1. Ch. Ijaz Ahmad, J.--The petitioners have sought leave to appeal against the judgment dated 2.5.2003 of the Peshawar High Court wherein civil revision was dismissed while upholding the concurrent judgments of Courts below.
2. 2.Brief facts out of which the present petition arises are that petitioners filed Civil Suit No. 19/1 of 1992 against respondent Khan Zad Gul etc. seeking the possession through redemption of mortgage of the property in question measuring 9 kanals, 5 marlas on payment of Rs. 800/-as mortgaged money of the property in the Court of Civil Judge Karak whereas Respondent No. 1 Khan Zad Gul and another filed Suit No. 26/1 of 1995 against Gul Sarwar, Shafi Muhammad etc. for declaration in the Court of Senior Civil Judge Karak. The contents of the plaint of Khan Zad Gul and another reveal that Defendant No. 1 Gul Sarwar is not mortgagee of the suit property as the Respondent No. 1/plaintiff Khan Zad Gul is mortgagee as such in possession of the property in question, Khan Zad Gul etc. solicits for correction of their names in the revenue record to that effect.
3. Both the suits were consolidated vide order dated 24.6.1998. Petitioners as well as respondents had filed written statement controverted the allegations levelled in the aforesaid suits by the respondent parties. Out of the pleadings of the parties, the trial Court framed the consolidated issues which are at page 29 of the paper book. Proceedings were recorded in Civil Suit No. 19/1 of 1992. The learned trial Court vide consolidated judgment decreed the suit of Respondent No. 1 and dismissed the suit of the petitioners vide judgment and decree dated 12.1.2000. Petitioner being aggrieved filed appeal before the District Judge Karak on 2.3.2000 who dismissed the same vide judgment and decree dated 23.1.2003. Petitioners being aggrieved filed civil revision which was also dismissed by the learned High Court vide impugned judgment dated 18.4.2003.
4. 3.The learned counsel for the petitioners submits that all the Courts below had decreed the suit of Respondent No. 1 plaintiff by misreading and non-reading of the record specially the plaint filed by the respondent/plaintiff in Suit No. 226/1 of 1995 read with finding of the trial Court on Issue No. 8 wherein learned trial Court had decided the Issue No. 8 against respondent and inspite of the findings on Issue No: 8 against the respondent. Trial Court had erred in law to decree the suit in his favour. He further maintains that the same mistake was committed by the First Appellate Court and the learned High Court. He further urges that all the Courts below had erred in law to dismiss the suit of the petitioners on the point of limitation inspite of the fact that Section 28 had already been declared un-islamic.
5. 4.We have considered the submissions of learned counsel for the petitioners and have perused the record. The learned High Court after reappraisal of the evidence and case law on the subject dismissed the revision petition in the following term:-- "Therefore keeping in view the dicta laid down by the August Supreme Court of Pakistan in the above quoted judgments I am of the firm view that the sub-mortgages created in favour of other persons and their redemption would not give fresh start of limitation unless acknowledge by the mortgagers in writing and signed by the person making it. The provisions of Section 19 of the Limitation Act 1908 would not, therefore, in absence of the above mentioned condition be attracted.
6. The Courts below have rightly dismissed the suit as well as the appeal filed by the petitioner.
7. 'I have not been able to find out any mis-reading/non-reading of evidence, or any material irregularity or any jurisdictional error or defect in the impugned concurrent findings of the Courts of competent jurisdiction".
8. 5.Mere reading of the aforesaid paragraph with the findings of the Courts below which are at pages 25 and 26 of the paper book in the judgment of the First Appellate Court and at pages 30 to 34 of paper book in the trial Court. It is a settled law that High Court had very limited jurisdiction to disturb the concurrent findings of fact recorded by the Courts below while exercising power under Section 115 CPC unless and until the Courts below had given concurrent findings of fact by misreading or non reading of the record or in violation of any principle laid down by the superior Courts. The learned counsel for the petitioners has failed to point out any piece of evidence which was misread by the Courts below or decided the case in violation of law laid down by the superior Courts. The Privy Council has laid down parameters to interfere in the findings recorded by the First Appellate Court while exercising power under Section 115 of CPC in N.S. Venkatagiri Ayyangar's case (PLD 1949 P.C. 26). The relevant observation is as follows:-- "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 of 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".
9. 6.The learned counsel for the petitioner has further argued that trial Court had given finding on Issue No. 8 against the respondent. Mere mentioning that Issue No. 8 is decided in negative does not mean that the appreciation of the evidence by the trial Court would not be taken into consideration. It is a settled law that this sentence read in terms of the discussion of the trial Court mentioned hereinabove wherein it was mentioned that Issue No. 8 is decided in negative. Ratio of the discussion is that the trial Court had decreed the suit after proper appreciation of evidence on record in favour of the respondent/defendant. As the trial Court had consolidated both the suits on account of mentioning the plaintiff or defendant inter-se which does not change the effect of the appreciation of the evidence by the trial Court, therefore, contention of learned counsel for the petitioner has no force in the eyes of law. It is better to reproduce Issue No. 8 and the sentence mentioned after discussing the evidence by the trial Court in its judgment:-- Issue No. 8.
10. "Whether the defendant/plaintiff Khan Zad Gul etc. have purchased the suit property from the predecessor of present plaintiffs? OPP SENTENCE AFTER DISCUSSING OF EVIDENCE.
11. "Issue No. 8 is decided in negative".
7. It is pertinent to mention here that both the suits were 'consolidated and proceedings were recorded in Suit No. 19/1 of 1992 filed by the petitioners. It is a settled law that parties are bound by their pleadings as law laid down by this Court in Mst. Murad Begum's case (PLD 1974 SC 332). The petitioners had not taken the ground qua Issue No. 8 in the memorandum of revision petition as well in the memorandum of petition before this Court. However, in the interest of justice, arguments were considered and rejected in view of the discussion mentioned above. It is a settled law that this Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising power under Article 185 (3) of the Constitution. This Court, as a rule, should give due weight and consideration to the opinions of the Courts below and in particular to the opinion of the Courts of first instance which had the advantage of hearing the parties witnesses and watching their demeanour as the law laid down by this Court in the following judgments:-- (i)Malik Muhammad Ishaque's case (PLD 1977 SC 109).
12. (ii)Noor's case (PLD 1973 SC 469).
13. (iii)Shah Nawaz's case (PLD 1976 SC 767).
8. In view of what has been discussed above, this petition has no merit and the same is dismissed.
14. Leave declined.