' SHAH JEHAN KHAN AKHUNDZADA, J.---This revision petition is directed against the concurrent findings of the two Courts below whereby the learned trial Court decreed the suit in favour of the respondents/plaintiffs vide judgment and decree dated 3-4-2008 and the same was maintained and upheld by the learned Appellate Court below vide judgment and decree dated 18-2-2012.
2. Short and essential facts of the case are that Sher Aman and others respondents/plaintiffs have brought a suit against Mst.Hussan Hawa petitioners/defendants, claiming declaration to the effect that the suit property measuring 98 Kanal 7 Marla comprising of Khasra Nos.153 to 155, Khata No,2318/5209 to 5212 as per Jamabandi for the year 1997-98 is shamilat of Kandi Boki Khel and they are owners in possession of it and the petitioners/defendants have got no right whatsoever in the same and that gift Mutation No,13040 attested on 22-9-1988 in favour of Mst.Hawa petitioner/defendant No,1 by her deceased husband Mehraban Shah now dead (defendant No,2 in the plaint) is based on fraud, wrong, illegal, ineffective upon the rights of the respondents/plaintiffs and the entries on the basis of the said Mutation needs to be corrected and is liable to be cancelled. In the alternate they also prayed for possession of the suit property.
3. The suit was contested by the petitioners/defendants by filing their written statements and the pleadings of the parties gave birth to the following issues:---
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the plaintiffs are estopped to sue?
(3) Whether the suit is bad for non-joinder of necessary parties?
(4) Whether the suit incompetent in its present form?
(5) Whether in the alternative the defendants Nos.1 and 2 and their predecessor have matured their title through adverse possession for then 12 years?
(6) Whether the predecessors of the defendants Nos.1 and 2 have purchased the suit land through deed dated 13-6-1895 and since then he and his heir defendant No,2 has remained, in possession as owner of the suit land?
(7) Whether the defendants Nos.1 and 2 have made improvements over the suit land if so, to what extent and its effect?
(8) Whether the suit is . Baseless and mala fide and in case of dismissal the defendants are entitled to the special costs for the plaintiffs under section 35-A, C.P.C.?
(9) Whether the suit is within time?
(10) Whether the plaintiffs belongs to Kandi Boki Khel?
(11) Whether this Court has got jurisdiction to entertain the present suit?
(12) Whether the plaintiffs are entitled to decree as prayed for?
(13) Relief.
4. Both the parties produced their evidence in respect of their respective claims and after hearing their learned counsel, the learned Civil Judge-XII,Mardan decreed the suit in favour of the respondents/ plaintiffs against the petitioners/defendants vide his judgment and decree dated 3- 4-2008 and on appeal, the aforesaid judgment and decree was maintained/upheld by the learned Additional District Judge, Mardan vide judgment and decree dated 21-4-2009 the concluding para of the judgment is reproduced as under:- "As a result of foregoing discussion the impugned judgment and decree is upheld with slight modification to the effect that the suit property is declared jointly owned by the entire body of original owners of Kandi Boki Khel as "Lisa Daran" in Shamilat of Kandi Boki Khel, while the possession of the appellant/defendants being long standing, therefore, they should remain in possession till their ouster in due course of law or official partition of "Shamilat" The instant appeal is accordingly dismissed and impugned judgment and decree is upheld with aforesaid modification".
5. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the respondents/plaintiffs filed Civil Revision No,725 of 2009 before this Court which was heard by a Single Bench of this Court and vide short judgment/order dated 4-12-2009 remanded the case back to the learned Appellate Court below with the following directions and observations:-- "These findings are also not based on the record nor reference has been made to the entries therein thus, the impugned judgment if considered from all angles is based on self clashing view, which could not be reconciled at this stage, the learned counsel agreed that let the case shall go to the appellate Court below, who shall reconsider the same and after hearing the arguments shall record elaborate and conclusive judgment/ finding on each and every issue, but strictly according to the record and established facts. With these observations, this petition is disposed of."
6. After remand by this Court, the learned Additional District Judge-III, Mardan after hearing the arguments of the learned counsel for the parties, accepted the appeal of the respondents/plaintiffs, set aside the judgment and decree of the trial Court dated 3-4-2008 and remanded the case back to the trial Court with the direction to obtain amended plaint from the plaintiffs impleading therein all the co-owners of Shamilt Kandi Boki Khel and thereafter to decide the suit on merits, after recording pro and contra evidence vide judgment and decree dated 27-9- 2010.
7. Again the respondent/plaintiffs dis-satisfied from the above remand order by the learned Appellate Court below, have filed Civil Revision No,1884 of 2010 which was again allowed and the case was remanded back to the learned Appellate Court vide judgment/order dated 28-10-2011, the concluding para of the judgment is reproduced as below:-- "As the case was remanded to the District Appeal Court and it was open for the District Appeal Court to decide all these relevant facts both of law and facts itself including the legal defects in the form of the suit but he was not authorised to further remand the case hence, the impugned judgment of the learned District Appeal Court is set aside and the case is remanded to the District Appeal Court with the directions to follow the instructions/directions given in the judgment of the High Court dated 4-12-2009, however, during the course of arguments, it may consider all legal aspects of the case if raised before him by one or the other party and to decide the case accordingly, however, the entire process be completed within three (3) months at the most."
8. After second remand order, on the receipt of the file, learned Additional District Judge-III, Mardan vide judgment and decree dated 28-12-2012 dismissed the appeal filed by the petitioners/defendants and maintained/upheld the judgment and decree dated 3-4-2008 passed by the trial Court. Now the petitioners/defendants have challenged the concurrent findings of both the Courts below through the instant revision petition.
9. I have heard the learned counsel for the petitioners/defendants as well as the learned counsel for the respondents/plaintiffs on preadmission notice and have also gone through the record of the case with their valuable assistance.
10. Although this Court is not called upon the reappraise the evidence on record in exercise of its revisional jurisdiction, yet in the interest of justice, I have gone through the evidence and find that the reasoning recorded by the Courts below are in consonance with the evidence and the revenue record on the file and no prejudice seems to have been caused to the petitioners/defendants.
Learned counsel for the petitioners/defendants has failed to point out any illegality by way of misreading and non-reading of evidence by the Courts below. The learned trial Court as well as Appellate Court have elaborately discussed every aspect of the case and have dealt with the case in detail, leaving no room for further consideration. The learned trial Judge has taken pains to appraise the evidence on record in a correct manner. He neither misread nor omitted from consideration any material piece of evidence. The conclusions drawn by him from the evidence/material on record are fully justified in the circumstances of the case. The learned Appellate Court had valid reasons to affirm the same.
11. The process of examination of evidence for upsetting concurrent findings of fact in exercise of powers under section 115 C.P.C. In my view is neither permissible nor warranted by law. I may also mention here that the High Court while examining a concurrent findings of fact recorded by the Courts below in exercise of its revisional jurisdiction under section 115 C.P.C. Has to attend the reasons given by the Courts below in support of such findings and misreading, non-reading or perverse appreciation of evidence has to be discovered in reasoning of the Courts below to justify interference in exercise of its revisional jurisdiction. Perusal of oral as well as the documentary evidence in the shape of revenue record of the suit land available on file shows that the respondents/plaintiffs are owners of the suit property which is shamilat of Kandi Boki Khel while the petitioners/defendants are recorded as 'Ghair Dakhilkaran' and never remained in possession of the suit property as owners. Moreover, appreciation of the above evidence leads me to hold that the respondents/plaintiffs had fully substantiated their claim through cogent and conclusive evidence and on the other hand no solid, cogent and reliable evidence either oral or documentary has been produced by the petitioners/defendants to rebut the claim of the respondents/plaintiffs.
Thus in view of the evidence on record I am of the considered view that the findings of both the two Courts below on all issues being based on proper appreciation, are well founded. Both the impugned judgments and decrees neither suffer from miscarriage of justice, nor are the result of mis-reading or non-reading of evidence on record. I also find that the learned two Courts below have neither exercised its discretion not vested in it by law nor have failed to exercise jurisdiction so vested in it by law or in the exercise of jurisdiction have acted illegality or with material irregularity.
7. Resultantly, I find no scope to interfere in the concurrent findings of both the Courts below and the same being well founded are maintained and revision petition in hand being devoid of force, is dismissed along with C.M.No,472 of 2012.