This Regular Second Appeal arises from the judgment and decree of the learned Additional District Judge, Multan confirming the judg--ment and decree dated 30th October, 1980 of the learned Civil Judge, 1st Class, Multan, whereby suit filed by Mst. Qamar-un-Nisa respon--dent No. I (since deceased), the mother of respondents Nos. 3 to 10 against Mst. Nazir Begum and others, for possession of land measuring 555 Sq. Yards but wrongly calculated as 455 Sq. Yards situated in Khasra No. 1655 of Chah Docharkhiwala and Khasra No. 1582 min. Chah Bhagowala, Mauza Tarof Ismail, Multan City, was decreed in favour of Mst. Qamar-un-Nisa respondent and against Mst.
Nazir Begum and others defendants/appellants. Since Sher Muhammad defendant No. 2 has not joined as an appellant, he has been impleaded as respon--dent No. 2.
2. The facts leading up to this regular second appeal in brief are that Mst. Qamar-un-Nisa respondent No. I claimed that she was the exclusive owner of Khasra No. 1655 and half of Khasra No. 1582 of Chab Docharkhiwala and Chah Bbagowala respectively. It has been averred in the plaint that she was owner in possession of these chahat. She sold away some land but remained exclusive owner of Kbasra Nos. 1655. 1597, 1595, 1582 min. The land of Khasra Nos. 1576, 1580 and 1581, etc. Situated on the northern side of the watercourse being an evacuee property was split into plots by the Settlement Department and was sold away to different persons by means of auction.
Plot No. 9 was sold to Sher Muhammad respondent No. 2. Faiz Muhammad Khan appellant is real brother of Sher Muhammad who claimed that he became owner of plot No. 9 by family settlement.
Plot No. l l origi--nally was transferred in auction to Muhammad Nawaz who subsequently transferred it to his daughter Nazir Begum appellant No. 1. It has also been averred that Mst. Nazir Begum and Faiz Muhammad have encroached upon Khasra Nos. 1655 and 1582 to the extent of 272 sq. Yards and 283 sq. Yards respectively. The defendants Mst. Nazir Begum, Sher Muhammad Khan and Faiz Muhammad Khan filed separate written statements. They raised preliminary objections.
Without specifically denying the ownership of the deceased-respondent, they denied the allegation of encroachment upon the land of the plaintiffs. On the pleadings the following issues were framed :-
(1) Whether the suit is defective for misjoinder of parties and cause of action?
(2) Whether the valuation of the suit for purposes of Court-fee and jurisdiction is incorrect?
(3) Whether the description of the suit land is in accordance with law?
(4) Whether the suit of the plaintiff through her general attorney is competent?
(5) Whether the defendants have encroached upon the land of the plaintiffs?
(6) Whether the suit in the present form is maintainable against defendant No. 3?
(7) Whether the Civil Court has no jurisdiction to entertain the present suit?
(8) Whether the plaintiff has been in possession of the suit land with-- in 12 years of the institution of the suit?
(9) Whether the. Plaintiff is estopped by her conduct to institute the present suit?
(10) Whether the suit is defective -for non-joinder-, of necessary parties?
(11) Relief?
3. The learned Civil Judge 1st Class who tried the case dismissed the suit on 1st October, 1973. He, however, on issue No. 2 found that the valuation of the suit for the purpose of jurisdiction and Court-fee was Rs. 22,750. Feeling aggrieved Mst. Qamar-un-Nisa respondent filed an appeal. The learned Additional District Judge. Multan found that since the valuation for the purpose of jurisdiction was Rs. 22,750, the learned trial Court, i.e. Civil Judge 3rd Class lacked the pecuniary jurisdiction and as such he remanded the case with direction that both the parties shall be accorded opportunity by the trial Court to lead their evidence on the issues existing on the record.
The case was directed to be placed before the learned District Judge, Multan, to entrust the same to the Court of Civil Judge 1st Class for disposal, and the learned District judge passed an order accordingly.
4. After the remand of the case, the plaintiff moved an application for the appointment of a commission under Order XXVI, rule 9, C. P. C. This application after hearing the parties, was accepted on 17th January, 1971. On 21st July, 1971, Tehsildar Multan was appointed as a local Commissioner. On 25th June, 1977, the suit was dismissed in default of the parties, but was restored on 4th January, 1978. On 28th October, 1978, the suit was once again dismissed in default and was again restored on 2nd December, 1978. The Tehsildar Multan was reminded to send his report but he did not comply with the orders till 19th February, 1980 on which date his appointment was cancelled and Mr. Noor Muhammad, Advocate, was appointed as a local Commissioner. For three months Mr. Noor Muhammad did not submit his report. On 7th May, 1980, on the objection of the plaintiff, Mr. Noor Muhammad, Advocate, was removed and Tebsildar Multan was appointed as a local Commissioner on the old terms and conditions. The local Commissioner issued notices to the parties. A notice was served upon Agha Ali Ahmad, the learned counsel for the defendants/appellants but in spite of that neither the defendants nor their learned counsel participated in the proceedings. The plaintiff through her attorney appeared before the local Commissioner and participated in the proceedings. The Tehsildar/local Commissioner sub-- mitted his report on 30th September, 1980, to the effect that Mst. Nazir Begum and Faiz Muhammad Khan have encroached upon the land of the plaintiff measuring 272 sq. Yards and 410 sq. Yards respectively towards the south of their plots. The objections were invited, The defendants filed objections whereupon the following issue was framed :- "Whether the report of the local Commissioner is liable to be set aside?"
5. The trial Court after hearing the arguments on the objections as well as on merits, decreed the suit on 30th October, 1980. On issue No. 2, the Court found that the value for the purpose of jurisdiction and Court-fee was Rs. 27,750 and directed the plaintiff to make up the defici--ency of Rs. 2,065 in Court fee by 29th November, 1980, failing which the decree will be deemed ineffective. It is to be noted that the . Plaintiff paid the required Court fee on 8th November, 1980. The learned trial Court declared issues Nos. 1, 3, 4, 6, 9 and 10 as not pressed. On issue No. 5, the Court found that the appellants have encroached upon the land of the plaintiff. On issue No. 7, the Court found that it had juris--diction to entertain the suit. On issue No. 8, the Court said that the suit was within time.
Feeling dissatisfied Mst. Nazir Begum and Faiz Muhammad filed an appeal in which Sher Muhammad defendant No. 2 was impleaded as respondent No. 2. The appeal was dismissed on 30th October, 1980. Hence this regular second appeal.
6. Mr. Khalid Farooq Qureshi the learned counsel for the appel--lants had at the very outset informed this Court that he would challenge findings of the learned Courts below on issue No. 5 alone and raised the following contentions :--
(i) that the Courts below failed to determine as to what were Khasra Nos. 1655 and 1582 min., how much is encroached in each khasra or in totality and that no evidence had been led to measure and fix the said Khasra numbers to ascertain the alleged encroachment ;
(ii) that the decrees and judgments of the Courts below are against pleadings ; (i.e) that the evidence adduced by the appellants, in particular of Shahid Hussain D. W.-2 and Dost Muhammad D. W.-3 and their reports D/1, D/2 and D/3 have been rejected without any reason available under .The judicial appraisement of the evidence ;
(iv) that the testimony of local Commissioner and his report have been illegally made the basis of the judgment inasmuch as the report is against the direction of the Court and does not answer the basic question of controversy as to whether there is encroachment in Khasra Nos. 1655 or 1582 min
(half) and that the local Commissioner has not prepared the report according to the rules.
Furthermore the local Commissioner was not justified for basing the finding of encroachment on settlement record and not on the revenue record even the settlement record did not bear khasra numbers and as such no valid demarcation has been done ; and lastly ;
(v) that in R. S. A. The High Court shall interfere in case of concurrent finding on questions of facts if the pleadings, oral or documentary evidence has been misread, misrepresented or mis-- conceived.
7. As against this Ch. M. A. Latif Amratsari and Rana Abdur Rahim Khan, the learned counsel for respondents Nos. 3 to 10, while defending the impugned judgments and decrees have raised the following points :,-
(f) that the valuation for the purpose of jurisdiction' being `less than Rs. 50,000 at the time of the institution of the R.S.A., the second appeal was not competent under section 12 of the Ordinance 10/80 (Code of Civil Procedure (Amendment) Ordinance ;
(ii) that if the R.S.A, is declared to be competent there being concur--rent finding of facts by both the Courts below, the said findings cannot be upset under section 100, C.P.C.; (i.e) that the plaintiff has proved his ownership of the disputed land as encroachment thereon by defendants/appellants and the appel--lants have failed to rebut the same.
8. Since Ch. M. A. Latif Amratsari, the learned counsel for the respondents had challenged the competency of this appeal, it would be proper to discuss and dispose of this objection first.
The valuation of the suit for the purpose of jurisdiction is Rs. 27,750 and the same has not been disputed. The suit was insti--tuted on 14th April, 1967. The valuation for the purpose of jurisdiction was fixed as Rs. 222. Section 10, C. P. C. As then it was read as follows :- no second appeal shall lie in any suit of that nature cognizable by Courts of small causes when the amount or valuation of the subject-matter of the original suit does not exceed Rs. 500."
The bare reading of the section makes it very much clear that there was no bar to file a second appeal against the ultimate judgment of the First Appellate Court in a suit instituted on 15th April, 1967. The first appeal against the impugned decree of the trial Court was filed on 27th November, 1980, and was decided on 13th March, 1981. The pre--sent appeal was filed on 26th March, 1981.
Section 102 was amended by Ordinance 10 of 1980 (Code of Civil Procedure (Amendment)
Ordinance and reads as follows no second appeal shall lie-
(a) in any suit of the nature cognizable by Court: of small causes, when the amount or value of the subject-matter of the original suit does not exceed Rs. 5,000.
(b) in any other suit when the amount or value of the subject-matter of the original suit does not exceed Its. 50,000. t is worth notice that this amendment was published on 26th March, 1980, and it came into force at once. Relying on sub-clause (b) of section 102, C. P. C. As reproduced above, the learned counsel for the respondents has urged that the valuation for the purposes of jurisdic--tion being less than Rs. 50,000, this appeal does not lie.
Having considered the arguments advanced by the learned counsel, I am not inclined to agree with him inasmuch as it is well settled that the appeal which includes second appeal is a mere continuance of the original proceedings initiated by filing of the plaint, and the right of appeal which is undoubtedly a vested right is to be governed by the state of law as then it was at the time of the initiation of the action, unless the amending law expressly says otherwise, because right of appeal being a vested right it inheres in a party from commencement of action in the Court of first instance. If according to law in force at the time of the filing of the suit, the ultimate decision of such an action was open to appeal or to second appeal, the right to prefer or prosecute an appeal therefrom is not affected by subsequent change of law abolishing the appeal or modifying its form, unless it is provided expressly in the enacting statute or followed by necessary implication from its terms. It is well known that a statute is to the interpreted if possible so as to respect vested right and in the absence of anything to the enactment to show that it is to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in the litigation at the time when the Act is passed. Reference may be made to Ram Singh and others v. Shankerl Diyal and others (A 1 R' 1928 All. 437) and Karya Singh v. Risaldar Ajaipal Singh and others (A t R 1928 Lah. 627). For what has been stated above. I am of the opinion that since the right to file a second appeal, which had accrued to the appel--lants at the time of filing the plaint has not been expressly taken away, this appeal is competent.
9. Now coming to point No. 2 of the learned counsel for the respondents and contention No. 5 raised by the learned counsel for the appellants. I find that issue No. 5, whether the defendants have encroach--ed upon the land of the plaintiff, is a pure question of fact and the appellants seek to reverse the concurrent finding of the learned Courts below as such, Ideem it proper to first find out the guiding principle for the appreciation of the same and the assess, weigh and evaluate it accordingly.
For that I would like to refer to the case by cited by the parties. The learned counsel for the respondents in this respect has placed reliance on Rehmat Ali and another v. Mohd. Yunas Haji and another (PLD 1963 SC 191), Abidul Majid and another v. Khalil Ahmad (PLD 1955 FC 38), Ismail v.
Mukhtar Ahmad (PLD 1971 Lah. 994) and .Nadir Shah v. Lal Shah (PLD 1954 Lah. 447) In all these cases, it has been laid down that the High Court has no jurisdiction to reverse by going in to the question of weight to be attached to a particular item of evidence and that the High Court has no jurisdiction, to e0tertain a second appeal on the ground of an erroneous finding of fact, however, gross and un Accusable error may seem to be, unless there is an error in the procedure and that pure questions of facts are not open to determination in tic second appeal. As against this, the learned counsel for the appellants has relied upon Allah Rakha v. Nawabs' Nazar Muhammad and others v. Mst. Shahzada Begum and another (PLD 1974 SC 22) and Mst. Bibi Jan v. Habib Khan and another (PLD 1-975 SC 295) wherein it has been laid down that the finding of facts not based on cogent evidence and initiated by misreading or fallacious appraisal of the evidence, the High Court can interfere with such finding of fact and that the finding arrived at by the learned Courts below on the evidence by `misreading' and misinter--preting, the Court of second appeal is entitled to review the same.
The above state of case law would show that no specific rule for the appreciation of the finding of fact in R.S.A. Had been laid down and, in fact, no such rule can be laid down for the reason that the facts of the two cases seldom coincide. The general rule, therefore, is that in regular second appeal on a finding of fact may it be wrong or even erodes, High Court shall not interfere except when the Court satisfied that the finding arrived at is based on `misreading' or misrepresentation of the evidence as this would clearly bring the case with the scope of subsection (c) of section 100, C.P.C.
And as such the refusal to interfere with the finding of fact is a rule and interference is a exception and this may serve as a guiding principle for the appreciation of a Case under section 100, C.P.C.
The term `misreading' has been interpreted and means holding non--existence of evidence when such evidence exists.
Dealing with the contentions Nos. 1, 2 and 4 of the learned counsel for the appellants and point No. 3 of the learned counsel for the respondents and going to the merits of the case I find that the issue No. 5 involves a pure question of fact. Both the learned Courts below have concurrently held that the defendants have encroached upon the land of the, plaintiffs. I have gone through the judgments. It appears that the learned Court below have given reasons in support of their conclusions. Since the learned counsel for the appellants has urged that the findings are based on `misreading' of evidence and has also raised various contentions, 1, in the larger interest of justice in order to satisfy myself that the judgments do not suffer from mis-regarding of evidence or legal defects, proposed to have a judicial appraisement of pleadings, oral and documentary evidence adduced by the parties and the report of the Local Commissioner. It may be mentioned here that the ownership of the plaintiff over Khasra Nos. 1655 and 1582 min. Has not been denied and also stands proved by the copies of the record of rights Exlz. P-8 to Exh. P-10. It is also clear from the various plans brought on the record that these khasra numbers are situated towards south of the plots of the appellants. It has been clearly stated by Faiz Mohammad, appellant that the land of the plaintiff ii situated towards south of their plots and starts at a distance of 3 karams therefrom. The plaintiff's ownership of these khasras and location towards south of the northern boundary of the plots has not been disputed before me. Issue No. 5 was framed in the presence of the parties and its terms were never objected to by the plaintiff. Vide this issue, the plaintiff was required to prove that the defendants had encroached upon her land. In this state of affair, the learned Courts below were not required to determine as to what were khasra numbers 1655 and 1582, how much is encroached in each khasra or in totality and so it was not necessary to measure and fix the said khasra numbers to ascertain the alleged encroachment. It was the encroachment itself which was to be ascertained, fixed and measured and as -such the contention No. 1 raised by the learned counsel is devoid of force;
10. In order to discharge the onus the plaintiff examined six witnesses and placed on record documents Exh. P-1 to Exh. P-10. To rebut the same the defendants examined as many as six witnesses and placed on record the documents Exh. D-1 to Exh. D-6. PW-1 Abdul Qayyum has.
Prepared plan Exh. P-1, wherein he has shown the disputed land separately and specifically in red colour. I have looked into this plan in the light of the discussion of the learned Courts below and the objections raised by the learned counsel for the appellants. Perusal of Exh. P-1 shows that the disputed land situates on the north of watercourse but towards south of plots Nos. 9 and 11. It may be noted that in the plaint it has clearly been stated in para No. 5 :- P: W. 6, Attiq Yousaf is the attorney of the plaintiff. In the examina--tion-in-chief, he has stated that towards the north of Chah Docharkhiwala and Chah Bhagowala, there was the land owned by Narain Singh and in between his land and that of the plaintiff, there was a watercourse with a width of 7 karams, half of which was owned by them and the remaining half belonged to Hindus. The land belonging to Hindus was taken over by the Settlement Department, In cross examination he has clearly stated that towards the north of Any watercourse, there' situates land owned by them measuring 5/6 kanals. When the plan Exh. P.-I is read along with para No. 5 of the plaint and the above statement made by P. W. 6 Attiq Yousaf, the misunderstanding, if any, stands resolved, and becomes crystal clear that the land owned by the plaintiff in Chah Docharkhiwala and Bhagowala are situated contiguous towards the sough of plots Nos. 9 and 11 of the appellants. It is worth mentioning that Fiaz Muhammad Khan when examined as P. W. 5 in cross-examination by Mr. Farooq Ali, Advocate, has clearly stated that :- For all this, I am of the considered opinion that the lands, of the plaintiff are contiguous to the northern boundary of plots Nos. 9 and 11 and this situation is fully in accord with the plaint, statement of P. W. 6 Attiq Yousaf and the record of rights Exh. P. 8 to Exh. P. 10 and as such the contention No. 2 of the learned counsel that the decrees and judgments of the Courts below are against pleadings is without substance.
P. W. 2, Muhammad Afzal Inspector Settlement, has produced auction sheets Exh. P. 2 to P. 3 which show that plot No. 9 purchased by Sher Muhammad measured 13377 sq. Yards. Auction Sheet Exh.
P. 3 pertains to plot No. 1 I which shows that the plot purchased by Muhammad Nawaz defendant measures 965 sq. Yards. I find that this witness has not been cross-examined and the measurement given above has also been admitted by the appellants. Their case, however, is that they have occupied the plots according to their entitlement and have not occupied any excess area.
P. W. 3, Sardar Muhammad, Patwari has produced copies of Shajra Qisitwar Exh. P. 4, Exh. P. 5 and Exh. P.
6. He has not been cross-- examined. These documents also support the case of the plaintiff. P. W. 4 Muhammad Sharif when appeared before the Court was given up. P. W. 5 Muzaffar, Senior Clerk, Deputy Settlement Commissioner, has brought plan pertaining to Chahpindwala where plots Nos. 9 and 11 are situated and has proved the copy of the plan Exh. P.
7. In cross-- examination he stated that he visited the plot and prepared the plan.
P. W. 6 Attiq Yousaf is the attorney of the plaintiff and has stated that appellants Nos. l and 2 herein had encroached upon their land to the extent of 272 sq. Yards and 280,/285 sq. Yards respectively.
When the impugned judgments are read with the above analyses of the oral and documentary evidence, the findings of the learned Courts below do not appear to be based on misreading. Both the learned Courts below have discussed the evidence and the documents produced by the plaintiff correctly and properly.
11. Adverting to the report of the local Commissioner and contention No. 4 raised by the learned counsel challenging the validity of report, I find that in his report, the Local Commissioner has mentioned that Agha Ali Ahmad counsel for the appellants was served with a notice to participate in the proceedings but neither he nor any defendant appeared before him and as such the appellants were proceeded against ex parte. He has further reported that appellants have encroached upon the land to the extent of 272 sq. Yards and 410 sq. Yards towards the south in the plaintiff's land. I have considered the report and find the same to be quite perfect. The local Commissioner i.e. Tehsildar, who could be the by it person for the demarcation, was appointed with the consent of the learned counsel for the appellants. Since the ownership of the plaintiff in Khasra Nos. 1655 and 1582 was not a disputed fact, the only question for consideration was whether the defendants had encroached upon the land of the plaintiff. It was, therefore, not necessary for the local Commissioner to measure Khasra Nos. 1615 and 1522. The owner ship of the plaintiff on the land situated towards the south of plots Nos. 9 and 11 being an undisputed fact, the Tehsildar could easily find out the encroachment by measuring plots Nos. 9 and I1 on the basis of the record and plan of the Settlement Department. Since the defendants had purchased land through auction by the Settlement Department, I am of the view that for the purpose of the detection of the encroachment by the defendants, the settlement record was the best evidence. It is remarkable that the defendants/appellants have not explained encroachment, they, rather have denied the same. To substantiate the objections to the report, Faiz Mohd. Alone appeared as witness but did not level any allegation of impartiality against the Local Commissioner and also did not raise any objection to the method of demarcation, so much so the appellants did not summon the Local Commissioner with regard to its report and their objections thereon. The report of the Local Commissioner, has thus to be believed and the same shows that the defendants/appellants Nos. L and 2 are in occupation of an excess area to the extent of Z72 and 410 sq. Yards respectively towards the south of their boundary. It .Has been sated by Faiz Muhammad Khan appellant as P. W.
5 that at a distance of 3J karams from the plots towards the south starts the land owned by the plaintiff. It is, therefore, clear that in view of this statement of Faiz Muhammad Khan appellant, the local Commissioner was factually correct to report that the defendants have encroached upon the land of the plaintiffs.
The grievance shown by the learned counsel for the appellant that the Local Commissioner had not issued notice to the appellants is of no worth at all because the service of a notice upon the counsel has to be deemed as a notice to his client as well. It needs mentioning that Agha Ali Ahmad, Advocate has not been produced to explain the essence, The objection of the learned counsel that the report was not prepared according to the rule is also devoid of force. The examination of the relevant rule will disclose that this is not a solitary mode for the detection of the encroachment or demarcation. The method adopted by the local Commissioner, therefore, appears to be a proper course. The Local Commissioner took pains in preparing his report. He looked into the approved plans of plots Exh. P. 9 and Exh. P. II and also measured the plots and prepared a plan indicating the encroached land He also prepared lstakhraj raqba and attached the same with his report Needless to add that the conclusion arrived at by adoption of a wrong or erroneous method, if it relates to a question of fact, does not merely by reason of particular method become a question of law. For what has been stated abide, no exception can be taken to the appointment, the mode of demarcation and the conclusion arrived at thereby on a question of fact. I further find that the grievance of the learned counsel that the learned Courts below have made the report of the Local Commissioner as a solz baeis .For the decisions is factually wrong. The learned Courts below have considered the repast as a piece of evidence and have weighed the same in the light of other oral and documentary evidence on the record. For these reasons I hold that the learned Courts below were fully justified to act upon the report and there is thus no force in the contentions of the learned counsel for the appellants.
12. As for contention No 3, that the evidence adduced by the appellants in particular of Shahid Hussain DW-2, Dost Muhammad DW-2 and their reports Exh. D-1, Exh. D-2 and Exh. D-3 have been rejected without any reason available under judicial appraisement of the evidence. I find that the trial Court has appreciated this evidence carefully and has given cogent and sound reasons for rejecting the same. The learned Courts below, while discussing the evidence have stated :- "DW-2 is the author of Exh. D-I, Exh. D-3, conducted ,demarcation report contained in Exh. D-2 and Exh. D-3. All these demarcation reports were. Made during the pendency of the suit, i.e. In the years 1970 and 1969. DW-2 has admitted during the cross-examination that he did not examine the revenue record to determine the ownership of Khasra No. 1582. Moreover, these reports are replica of the defendants' futile efforts to procure evidence when the suit was pending. I am, therefore, not ready to attach any sanctity to these partial demarcation reports."
Dost Muhammad Patwari DW-3 has stated that Muhammad Nawal the original owner of plot No. 9, father of Mst. Nazir Begum appellant was a Tehsildar at Shujabad. He had brought the application for demarcation and was accompanied by Faiz Muhammad appellant and that he (witness) had given the two reports on the asking of his officer. There is no denying of the fact that the evidence disbelieved by the trial Court can be believed in Regular Second Appeal by the High Court but for that strong and exceptional grounds are required which are certainly lacking in the instant case.
The learned counsel has not pointed out any `misreading' of the evident-d by the learned Courts below and I do not see any valid reason to differ from the conclusion arrived at by the learned Courts below on the credibility of DW-2 and DW-3 and the evidentiary value to be attached to documents Exh. D-I to Exh. D-3.
14. I have also gone through the or alas documentary evidence of the defendants to see whether they have successfully rebutted the plaintiff's proof. DW-Sardar Muhammad Patwari had produced rozenamcha waqiati relating to the years 1966 to 1968. Shahid Hussain DW-2 was produced to prove the demarcation report Exh. D-1. Dost Muhammad DW-3 has proved his report Exh. D-2 and Exh. D-3 with regard to the demarcation done by him. The evidence of DW-2 and 3 have already been discussed and disbelieved by me. D-W 4 Syed Akhtar Hussain Head Draftsman Office of the Assistant Director Town Planning has proved the, copy of the plan Exh. D-4 wherein kassi has been shown. In cross-examination he has stated that according to the plan kassi is a part of C-D service road. Faiz Muhammad and Muhammad Nawaz have appeared as DW 5 and DW-6 and have stated that they had not encroached upon the land of the plaintiff. Muhammad Nawaz D. W. Has stated that he has not occupied any area hi excess of the plot given to him by the Settlement Department. As for the evidence adduced by the appellants/defendants, the learned counsel has not pointed out any misreading of the same by the learned Courts below.
15. As a result of above discussion, C find that having regard to the oral and documentary evidence on the record, both the learned Courts below have arrived at a concurrent finding of fact that the appellant have encroached upon the lands of the plaintiffs. The appellants have failed to point out any material misreading in the plaint, oral and documentary evidence adduced by the parties and as such the concurrent finding arrived at by the learned Courts below cannot be upset in Regular Second Appeal. I further find that the findings recorded by the learned Courts below are neither capricious nor arbitrary.
There is no force in the appeal and the same is dismissed with no order as to costs.