1. ABDUL KADIR SHAIKH, J.---This appeal by leave is directed against judgment of Baluchistan High Court dated 30-7-1985 allowing the revision application filed by the respondent, and thereby setting aside the judgment and decree passed by Qazi, Mashka dated 26-1-1985 which was confirmed on appeal by the Majlis-e-Shoora, Khuzdar on 31-3-1985.
2. The revision application arose out of a suit for declaration and possession filed by the respondent in the Court of Assistant Commissioner, Awaran in which it was alleged that he was the owner of suit-land over which the first appellant had constructed a shop with his permission on the undertaking that whenever he vacates or abandons the business therein, the vacant possession of the shop will be restored to him (respondent). The second appellant was joined as it was alleged that the shop was sold to him by the first appellant. In order to support his assertion that he was the owner, respondent produced a copy of the record of rights showing mutation in his favour.
3. According to this record, in first instance, the property was mutated in favour of the first appellant but on appeal filed by the respondent the entry in favour of the first appellant was cancelled and the property was recorded in respondent's favour. In defence first appellant pleaded that he had raised the superstructures over the land as many others in the locality had likewise done so, and he was carrying on business in the shop for about 10 years without any objection from the respondent.
4. The second appellant supported the plea of the First appellant that he was the owner of the property and that he was the lawful purchaser. In view of the pleadings of the parties learned trial Judge framed three issues, the crucial one being "whether the room in dispute is the property of the plaintiff who allowed Abdul Samad defendant temporarily to run the business on the stipulation that whenever the business is stopped by him, the possession of the shop would be handed over to tho plaintiff after receiving the cost of the super-structures." The Qazi Mashkey who tried the suit after recording evidence of the parties decided the aforesaid issue in favour of the respondent and decreed the suit in his favour. On appeal, the Majlis-e--Shoora, Khuzdar reversed the judgment and decree passed by the Qazi and consequently dismissed the suit. It was in these circumstances that the respondent filed a revision application in the High Court which was allowed with the result that the impugned judgment of Majlis-e-Shoora was set aside and the judgment and decree passed by Qazi, Mashkey, in favour of the respondent was restored.
5. Leave to appeal was granted by this Court in order to examine the plea whether it was permissible to the High Court in revisional jurisdiction to interfere with the findings of fact reached by the first appellate Court, and whether the High Court was in error in deciding the question of ownership of the property, inter alia, on the basis of certain entries in the Revenue Record which had not been proved according to law before the trial Court.
6. It may be firstly mentioned that the Majlis-e-Shoora took the view that it was not proved that the land beneath the shop belongs to the respondent and that there was no settlement between the first appellant and the respondent for handing over possession of the shop to the respondent.
7. In regard to this aspect of the case, learned Judge in the High Court after examining the pleadings between the parties and the evidence produced by the parties noticed that "at no stage of the pleadings there was any objection that the property was not described (fully) and that the property was in fact described by Khasra and Khatooni as entered in the Revenue Record, the boundaries also mentioned in the plaint itself. In view of these clear facts learned Judge in the High Court held that the observations of the Majlis-e-Shoora therefore were un-called for.
8. With regard to the entries in the Revenue Record, learned Judge in the High Court has observed in the judgment as follows:-- "The fact that the entries in the Revenue Record were first made in favour of the defendant but later on appeal the correction was made has been pleaded in para. 2 of the plaint to which there is no specific denial nor any proof to the contrary was brought on record by the defendant. None of the witnesses examined on behalf of the defendant could say that the land belongs to him. The D.W.
9. Khuda Bux admits that he was asked by Abdul Samad to request plaintiff to allow him to use the land.
10. The plaintiff has established his ownership and this is found from the statement of P.Ws Mir Lal Jan and Hamal and is further confirmed by the entries from the Revenue Record. All that has been said in the written statement is that the defendant has constructed (he shop like many others treating himself as the owner. The defendant owns no land in the vicinity. This has been established even through the witnesses produced by the defendant. The plea taken by the defendant in the written statement is not of adverse possession. Keeping quiet for few years does not disentitle the plaintiff to claim his property. The plaintiff's stand is that he had permitted the defendant to stay on but since he has discontinued the use of the shop himself and had alienated the property for consideration in favour of Karim Baksh, his rights of ownership have been effected, to restore the same the suit has been filed. The learned members of the Majlis-e-Shoora have certainly misread the evidence on record and have totally ignored the material evidence that exists on record. The judgment of the Majlis-e-Shoora is palpably erroneous, based on fallacious reasoning and is perverse. The interference by this Court is therefore called for."
11. Since it was pleaded in the plaint itself that the entries in the Revenue Record were first made in favour of the first appellant but later, on appeal, the I correction was made in respondent's favour, and this assertion was not denied in the written statement by the first appellant, nor was any proof to the contrary brought on record, learned Judge, therefore, very rightly relied upon this part of the pleadings, and also other evidence produced by the parties and on this basis reached the conclusion that "plaintiff has established his ownership and that the defendant on his own showing". It would be further seen that the plea taken by the defendant was not that he in fact was the owner nor that he had constructed the shop over the land as an owner, but that he had like many others treated himself as the owner. He had riot produced anything on record t)-it he was in fact the owner of the property, nor did he raise the plea of adverse possession. No fault can be found with the learned Judge in exercising the revisional jurisdiction of the High Court on the facts of the case. For these reasons the appeal is dismissed with costs.