' ARSHAD MAHMOOD TABASSUM, J.---This petition under section 115, C.P.C., calls in question judgment and decree dated 4-10-2013, passed by the learned Additional District Judge, Rawalpindi, whereby he dismissed appeal of the petitioners, arising out of judgment and decree dated 14-12- 2011, whereby the learned trial court decreed the suit of the plaintiffs/respondents for possession of House No,300/B-III, Peshawar Road, Rawalpindi Cantt. (suit house) and recovery of mesne profit, as prayed for.
2. Succinctly stated, the facts relevant and necessary for the disposal of the instant petition are that the respondents/plaintiffs on 20-3-1999, instituted a suit for possession of the suit house claiming therein that their predecessor in interest, namely, Haji Ghulam Qadir had purchased the said house from the defendants (petitioners herein) through registered Sale-deed No,2357, dated 14-5-1987 and constructive possession of the same was also handed over to him at the time of registration of the said sale-deed; that at that time, the ,suit house was occupied by Military Estate Office (MEO), which was got vacated by their father and possession of the same was handed over to him; that their late father also applied for transfer of the said house in the record of Cantonment Board and the same was accordingly mutated in his name; that subsequently, the petitioners forcibly occupied the said house; that the late father of the respondents, through intervention of the respectables, tried to get back the possession of the same, whereupon the petitioners demanded an amount of Rs,1,00,000 over and above the sale consideration on the pretext that the suit house was sold by them at less than its market value; that thereafter the petitioners rented out the said house in the year 1992 at the rate of Rs,4,000 per month and the said rate of rent was enhanced to Rs,5,000 per month in the year 1995 and in the year 1998 to Rs,6,250 per month, as such total amount of rent came to Rs,3,61,500 till the institution of the suit and that the petitioners were utilizing the suit house, therefore, they were obliged to pay total amount of rent on account of utilizing the same.
3. The suit was contested by the petitioners/defendants through filing their written statement, wherein they raised several preliminary objections, including limitation, improper valuation of the suit for purpose of jurisdiction and recovery of special costs under section 35-A, C.P.C. Etc. On merits, they pleaded that in fact, the sale agreement, executed between the late father of the respondents and the petitioners, was for a sale consideration of Rs,6,20,000, out of which, an amount of Rs,40,000 was paid in advance vide agreement dated 29-1-1987 and the registered sale-deed was prepared for an amount of Rs,2,30,000, which was not in accordance with the said agreement; that the possession of the suit house was never handed over to the late father of the respondents and that the suit house was illegally transferred in his name by the Cantonment Board authorities without hearing the petitioners; that a Jirga was convened to resolve the dispute between the parties and the said Jirga decided the matter in favour of the petitioners and that in view' of the decision made by the said Jirga, an amount of Rs,2,30,000 was paid to the respondents by the petitioners' side and that the suit was liable to be dismissed.
4. The divergent pleadings of the parties led by the learned trial court to frame the following issues:- ISSUES
(1) Whether the plaintiffs have not come to the court with clean hands? OPD
(2) Whether the suit is barred by law of Limitation? OPD
(3) Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, its effect? OPD
(4) Whether the defendants are entitled to special cost under section 35-A, C.P.C., if so, to what extent? OPD
(5) Whether the defendants have taken the possession of disputed property forcibly and illegally in December, 1987? OPP
(6) Whether the plaintiffs are entitled to the decree for possession of house No, 300/B-111 Peshawar Road, Rawalpindi and manse profit as well as Rs,10,000 per month till the date of decree as charges for use and occupation of suit property? OPP (6-A) Whether the plaintiffs have received back consideration amount as such the sale-deed is without consideration and has no value? OPD
(7) Relief.
5. Both the parties led their pro and contra evidence and ultimately, the learned trial court, vide judgment and decree dated 14-12-2011 decreed the suit. The learned trial court decided all issues in favour of the respondents/plaintiffs except issue No,5, which was decided against them. On appeal, the learned first appellate court maintained the findings of the learned trial court on all issues and dismissed the appeal.
6. It is in this background that the petitioners have preferred the instant revision petition.
7. Learned counsel for the petitioners has argued that judgments of both the courts below are based upon misreading and non-reading of evidence available on record; that both the learned courts below have failed to appreciate that the respondents remained silent for quite a sufficient time and did not come forward to claim possession of the suit house and ultimately, instituted the suit after lapse of more than 12 years and as such not only the suit was barred by time, but also their conduct reflected upon the fact that their claim was baseless; that both the learned courts below failed to appreciate that the petitioners had established on record that a Jirga was convened for the resolution of dispute between the parties and the said Jirga, vide its decision dated 13-8-1990 (Exh.D.4) had resolved the dispute between them, hence, the respondents were no more justified to institute the suit, rather were estopped to bring the same; that it is quite clear in the statement of D.W.1 that Rs,2,40,000 were paid back to the respondents' predecessor in interest in compliance with the decision of the Jirga, hence, the respondents were left with no cause of action to bring the instant suit and that the impugned judgments and decrees are liable to be set aside.
8. Conversely, the learned counsel for the respondents have fully supported the impugned judgments and decrees.
9. I have heard the learned counsel for the parties and I myself perused the documents annexed with this petition.
10. At the very outset, it may be observed that the petitioners are before this Court in its revisional jurisdiction under section 115, C.P.C., and concurrent findings of facts recorded by both the learned courts below are in their way. Moreover, the scope of revisional jurisdiction of this Court is quite narrow and normally the concurrent findings of facts cannot be disturbed in revisional jurisdiction unless this Court comes to the conclusion that the findings of courts below are result of mis- reading or non-reading of evidence available on record or contrary to the settled law. Reliance in this regard may be placed upon the case of the Noor Muhammad (2012 SCM R 1373), wherein the august Supreme Court has ruled out as under:-- . There is no cavil to the proposition that the jurisdiction of High Court under section 115, C.P.C. Is narrower and that the concurrent findings of facts cannot be disturbed in revisional jurisdiction unless courts below while recording findings of facts had either misread the evidence or have ignored any material piece of evidence or those are perverse and reflect some jurisdictional error."
11. Keeping in view the above criterion, it appears that the claim of the plaintiffs/respondents is based upon sale-deed dated 14-5-1987, execution and presentation whereof for registration has not been denied by the petitioners. Even otherwise, the said sale-deed, being a registered document, has presumption of truth attached to it. In para No,1 of their written statement, the petitioners have maintained that the sale was agreed for Rs,6,20,000; However, this plea of the petitioners cannot be entertained in view of recitals of the sale-deed Exh.P.3, which shows that the consideration of the suit house was fixed at Rs,2,30,000 and that the same was received by the petitioners. It is well settled law that no oral evidence can take preference over the documentary evidence. The said sale-deed even still holds the field and has not been challenged or got set aside by the petitioners from any forum. Further circumstance, which strengthens the claim of the respondents/plaintiffs qua the ownership of the suit house is that the same was transferred in the name of their father in the record of the Cantonment Board. Although, it is the claim of the petitioners that the same was got transferred by the 11 predecessor in interest of the respondents at their back, but the fact again remains that the said transfer of ownership in the office of Cantonment Board was also not challenged by the petitioners before the relevant forum. Moreover, an act which was performed in the ordinary course of business has presumption of correctness under the provisions of Article 129 of the Qanun-e-Shahadat Order, 1984.
12. In order to rebut the above positive evidence produced by the respondents, only oral assertions of the petitioners coupled with decision of Jirga (Exh.D.4) are there. The said document cannot be given any weight for the reason that neither scribe nor members of the said Jirga appeared before the learned trial court to prove the same. Needless to mention that in the said document itself, it has been mentioned as under:-- {{URDU TEXT}}
13. Moreover, in the said decision of Jirga, the presence of the parties has not been marked nor their signatures appear. At the top of the said decision, it appears that the predecessor in interest of the respondents was represented by his son, namely, Ahmad Hussain Siddiqui. However, it is nowhere mentioned as to whether the said Ahmad Hussain Siddiqui had authorized the members of Jirga to resolve the dispute on his behalf alone or on behalf other legal heirs of the late predecessor in interest of the respondents, if their predecessor had died by that time. D.W.1 Hassan Khan in his statement has stated that the members of the said Jirga had died, but the petitioners did not produce anybody, who would have been wel 1 conversant with their hand-writing or signatures to prove the said document. He has further stated during cross examination:-- {{URDU TEXT}}
14. In the light of above statement of Hassan Khan (D.W.1), the decision of the Jirga Exh.D.4, loses it value and cannot be relied upon to dislodge the claim of the respondents qua the suit house, which is based upon the registered sale-deed, a document which is an admitted document between the parties.
15. It may be observed that the learned counsel for the petitioners has laid much emphasis on the fact that Exh.D.4 is a document, which has been exhibited in evidence, hence, should be relied upon. In this regard, suffice it to observe that exhibition of a document is one thing and its proof, as prescribed by law, is another thing. Moreover, exhibition of a document does not mean that it stands proved, rather the party relying upon such document, is supposed to prove the same in accordance with law and procedure provided in Qanune-Shahadat Order, 1984. Learned counsel for the respondents, during the course of arguments, has pointed out that the said document was got exhibited by the learned counsel for the petitioners in his absence and that in this regard, an application for de-exhibition of the said document was also submitted by the learned counsel for the respondents before the learned trial court.
16. As regards question of limitation, if the version of the petitioners is taken as correct, the parties remained disputing with each other regarding the suit house up till 13-8-1990, when according to the petitioners, a Jirga gave its decision, meaning thereby till that time, the petitioners were not claiming adverse possession qua the suit house. The instant suit was instituted on 20-3-1999, thus, a period of about 9 years had elapsed, when the respondents instituted the suit. Thus, the suit was not barred by time at the time of its institution. Moreover, there is no plea of adverse possession raised in the written statement of the petitioners. In a suit based on title, Article 144 of Limitation Act is applicable and the period of 12 years would start from the date, when the possession of the petitioners had become adverse to the respondents. In this regard, reliance may be placed upon the case of Muhammad Anwar and another (2007 SCM R 1510), the relevant portion whereof reads as under:- "There has been consensus of judicial opinion that Article 142 of Limitation Act governs a suit based on possessory title while Article 144 of Limitation Act governs a suit based on proprietary title. It may also be observed that possession for any length of time would not be adverse unless it is open, hostile and notorious to the knowledge of the real owner."
17. In the light of above discussion, I am quite clear in my mind that both the courts below have properly and lawfully appreciated the evidence available on record and correctly decreed the suit of the respondents/plaintiffs to which no exception can be taken. This revision petition, therefore, fails and the same is hereby dismissed.