as conferred upon it under section 115, C.P.C. And interference may be made in .Concurrent findings when the same are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken' due to non-reading and misreading of evidence."
20. The Privy Counsel in the case of N.S. Vankatagiri Ayyangar and another vs. The state Hindu Religious Endowments Board Madras, reported in PLD 1949 PC 26, wherein the following observations were made:- "This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) 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 committing some error or 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 questions of fact or law."
21. Thus on re-appraisal of the evidence, it is apparently clear that both the Judgments and decrees passed by the Courts below are based on mis-reading of evidence and non- consideration of documentary evidence and conclusion drawn by both the Courts are based on erroneous assumptions of law, thus this Court will be will with him its right to set aside both the judgments in exercise of revisional jurisdiction.
22. For the foregoing reasons, the' 'impugned Judgments and decrees dated 18-7-2000 and 26-5-2.001 passed by Senior Civil Judge-I, Quetta and Additional District Judge-IV, Quetta, respectively are set aside and suit filed by the petitioner is decreed. The respondents are directed to hand over the vacant possession of the premises is dispute bearing Khasra No. 2-21/8(1) to the petitioner within a period of two months.
Parties are left to bear their own costs.