1. ' This revision petition is directed against the judgment dated 17-1-1983 passed by the VIIIth Additional District Judge, Karachi in Civil Appeal No,163 of 1981 dismissing the appeal filed by the petitioner and maintaining the judgment and decree dated 5-3-1981 of the XXIInd. Civil Judge, Karachi.
2. ' The facts leading to the filing of the above revision petition are that the respondents filed suit for declaration and injunction. The case of the respondents, as set out in the plaint, was that they are migrants from East Pakistan and they came in contact with the owner of survey No,197, situated at Azeempura Green Town, Drigh Colony, Karachi with name and style as Jewels Corporation Ltd. In the year 1973. The respondents are related to each other hence they took vacant plots of lands in survey No,197 situated at Deh Drigh Tappoo Malir. The said company divided plots and plans were duly approved and were available and the plot numbers were A/21, A/22, A/23, A/24 and A/25, all measuring 120 square yards and the possession at site were given to them. The said Jewels Corporation then got 99 years lease executed in favour of the respondents and the leases were duly registered at the office of the Additional Registrar, Karachi. The further case of the respondents was that they started construction. They raised boundary walls of their respective plots and the respondent No,3 got a room constructed over the plot. The respondent No,3 applied for water connection to the K.M.C. And the same was granted in his favour and he got installed the water connection.
3. ' It was the further case of the respondents that on 9-2-1975 the respondent No,? Who was living in the room alongwith his bed had gone out, taking the advantage of the same the petitioner took the possession of the room and all constructions. The respondents then lodged F.I.R. And the police submitted a report under Section 145, Cr.P.C. Before the Assistant Commissioner and Sub-Divisional Magistrate Malir Sub-Division, Karachi.
4. ' The contention of the petitioner is that he holds a power of attorney from one Abdul Aziz who was allotted a land Sub-division No,833 and 834 measuring 100 square yards, each out of survey numbers 200 and 202 situated at Deh Drigh Tapoo Malik, Karachi which is now adjacent to survey No,197 at Deh Drigh. In these facts, the respondents filed the above suit for declaration and injunction.
5. ' The petitioners contested the suit by filing written statement. The petitioners pleaded in their written statement that the petitioner No,1 had purchased the lease-hold rights of two plots for 99 years from M/s Housing Corporation. The petitioners denied the allegations that the respondents had purchased plots numbers A/21 to A/25, Azimpura. The petitioners pleaded that the dispute arose with regard to numbering of plots and the matter was referred to Mukhtiarkar, Karachi East who declared that the petitioner was owner of plots numbers 833 and 834 and plots NosA/21 to A/25 were declared void. The petitioners denied that the respondent No,3 had raised a room. The petitioners averred that the petitioner No,1 had raised construction and his attorney was residing thereon. The petitioners denied that the respondents were ever in possession.
6. ' On the pleadings of the parties, the trial Court framed nine issues and two additional issues. The parties led evidence in support of their respective versions.
7. ' The Civil Judge, on assessm ent of the evidence (oral and documentary) adduced by the parties decided issues Nos.1, 2, 3, 7 and additional issue No,2-A in the affirmative. On issue No,6 and additional issue No,1-A gave a finding in the negative. On issue No,5, he came to the conclusion that the lease granted in favour of the defendants/petitioners does not confer any right or title over the plots which are subject-matter of the suit which stand leased out to the plaintiffs/respondents.
8. He found that the defendants/petitioners should find out their plots in survey Nos.200 and 201. He observed that leases in favour of the plaintiffs/respondents were executed in 1974 and whereas leases in favour of the defendants/petitioners were executed in 1977. He further observed that subsequent lease cannot override the previous one. On the above findings, the suit was decreed.
9. ' Against the judgment and decree of the Civil Judge, the petitioners went in appeal before the District Judge, Karachi which was ultimately heard by the VIIIth Additional District Judge, Karachi.
10. The learned Additional District Judge, re-assessed the evidence on the record. The learned counsel for the petitioners contended before the Additional District Judge that the suit was bad for misjoinder of parties and misjoinder of causes of action. This contention was repelled for cogent reasons. Mr. Hatif raised the same contention before me as was raised before the lower appellate Court. This contention is devoid of force for more than one reason. Firstly, this contention was not raised in the written statement. Secondly, this contention cannot be raised before the appellate Court. Section 99 of the Code of Civil Procedure provides that no decree shall be reversed in appeal on account of any misjoinder of parties or causes of action. It provides that a decision which is correct on merits and within the jurisdiction of the Court making it, should not be upset by an appellate Court merely on the ground of technicalities or immaterial defects. Thirdly, the case of the respondents was that they were in possession of their plots and they raised boundary walls and respondent No,3 raised a construction of a room where he was residing. According to them, the defendant No,3 petitioner No,3 Altaf Hussain forcibly occupied the plots in dispute. The petitioner No,2 was impleaded on his own application. The petitioner No,3 stated that he is attorney of petitioner No,1. Lastly no suit shall be defeated by reason of the misjoinder or non joinder of the party (See Order I, Rule 9, C.P.C.). It appears that the contention was rightly rejected by the Additional District Judge. The learned counsel is unable to point out any illegality or material irregularity in the impugned judgment.
11. ' Mr. Hatif Khudai contended that the Courts below have misread the evidence and also ignored the evidence of the petitioners in deciding issues 1 to 5. At the outset it may be stated that the finding on issues 1, 2, 3 and 4 is a finding e of fact which has been concurrently found against the petitioners. Both the Courts below have assessed the evidence of the parties and have discussed it.
12. It has come on record that lease deeds Exts.6, 7, 8 and 9 were executed by M/s. Jewels Corporation in favour of the plaintiffs/respondents. The respondents have also produced title deeds of M/s. Jewels Corporation Exts. 14, 15 and 16. The respondents produced letter of approval of lay-out plan by the K.D.A. The competent authority produced the lay-out plan before me. It has come on record that the respondents were allotted Plots Nos.A/21 to A/25, as per approved plan. The petitioners purchased the plots in Survey Nos.200 and 201 from GA. Brohi. He appeared in the witness-box and deposed that the plan was approved by K.D.A. In the name of M/s. Allied Linkers. He was given opportunity to produce the same but he failed to produce it. On the basis of the evidence adduced by the parties, the Civil Judge came to the conclusion that the respondents are lessees of Plots NosA/21 to A/25 situated at Survey No,197 Deh Drigh, Karachi. The respondents produced evidence that in 1975 they started raising constructions out of which one room has been completed and walls of 4 rooms were completed. It has come on record that respondent No,3 was residing in that room. This version was corroborated by P.W.s Haji Ghulam Muhammad and Munir Baig, In that view of the matter the Civil Judge rightly found that the respondents proved that the construction was raised by them.
13. ' The petitioners contended that the possession was handed over to them by M/s. Housing Corporation. This was not believed by the Courts below for cogent reasons. Courts below came to the conclusion that M/s. Jewels Corporation handed over the possession of the Plot NosA/21 to A/25 in Deh Drigh to the respondents and petitioner No,3 took forcible possession of the plots and demolished the partition walls. Courts below have come to the conclusion that the petitioners were not able to prove that the plots in dispute were in their possession. Once a party proves his title to the property, the presumption will be that he is in possession of the property, the presumption will be that he is in possession of the property as owner.
14. ' As observed earlier, both the Courts below have given a concurrent finding of fact that the possession of the Plots NosA/21 to A/25 was handed over to the respondents and they were forcibly dispossessed by petitioner No,3. This finding of fact cannot lightly be disturbed in exercise of the revisional jurisdiction. The power of this Court in exercise of revisional jurisdiction to look into the evidence, may be with a view to determine which the Courts below have assumed the jurisdiction which they had not or declined to exercise the jurisdiction which they had or acted illegally or with material irregularity in the exercise of their jurisdiction. The revisional Court, however, will not disturb the concurrent finding of fact of Courts below or substitute its own appreciation of evidence for that of the trial Court unless such conclusions of facts are based on no evidence at all or if no opportunity was given to the party to substantiate the respective contentions. If the finding of fact is based on incorrect approach and applicability to the provisions of law, this Court has the power to interfere and correct this mistake.
15. For the foregoing reasons, there is no case made out for interference in the revisional jurisdiction as no jurisdictional defect has been made out or other material irregularity shown and no misreading having been made out, the findings of fact cannot be interfered with.
16. ' For the foregoing reasons, there is no merit in this revision petition and the same is dismissed. In the circumstances of the case, the parties are directed to bear their own costs.