' CH. NAEEM MASOOD, J.--- This civil revision is directed against the judgment and decree dated 9- 2-2007 passed by learned Additional District Judge, Rajanpur; whereby the judgment and decree dated 16-6-2006 passed by learned Civil Judge, 1st Class, Rajanpur was set aside and the suit filed by the petitioners/plaintiff was dismissed.
2. The facts in brief are that the petitioners/plaintiffs filed a suit for possession about the property in dispute pleading therein that one Allah Bakhsh was the owner of the property in dispute and that Muhammad Bakhsh son of Allah Rakha purchased the said property on 31-10-1945 and that Allah Rakha the predecessor-in-interest of the petitioners has expired and the petitioners being his legal heirs are owners of the suit property. That the property in dispute was taken as a temporary residence so as to return the same on demand and that the petitioners had made persistent demands but the respondents did not vacate. The suit was contested by the respondents. After the trial, the suit was decreed on 31-7-2003 in favour of the petitioners against which an appeal was filed and the case was remanded by the learned appellate Court for framing additional issues to the following effect:---
(i) Whether description of the suit property is incorrect, if so, what is the correct description of the property and its effect? OPD.
(ii) Whether the suit of the plaintiff is not maintainable? OPD.
3. Both the parties produced their respective evidence in connection with the afore-said additional issues also and after recording evidence of the parties on the additional issues, the learned trial Court again decreed the suit in favour of the plaintiff vide its judgment and decree dated 15-6- 2006. The respondents filed an appeal, which was accepted by the learned Additional District Judge Rajanpur vide the impugned judgment dated 9-2-2007.
4. The learned counsel for the petitioners contends that the evidence of P.W.1, P.W.2 and P.W.3 has supported the version of the petitioners.
5. Conversely the learned counsel for the respondents has submitted that D.W.1 has given a clear picture of the heritage and has deposed that the petitioners are sons of Allah Rakha. The name of father of Allah Rakha was Sumar and his father's name was Ghulam Rasool and name of their grandfather was Pehlwan. Pehlwan and Sumar were real brothers. Sumar was sole son of Allah Rakha, while there were two sons of Pehlwan and they were having half share each in the suit property and that the petitioners and respondents are in possession of the property according to their respective shares. It is further contended from the evidence of the D.W.1 that 25 years ago, the petitioners shifted to Kashmore and their share is still lying at the spot and some of the said property had been sold out. He further contended that D.W.2 Allah Ditta had deposed that the legal heirs of Pehlwan are residing in the disputed house according to their respective shares and share of the petitioners is still lying vacant at the spot. D.W.3 Gul Muhammad also supported the evidence of the other D.Ws.
' Apart from the oral evidence a registered sale-deed of the year 1932 has been placed on the file and the learned counsel contends that according to the contents of the afore-said registered document, Sumar predecessor-in-interest of the petitioners/plaintiffs had sold out half share of the suit property to one Muhammad Bakhsh son of Mian Allah Wasaya. But a separate note is given on the backside of the last page of registered sale-deed that the property, which was purchased by afore-said Muhammad Bakhsh from Allah Rakha, had been re-sold to Allah Rakha.
6. I have heard the learned counsel for the parties and have seen the record minutely.
7. The oral as well as documentary evidence of the petitioners/ plaintiffs has given two versions. On one side they have asserted that they are sole owners of property of Allah Rakha, and successors- ininterest of Pehlwan have no concern with the same. On the other side, their version is that according to note dated 31-10-1944, the property which was sold by them, has been returned to them by the transferee Muhammad Bakhsh to whom they had' already sold by way of registered sale-deed. Both these versions, apart from being divergent, appear to be unbelievable. The petitioners have failed to prove ownership of Allah Rakha, their predecessor-in-interest. The only thing proved is a sale by Sumar son of Allah Rakha by way of afore-said registered sale-deed.
Similarly, a shadow of doubt is cast upon the note dated 3110-1944.
' This note has not been proved in accordance with law. Muhammad Bakhsh purchaser of the property who is alleged to have re-sold the same to the petitioners through afore-said note, has not been produced in the witness box. The evidence of Muhammad Bakhsh is the best evidence in this regard. The best evidence having not been produced, the contention of the petitioners with regard to the ownership of the property in dispute gets shattered. It has been laid down by Honourable apex Court of Pakistan, as well as of India, that best evidence must be produced in the case and should not be withheld. Some of the decisions are as follows:---
(i) Sardar v. Gurdial AIR 1927 PC 230 ' It was held by the Honourable Privy Counsel that the testimony of the parties of knowing something must be in the Court as evidence on oath and not otherwise.
(ii)) Bajranglal v. Sheeta Ram AIR 1949 Cal. 457 ' Relying on AIR 1928 PC 39 it has been held that the parties failing to call as his witness the principal person involved in transaction who is in position to give first hand account of matter in controversy and throw light on them and who can refuse allegations of other side is fatal to the case. It is legitimate to draw adverse influence against such party.
(iii) Ramchand v. India AIR 1962 Bombay 92 ' Held---failure to produce the best evidence presumption is against such party.
(iv) Virendra v. Jagjivan AIR 1974 SC 1957 ' Held---non-production of material witness is fatal to the case.
(v) Bhagwan v. Bhishan AIR 1974 Punjab 7 ' Held---material witness not appearing in Court. It is fatal to the case.
(vi) Mst. Kamina v. Al-Amin 1992 SCM R 1715 ' Held---that the facts within special knowledge of person must be established by him personally.
(vii) Iswa r v. Harihar AIR 199(sic) SC 1341 ' Held---best evidence to be produced. Otherwise an adverse influence shall be drawn.
8. In a suit for possession under section 8 of the Specific Relief Act, on basis of the title like the present case, the plaintiff is under bounden duty to establish his ownership without any shadow of doubt.
' No exception can be made to the impugned judgment and decree passed by the learned lower appellate Court. It has been held by this Court and the Honourable apex Court that the burden of proof on a party is to be discharged unclinchingly and not with shaky evidence.
' Besides, the learned counsel of the petitioners has failed to bring the case under the parameters of revisional jurisdiction. No jurisdictional error or illegality in the impugned judgment has been shown. It is noteworthy to mention that the parameters of the revisional jurisdiction are well defined in NS Vehkatagiri Ayyangar's case PLD 1949 PC 26 as follows:--- "This section empowers the High Court to satisfy itself upon three matters; (1) that the order of the subordinate Court is within its jurisdiction; (2) that the case is one in which the Court ought to exercise jurisdiction; and (3) 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."
' The same views has been reiterated in Abdul Ghafoor v. Kallu 2008 SCM R 452, wherein it has been held that non-reading and misreading of the material evidence can only be agitated in the revision petition under section 115, C.P.C.
9. In sequel thereof the order dated 9-2-2007 passed by the learned Additional District Judge, Rajanpur is upheld, and the revision petition is hereby dismissed.