SHAHID KHAN, J.- The petitioners have called in question the judgment & decree of the learned District Judge, Dir Upper, dated 07.09.2011, whereby, their appeal was dismissed, and consequently, the judgment & decree, dated 26.05.2010, of the learned Civil Judge-IV, Dir Upper, in respect of the subject property, detailed in the list annexed with the plaint, was maintained.
2. In essence, the petitioners/plaintiffs approached the learned trial Court through a lis for partition of the subject property, detailed in the list annexed with the plaint. It was contested by the respondents/defendants through their respective written statements. After recording evidence, far & against followed by hearing of learned counsel for the parties, claim of the petitioner/plaintiffs was initially allowed by the learned trial Court vide judgment & decree, dated 24.03.2007, however, the said judgment & decree was set aside by the learned appellate Court by allowing appeal of the aggrieved party vide judgment/ order, dated 15.12.2007, and the matter was remanded to the trial Court with certain directions. After remand, claim of the petitioners/plaintiffs was dismissed by the learned trial Court vide judgment & decree, dated 26.05.2010, followed by the judgment & decree of the learned appellate Court, dated 07.09.2011, with the same fate.
3. It obliged the petitioners to approach this Court through the subject Revision Petition.
4. Arguments of learned counsel for the parties have been heard and the record gone through with their valuable assistance.
5. The record made available before this Court would transpire that relationship between the parties is admitted, however, they are at variance on the point that the petitioners/plaintiffs stated that the subject property is the legacy of common predecessor in-title, which is still unpartitioned, wherein, they are entitled to get separated their respective shares. As against this, the respondents/defendants have controverted the above contention by stating that in 1370 Hijri, their common predecessor-in-title, in his lifetime, had partitioned the subject property, as a result of it, every legal heir is owner in possession of his/her respective share.
6. To prove their case, the petitioners/plaintiffs produced their evidence in shape of PWs-1 to 3 followed by additional evidence as APW-1. PW-1 is the statement of Muhammad Ayub, who is special attorney of the petitioners/plaintiffs. He reiterated the stance as taken by the petitioners/plaintiffs in their plaint, however, in his cross-examination, he stated that for his sustenance, plaintiff No. 3, Muhammad Yar Malak, is in possession of 4 or 4-1/2 jerib property situated in village Lageen. Similarly, he is also in possession of 4 jerib property (sh uwara) at village Lageen. He also stated that: {{URDU TEXT}} Similarly, PW-2, in his examination-in-chief, supported contentions of the petitioners/ plaintiffs, however, in his cross-examination, he stated that: {{URDU TEXT}} He also admitted it correct that: {{URDU TEXT}} This admission supported the contentions of respondents/defendants with respect to partition of the subject property by their predecessor in his lifetime. PW-3 has also given a similar statement as during the course of his cross-examination, he stated as under: {{URDU TEXT}}
7. Other than it, ADW-1 produced certain record with respect to Suit bearing No. 120/1 titled as "Naseer Ullah etc. v. Sorkay etc." decided on 16.12.2002 as well as the statement of one Muhammad Farid son of plaintiff No. 3, Muhammad Yar Malak, and exhibited in his evidence as Ex ADW1/1 and Ex ADW 1/2, respectively. In that case, plaintiff No. 3 was defendant No. 23 and his son was his special attorney, who recorded his statement as DW-7, which is most important for the subject controversy. In his examination-in-chief, he stated that the disputed property {{URDU TEXT}} was the ownership of his grandfather, which he partitioned amongst his sons, as such, the subject property fell into the share of his father, followed by its further partition by his legal heirs. As such, his this statement alone negated the contention of the petitioners/plaintiffs, while supported that of the respondents/defendants.
8. In view of the above, it is observed that predecessor-in-title of the parties, in his lifetime, had partitioned the subject property, as reflected from the evidence, so furnished by the petitioners/plaintiffs, which supported the contention of the respondents/ defendants. As a result of the partition, every heir is owner in possession to the extent of his/her respective share as the petitioners/plaintiffs are in possession of their shares while the respondents/ defendants are in possession of their respective shares, wherein, both the parties had made certain sale & purchase and also raised certain constructions therein. Moreso, both the parties have further partitioned the subject property among their legal heirs, as reflected from the evidence so recorded. As such, it can safely be concluded that the petitioners/plaintiffs have not been able to prove their case through cogent, reliable, trustworthy and confidence inspiring evidence.
9. So far as contention of the petitioners that their application for appointment of local commission was not decided by the learned appellate Court is concerned, it is hard fact that they have filed similar application before the learned trial Court, which was dismissed vide order, dated 18.04.2006, but they have not challenged it before any competent Court within the specified period. As such, they are estopped by their own conduct and filing of the subsequent application before the appellate Court for the purpose could be of no help to the petitioners/plaintiffs.
10. To conclude, it is observed that the learned trial Court coupled with the learned appellate Court, in view of proper appraisal of the facts & circumstances and the evidence so recorded, have arrived at the just conclusion of the matter in issue, as such, the impugned concurrent findings of the learned Courts below do not need any interference. Reliance is placed on the case of Nasir All v. Muhammad Asghar reported as 2022 SCMR 1054, wherein the Hon'ble Apex Court has held: "Section 115, C.P.C empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C."
Similarly, in the case of Salamat Ali and others v. Muhammad Din and others reported as PLD 2022 Supreme Court 353, it was observed: "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."
In para-6 of the judgment rendered in the case of Muhammad Sarwar and others v. Hashmal Khan and others reported as PLD 2022 Supreme Court 13, it was also held that: "It is well settled exposition of law, deducible from plethora of dictums laid down by superior Courts that section 115, C.P.C. empowers and meted out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law."
In Khudadad v. Sved Ghazanfar Ali Shah alias S. Inaam Hussain and others reported as 2002 SCMR 933, the Hon'ble Apex Court has held that the High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. Relevant findings of the august Court are reproduced as under: "The High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the court but confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law, but interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered."
11. For the stated reasons, the subject Revision Petition is devoid of any merit, as such, it is hereby dismissed.