Sahib Jan (since dead and represented by his legal heirs) and others 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 decrees of the Courts below are lacunic and suffer from the vice of misreading and non-reading of evidence on record; that trial Court has not 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 CPC, therefore, impugned judgment of First Appellate Court is in violation of Order XIV Rule 1 CPC; that the provisions of Order XLI Rule 31 CPC 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 CPC. To substantiate the contentions, reliance was placed on Sudhangshu Bimal Biswa s Appellant vs. MD. Mustafa Chowdhary Respondent (1968 SCM R 213), Niaz Din appellant vs. S.M. Azhar and another respondents (1968 SCM R 221), Jehandar and another petitioners vs. Bazir Khan and others respondents (1990 M LD 83), Mst. Sughran Bibi and others appellants vs. Land Acquisition Collector, Narowal an another respondents (1988 CLC 936), Sardar Gurbakhsh Singh Appellant vs. Gurdial Singh and another respondents (A.I.R. 1927 Privy Council 230), K.S. Agha Mir Ahmad Shah and others appellants. vs. KS. Agha Mir Yaqub Shah and others respondents (PLD 1957 (W.P) Karachi 258) and Mst. Nur Jehan Begum through Legal Representatives appellant vs. Syed Mujtaba Ali Naqvi respondent (1991 SCM R 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 (Ex. PW.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 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 CPC is very limited. The High Court in exercise of its jurisdiction under Section 115 CPC 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, CPC 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 CPC 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 CPC. I may also mention here that the High Court while examining a concurrent finding of fact recorded by the Courts below in exercise of its revisional jurisdiction under Section 115 CPC 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 CPC 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 Rule 31 CPC, 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 provision of Order XLI Rule 31 CPC. Umer Din vs. Ghazanfar Ali and two others (1991 SCMR 1868) and Mst. Husna Bano vs. 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 vs. Kilushal Khan Jadoon (1995 M LD 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 and 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 CPC 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 unable the parties to understand the point at issue to support their respective claims by relevant evident 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 not important issue appears to have escaped notice of the trial Court, causing prejudice 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 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 trial in view of Order XIV Rule 2 CPC read with Order XX Rule 5 and Order XVIII, Rule 1 CPC. 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 of 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.