SHAHID BILAL HASSAN-J: Facts in concision are as such that Mubashar Ali Shah, the petitioner, instituted a suit for partition of the land falling in Khewat No.303/308, Khasra Nos.2/25/86 and 197/1 measuring 7-Kanals 3-Marlas (Residential) and Khewat No.304/309 comprising Khasra Nos.5/3/98, 4/1, measuring 2-Kanals 2-Marlas (Commercial), situated in Mauza Hujra Shah Muqeem, as per Register Haqdaran Zameen for the year 2002-03. It was asserted that the petitioner/plaintiff has his share measuring 04-Kanals 01-Marla out of 7-Kanals 3-Marlas in the first mentioned Khewat No.303/308, while he is owner to the extent of 01-Kanals 04-Marlas in the second Khewat No.304/309 out of 02-Kanals 02-Marlas, therefore, the partition decree may be passed in his favour. The suit was contested by the defendants No.1 to 5, 7, 8-A to 8-G, 10 to 12, 13-A to 13-K, 14 to 19, 21, 22, 24, 25 and 39 by submitting a joint written statement whereas the defendant No.23 filed a separate written statement; defendants No.25-A to 25-I submitted separate written statement and resisted the suit. The defendants No.6, 9, 13-G, 13-I and 20 were proceeded against ex parte on 23.01.2008. The divergence in pleadings of the parties was summed up into issues and evidence of the parties in pro and contra was recorded. The suit was dismissed vide judgment and decree dated 06.03.2013.
The petitioner/plaintiff preferred an appeal, which was accepted on 31.08.2015 and case was ordered to be remanded for decision afresh in view of promulgation of Punjab Partition of Immovable Property Act, 2012 as the same had overriding effect.
A revision petition bearing No.2034 of 2015 was filed before this Court, which was decided on 08.05.0217 on the statements of the learned counsel for the parties and matter was remanded to the learned trial Court for decision afresh.
The learned trial Court without taking steps afresh in accordance with the provisions of the Punjab Partition of Immovable Property Act, 2012 proceeded to fix the case for final arguments and vide impugned judgment and decree dated 05.03.2018 dismissed the suit of the petitioner. The petitioner being aggrieved preferred an appeal but the same was also dismissed vide impugned judgment and decree dated 10.07.2021 by the learned appellate Court; hence, the instant revision petition.
2. Heard.
3. Record goes to divulge that the revision petition bearing No.2034 of 2015, filed against judgments and decrees dated 31.08.2015 and 06.03.2013, was allowed with concurrence of the learned counsel for the parties and case was remanded to the learned trial Court with the direction to decide the same afresh strictly in accordance with law by providing fair opportunity of hearing to all the parties. Post remand, the learned counsel for the parties submitted and conceded before the learned trial Court that they have no objection if the suit is decided in accordance with provisions of the Punjab Partition of Immovable Property Act, 2012 and they did not want to lead further evidence and relied upon the already recorded evidence. When the position was as such, the learned trial Court after hearing arguments of the learned counsel for the parties proceeded with the matter and passed the impugned judgment and decree. Section 4 of the Act, 2012 ibid provides that, 'an owner of immovable property may file a suit for partition of the property, giving details of the property, citing all other co-owners as defendants and attaching all the relevant documents in his reach or possession.' However, the petitioner/plaintiff did not implead all the co-owners in the suit, therefore, the suit was not maintainable and competent. Moreover, the possession also did not remain with the petitioner as has been admitted by P.W.1. Passing of preliminary decree in partition suit under Punjab Partition of Immovable Property Act, 2012 is not provided; therefore, without claiming mesne profit under the Act, the suit was not competent. Furthermore, the deposition of P.W.1 was based on hearsay and this witness admitted that father of the petitioner sold out 105-Kanals out of his ownership and only 01-Kanals land is left, which means the claim of the petitioner in the suit as to 05-Kanals 05-Marlas is not established rather the same has been negated by the P.W.1. Non-appearance of the petitioner himself in the witness box and making deposition on oath also goes against him. In judgment reported as Mrs. Zakia Hussain and another v. Syed Farooq Hussain (PLD 2020 Supreme Court 401) it has been candidly held by Supreme Court of Pakistan that:- 'Initially, it is the party itself to depose about the first hand and direct evidence of material facts of the transaction or the dispute and its attorney having no such information cannot be termed as a competent witness within the meaning of Order III, Rules 1 and 2 of C.P.C. Yes! The attorney can step-in as a witness if he possess the first hand and direct information of the material facts of the case or the party had acted through the attorney from the very inception till the accrual of cause of action. Deposition of such an attorney under the law would be as good as that of the principal itself. Non-appearance of the party as a witness in such a situation would not be fatal. If facts and circumstances of the case reflect that a party intentionally did not appear before the court to depose in person just to avoid the test of cross examination or with an intention to suppress some material facts from the court, then it will be open for the court to presume adversely against said party as provided in Article 129(g) of Qanun-e-Shahadat Order 1984 (QSO, 1984).'
Evidence of the P.W.2 is also based on hearsay, which has also rightly been disbelieved by the learned Courts below. Property of the D.W.1 is situated in different Khewat as is evident from the record that he purchased the land measuring 1 1/2 marlas from Khewat No.264, whereas the claim of the petitioner is with regards to Khewat Nos.308, 309 and 311, so the same has no nexus with the disputed property; therefore, it can safely be concluded that the petitioner could not lead confidence inspiring and convincing evidence in order to substantiate his claim.
4. Pursuant to the above, the learned Courts below have rightly appreciated and evaluated evidence of the parties and have reached to a just conclusion, concurrently, that the petitioners have failed to prove their case by leading cogent, confidence inspiring and trustworthy evidence.
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.'
In this regard, safer reliance can also be placed on judgment reported as Mst. Farzana Zia and others v. Mst. Saadia Andaleeb (2024 SCMR 916) wherein it has invariably been held that:- '13. We are sanguine that the High Court has the powers to reevaluate the concurrent findings of fact arrived at by the lower courts in appropriate cases but cannot upset such crystalized findings if the same are based on relevant evidence or without any misreading or non-reading of evidence. The first appellate court also expansively re-evaluated and re-examined the entire evidence on record. If the facts have been justly tried by two courts and the same conclusion has been reached by both the courts concurrently then it would not be judicious to revisit it for drawing some other conclusion or interpretation of evidence in a second appeal under section 100 or under revisional jurisdiction under section 115, C.P.C., because any such attempt would also be against the doctrine of finality.................................... The High Court cannot substitute its own findings unless it is found that the conclusion drawn by the lower courts were flawed or deviant to the erroneous proposition of law or caused serious miscarriage of justice and must also avoid independent re-assessment of the evidence to supplant its own conclusion.'
5. For the foregoing reasons, the revision petition in hand comes to naught and the same stands dismissed. No order as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.