Mian Shakirullah Jan, J:--The claim of the appellant to the title of the house, the disputed property, is on the basis of an undated oral sale for a consideration of Rs. 6,000/-. The assertion of the appellant by filing a suit for declaration is that he is the owner of the property by stating that the property being an evacuee property was allotted to the respondent and after being entangled in litigation with one Dhaney Khan, was decreed in his (respondent's) favour on 22.02.1969. After having a decree in his favour the respondent through an oral sale transferred the suit property in favour of the appellant with an undertaking that after obtaining the certified copies of the judgment, a written deed will be executed. The decree passed in favour of the respondent was reversed by the appellate Court on 20.03.1980 and further in appeal filed by the respondent, the findings of the first appellate Court were set aside by the High Court vide judgment decree dated 13.10.1992. The aforesaid litigation, which were commenced on 03.11.1966 ended on 13.10.1992. The present suit was filed by the appellant on 22.02.1993. The respondent, in addition to the contest of the suit filed by the appellant, has also filed a suit for possession of the property on the ground that the appellant has forcibly taken possession of the property in respect of which a report had also been lodged with the police, the copy of which has been placed on record. The trial Court after consolidation of these two suits, framing of the issues and recording of the evidences, finally decided the case in favour of the appellant by decreeing his suit with same result from the appellate Court. The respondent being constrained to file a revision petition before the High Court, which was allowed, and the judgment and decree of the two Courts below were set aside against which the instant appeal, with leave of the Court, has been filed.
2. The learned counsel for the appellant has mainly contended that on a question of fact as to whether the oral sale has been proved or not, the High Court in its revisional jurisdiction ought not to have interfered with judgments merely on the ground that in view of the High Court such findings were. not sustainable unless misreading or non-reading of evidence or ignoring some material leading to a conclusion other than the one arrived at by the two Courts below have been pointed out, which according to him do not exist.
3. On the other hand, the learned counsel for the respondent, has contended that the evidence had not been read properly and the material aspect of the case has been ignored, which justify interference by the High Court in its revisional jurisdiction and particularly when some contradiction in the statement of a witness and the version given in the plaint has been noted and also the other witness was not found to be trustworthy being a servant of the close relative of the appellant.
4. We have gone through the judgments of the Courts below and also the relevant evidence on the record. Admittedly the property originally belonged to the respondent as so declared in the earlier litigation with Dhaney Khan finally by the High Court and which fact is not denied by the appellant- and his claim is only on the basis of an oral sale with no specific date or month, but in the year 1969, after the decision of the earlier case by the Civil Judge by decreeing his (respondent) suit. The appellant to prove the oral transaction has produced two witnesses i.e., Abdul Aziz PW3 and Ghulam Rasool PW4, in addition to other documents like electricity bills etc., which have been paid by him. The learned High Court has found the statement of the two witnesses as unreliable on the ground that there was contradiction in the statement of PW3 and the plaint as to whether the written/registered deed will be executed after the decision of the case or after obtaining the certified copies of the judgment as at that time the case already stood decided according to the contents of plaint but according to witness the decision was still awaited from the Court of Civil Judge. The other witness was found to be under the influence of the plaintiff as he was employed with the brother-in-law of the appellant and similarly certain discrepancies were also found in the electricity bills with the further observations that no explanation had been furnished by the appellant regarding the lodging of the report with the police qua forcible possession obtained by him. Thus the two witnesses believed by the two Courts below and the other documentary evidences were held not to be reliable evidences by giving the aforesaid reasons and similarly with no plausible explanation qua the report lodged by the respondent in respect of illegal and forcible possession taken by the appellant. The reasons given by the High Court, which for arriving at a conclusion other than the one reached by the two Courts below, for disbelieving the evidence relied upon by the two Courts below seems to be correct and the High Court has rightly disbelieved them.
4. The matter does not end here as there is another important aspect of the case that how an immoveable property has been sold through an oral transaction without even single piece of paper may be in the form of a receipt of the amount or may be in the form of an agreement to sell.
Had the property been sold after the decision of the Court of first instance then there was no occasion for the respondent to pursue the case before the appellate Court and after having an adverse decision to go to the High Court by filing a R.S.A and litigating it for about further 10 years before the two appellate forums i.e., District Court and the High Court. It is not the case of the appellant that such a prosecution of the case by the respondent was at his instance or for his benefit or that he has also contributed towards the expenses of the litigation. The case of the respondent is further strengthened by making a report with the police about taking possession forcibly of the property by the appellant as the factum of possession of the appellant otherwise would have gone in his favour. It is a clear cut case of collusion between the appellant and Dhaney Khan, the previous litigant, with the respondent, which deprived the respondent to reap the fruit of the decree passed by the Court in his favour in the previous litigation with Dhaney Khan. The judgments which have been cited by the learned counsel for the appellant with regard to non- interference by the High Court with the concurrent findings of the Courts below i.e.. Sheikh Muhammad Bashir Ali and others u. Sufi Ghulam Mohi-ud-Din (1996 SCM R 813), Abdul Hakeem v.
Habibullah and 11 others (1997 SCM R 1139) and Roazi Khan and others v. Nasir and others (1997 SCM R 1849), in the circumstances of the case may not be of any help to the appellant firstly that the High Court has given cogent reasons for interference and also according to the aforesaid referred judgment (Roazi Khan and others (supra)), it is not only the misreading or non-reading of evidence, which justify the interference but even if the same suggests perversity whereby such findings can be interfered with or where approach of Courts below to evidence was perverse as held in the case of Abdul Hakeem (supra) or so perverse that grave injustice would result therefrom as held in the case of Sheikh Muhammad Bashir Ali and others (supra) or the Court fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court as held in the case of Nasir Abbas v. Manzoor Haider Shah (PLD 1989 SC 568). This Court in the case of Sheikh Muhammad v. Hashmat Sultana (1989 SCM R 34) has held that every finding of fact is not immune from interference in revisional jurisdiction as possessed by the High Courts to be exercised when the Courts below commit jurisdictional illegality and this concept i.e., of jurisdictional illegality has been considered by this Court in the case of Kanwal Nain (PLD 1983 SC 53), to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave in justice would result. Applying this test, if the reasons advanced by the High Court are correct on the legal plane, then the two Courts deciding the controverted question of fact, cannot be said to have acted with jurisdiction, if the evidence has been misread or the conclusions drawn are perverse. In the case of Muhammad Bakhsh v. Ellahi Bakhsh and others (2003 SCM R 286), while placing reliance on a judgment of this Court [Maj. Rashid Beg v. Rehman Ullah Khan and 4 others (PLD 2001 SC 443)], the interference in the judgments of the Courts below in exercise of revisional jurisdiction was held to be justified when the findings are based on conjectural presumptions, erroneous assumptions of facts and wrong proposition of law and where unreasonable view on evidence has been taken.. While relying on the principles as laid down by this Court in the afore referred judgments, it can be safely said that no injustice could be done greater than the one in the present case if the suit of the appellant succeeds by defeating the lawful process, of obtaining the possession by the respondent through execution, in round about manner through a collusion.
5. Resultantly, we see no force in this appeal and the same is dismissed, with no Order as to costs.