' SHAH JEHAN KHAN AKHUNDZADA, J.---This revision petition has been directed against the judgment and decree dated 25-2-2010 of the learned Additional District Judge-VII, Peshawar whereby appeal preferred by the defendants/petitioners against the judgment and decree dated 31-10-2009 of the learned Civil Judge-I, Peshawar.
2. Brief facts of the case are that in the earlier round of litigation Sher Muhammad and others, plaintiffs/respondents have filed suit bearing No,19/1 of 1982 for possession through partition in respect of the suit property fully described in the heading of the plaint. After conclusion of the trial, the said suit was dismissed by the trial Court vide judgment and decree dated 23-1-2006 being barred by time. The plaintiffs/respondents preferred an appeal, before the learned appellate Court where they had also moved an application for withdrawal of the said appeal to which the opposite side had no objection therefore, the said application was allowed and the appeal was dismissed as withdrawn and the appellants (now respondents/plaintiffs) were allowed to file fresh suit on payment of cost of Rs,500 to be paid to the respondents (defendants/appellants herein) at the time of institution of a fresh suit vide judgment and decree of the learned Addl. District Judge-XI, Peshawar dated 21-2-2007.
3. In the light of the above decision dated 21-2-2007, the respondents/plaintiffs filed a fresh suit by adding a prayer for declaration in the plaint which was not made in the earlier plaint. Since no fresh grounds of new facts were agitated in the latter suit therefore, the defendants/petitioners did not deem it necessary to submit fresh written statement and relied on the earlier one dated 13-9- 1990. Likewise, the defendants/petitioners have also not produced fresh evidence and relied on the evidence already recorded in the earlier suit. After hearing the learned counsel for the parties, at this time the learned Civil Judge-I, Peshawar vide his judgment and decree dated 31-10-2009 passed the preliminary decree for partition of the suit property in favour of the respondents/plaintiffs against the defendants/petitioners.
4. Feeling aggrieved the defendants/petitioners preferred an appeal bearing No,4/13 of 2010 and vide judgment and decree dated 25-2-2010 of the learned Additional District Judge-VII, Peshawar he dismissed the same, hence the instant revision petition against the concurrent findings of the courts below.
5. Learned counsel appearing on behalf of the defendants/ petitioners argued that the findings of the courts below in decreeing the suit of the plaintiffs/respondents and their appeal suffer from misreading and non-reading of material evidence on record and also from wrong appreciation of facts on record. The courts below have acted illegally in the exercise of jurisdiction vested in it and have grossly erred by relying on the evidence which is pregnant with infirmities and contradictions.
Additionally, it was further argued that sale deeds in favour of the defendants/petitioners executed in the year 1959 were of more than thirty years old documents and they are in possession of the suit-land since then by constructing houses thereupon therefore, the suit filed by the plaintiffs/respondents for declaration in the year, 2007 was hopelessly barred by time and on this score only it was liable to be dismissed under Order XXIII, Rule 2, C P.C. Thus, both the judgments and decrees of the courts below are liable to be set aside.
6. Conversely, learned counsel for plaintiffs/respondents contended that the judgments and decrees passed by the courts below are well reasoned and in accordance with law. He defended the impugned judgments/decrees and submitted that no case of misreading and non-reading of evidence has been made out and thus, the concurrent findings of facts supported by material on record cannot be disturbed under section 115 of C.P.C.
7. It is true that the High Court in exercise of its revisional jurisdiction is competent to set at naught the concurrent findings of facts of two courts below if it is satisfied that the findings are based on misreading or non-reading of evidence, therefore, concurrent findings of facts do not always stand in the way of the High Court to set them at naught in the appropriate cases. If the court commits an error in the mode which calls for interference by this Court in exercise of its jurisdiction, then the High Court has the power to interfere under section 115, C.P.C.
7(sic) Perusal of the record shows that Mst. Umra Jan and Mst.Rekhmina were only the two daughters of Sherin and after the death of their father and as per statement of patwari halqa (P.W.1) the legal representatives of both the ladies are entitled to 3-kanal 4-marla each. The claim of the plaintiffs/respondents is that they being the legal heirs of the aforesaid two ladies, are entitled to half share in the legacy of Sherin, predecessor-in-interest of Mst. Umra Jan and Mst.
Rekhmina, while the stance of the defendants/petitioners is that Mst. Umra Jan has sold out her share out of the suit property during her life time and nothing left for the plaintiffs/respondents in her legacy. As per the revenue record available on file the aforesaid ladies have jointly sold out of 2 Kanal 2 Marla of the property through Mutation, No,1602 dated 7-3-1973. In the written statement, the defendants/petitioners have claimed that they have purchased the suit property in the year, 1959 through registered deed from Nawaz Khan, Ghiyaz Khan and Madad Khan who purchased it from Mst. Umra Jan and since then they are in possession of the same and have constructed houses thereon. The earlier suit bearing No,67/1 filed by the plaintiffs/respondents was dismissed being hopelessly barred by time vide judgment and decree of the trial Court dated 23-1-2006.
According to the plaint, the present suit was filed with permission by the learned appellate court whereby the earlier suit was withdrawn with permission to file a fresh one. There is no cavil with the legal proposition that withdrawal of first suit limitation is to be reckoned from date of filing of earlier proceedings, as once limitation starts on same cause of action, then it does not stop. Since the earlier suit was dismissed being hopelessly barred by time, thus, the instant suit filed in the year, 2007 is also liable to be dismissed on this score. In any case, learned trial court was under legal obligation to see the factual controversy involved in the matter whereas in this case, the learned trial court did not put any efforts to resolve the controversy factually involved. As regards the findings of the learned appellate court, those are also result of jurisdictional defect and material irregularity. The learned appellate court before whom the appeal was filed against the judgment and decree of the trial court, should have exercised the jurisdiction vested in it whereas the learned appellate court has simply upheld the judgment of the learned trial court without going into the merits of the case and has not uttered even a single word on the point of limitation. So, the judgments and decrees impugned herein are not sustainable in the eye of law and are liable to be set aside.
7(sic) Resultantly, this revision petition is accepted, judgments and decrees of the learned two courts below, having not been based on proper appreciation of evidence and the suit being hopelessly time barred are set aside and thus, the suit filed by the plaintiffs/respondents stands dismissed with costs.