' SADIQ HUSSAIN BHATTI, J.---Through this common judgment, I propose to dispose of the above two Revision Applications.
2. Facts of the case leading to the filing of the present Revision Applications are that applicants Khamiso Khan and others filed FC Suit No,103 of 2009 against respondents Jamaluddin and others in the Court of II Senior Civil Judge, Khairpur for declaration and permanent injunction; wherein it was averred that S. No, 17(2-18) acres and others of Deh Saido, Taluka Nara, District Khairur were originally owned by Rakhiyal Khan Mari, Khuda Bakhsh Mari, Qadir Bakhsh Mari and Amin Bakhsh Mari on the basis of enquiry and order dated 27-4-1937 passed by the Enquiry Officer holding them as . Full owners of the disputed survey number and others with further orders that disputed survey number and other lands may be mutated in the Land Register in their names as full owners.
Subsequently, Rakhiyal Khan Mari expired leaving behind Habib Khan Mari as his legal heir and later on he also expired leaving behind plaintiffs Nos. 4 and 6 as his LRs, Khuda Bakhsh Mari expired issueless. Qadir Bakhsh Mari expired leaving behind plaintiff No,1 and Muhammad Bachal as sons.
Later on Muhammad Bachal also expired leaving behind plaintiffs Nos.2 and 3 as his LRs, Amir Bakhsh Mari also expired leaving behind plaintiff No, 7 as his LR. On expiry of the above named persons, the disputed survey number and other lands were inherited by the plaintiffs as per Islamic law and they privately partitioned the same amongst themselves on the basis of family arrangement and through such family arrangement the disputed survey number was given to the applicant which was a Qabooli land. This disputed survey number was granted by the Assistant Revenue Officer, Sukkur Barrage, Khairpur to respondent' No, 1 vide order dated 21-4-1983 on harrap conditions and the same was mutated in his favour in the revenue record vide order dated 18-3- 2003. Since the applicants were aggrieved by such mutation they filed the above suit with the following prayers:- "(i) That it may be declared that the plaintiff No, 1 is absolute owner of the disputed survey number and order dated 21-4-1984 and order dated 18-3-2003 passed by defendants Nos. 2 and 4 are ipso facto illegal, void, ab initio, nullity in the eye of law, mala fide without known jurisdiction and not binding against the plaintiffs.
(ii) Permanent injunction may be granted in favour of plaintiff No,1 restraining the defendants from interfering with the rights, possession and enjoyment of the plaintiff No,1 over disputed survey number in any manner whatsoever."
3. The respondent No,1 herein, namely, Jamaluddin, also filed FC Suit No, 149 of 2009 inter alia against the applicants in respect of the same survey number for declaration, possession, cancellation, mesne profits and permanent injunction in the same Court on 4-11-2009. In his written statement filed by respondent Jamaluddin in Suit No, 103 of 2009 as well as in the plaint of the suit it was averred that the disputed land, bearing Survey No, 17 (2-8) acres and other lands were announced in schedule for disposal of Na-Qabooli land and Barrage land by the Government of Sindh. The respondent No,1 applied for grant of Survey No, 17(2-8) acres and open Katchery was held on 21-4-1983 by Colonization Officer, Sukkur Barrage camp at Sorah and granted the said survey number to the respondent No,1 as he was in cultivating possession thereof. He paid all the instalments and such T.O. Form VII dated 9-7-1999 was issued duly countersigned, by Colonization Officer Sukkur Barrage, Hyderabad. Thereafter Khata was mutated in the revenue record vide entry No,380 dated 18-3-2003 and he became full owner of the said land. Applicant No,2, namely, Qadir Bakhsh, was his hari since 2000-2001 but in the year 2007 he stopped paying him the batai share.
He (applicant No,2), in order to save himself from vacating the said land, managed an enquiry report dated 27-4-1937 in favour of his elders. In these circumstances, the respondent filed the said suit with the following prayers:
(i) That this honourable Court may be pleased to declare the plaintiff as grantee/owner of suit land/S.No,17/2-18 acres of Deh Saido Taluka Nara District Khairpur.
(ii) To direct the defendants to vacate the suit land and hand over its vacant possession to plaintiff, if they fail to do so, to direct the Nazir of this Hon'ble Court get vacated the possession and hand over to plaintiff.
(iii) To cancel the enquiry report dated 24-4-1937.
(iv) To award mesne profits of suit land since 2007 upto handing over the possession of suit land.
(v) To issue permanent injunction restraining the defendants or anybody under them from creating further Charge or encumbrance upon the suit land through alienation or otherwise or interfering in any manner with the fights, title and interest of plaintiff over the suit land.
4. In response to the notices issued to the defendants in the above suit, defendants Nos. 1 to 7 filed their written statements in Which they denied the contents of the plaint and reiterated the contents of their suit No, 103 of 2009. Both these suits i.e, Suit No, 103 of 2009 and 149 of 2009 were consolidated by order dated 18-12-2009 and Suit No, 103 of 2009 was treated as the leading suit.
The learned trial Court framed as many as 11 issues and by a common judgment dated 31-2-2011 and decree dated 3-2-2011 decreed suit No, 149 of 2009 in favour of the respondent herein and dismissed Suit No 103 of 2009 filed by the applicants. It is against this judgment that the present revision applications have been filed.
5. When these two revision applications came up for hearing at Katcha Peshi stage on 3-3-2014, it was jointly requested by the learned counsel for the parties that the same may be heard and decided at the Katcha Peshi stage. Accordingly, arguments were heard and the matter was reserved for judgment.
6. The main ground taken by the learned counsel. For the applicants was that no points for determination were framed by the learned appellate Court and therefore, the impugned judgment is in violation of the provisions of Rule 31, C.P.C. Learned counsel further submitted that the appellate Court decided the entire case only on the basis of one issue and did not give finding on any other issue. Learned counsel further contended that though concurrent findings have been recorded against the applicants by the two Courts below but this is not an absolute rule of law that concurrent findings of the courts below cannot be disturbed by the High Court as the High Court is fully empowered to set aside the judgments of the two Courts below if the same are found to be against the record or are based on misreading or non-reading of evidence. In support of his contentions the learned counsel relied on the following case law:--
(1) Muhammad Bakhsh v. Elahi Bakhsh (2003 SCM R 286),
(2) Imam Dino v. Nawaz Ali Shah (2003 CLC 1889),
(3) Saif Ullah v. Wariarul Haq (2012 CLC 899), and
(4) Muhammad Ameer v. Mst. Fajjan (2012 CLC 1663).
7. On the other hand, learned counsel for the respondent contended that no illegality in the impugned judgment has been shown by the counsel for the applicants and as such, no interference from this Court is required. He also submitted that there are concurrent findings of the two Courts below against the applicants and, therefore, this Court, while exercising revisional jurisdiction under section 115, C.P.C., cannot reverse the same unless it is shown that the findings of the Courts below suffer from illegality, misreading or non-reading of the evidence. He further submitted that no such illegality or misreading or non-reading was pointed out. The learned counsel relied on the following cases:
(1) Muhammad Shah v. Sher Khan (PLD 1994 SC 294),
(2) Alaingir Khan v. Haji Abdul Sittar Khan (2009 SCM R 54),
(3) Bashir Ahmed through L.Rs, and another v. Muhammad Ali through L. Rs, (2007 SCM R 1047), and
4. Muhammad Bux v. Muhammad Ali (1984 SCM R 504).
8. I have heard the learned counsel for the parties and have perused the record with their assistance and the case law cited before me.
9. The main contention of the learned counsel for the applicants was that the impugned judgment is in violation of the provisions of Order XLI, Rule 31, C.P.C. In this regard he relied on the case of Imam Dino and others (supra) wherein a learned single Judge of this Court observed that the trial Court while deciding the case had given elaborate findings on each issue framed by it but the Appellate Court disposed of the appeal against the judgment of the trial Court by a summary and slipshod order and further held that non-compliance of provisions contained in Order XLI, Rule 31, C.P.C. Had rendered the judgment of the Appellate unsustainable in law. It was further held that the Appellate Court was required to give its decision on each and every point for determination and contention raised for and against should be disposed of by a speaking order.
10. In the present case, the appellate Court dismissed the appeals filled by the applicants on two grounds: viz. (i) that the applicants were unable to prove that the disputed and some other lands were owned by Rakhiyal Khan Mari, Khadim Hussain Mari and Kadir Bakhsh Mari. On the basis of enquiry report dated 27-4-1937 and (ii) that no appeal was preferred by the applicants before the Revenue Forum against the grant of order and mutation entry in favour of the respondent. The first point relates to the actual controversy between parties and was to be decided on the basis of evidence. The applicants were not able to produce any evidence in support of their claim that the said lands were owned by the above persons. It was the case of applicants that the disputed land and other lands were owned by the above named persons and after their death the same devolved on them and the disputed survey number was given to the applicant No,1 pursuant to a family arrangement. However, when the applicants failed to produce any official witness in order to prove the genuineness of the enquiry report dated 27-4-1937 then the very foundation of their claim vanishes. No witness was produced by the applicants to prove the genuineness of the said enquiry report. Thus, the applicants were not able to shift the burden on the respondent. On the other hand, the claim of the respondent was that he was granted the land the said land i.e, S. No, 17, in an open Katchery held by the Colonization Officer Sukkur Barrage camp on 21-4-1983 and then he paid all the instalments and such T.O. Form VII dated 9-7-1999 was issued to him and such entry was also made in the record of rights. All these facts are borne out from official record. These facts were also proved before the trial Court by oral as well as documentary evidence. Therefore, once the main contention of the applicants that the land in dispute and other lands were owned by Rakhiyal Khan Mari and others was found to be incorrect there was no need to proceed any further and the finding on this issue was enough to decide the fate of the appeal.
11. The other ground on which the appeals were dismissed was that no appeal was preferred by applicant Khamiso Khan before the Revenue Department against the grant of order and mutation entry in favour of the respondent. The trial Court, relying on the case reported as Hawaldar Sarwar Khan through Attorney v. Sindh, Revenue Department, through Deputy Commissioner, Shikarpur Govt. Of (1998 CLC Kar. 382), also held that since the mandatory requirement of section 11 of Sindh Revenue Jurisdiction Act, 1876 was not complied with thus the suit filed by the applicants was incompetent. The appellate Court concurred with the trial Court on this point.
12. In view of the above two findings by the learned Appellate Court, there was no need to discuss the other issues as no injustice was done to the applicants by doing so. In the case of Muhammad Iftikhar v. Nazakat Ali (2010 SCM R 1868), the Hon'ble Supreme Court held that the Appellate Court was not always required to deal with each of the issues and to resolve the same separately in the light of evidence available on record unless the same had caused any serious violation of law or resulted into a grave miscarriage of justice to any of the parties to the suit. It was further held that findings of facts recorded by Trial Court on the issues were maintained by lower Appellate Court, therefore, unless findings were reversed by lower Appellate Court, which was not so, decision on each issue might not be distinctly and essentially recorded, provided in substance compliance of the provisions of 0. XLI, R. 31, C.P.C. Had been made.
13. In the case of Hail Muhammad Din v. Malik Muhammadn Abdullah (PLD 1994 Supreme Court 291) it was held that "it is well-settled law that a concurrent finding of facts by two Courts below cannot be disturbed by the High Court in second Civil Appeal much less in exercise of the revisional jurisdiction under section 115, C.P.C., unless the two Courts below while recording the finding of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding recorded by the two Courts below is perverse. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. Is still narrower.
The High Court in exercise of its jurisdiction under section 115, C.P.C. Can only interfere with the orders of the subordinate Courts on the grounds, that the Court below has assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity affecting its jurisdiction in the case. (See Umar Dad Khan v. Tila Muhammad Khan, PLD 1970 SC 288, Muhammad Bakhsh v. Muhammad Ali 1984 SCM R 504, Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 89 and Abdul Hameed v. Ghulam Muhammad 1987 SCM R 1005). Under this jurisdiction the High Court only corrects the jurisdictional errors of subordinate Courts. The fact that the High Court while reappraising evidence on record reached a conclusion different from those arrived at by the two Courts below, could never be a ground justifying interference with a finding of fact much less a concurrent finding recorded by the two Courts below on the basis of evidence produced before them, in exercise of its revisional jurisdiction under section 115, C.P.C.
14. In view of the above, I am of the considered view that the appeals filed by the applicants were rightly dismissed by the appellate Court. These revision applications, being devoid of any merit, are hereby dismissed and the impugned judgments and decrees of the Courts below are maintained.
The listed applications also stand disposed of.