Through the instant civil revision under Section 115, CPC, petitioner Sikandar Hayat son of Sardara assails the judgments and decrees dated 18.10.2008 and 15.12.2009. Through the former judgment and decree the learned Civil Judge, Sahiwal dismissed the suit of the petitioner for declaration and permanent injunction, whereas through the latter judgment and decree the learned Additional District Judge, Sahiwal, dismissed the appeal of the petitioner filed against the said judgment ofthe Civil Judge.
2. Facts in brief leading to the filing of the instant civil revision petition are that the petitioner, who is real brother of the respondent-defendant Falaksher, filed a suit for declaration along with perpetual and mandatory injunction against the respondent alleging therein that he is in possession of the suit property consisting of Khata No. 15/15, Khatoni Number 24 to 76 measuring 46 Kanals 04-Marlas, Khata No. 719/728, Khatoni Numbers 2168 to 2169 measuring 0-Kanal 12 Marlas according to the record of rights for the years 1996-1997, total land measuring 46- Kanals 16 Marlas situated in Mouza Harrapa Tehsil and District Sahiwal, fully described in Para No. 2 of the plaint. It is alleged that when Tamleek of suit property came to the knowledge of the petitioner he filed a suit for declaration along with injunction against the respondent in the civil Court, Sahiwal and the same was withdrawn on the oath of the respondent that he would get the property transferred in the name of the petitioner; subsequently the respondent applied to the Revenue Officer that the property in possession of the petitioner be delivered at Supurdari and share of produce be given to him which was against the term of the said oath; that the Tamlee.q is fictitious, fabricated and liable to be cancelled. The suit was contested by the respondent by filing written statement contending therein that the earlier suit of the petitioner was dismissed for non-submission of process fee; that the suit is based on malafide and possession of the plaintiff is illegal and against law.
3. From the divergent pleadings of the parties, the learned trial Court framed the following issues:--
1. Whether the plaintiff is entitled to get the decree for declaration and injunction as prayed for?
OPP
2. Whether the plaintiff has no cause of action to file this suit? OPD
3. Whether the plaintiff is estopped by his words and conduct to file this suit? OPD
4. Whether the suit is false, baseless and frivolous and the same is liable to be dismissed with special cost? OPD
5. Relief.
4. In support of his claim, petitioner-plaintiff appeared as PW-1 and produced one Nota as PW-2.
The petitioner also produced in documentary evidence copy of record of rights Exh.P. 1, copy of Khasra Gardawari Exh.P.2, copy of order dated 16,6.1997 as Exh.P.3, copy of order dated 16.06.1997 as Exh.P-4 in contempt of Court application, copy of Mutation No. 1351 dated 30.01.1978 as Exh.P.5, copy of suit for declaration as Exh. P.6 titled as Sikandar Hayat vs. Falaksher. To rebut the claim of the plaintiff-petitioner, the respondent-defendant Falaksher appeared as DW-1 and also produced Malik Muhammad Razzaq as DW2. In documentary evidence, the defendant-respondent produced copy of statement of Muhammad Afzal as Exh.D-1, copy of statement of Falik Sher as Exh.D-2, copy of order dated 16.08.2000 as Exh.D-3, copy of statements of plaintiff and his counsel dated 16.6.1997 as Exh.D-4, copy-of statement of Falak Sher dated 16.6.1997 as EXh.D-5, copy of order and suit for declaration titled Sikandar Hayat vs. Falak Sher dated 03.10.2000 as Exh.D-6, copy of record of rights of the suit property for the year 1996-97 as Exh.D-7, certified copy of Rept Qanungo dated 06.05.2000 as Exh.D-8, copy of incharge Monitoring Cell Sahiwal dated 11.5.2000 as Exh.D-9
5. I have heard the learned counsel for the parties and perused the material available on the file.
Earlier suit of the petitioner on the same subject was withdrawn by him unconditionally without permission to file a fresh suit vide order dated 16.06.1997. The said order of the learned Civil Judge dated 16.6.1997 is reproduced hereunder:-- "Keeping in view the statement made by the learned counsel for . the plaintiffs, the parties have come up to a compromise. They have no objection if the suit is dismissed. Therefore, the suit of the plaintiff is hereby dismissed as having been withdrawn. No order as to costs. The file be consigned to record room after its due completion. Announced Sd/- Muhammad Zafar Iqbal 16.06.1997 Civil. Judge, Sahiwal"
It is provided in Rule (3) of Order XXIII of CPC that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by way of lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit. The plaintiff did not mention in the plaint or the PWs in evidence the date, time and place where compromise or oath was effected. There is also no evidence brought on the file to show that the defendant agreed to alienate the suit property in the name of the plaintiff-petitioner. Therefore, it is held that there was no compromise effected between the parties in accordance with Rule 3 of Order XXIII, CPC. Further, petitioner's earlier suit was dismissed for non-deposit of process fee which was filed on 25.07.2007.
Petitioner's claim for ownership of the disputed land has not been proved through - evidence. He did not mention any details of fraud and forgery in the plaint or in oral evidence. He suppressed the fact that his earlier suit for declaration had been dismissed because of non-submission of process fee. Further, to prove Issue No. 1 regarding entitlement of the plaintiff-petitioner to get a decree for declaration, plaintiff himself appeared as PW-1 and also produced one Nota as PW-2, but they could not prove the issue through evidence. Issue No. 2 regarding cause of action to file the suit by the plaintiff was also decided against him and in favour of the defendant by the trial Court. As regards Issue No. 3, the plaintiff admitted in evidence that prior to the instant suit he had filed a suit of same nature and on the same cause of action in respect of the same property. Copy of the said suit was produced in evidence as Exh.P.6. The plaintiff and his son Afzal further admitted that they cultivate the land of defendant-respondent. The plaintiff in Para 3 of the said previous suit Exh.D-6 admitted that he filed the suit in respect of the same land which was dismissed being time barred.
Therefore, the defendant-respondent has been able to prove this Issue No. 3 against the plaintiff and it is held that the plaintiff was estopped to bring the instant suit. As for Issue No. 4, the defendant has failed to prove by evidence that he is entitled to receive special costs under Section 35-A, CPC, therefore, the said issue was rightly decided against the defendant-respondent.
6. The suit of the petitioner has rightly been dismissed by the learned Civil Judge with cogent reasons. His appeal has also rightly been dismissed by the learned Additional District Judge. No misreading or non-reading of any record has been committed by both the Courts below. When there are concurrent findings with regard to facts and law, unless there is jurisdictional defect in the orders passed by the two Courts below; the High Court cannot interfere in the said concurrent findings in exercise of power under Section 115, CPC. Reliance is placed on the cases reported as Rashid. Ahmad vs. Said Ahmad (2007 SCM R 926), Hakim-ud-Din through L.Rs. and others vs. Faiz Bakhsh and others (2007 SCM R 870), Imam Din and 4 others vs. Bashir Ahmed and 10 others (PLD 2005 SC 418) and Muhammad Bashir and another vs. Province of Punjab through Collector of District Gujrat and others (2003 SCM R 83). There is no jurisdictional defect also in the orders of both the Courts below.
7. For the reasons discussed above, I find no force in the civil revision, which is dismissed with no order as to costs.