1. MUHAMMAD SALEEM JESSAR, J.---Through this Civil Revision Application the applicants have challenged Judgment dated 15,08.201 1 and Decree dated 20.08.201 1 passed by learned 2nd Additional District Judge, Thatta in Civil Appeal No.18/201 1 whereby he dismissed the appeal and upheld Judgment dated 24,121010 and Decree dated 31.12.2010 passed by learned Senior Civil Judge, Thatta whereby P.C. Suit No.121/2008 filed by respondent No.5 Mohammad Juma was decreed.
2. Precisely , the facts giving rise to filing of this Civil Revision are; that respondent No. 5 filed suit for declaration And permanent injunction in respect of Plot No. 3779,76-4 sq. yds. situated in Ward-B Thatta Town stating therein that for the last 25 years the suit property is in his possession and he is running a welding shop therein. The family of Imamdin Shaikh is residing adjacent to the suit property and due to relationship with that lmamdin Shaikh, the respondent No. 05 time to time has been providing financial assistance to his family . It was further stated that on 29.08.1997 respondent No. 03 issued a notice to respondent No. 05/plaintif f in which he stated that the suit property is of Auqaf Department and he desired that the suit property may be vacated. On 15.09.1997 respondent No. 05 wrote an application to the City Survey Officer, Thatta for the details of suit property and in pursuance whereof the City Survey Office issued a Rubkari, Sketch and Extract Form of Property Register Card which revealed that the suit property belongs to Auqaf Department. On 29.04.2001 Manager Auqaf, Thatta vide his letter dated 29.04.2001 allowed respondent No. 05/ plaintif f to be a tenant of suit proper ty at the rate of 600/- per month w.e.f. 01.02.2001 and in this connection an agreement was executed and since then respondent No. 05 has been paying rent to the Auqaf Department. Respondent No. 03 through his letter dated: 08.08.2005 informed respondent No. 05 that the Chief Administrator of Auqaf Department, Sindh has issued notification No. 1312 dated: 08.08.2005 that the property of Dargah Shah Kamal, Thatta and Mosque has been handed over to the Mutawalli who will contact him for recovery purpose. It was further stated that since then till date respondent No. 05 has been continuously paying rent to the said Mutawalli i.e. Respondent/ defendant No. 04 Nabi Bux Shakrani. According to Respondent No. 05, applicant No. 01/Def endant No. 05 who is relative of Imamdin Shaikh kept evil eyes over the suit property and one month prior to filing the suit he came to him and demanded Bhatta which was refused.
3. Thereafter , he threatened respondent No. 05 and tried to forcibly dispossess him from the suit property , It was further stated that applicant No. 02/ defendant No. 06 namely Mst. Kazbano widow of Imamdin Shaikh is landlady of respondent No, 05 nor tenant in any way and respondent No. 05 has concerned with her and that he never rent to her, rather he is lawful tenant of Wakf Dargah Shah Kamal and has been paying rent regularly . Respondents Nos. 01 to 03 did not contest the suit; hence they were proceeded ex-parte. However , respondent/defendant No, 04 filed written statement wherein he supported the case of respondent No.05/ plaintif f.
4. Both the Applicants filed Joint written statement stating therein that there is shop and an Autaq in the suit plot. The shop was constructed by father of applicant No. 02 and he was running a hotel over a portion of suit property . In 1991 his cousin lmamdin Shaikh gave hotel / shop on rent to respondent No. 05 and after demise of Imamdin, he was paying rent to his widow till August 2008. It was further stated that respondent No. 04 filed Civil Suit No. 01/1970 against their father in which he claimed to be Mutawalli of Dargah. The said suit was Decreed; however , the appeal against the said Decree was partly allowed with observation that their father was in possession of the property for the last more than 100 years . Against the judgment of Appellate Court, Revision Application was filed before this court which was dismissed as being infructuous. As such the judgment of appellate Court attained finality . It was further submitted that respondent No.04 obtained Mutawalli Certificate from the court secretly without their knowledge.
5. Learned trial Court after framing the issues, recording evidence of the parties and hearing counsel for the parties, decreed the suit vide aforesaid Judgment and Decree against which the applican ts/defendants filed Civil Appeal which was dismissed by the appellate Court, hence this civil revision application.
6. I have heard the arguments advanced by learned counsel for the parties and perused the material available on the record.
7. Mr. Mirza Sarfraz Ahmed, advocate for the applicants, at the very outset, submitted that the suit filed by Respondent No. 5 was not only time barre d but was also hit by principle of res judicata in terms of Section 11 of the Code of Civil Procedure as, prior to this litigation, father of Respondent No.4 namely Mian Rasool Bux had filed Civil Suit bearing No. 01/1970 for declaring himself to be Mutawali of the property of Dargah Shah Kamal, Thatta, in respect of property bearing City Survey No. 3779, which was decreed in terms of judgment dated 18.03.1972, therefore, the said judgment and decree was assailed by the father of applicant No. 1 through Civil Appeal No. 12/1972 before District Judge, Thatta, which was partly allowed and partly dismissed copy whereof is available at page-227 of the Court file. Learned Counsel further submitted that since the property in dispute was same, therefore, provisions of Section 11, C.P.C. are fully attracted. He placed reliance upon the case reported in PLD 2003 SC 484. He further submitted that Respondent No.5, as per his contention raised by him in the memo of plaint to the effect that he has been in possession of property in dispute for the last 25 years and entered into tenancy agreement in 2001, therefore, he filed the suit after a considerable delay , thus the same is also hit by the provisions of Limitation Act, 1908, hence on this score, the suit filed by the Respondent No. 5 is liable to be dismissed. He next submitted that learned Courts below did not consider such contention raised by the applicants.
8. In support of his contention, he has place d reliance upon the cases reported in PLD 2006 Karachi 621 (Messrs Mateen Corporation v. Messrs Plasticrafters (Pvt.) Ltd.), PLD 2006 Karachi 593 (Messrs Imperial Builders through Managing Partner and another v. Lines (Pvt.) Limited through Chief Executive and 3 others) and PLD 2015 SC
212. He next submits that as far as concurrent findings of Courts below are concerned, same can be reversed by this Court and there is no legal bar. In support of this contention, he placed reliance upon the cases reported as PLD 2001 SC5 443 (Maj. Rashid Beg v. Rehmatullan Khan and 4 others) , PLD 2001 SC 67 (Khan Mir Daud Khan and others v. Mahrullah and others) Lastly , he submitted that Respondent No 4 is only the Mutawalli of the property in question and decree granted by the Court below subsequently maintained by the appellate court directly in favour of respondent No.4 who was declared Mutawali of property in dispute, hence respondent No.5 has no right to file suit thus his case is also hit by provisions of Section 42 of Specific Relief Act. In support of his contentions, he placed reliance upon the cases reported in 2007 SCMR 609 (Abdul Sattar v. Mst. Anar Bibi and others ) as well as PLD 2003 SC 128 (Muhammad Ishaque and another v. Mst. Manzooran Bibi alias Shahida Parveen and another) . He, therefore, submitted that the judgments and decrees passed by Courts below are not sustainable in law thus, same may be set-aside and suit filed by the Respondent No. 5 may be dismissed by allowing instant revision application.
9. On the other hand, Mr. Shabbir Ahmed Kumbhar , learned Counsel for the Respondents Nos. 4 and 5 submitted that suit filed by the Respondent No. 5 for declaration was maintainable as he is notified tenant of the demised premises and to such effect a notification was also issued by the Government of Sindh dated 08.08.2005 which is available at page 179 of the Court file, which had not been challenged by the applicants or any other party . He also focused upon subsequent page to notification which is list of tenants issued by the Auqaf department, Government of Sindh, in which name of Respondent No. 5 is apparent and visible at Serial No. 9 as tenant of the property in dispute. As far as contention of learned Counsel for the applicants in respect of res judicata in terms of section 11, C.P.C. is concerned, learned counsel for Respondent No. 5 submitted that he was not party in the earlier suit, which was filed by the elders of the Respondent No.4, therefore, principle of res judicata is not attracted to this case. He criticized the contention of learned Counsel for the applicant to the effect that they are also not owners or title holders of property in dispute but trespassers as well encroachers. He further submitted that elders of applicants had occupied the property in dispute illegally , therefore, their such action was nullified by the Courts below in earlier suit(s)/litigations, moreover; the applicants are claiming their adverse possession being their ancestral right; however , law of adverse possession has also been repelled/ nullified, and for that purpose, the provisions of section. 28, C.P.C. was declared against the injunction of Islam by the Hon'ble Supreme Court of Pakistan. In support of his contention, he has placed reliance upon the case reported as Maqbool Ahmed v.
10. Government of Pakistan (1991 SCMR 2063 ) and submitted that by virtue of that judgment law of adverse possession is no more in the field he also referred paras-9 and 10 of the memo of plaint at page 73 and submitted that Respondent No.5/Plaintif f had specifically contended that the applicants, being gunda elements had demanded bhatta, he being bona fide tenant of premises, filed suit seeking declaration so that no one could claim or eject him from the premises except with due course of law .
11. Mr. Qazi M. Bashir , learned Assistant Advocate General, Sindh, filed commen ts along with Extract from the Property Register Card in respect of property in dispute, which shows mutation in the name of Dargah Shah Kamal which was taken on record. Besides, other documents were also taken on record. He also referred to memo of rent agreement executed by the department with Respondent No. 5 which is available at page-127 of the Court file and submitted that there is no illegality or infirmity in the impugned judgments and decre es passed by the Courts below , therefore, revision application filed by the applicants merits no consideration and is liable to be dismissed.
12. It seems that learned counsel for the applicant has laid much stress on his submission that the suit filed by respondent No.5 was hit by the principle of res judicata as, according to him, previously respondent No. 04 had filed Civil Suit No. 01/1970 which was decreed; however , the appeal filed against the said decree was partly allowed with observation that their fathe r was in possession of the property for the last more than 100 years.
13. According to him, the Revision Application filed against the judgment of Appellate Court was dismissed as having become infructuous therefore, the judgment of appellate Court attained finality , hence the suit filed by respondent No.5 was hit by the principle of res judicata.
14. Before considering this legal objection, it would be advantageous to reproduce hereunder the contents of section 11, C.P .C. which deals with the principle of res judicata: "11. Res Judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or, any of them claim, litigating unde r the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
15. From the perusal of above provision of law it seems that the precondition for attracting the provisions of section 11, C.P.C. include; that the parties and issues in the previous suit and the subsequent suit must be the same and that the parties in both the suits must have been litigating under the same title. It seems that the parties in the previous Suit No.01/1970 and that in the Suit No.121/2008 filed by respondent N.5 were not the same. Likewise, the issues to be determined in the previous suit and those to be determined in the subseque nt suit filed by respondent No.5 were also different, therefore the manda tory preconditions for attracting the principle of res judicata were not available, because the parties as well as the issues to be determined by the concerned courts were not the same rather there was glaring difference betwe en the two, more particularly that the plaintif f of the subsequent suit i.e. Mohammad Juman who has been array ed as respondent No.5 in this revision was, at all, not the party in the previous suit. Besides, reliefs sought in both the suits were also different. In this view of the matter , this contention of the learned counsel for the applicants is devoid of force.
16. So far as legal objection relating to limitation is concerned, suffice it to observ e that merely raising any legal objection without proving the same through tangible evidence/material is not enough. In the instant case although the applicants/defendants raised the objection that the suit filed by respondent No.5 was barred by time, however they have themselves admitted that respondent No.5/plaintif f had been paying rent to the wife of Imam Din Shaikh till August, 2008. The suit was also filed by respondent No.5 in the year 2008, as such according to their own plea, the suit cannot be said to be time barred. Even otherwise, perusal of para 10 of the plaint of Suit No.121/2008 filed by respondent No.5 reveals that he has clearly stated that one week prior to the filing of the suit, defendant No.5 along with Gundas elements had come on the suit shop and tried to dispossess him from the suit shop but due to intervention of the local persons they could not succeed and went away while issuing threats. This shows that the cause of action was a recurring cause and the last of such causes of action accrued one week before the filing of the suit, thus this legal objection regarding limitation is also not sustainable. Besides, the applicants/defendants have also not been able to point out any specific law under which the suit was not maintainable.
17. Adverting to the merits of the case, it seems that both the courts below have exhaustively dealt with each and every issue and have assigned cogent reasons for their findings, thus such concurrent findings of two courts below cannot be disturbed / interfered into by this Court in exercise of its revisional jurisdiction. In fact, the revisional jurisdiction of this Court under section 115, C.P.C. has very limited scope and it can be exercised only in those cases where subordinate court has excee ded its jurisdiction or has declined to exercise jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warrante d by law. It is now firmly settled law that findings of facts recorded by the First Appellate Court based on appraisal of evidence could not be interfered with under section 1 15, C.P .C. merely because a dif ferent view was also possible to be taken.
18. In the case of Haji Mohammad Din v. Malik Mohammad Abdullah reported in PLD 1994 Supreme Court 291, honourable Supreme Court observed as under: "It is well settled law that a concurrent finding of fact by two courts below cannot be disturbed by the High Court in second Civil Appeal much less in exercise of revisional jurisdiction under section 115, C.P.C..............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 effecting its jurisdiction in the case."
19. It was also held in the said case the fact that High Court while reappraising evidence on record reached a conclusion different from that arrived at by two Courts below , such fact could never be a ground justifying interference with a finding of fact much less a concurrent finding of fact recorded by Courts below on the basis of evidence produced before them.
20. Similar view was taken by the Lahore High Court in the case of Shahbaz Rasool and 4 others v. Aamir Imran and 7 others (2011 CLC 1941 ).
21. Applicants' counsel could not succeed in pointing out any such legal ground/defect in the impugned judgments which could justify interference into the concurrent findings given by two courts below by this Court in exercise of its revisional jurisdiction.
22. In view of above legal position, instant civil revision application seems to be not maintainable on this score also because the Courts below have neither assumed jurisdiction which did not vest in them, nor have they failed to exercise the jurisdiction vested in them by law and nor the Courts below have acted with material irregularity effecting their jurisdiction in the case.
23. Even on merits, the applicants/defendants do not have a good case and I am in agreement with the findings arrived at by the courts below and I do not see any justification to interfere into the said findings in exercise of revisional jurisdiction of this Court.
24. The upshot of above discussion is that instant civil revision application is hereby dismissed and the impugned judgments are maintained. The copy of judgment along with R&Ps of F.C. Suit No. 121/2008 be returned to trial Court through MIT-II.