' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- This Civil Revision Petition is directed against the judgment and decree dated 7-9-2004 passed by the learned Senior Civil Judge-IV Quetta ("trial court") in Civil Suit No,80 of 2002, whereby the suit for 'Possession and Permanent Injunction' filed by the plaintiff (hereinafter the petitioner) was dismissed judgment was assailed through Civil Appeal No,42 of 2005 before the learned Additional District Judge-III, Quetta ("appellate court"), who vide judgment dated 14-10-2006 upheld the judgment and decree passed by the learned trial court.
2. Briefly the facts of the instant revision petition are that the petitioner filed a civil suit for "Possession and Permanent Injunction" against the defendants (respondents) on the strength that he is the owner of super-structure of a building known as `Kabir Building', while the land underneath belongs to the Cantonment Board Quetta, which was leased out in his favour vide lease deed dated 29-4-1981 for a period of ninety nine years. It was narrated that in fact the said building was constructed by his father namely Muhammad Kabir, which consists of five blocks and his late father during his life time had distributed the said property among his legal heirs in the following manner.
(1) Share of Gul Muhammad, Block-A.
(2) Share of Munir Ahmed, Block-B. (Petitioner)
(3) Share of Sher Muhammad and his two sons, Block-C.
(Legal heirs of respondent No,3 delisted).
(4) Share of Sardar Khan and his daughter, Block-D.
(5) Share of Khair Muhammad and his three sons (Respondent No,1) Amir Muhammad (Respondent No,2) and Ghulam Muhammad, Block-E.
' He further stated that in Block-B two rooms and two godowns' identified as postal F-4 and postal F-5 inclusive of godowns Nos.1 and 2 of the suit property exclusively belong to the petitioner. The rooms were allowed to be retained by defendant No,1/respondent No,1 for a temporary phase, while godowns were given to defendant No,2/respondent No,2 for personal use but purely on temporary basis. He alleged that instead of utilizing the suit property for their personal occupation the respondents rented out the same against a huge amount on monthly rent. Initially, the petitioner was unaware that the property had been rented out. Now the said property- was required for his personal bona fide requirement, therefore, he prayed that the same be handed over to him after passing a decree for possession and permanent injunction against the respondents.
3. On receipt of notices, the respondents appeared and filed their joint written statement, wherein they had controverted the claim by raising certain legal objections and categorically denied the facts pleaded by the petitioner. The gist of their contention was that the suit property situated in Kabir Building belongs to their predecessor-in-interest and same was constructed by him, however in terms of family arrangement the properties were distributed among the legal heirs but was not partitioned on ground, therefore, the title of the petitioner was seriously disputed. During the pendency of the case, the respondent No,3 viz Sher Muhammad (Brother of the parties) filed an application under Order I, Rule 10 of Code of Civil Procedure, 1908 seeking to be joined as defendant, which was accepted and he was allowed to be arrayed as defendant No,3.
4. In view of the controverted pleas entered by the parties the learned trial court framed the following issues:--- "(1) Whether plaintiff is the owner of Super Structure of the property in dispute?
(2) Whether the property in dispute is a joint shared property, if so who are the sharers and to what extent?
(3) Whether the plaintiff is entitled for the relief claimed for?
(4) Relief? "
' The petitioner produced three oral witnesses and one official witness in respect of record of ownership of the suit property and finally got his statement recorded. Respondents produced two witnesses and statement of their attorney was recorded.
5. On conclusion of trial the judgment and decree dated 7-9-2004 was passed and the suit filed by the petitioner was dismissed. The judgment and decree of the learned trial court was assailed before the District Judge in appeal, which was subsequently transmitted to the file of learned Additional District Judge-III, Quetta, whereby the appeal was also dismissed vide judgment dated 14-10-2006. Both the said judgments were assailed in this petition.
6. Mr. Ayaz Swati, learned counsel for the petitioner contended that PW-2 viz Muhammad Safeer, the representative of Military Estate Officer produced the extract of record pertaining to ownership of suit property and a lease deed showing the lease hold rights of the petitioner over the suit property. He further stated that the oral evidence produced by the petitioner is more reliable as PW-1 and PW-4 are sons of ' respondent No,3, whereas PW-2 is the real brother of the parties, while the witnesses produced by the respondents including the attorney are sons of respondent No,1 viz Khair Muhammad. Thus, when excluding the oral evidence, the documentary evidence shows the ownership of the petitioner over the suit property, while the defendants/respondents were unable to substantiate their claim on basis of documentary evidence. He urged that the judgments passed by the courts below are perverse, nonspeaking and based on non-reading of evidence; therefore, after setting aside the impugned judgments and decrees the suit filed by the petitioner may be decreed.
7. Mr. Mushtaq Anjum, learned counsel for respondents Nos.1 and 2 contended that the witnesses produced by the petitioner were not only contradictory among them but were also at variance from the pleadings of the petitioner. He referred to the documentary evidence produced by the petitioner and pointed that the same relates to Block-B of Kabir Building, while the suit property is separated and distinctive portion, which is in possession of respondent Nos.1 and 2 from the time when predecessor-in-interest of the parities was alive, who passed away in the year 1996, while the rooms and godowns relating to suit property were constructed in the year 1981. He added that due to some taxation issues the predecessor of the parties distributed the properties among the legal heirs in documents only, except the suit property the whole Kabir Building was at the disposal of their predecessor, who himself was recipient and the respondent No,1 was collecting the rent till his death. He stated that after his death the parties and other legal heirs of their predecessor have entered into possession in lieu of inheritance but no physical partition on ground has ever taken place, therefore, the parties and other legal heirs have strained relationship due to non-partition but the dispute between the parties is in respect of rest of the properties and except the petitioner no one else claimed in respect of suit property. He finally referred to the report compiled by the learned Local Commissioner appointed with consent of the parties on 10-12-2004, who in her report mentioned that according to the record and physical inspection no such property known as Postal F-4 and Postal F-5 was found. He finally urged that in such view of the fact, when no objection was filed against the report of learned Local Commissioner no occasion was available to the petitioner to claim the ownership and sought possession over the suit property. He finally added that the concurrent findings of fact arrived at by the learned trial court and the appellate court cannot be disturbed under the revisional jurisdiction of this court.
8. The perusal of case file reveals that initially the predecessor of respondents Nos.3-A to 3-E namely Sher Muhammad was allowed to join as defendant before the learned trial court but after his death, though his legal heirs were arrayed as respondents Nos.3-A to 3-E but upon their statement that they do not have any concern with the issue in dispute, therefore, their names may be deleted from the array of respondents. The needful was accordingly done vide order dated 27- 7-2012 passed by this court and respondents Nos.3-A to 3-E were delisted from the array of respondents.
9. I have heard the learned counsel for the parties and perused the record with their valuable assistance. Perusal of plaint reveals that in para 1, the petitioner stated that he is an exclusive owner of superstructure of Kabir Building in which the suit property is also included and in para 2 he stated that the said ::.Abir Building was constructed by his father. In para 3 he again reiterated by specifying that the suit property known as Postal F-4 and Postal F-5 including two godowns are under his exclusive ownership and he himself gave the same to respondents Nos.1 and 2. He tried to improve his plea in his court statement, whereby he stated that he was the only collector of monthly rent of the properties of their predecessor and the suit property was given to respondent Nos.1 and 2 by his father on his instance but now the same is required for his personal bona fides requirements. PW-1 namely Khan Jan Shaheryar son of Sher Muhammad (respondent No,3) admitted that E-Block belongs to respondent No,1 viz Khair Muhammad but denied the suggestion that the suit property falls within E-Block. PW-2 namely Gul Muhammad s/o Muhammad Kabir (brother of the parties) stated that he does not know who is entitled to retain the property in dispute, however, the lease hold rights vests with the petitioner. PW-4 namely Mohib Shoaib son of Sher Muhammad stated that the suit property was given by his grandfather (predecessor of the parties) to respondent No,1, while he as well as, the petitioner admitted that during the life time of their predecessor, the respondent No,1 was collecting the rent of whole properties.
10. The perusal of case file and careful consideration of contention put forth on behalf of the petitioner, it is crystal clear that the petitioner's case mainly hinges upon the lease deed dated 29- 4-1981. But on the other hand through pleadings as well as in evidence it was brought on record that the said transfer took place due to some taxation issues, when predecessor of the parities distributed his properties among the legal heirs and said arrangement was made in documents only but was never materialized physically, therefore, lease deed executed in favour of the petitioner was just to the extent of documents only. The lease deed executed in favour of the petitioner without possession was mere entry in the record, which does not confer any title. In Hakim Khan's case reported in 1992 SCM R 1832 the Hon'ble apex Court has held that mutation by itself would not create title and the mutation had to be proved through evidence of title. The persons deriving the title on the strength of mutation entries, have to prove that transferor had parted the ownership of property in favour of transferee and the mutation was duly entered and attested, therefore, the lease agreement and abstract of record maintained by the Cantonment Board Quetta was not proved and did not provide any assistance to the petitioner's claim, therefore, was rightly discarded by the courts below. Keeping in view the aforesaid principle enunciated by the Hon'ble Apex Court the petitioner had failed to substantiate his plea B through documentary and oral evidence to establish that the property in question either known as Postal F- 4 and Postal F-5 or comes within the B-Block of Kabir Building.
11. The respondents established their possession over the property in dispute since the life time of their predecessor. They further established that due to taxation issues the property was distributed among the legal heirs of late Muhammad Kabir and no physical partition has as yet taken place between the parties and other legal heirs of their predecessor-in-interest. The contention of respondents finds more support from the report compiled and submitted by the learned Local Commissioner that no such property known as Postal F-4 and Postal F-5 exist and the petitioner neither filed any objection to the report of the learned Local Commissioner nor produced any documentary evidence to substantiate his claim.
12. The pleadings and evidence produced by the petitioner did not correspond to each other. The petitioner had miserably failed to establish that either he had constructed the property in question or had ever remained in possession of the said portion of Kabir Building. The divergence between the pleading and evidence has also been considered as fatal and in case of such an eventuality the result would be same as drawn by the learned lower courts. Thus, the departure from pleading cannot be allowed and the evidence, which does not support the pleading or vice versa, in any case, the /is so brought does not achieve the object. Reliance in this behalf is made to Shafi Muhammad v. Khanzada Gul's case reported in 2007 SCM R 368. Therefore, the learned lower courts correctly observed the contradiction between the pleadings and the evidence and the suit, as well as, the appeal were rightly dismissed.
13. I am in agreement with the learned counsel for the respondents that concurrent findings of facts cannot be reversed in revisional jurisdiction of this court. Reference is made to Major Rasheed Bain v. Rehmatullah Khan reported in PLD 2001 SC 443.
In view of above discussion and precedents rendered by the Hon'ble Apex Court, I am of the considered view that both the forums below have passed a well speaking and well reasoned judgments, which do not require any interference under the revisional jurisdiction of this court, therefore, petition is dismissed.