' IJAZ-UL-HASSAN KHAN, J.--- Shortly narrated the facts necessary for decision of the present civil revision are, that Tahoorul Islam, plaintiff, instituted suit against Ahmad and Shah Wazir Khan, defendants, for grant of permanent injunction, alleging that plaintiff is owner of suit-land, detailed in the head note of the plaint and defendants had no justification to construct water channel in it without consent and permission of the plaintiff. It was also prayed that defendants be restrained to construct water channel or store construction material at the spot.
2. The suit was resisted by the defendants on all grounds, legal as well as factual. The trial Court after framing the relevant issues, arising out of controversial pleadings of the parties, called upon them to produce. Evidence in support of their respective cases, whereafter it dismissed the suit of the plaintiff, vide judgment and decree, dated 31-3-2004, holding that plaintiff has not been able to substantiate his claim by producing cogent and convincing evidence. An appeal was preferred thereagainst, which was accepted by judgment, dated 23-12-2005, passed by learned Additional District Judge, Buner at Dagger. The judgment and decree of the trial Court, dated 31-3-2004 was set aside and suit was decreed.
3. Appearing on behalf of the petitioner, Mr. Lal Jan Khattak, Advocate contended that respondent was not affected from the construction of water channel and only intended to repair it for the benefit of other co-sharers of the area. The learned counsel maintained that learned Appellate Court has not taken note of the material aspects of the case nor has it dealt with the cogent reasoning adopted by the trial Court while dismissing suit of the plaintiff. The impugned appellate decree is not sustainable. Learned Appellate Court had no legal justification to take contrary view of the matter and upset the reasoned judgment of the trial Court.
4. Opposing the prayer for acceptance of the civil revision and rebutting the arguments of the learned counsel for the petitioner, it has been argued by Mr. Shakeel Azam Awan, Advocate for the respondent No,1 that Appellate Court has thoroughly scanned the evidence produced by the parties and had drawn correct conclusion from the record, which are not open to legitimate exception. In this regard reliance was placed on Sajawal Shah and another v. Syed Rahim Shah and others PLD 1975 SC 325 and Mst. Bhag Bhari and others v. Mst. Ghagan and another PLD 1954 Lah.
356.
5. Contentions of the learned counsel for the parties have been heard in detail in the light of the material on file.
6. Having considered the matter from all angles, I find that the judgment rendered by learned trial Court is not sustainable in law. The said judgment, as compared to the learned Appellate Court's judgment, suffers from grave legal errors, which have been rectified by the learned Appellate Court, by reversing the findings of the learned trial Court and substituting its own findings, which are supported by reasons. I have not been persuaded by the learned counsel for the petitioner to restore the judgment of the trial Court, which has rightly been upset by the learned Appellate Court.
Learned counsel for the petitioner has not been able to show that the reasons given by the trial Court on the basis of evidence on the record are well-founded and are weighty than the Court of appeal and that the Court of appeal without considering the material recorded the impugned judgment in a mechanical manner without application of independent judicious mind, which has resulted in failure of justice. Sufficient material was available on the record to substantiate the claim of the plaintiff-respondent, which has not been properly appreciated by the trial Court and put at shelf without any justifiable reason. The suit-land is "Shamilat-e-Deh" and plaintiff and defendant No,2 are co-owners. Defendant-respondent, as such, had no justification to construct water channel without consent and permission of the plaintiff-respondent.
In the result and for the foregoing reasons, finding no force in this civil revision, I dismiss the same, with no order as to costs.