' IJAZ-UL-HASSAN KHAN, J.---This civil revision is directed against the judgment and decree, dated 11-1-2005, passed by learned District Judge, Charsadda, whereby appeal against the judgment and decree, dated 31-3-2004 of learned Civil Judge, Charsadda, decreeing suit No,122/1, filed by Mian Tauheedullah respondent, has been dismissed.
2. Brief but relevant facts for the disposal of instant civil revisionare, that Laizada petitioner, instituted suit (No, 123/1) on 15-5-2001, against Mian Tauheedullah, respondent, for issuance of perpetual injunction to the effect that petitioner was owner in possession of suit house, detailed in the plaint and respondent had no right to interfere in the possession of suit house. Mian Tauheedullah, respondent, also filed suit (No, 122/1) on 21-9-2001, for possession of the suit house by demolition of superstructure and also prayed for permanent injunction restraining the petitioner to raise further construction on it. He also prayed for recovery of Rs,6000 as Khakshora' for the year, 1998 to 2000. Laizada, claimed ownership of the suit house on the basis of PTI whereas Tauheedullah based his claim through inheritance mutation No,10658. Both the suits were consolidated and following issues were framed in suit No,122/1, for trial:--
(1) Whether the plaintiff has got cause of action?
(2) Whether the suit is within time?
(3) Whether the plaintiff is stopped to sue?
(4) Whether the suit is incompetent. Hence, liable to be cancelled?
(5) Whether the suit is bad for non-joinder of necessary party?
(6) Whether the defendant has made improvement in the suit house. Hence, entitled to the compensation?
(7) Whether the plaintiff is owner of the suit house and the defendant being tenant has been paying (Khakshora)?
(8) Whether the defendant is owner in possession of the suit house, since his fore-father?
(9) Whether the plaintiff is entitled to the decree for possession and perpetual injunction as prayed for?
(10) Relief.
3. At the conclusion of trial, learned Civil Judge, Charsadda, seized of the matter decreed suit No,122/1 filed by Mian Tauheedullah plaintiff-respondent and dismissed suit No,123/1 filed by Lalzada plaintiff-petitioner, by virtue of judgment and decree, dated 31-3-2004. An appeal was preferred there against by Lalzada, petitioner which did not succeed. The same was dismissed by learned District Judge, Charsadda, by order, dated 11-1-2005, giving rise to the filing of instant civil revision.
4. Mr. Muhammad Ismail Fahmi, Advocate, learned counsel for the petitioner strenuously contended that judgments and decrees of both the Courts below, are outcome of misreading and non-reading ofevidence, hence not sustainable; that suit of the respondent is hopelessly barred by time; that learned trial Court has failed to frame issues according to the pleadings of the parties and that a local commission should have been appointed to determine the cost of improvements made by the petitioner.
5. Mr. Asghar Khan, Advocate, learned counsel for the respondents, on the other hand, contended that High Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under section 115, C.P.C. Unless and until judgments of the Courts below are result of misreading or non-reading of evidence or decision of the case is in violation of parameters prescribed by the superior Courts. The material on the record, learned counsel reiterated, has been appreciated in its true perspective and warrants no interference. The learned counsel also submitted that improvements, if any, has been made without consent and permission of the respondent and thus the Courts below had valid reasons to decline to award cost of improvements. In support of last submission, he placed reliance on Jan Muhammad v. Mst.
Zubaida Begum (1982 SCM R 367) and Allah Ditta v. Muhammad Ziaul Haq and others (1985 CLC 2020).
6. The main question, falling for determination, would be, whether the petitioner is owner in possession of suit house or otherwise. The petitioner has claimed ownership on the basis of PTI.
According to him, the petitioner and his fore-fathers had been residing in the suit house for the last 200 years without any interference. As against that, respondent has claimed ownership on the basis of inheritance mutation No,10658. The evidence produced by the petitioner is discrepant and cannot be considered sufficient to prove his stance. On the contrary, the respondent has produced sufficient evidence to substantiate his claim. The evidence produced by the respondent has not been successfully challenged. It is established principle of law that the plaintiff has to prove his case from his own evidence and cannot benefit from the weaknesses in the defendant's case.
Whoever desires any Court to give judgment as to any A legal right or liability dependent on the existence of fact,' which he asserts, must prove that those facts exist. Both the Courts below have given exhaustive judgment after due appraisal of evidence on the file and after discussing all the prones and cones of the case. There appears to be no legal defect in their judgments, which are in harmony with the material on record. The impugned judgments are neither tainted with any illegality or irregularity nor are fanciful or arbitrary, thus, no interference is called for by this Court.
The High Court in the revisional jurisdiction can interfere with a concurrent finding of fact where an error of jurisdiction is apparent, or an illegality and irregularity is found in the proceedings of the Court. The revisional Court cannot interfere with a concurrent finding of fact based on evidence on the ground thatappreciation of evidence was not proper. The finding of facts recorded by the two Courts below is neither arbitrary nor perverse or capricious.
7. Both the Courts below have applied their mind to the factual and legal aspect of the matter; giving cogent reasons in support of their decisions and have properly appreciated the evidence on record. No material misreading and non-reading of evidence was pointed out during the hearing.
Reappraisal of evidence is not permissible nor can any conclusion drawn by Courts below be upset merely because an opposite is also feasible.
8. Adverting to the objection regarding non-framing of proper issues, learned counsel for the petitioner could neither point out as to which issue was not properly framed nor he could draw my attention to any material portion of evidence, which was overlooked or misread by the Courts below. Neither there appears to be any misreading of evidence nor does any material piece of evidence appear to have been ignored.
9. So far as the question, regarding payment of compensation is concerned, no evidence has been led by the petitioner to suggest that improvements were made with the consent and permission of the respondent and thus the petitioner was entitled for award of compensation.
10. Adverting to the question, concerning appointment of local commission, no application in this respect has been moved. The petitioner cannot be allowed to agitate the plea at this stage.
' In the result and for the foregoing reasons, finding no substance in this civil revision, I dismiss the same with or order as to costs.