' On 7-1-1970 Abdul Sattar respondent No.1 filed suit against Ghulam Muhammad petitioner, Mst.
Aziz Khatoon respondent No.2, Sardar Khatoon respondent No.3 and Mst. Sabhai respondent No.4 for declaration to the effect that he was owner in occupation of the suit land measuring 10 Kanals 4 Marlas situated in Mouza Jeeyandwali, Tehsil Rahimyar Khan and as such Mutation No.749, dated 23-1-1965 of the alienation of the suit land through gift by Jewan Khan predecessor of Ghulam Muhammad petitioner and Mst. Aziz Khatoon, Mst. Sardar Khatoon and Mst. Sabhai respondents, being fictitious one was illegal void and inoperative upon his rights. As a consequential relief it was prayed that the defendants therein he restrained from interfering in his possession for the suit land and in the mutation proceedings in his favour.
2. In the plaint it was averred that on 3-12-1964 Jewan Khan zad purchased the suit land from Shams-ud-Din for Rs.1,000 vide Mutation No.735 whereupon, the plaintiff filed suit for possession by pre-emption on 16-3-1965 which was decreed in his favour on 5-9-1965. The plaintiff deposited sale price i.e. Rs.1,000 within time, which was withdrawn by Jewan Khan, the vendee. It was further averred that after receiving Rs.250 more Jewan Khan delivered possession of the suit land but when the plaintiff approached Revenue Department for getting mutation sanctioned in his favour on the basis of decree in the pre-emption suit, it was revealed that Jewan Khan having already transferred the suit land in favour of Ghulam Muhammad respondent vide gift Mutation No.749 dated 23-1-1965, was no more owner of the suit land. The plaintiff further stated that the existence of this mutation was not disclosed by Jewan Khan at the time of suit for the pre-emption and at the time of the delivery of the possession on receipt of Rs.250 more. It may be mentioned here that prior to this suit Abdul Sattar plaintiff/respondent had filed suit against the petitioner and respondents Nos.2 to 4 which was however withdrawn on 18-4-1969 with permission to file fresh suit on payment of costs of Rs.30 so the present suit was filed before the Administrative Civil Judge on 7-1-1970 after paying the costs of Rs.30. The suit was entrusted to the learned Civil Judge. The suit was resisted whereon 11 issues were framed. The trial Court finding all the issues in favour of Abdul Sattar respondent, decreed the suit on 25-2-1974. Feeling aggrieved by" this judgment and decree, Ghulam Muhammad petitioner filed appeal before the learned District Judge which was entrusted to the learned Additional District Judge who vide his judgment and decree dated 2-3-1977 dismissed it, hence this revision.
3. Before me the findings of the learned Courts below on issues Nos. 5 and 6 have been challenged.
The issues are as under:- Issue No.5 "Whether the gift Mutation No.749, dated 23-1-1965 got attested by Jewan Khan in favour of defendant No.2 was collusive, fictitious, and inoperative qua the rights of the plaintiff? O.P.P.
Issue No.6. Whether the decree for pre-emption in Civil Suit No.87 of 1965 dated 5-9-1965 passed in favour of the plaintiff against Jewan Khan deceased is binding on defendant No.1 (Ghulam Muhammad) and the legal heirs of Jewan Khan? O.P.P.
4. The plaintiff produced Muhammad Hussain, Muhammad Hamza P.W.2, Muhammad Yaqoob P.W.3 and Mst. Nazir Khatoon P.W.4 and tendered in evidence documents P.1 to P.14. The petitioner/defendant produced Wali Muhammad D.W.1 Behram Khan D.W.2, Ghulam Mustafa D.W.3 and himself appeared as D.W.4.
5. Learned counsel for the petitioner contended that the findings of the Courts below on issue No.5 are based on misreading of evidence and the reasons given by the Courts below in support of the conclusion arrived at by them are flimsy and far- fetched. On issue No.6 the learned counsel submitted that since Ghulam Muhammad petitioner/defen dant was not impleaded as party to the suit for possession by pre-emption wherein decree for possession by pre-emption in favour of Abdul Sattar plaintiff/respondent No.1 was granted, on the basis of which Abdul Sattar has filed present suit seeking declaration of his ownership and occupation of the suit, therefore, the decree in favour of Abdul Sattar petitioner being ineffective qua the rights of the petitioner/defendant was not binding on him. On the other hand the learned counsel for respondent No.1 vehemently defended the judgments and decrees of learned Courts below. He submitted that it is a case of concurrent findings and that Jewan Khan the predecessor-in-interest of Ghulam Muhammad petitioner having withdrawn the sale price from the Court and received Rs.250 more, the judgment and decree passed by the learned Civil Judge in suit for possession by pre-emption against Jewan Khan, was very much binding on Ghulam Muhammad and other heirs of Jewan Khan.
6. I have considered the arguments advanced by the learned counsel for the parties with care. I fell persuaded to agree with the learned counsel for the petitioner. No doubt as a general rule, the High Court may not interfere with the concurrent findings of the Courts below but this does not mean that High Court cannot in any case interfere with these findings. It is by now well-settled that when the findings of facts are based on misreading of evidence or on a wrong approach of the relevant statutory provisions the High Court can and will interfere in exercise of its revisional jurisdiction.
Whenever it appears to the High Court that subordinate Court has failed to exercise jurisdiction vested in it by law or it has acted in exercise of the jurisdiction illegally or with material irregularity the High Court may interfere and make such orders as it thinks fit. In this case, I find that findings on issues Nos. 5 and 6 are based on misreading of evidence and conclusion arrived at, were unwarranted and as such the learned Courts below have acted in exercise of their jurisdiction illegally or at least with material irregularity. Taking up issue No.5, I find that the suit land was alienated by Jewan Khan in favour of Ghulam Muhammad petitioner vide Mutation No.749 attested on 23-1-1965 i.e. about two months before the institution of suit for pre-emption by Abdul Sattar respondent/plain tiff; that alongwith the suit land other land of Jewan khan was also alienated in favour of Ghulam Muhammad petitioner/defendant; that the petitioner being the son of Jewan Khan there was nothing unnatural in Jewan Khan's giving land in gift to him; that no evidence of collusion between the father and son is on the record; that there is nothing to show that the gift transaction was not a genuine one. The reasons given by the Courts below in deciding issue No.5 against the petitioner/defendant, appears to be imaginary. The findings on this issue appears to have been based on surmises and conjectures. The admission made by Mst. Sabhai in her statement Exh.P.5 that her husband had withdrawn the decretal amount or that he having received Rs.250 had delivered the possession, is not binding on Ghulam Muhammad petitioner/defendant particularly when Mst. Sabhai was not examined as a witness in the case by either of the party; that since Jewan Khan after having given the suit land in gift to Ghulam Muhammad petitioner on 23-1- 1965 was not legally entitled to receive the sale price of the suit land deposited in the Court and if he had withdrawn the sale-price, this will have no adverse effects on the rights of the petitioner because the gift transaction was already mature; that if Jewan Khan had not disclosed the transaction of gift in his written-statement in suit for pre-emption the petitioner shall not suffer for the concealment made by Jewan Khan.
7. This brings me to issue No.
6. In the instant case Abdul Sattar respondent/plaintiff based his title on the judgment and decree passed in his favour in suit for possession by pre-emption; that admittedly Ghulam Muhammad defendant/petitioner was not impleaded as defendant by Abdul Sattar respondent/plaintiff; that a decree adverse to his interest has been passed in the pre-emption suit at his back and without giving him any opportunity to meet the case; had he been impleaded as a party the possibility that he by having raised various pleas might have non-suited the defendant/plaintiff cannot be excluded; that gift Mutation No.749, dated 23-1-1965 which was sanctioned two months before the filing of the suit by the respondent was a notice of the transaction to the world and that there is no evidence of any fraud by or concealment of any fact by Ghulam Muhammad petitioner/plaintiff.
Since the decree in the pre-emption suit conferring title on Abdul Sattar respondent/plaintiff was passed in the absence of Ghulam Muhammad (who had already become owner of the suit land vide gift mutation) and he was condemned unheard. Therefore, it can safely be said that the Courts below having made declaration of the title of Abdul Sattar respondent on the strength of that judgment and decree, have done gross injustice to petitioner/defendant and as such, have acted with illegality or at least material irregularity which cannot be remedied otherwise than by exercise of the powers vested in this Court under section 115, C.P.C.
8. For whet has been stated above, the findings of the Courts below on issues No.5 and 6 are hereby reversed. Resultantly the suit for declaration. filed by Abdul Sattar respondent against Ghulam Muhammad and others stands dismissed. The parties are left to bear their own costs.