Tersely, the petitioner instituted a suit for declaration with possession through partition alongwith permanent injunction against the respondents with the averments that the suit property in the shape of house and shops measuring 01-Kanal falling in Khewat No.21 was owned and possessed by predecessor in interest of the petitioner namely Allah Ditta Toor and after his demise, the suit property was transferred in the name of Manzoor Ahmad etc. vide mutation No.99 which remained under possession of Manzoor Ahmad; that Manzoor Ahmad deceased with the connivance of the respondent No.1 namely Mushtaq Ahmad transferred property in the name of respondent No.3 namely Muhammad Zeeshan Majeed vide mutation No.1036 dated 12.08.2005, who further alienated the suit property to respondent No.2 namely Mst. Parveen Akhtar through mutation No.1086 dated 30.11.2005 whereas petitioner was owner of three and half marlas in the said commercial and residential property; that the respondent No.2 in order to perpetuate her possession has demolished suit property and has tried to raise commercial constructions in the form of a plaza; that the suit property is adjacent to the cantonment Sialkot and is precious in nature; that if respondents succeed in raising constructions thereupon, the petitioner will suffer an irreparable loss. The petitioner further averred that respondents No.1 and 2 have been asked to partition the suit property and hand over possession of share of petitioner but they have declined, therefore, the suit with the prayer that a decree of declaration to the effect that petitioner is owner of three and half marlas in suit property alongwith declaration that mutation No.1036 and 1086 are void, based on fraud and ineffective upon the rights of the petitioner may be passed in his favour.
The respondents contested the suit by submitting written statement and controverted the averments of the plaint. Out of the divergence of the pleadings, the issues were framed by the learned trial Court and evidence of the parties, oral as well as documentary, was recorded. The learned trial Court vide impugned judgment and decree dated 01.02.2023 dismissed suit of the petitioner. The appeal preferred by the petitioner against the said judgment and decree was also dismissed vide impugned judgment and decree dated 07.09.2023 by the learned appellate Court; hence, the instant revision petition.
2. Heard.
3. Order VI, Rule 4 of the Code of Civil Procedure, 1908 provides that, 'in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items necessary) shall be stated in the pleadings.'
However, the petitioner could not plead and prove by leading confidence inspiring and trustworthy evidence to prove the alleged fraud, rather it has emerged on record that Manzoor Ahmad sold his share in the property to Muhammad Zeeshan Majeed which was later on sold to Mst. Parveen Akhtar through the disputed mutations.
Besides, the petitioner could not describe the detail of property allegedly owned by him, which was necessary and essential as required by Order VII, Rule 3, Code of Civil Procedure, 1908, which reads:- 'Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers.'
In addition to the above, the predecessor in interest of the petitioner was owner of 92-kanals of land but the petitioner has only sought partition of 02-kanals and 01-marla, which has rightly been adjudged to be against the mandate of Order II, Rule 1, Code of Civil Procedure, 1908 by the learned Courts below. Moreover, it is claim of the respondents that the plaza is situated in Khewat No.20 and 21, so the petitioner should have filed application for appointment of local commission for demarcation purposes but no such exertion was made by the petitioner. The evidence produced by the petitioner is sketchy and not worthy of credence, therefore, the same has rightly been discarded by the learned Courts below.
4. Pursuant to the above, it is held that the learned Courts below have committed no illegality, irregularity and wrong exercise of jurisdiction, rather after evaluating evidence on record have reached to a just conclusion that the petitioner/ plaintiff has miserably failed to prove his case through trustworthy and reliable evidence. The impugned judgments and decrees do not suffer from any infirmity, rather law on the subject has rightly been construed and appreciated. As such, the concurrent findings on record cannot be disturbed in exercise of revisional jurisdiction under section 115 of Code of Civil Procedure, 1908. Reliance is placed on judgments reported as Mst.
Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), CANTONMENT BOARD through Executive Officer, Cantt. Board Rawalpindi v. IKHLAQ AHMED and others (2014 SCMR 161), Muhammad Farid Khan v. Muhammad Ibrahim, etc. (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21) wherein it has been held that :- 'There is a difference between the misreading, non-reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.'
Further in judgment reported as Salamat Ali and others v. Muhammad Din and others (PLJ 2023 SC 8), it has invariably been held that:- 'Needless to mention that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below.'
5. For the foregoing reasons, the revision petition in hand comes to naught and the same stands dismissed in limine.