ALI BAIG, C.J. The instant civil revision petition under section 115, C.P.C. has been directed by the petitioner against the impugned judgment/order dated 23.06.2023 passed by the learned Addl.
District Judge, Gilgit in C.F.A. No.25/2023, whereby the learned 1st Appellate Court Gilgit has dismissed the civil first appeal of the present petitioner by upholding the judgment/order dated 13.06.2023 passed by the learned Civil Judge 1st Class, Danyore in Civil Suit No. 95/2022.
2. Succulently facts of the case collected from the available record are that the present petitioner had filed a civil suit against the present respondents in the Court of Civil Judge 1st Class Danyore with the plea that the petitioner is owner in possession of suit land under Mutation No. 774 measuring one kanal land situated at Rahimabad, Tehsil Danyore, District Gilgit. In the year 2018, the present petitioner/plaintiff had received a loan of Rs.800,000/- (eight lac only) from the respondent/Defendant No.1 and in the same year the petitioner/plaintiff vide Mutation No.774 had transferred the suit land in the name of the respondent/ defendant No.1 with the condition that if the petitioner/plaintiff will pay back the above mentioned amount to the respondent/defendant No.1, he will return the suit land to the petitioner/plaintiff. Now the petitioner/plaintiff wants to return the borrowed amount to the respondent/defendant No.1, but the respondent/defendant No.1 is bent upon to get possession of the suit land in collusion with revenue authorities.
3. During pendency of the suit, the learned trial Court after hearing arguments on behalf of both the parties on the application filed by the petitioner/plaintiff under Order XXXIX, Rules 1, 2, C.P.C., has dismissed the said application of the petitioner/plaintiff, vide impugned judgment/order dated 13.04.2023.
4. Feeling aggrieved and dissatisfied with the judgment/order of the learned trial Court, the present petitioner had filed a civil first appeal in the Court of learned Addl. District Judge Gilgit, which was also dismissed by the learned 1st Appellate Court Gilgit by maintaining the judgment/order of the learned trial Court, vide impugned judgment/order dated 23.06.2023, hence this civil revision petition before this Court.
5. The learned counsel for the petitioner argued that the impugned judgments/orders passed by both the learned Courts below are against the law and facts on the record of the case as the suit land is still in possession of the petitioner, whereas the respondent No.1 cannot establish his title on the basis of a mutation, hence both the judgments/orders of the learned Court below are not maintainable and are liable to be set aside. The learned counsel for the petitioner further argued that the suit land was provisionally mutated in the name of respondent No.1 which is liable to be cancelled on payment of loan amount amounting to Rs. 800,000/- by the petitioner. The learned counsel for the petitioner further argued that the conditional mutation was mutated in the name of respondent No.1 in the year 2018 without delivering possession of the suit land, whereas the respondent No.1 has filed- an application before the Tehsildar Danyore for delivery of possession of suit land in the year 2023, hence the impugned judgments/orders passed by the learned Courts below are not tenable in the eye of law. The learned counsel for the petitioner further argued that the petitioner has sufficient evidence to establish his case and the petitioner will suffer irreparable loss if permanent injunction is not granted in favour of the petitioner.
6. On the other hand, the learned counsel for the respondent No.1 controverted the arguments advanced by the learned counsel for the petitioner and supported the impugned judgments/orders passed by the learned Courts below, by contending that the petitioner/plaintiff has mutated the suit land in the name of respondent No.1 In consideration of Rs. 800,000/- and this fact has been admitted by the petitioner/plaintiff in his plaint, as such the petitioner is estopped by his conduct and admission to institute the suit against the respondent/defendant No.1. The learned counsel for the respondent No.1 further contended that as per revenue record, the respondent No.1 is bona fide owner of the suit land, but the petitioner is interfering in the suit land without any justification. The learned counsel for the respondent No.1 further contended that the petitioner has failed to make out prima facie arguable case in his favour, balance of convenience is also not favour of the petitioner, hence the learned lower Courts have rightly dismissed the application and appeal of the petitioner. Lastly, the learned counsel for the respondent No.1 contended that both the learned Court below have concurrently decided the matter, as such this Court cannot disturb the concurrent findings of facts except in exceptional circumstances which are lacking in the instant case, hence the revision petition of the petitioner is meritless and the same, is liable to be dismissed.
7. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and with their able assistance perused the record of the case.
8. It is the case of the petitioner/plaintiff that the petitioner is owner in possession of suit land under Mutation No. 774 measuring one kanal situated at Rahimabad, Tehsil Danyore, District Gilgit. In the year 2018, the petitioner/plaintiff borrowed a sum of Rs. 800,000/- (eight lac only) from the respondent/defendant No.1 and suit land was transferred in the name of respondent No.1 vide Mutation No. 774 with the condition that the petitioner will return back the borrowed amount to the respondent No.1 and the respondent No.1 will return the suit land to the petitioner/plaintiff. Now the petitioner wants to return the borrowed amount to the respondent No.1, but the respondent No.1 is reluctant to receive the said amount and transfer the suit land in the name of petitioner/plaintiff.
9. In order to substantiate his claim, the present petitioner/plaintiff has filed an attested copy of Mutation No. 774 which has been attested on 01.03.2018 in favour of the present respondent No.1.
Perusal of contents of said mutation it transpires that no condition has been written in the said mutation, rather the respondent No.1 has purchased the suit land vide Mutation No. 774 in consideration of Rs.800,000/-. The petitioner/plaintiff failed to make out an arguable case in his favour and balance of convenience is not in favour of the petitioner. Moreover, eventually the petitioner/plaintiff wins the case, the respondent No.1 will return the disputed land, as such the petitioner shall not suffer irreparable loss if temporary injunction is not granted in his favour.
Moreover, prima facie the respondent/defendant No.1 seems to be bona fide purchaser of the suit land.
10. The learned trial Court as well as the 1st Appellate Court have not committed any illegality or material irregularity while passing the impugned judgments warranting interference of this Court in it's revisional jurisdiction, thus I am of the view that the instant revision petition being meritless is liable to be dismissed.
11. For what has been discussed above, the instant revision petition being bereft of merit is hereby dismissed and the impugned judgment/order dated 23.06.2023 passed by the learned 1st Appellate Court Gilgit is maintained. Parties are left to bear their own costs. File