MRS. YASMIN ABBASEY, J---Facts leading to this case are that according to respondent Nos A and 5 they are lessees of Barani un-surveyed land, measuring 150 acres, situated in Deh Kohistan (Gharo), Taluka Mirpur Sakro, District Thatta. Leasehold right of the above land were granted to them for 10 years commencing from 1982-83 to 1992-93 and it is on the basis of their continuous possession the above said land was allotted to them on 12-5-1993 by Revenue Officer Kotri Barrage in open Katchery. According to respondent Nos. 4 and 5 they had invested huge amount for making the land for the purpose of cultivation and now entire land is under cultivation and land revenue is also being paid to the Revenue Authorities. On 19-12-1991 one Abdul Rauf also applied for grant of land adjacent to respondents Nos.4 and 5, the same was granted in his favour, who subsequently transferred it to respondent No,5 through gift. Such entry was made in the Deh Form- VII.
2. On 6-4-1997 when the security guards of appellant attempted to interfere in the possession of respondents Nos.4 and 5 and tried to trespass on their land Civil Suit No,3/1997 was filed.
3. From the documents filed by appellant in that suit it was found that 750 Acres of land has been granted to them by the Government. Of Sindh through Land Utilization Department on 9-8-1998.
The specification of land granted to appellant as detailed 'by respondents Nos.4 and 5 in para. 13 of their plaint in Suit No,13/1999 is as under:---
(i) The land was granted in Deh Kohistan, Taluka Mirpur Sakro.
(ii) The land was situated between Gharo and Dhabeji (Gharo is a Town and Dhabeji is a Railway Station and a small town on National Highway, both in Deh Kohistan).
(iii) The land was situated exactly "at 51 K.M. Karachi" mile-stone.
(iv) "The land was situated at right side of the National Highway."
4. According to respondents Nos.4 and 5 with the above specification the land of appellant will fall on the right side of National Highway while travelling from Dhabeji to Karachi and vice versa on the left side of the National Highway while going from Karachi to Dhabeji. While land of respondents Nos.4 and 5 is situated just opposite to the land of appellant on the other side of National Highway.
It is alleged that appellant illegally occupied a portion on the opposite side of National Highway adjacent to the land of respondents Nos.4 and 5 on the basis of resumption order, dated 21-12-1991.
This resumption order is the basis of litigation, as by adding word 'from' after '51 k.m. And before'
Karachi, is contrary to what was in original grant of 9-8-1988, specification of land granted to appellant was altogether changed. Resultantly, with this mala fide act land at all not granted to appellant was claimed to be owned by him. This change brought through resumption order of 21- 12-1991 was challenged at different forum.
5. On 30-1-1999 a notice was received from S.D.M. Gharo by respondents Nos.4 and 5 to appear before him. After appearance S.D.M. Gharo was informed of the true fact. It is stated that again, on notice issued by Executive District Officer Revenue, Thatta parties and attorney of respondent No,5 appeared before him. Deputy Commissioner ordered for site inspection, but to utter surprise of respondents Nos.4 and 5, Mukhtarkar Mirpur Sakro without notice and disclosing his identity appeared there and carried out unilateral measurement of appellant's land on the basis of disputed sketch.
6. Therefore, Suit No,13/94 was filed by respondent Nos.4 and 5 for seeking C declaration as to the specification of their land.
7. Suit was contested by appellant. In his written statement apart from legal pleas taken, he has challenged the transfer order in favour of respondent Nos.4 and 5 for the land in their occupation and, had called, themselves as unauthorized occupant. It was denied by them that the guards of appellant ever trespassed or interfered with the possession of respondents Nos.4 and 5. 750 Acres land was granted to the appellant on Malkana basis vide order, dated 9-8-1988 and the same was mutated in the record of rights in favour of appellant. Land of appellant was surveyed and pillars were installed in 1993. The land was demarcated by Revenue Authorities as per direction of Executive District Officer (Revenue) Thatta after appearance and consent of respondents Nos.4 and 5.
8. Both parties had adduced evidence with supporting documents and in the light of evidence produced by them both the Courts below were of the unanimous view that the land belong to appellant/defendant is situated exactly on 51 k.m. Miles-stone if going from Gharo/Dhabeji towards Karachi and is in between Gharo and Dhabeji at the right side of National Highway.
9. Although it is well settled law that concurrent finding of facts of the two Courts below by virtue of section 100 CPC cannot be called in question except in case of misreading of evidence or substantial error while proceeding the matter.
10. Learned counsel for the respondent has also referred 2006 SCM R 1304 (Muhammad Feroze and others v. Muhammad Jamaat Ali), wherein it is observed that:- ' "In law, settled legal position is that the High Court would not interference . With concurrent findings of facts unless such findings fall within the exceptional clauses illustrated hereinabove.
Natural corollary that emerges in the facts and circumstances of a case would be that in such eventuality High Court is not obliged to reappraise the evidence for recording judgment of approval. Position would, however, be otherwise if the High Court proceeds to set aside concurrent findings of the two Courts below or accepts or rejects the appellant Court judgment. Even in regular second appeal, jurisdiction of the High Court is limited to the extent of interference on a question of law and not on facts.
11. The same view has also been taken in PLD 2003 SC 676 (Muhammad Khan v. Mst.Rasul Bibi) that:- ' "It was held that, in law High Court could not, disturb findings of fact even if erroneous, however, gross and inexcusable the error 1 may be except on strong legal ground which may be held to tantamount to interference on a question of law. There can be no cavil with the proposition laid down by this Court in the aforesaid case, it will depend on the facts of each case as to whether the two Courts below recording concurrent findings of fact had lawfully arrived at the conclusion and whether the judgment did not suffer from misreading of evidence or exclusion of material piece of evidence on record or perverse or contrary to the record. This rule was also laid down in Muhammad Anwar v. Muhammad Siddiq Hashim (PLD 1992 SC 838) and reiterated in Sultan Ahmed v. Nadeem Raza (1996 SCM R 1729) as well as Sirbland v. Allah Loke (1996 SCM R 575), in the Minority Judgment of Ajmal Mian, J (as his Lordship then was). The ratio of the precedents merging in the facts and circumstances appears to be that ordinarily concurrent fmdings recorded by the Courts below could not be interfered with by the High Court while exercising jurisdiction in the second appeal however erroneous that finding may be, unless such finding has been arrived at by the Courts below either by misreading of evidence on record, by ignoring a material piece of evidence on record or through perverse appreciation of evidence."
12. Almost same view has been taken in 1988 CLC 224 Lah. And 2004 YLR 1928 Lah. While following the observation in PLD 2003 SC 676. As to the misreading of evidence alleged by learned counsel for appellant by the two Courts below. I have gone through the evidence produced by both the parties at the trial stage and found that respondent Nos.4 and 5 have not raised any objection to the allotment of 750 acres land to the appellant. Main grievance is that due to wrong measurement and demarcation appellant is attempting to occupy their piece of land granted to them under valid allotment order issued on 12-3-1983 on the basis of possession. Whereas the appellant in his memo, of appeal has tried to challenge the legality of allotment Nos. 4 and 5 alleging that being Government Officer respondents Nos.4 and 5 were not entitled to have a lease of 150 acres of land in their favour under land grant policy. Neither the land grant policy on the basis of which appellant is calling the title of respondents Nos.4 and 5, as illegal has been placed on record nor from the perusal of the record it is found that before filing suit by respondents Nos.4 and 5, or thereafter, their title was ever challenged by the appellant before any forum at any stage.
Allotment order issued in favour of respondents Nos.4 and 5 as per its contents was issued to them on 12-3-1983 on the basis of their possession, whereas according to appellant they are in occupation of the 750 acres of land, by virtue of letter issued on 9-8-1988 issued by Section Officer- II Secretary to Government of Sindh. As per contents to this letter the area of 750 acres fall between Gharo and Dhbejee of Deh Kohistan Taluka Mirpur .Sakro, (at 51 K.M. Karachi at right side of the National Highway).
13. In view of undisputed position that the allotment in favour of respondents Nos.4 and 5 was never challenged by the appellant not concerned department had ever called the allotment of 150 acres of land in favour of respondents Nos.4 and 5 as illegal therefore, at this stage in a suit filed by respondents Nos.4 and 5 for declaration and permanent injunction as to the exact location of their land cannot be considered. On the contrary respondent Nos.4 and 5 have fully supported their case by producing allotment orders issued in their favour along with one Abdul Rauf, who had subsequently gifted his 50 Acres of land in favour of respondent No,
5. Form-A placed on record further confirms that the lease money in respect of the properties transferred to respondents Nos.4 and 5 were also paid by them before Mukhtarkar so also respondents Nos.l, 2 and 3 in their comments filed to the appeal have confirmed the allotment of land in favour of respondents Nos.4 and 5 vide order, dated 15-10-1992 by Secretary to Government of Sindh (Land Utilization)
Department Board of Revenue Sindh, in continuation of grant of land to them in 1982-83 to 1992-93.
Only dispute is of the exact location of the lands allotted to both the parties. According to respondent No,5 as stated by him in his statement on oath before trial Court while issuing allotment order in his name and that of respondent No,5 along with Abdul Rauf, from whom he acquired title of 50 acres Mukhtarkar Mirpur Sakro, a sketch was prepared on the back side of this allotment showing its boundaries. As per that sketch lands of respondents Nos.4 and 5 have been shown adjacent to Lath Goth Dhoro on National Highway.
14. It is contended by learned counsel for the appellant that the map. Of 5-2-1983, which has been discussed in- the impugned judgment was never produced by the respondents and without its production the suit has been decreed on the basis of so called map.
15. Arguments advanced by learned counsel for appellant from the record seems to be correct, but still the allotment orders, dated 12-3-1983 as discussed above are sufficient proof of fact that lands of respondents Nos.4 and 5 are those which are adjacent to 'Lath Goth Dhoro' duly signed by Mukhtarkar, Mirpur Sakro, which is confirmed by site sketch said to be prepared by then Tapedar Gharo on 5-2-1983 and available on the record along 'with documents of respondents Nos.4 and 5 with the following demarcation of land of respondents.
NORTH: National Highway from 50 k.m. Milestone to 51 k.m. Milestone. WEST: Lath Goth Dhoro
16. Even if this document of 5-2-1983 for the sake of arguments is not taken into consideration then also other document which is sketch issued by Mukhtarkar Taluka Mirpur confirms the fact that the land of respondents Nos.4 and 5 will fall on left side of National Highway adjacent to Lath Goth Dhoro while proceeding from Dhabejee to Karachi, while that of appellant will fall on the right side.
17. A perusal of record further shows that the very question of demarcation of land was raised earlier before the Deputy Commissioner Thatta. In his letter, dated 12-4-1999 addressed to Senior Member Board of Revenue Hyderabad he was proposed that the joint survey team may carry out the survey after obtaining permission from the Senior Civil Judge where matter is sub judiced. In continuation of this proposal committee has submitted its report which was produced as Exh.l67- EE at the trial stage. Recommendation with reference to the other subjects, which are not relevant to the present case need not to be discussed in the matter, however, so far as the location is concerned it was report that Messrs Al-Noor Fertilizer Industries was allotted 750 acres of land from KM-51 on the right National Highway.
18. Here it will not be out of place to mention that the same issue of demarcation/specification of lands owned by parties was adjudicated in Suits Nos.3/1997 and 21/1999, and observation in both the suits are in favour of respondents Nos.4 and 5.
19. Appellant's witnesses though in his statement has deposed that the land allotted to appellant is in between 50 k.m. To 52 k.m. From Karachi towards Thatta on National Highway at the right side but in subsequent statement he has admitted that he had not seen the land of respondents Nos.4 and 5 but can say that their land is situated at 58 k.m. Stone on the right side if facing from Thatta towards National Highway. At the same time he also admitted that Lath Goth Dhoro is also towards 58 k.m. Stone at National Highway. This statement of appellant's witness though seems to be in contrary to respondents' case but patiently has supported the case of the respondent that the land of both appellant and respondents Nos.4 and 5 are situated on the opposite side of National Highway therefore, any confusion arose to the appellant that the land allotted to respondents Nos.4 and 5 is part of their land of 750 acres is absolutely on very wrong footing with no satisfactory evidence, particularly when the original allotment order of 9-8-1988 in favour of appellant had not been placed on record.
20. In view of foregoing reasons, I do not find any sufficient ground to set aside the concurrent findings of two Courts below, same is hereby maintained and the appeal of the appellant is hereby dismissed along with listed application at Katcha Peshi stage.