The facts of the case in hand are few and simple. The bone of contention between the parties is the right to use the "path", fully detailed in the heading of the plaint.
2. The plaintiff-respondents had instituted 'a suit for declaration to the effect that they were entitled to use the suit path to go to their houses because there was no other/alternate path which could be used by them for the said purpose. The plaintiff-respondents further alleged in their plaint that the suit path is being used by them for the last more than forty years or so and that, therefore, petitioner-defendant has no right, whatsoever, to refrain them from using the same. In addition to the declaration they (the plaintiffs) have also prayed for a decree for perpetual injunction restraining the petitioner --defendant from constructing a door on the suit path and thus obstructing the plaintiff-respondents from using the path in question.
3. The petitioner-defendant contested the suit, filed his written statement and raised quite a few legal as well as factual objections therein. The pleadings of the parties were reduced to as many as 8 issues and the parties were directed to produce evidence in support of their respective cases.
After the conclusion of the trial the then learned trial Judge (Muhammad Nasim) vide: his judgment and decree, dated 27-11-1982 dismissed the plaintiff-respondents' suit.
4. The plaintiff-respondents aggrieved from the said order filed an appeal before the Additional District Judge (II), Nowshera (Mr. Khalid Amin Khan) who accepted their appeal and remanded the case back to the trial Court with the directions to appoint a Local Commissioner, to inspect the spot so as to ascertain as to whether or not the plaintiff-respondents have any alternate path to go to their residences and that thereafter the case be decided accordance with law.
5. The trial Court complied with the directions of the Additional District Judge and after doing the needful, it heard both the parties. By his judgment and decree, dated 14-12-1991 the trial Judge (Mr. Asim Imam) granted a decree as prayed for to the plaintiff-respondents against the defendant -- petitioner.
6. The petitioner-defendants challenged the validity of the said judgment and decree passed against him and impugned the same before the Additional District Judge (II) (Mr. Ziauddin Siddiqui). The Additional District Judge after going through the evidence, report submitted by the Local Commissioner and hearing the counsel for the parties came to the conclusions that the suit was rightly decreed in favour of the plaintiff-respondents. He further held that the impugned judgment and decree did not suffer from any illegality or legal infirmity and thus there was no need to interfere with the same. Finding no merits in the appeal the same was dismissed with costs vide: his judgment/order dated 1-3-1994.
7. Dissatisfied with the judgment/decree of the learned Additional District Judge (II), Nowshera, the defendant-petitioner has assailed the vires of the same before this Court and has prayed that the judgments and decrees of the learned lower Courts being against the facts, evidence available on record and the law are illegal, and therefore, liable to be set aside.
8. Mr.Sherdil Khan Awan, Advocate for the petitioner and Mr. Mazullah Khan Barkandi, Advocate for the respondents present and heard. Record of the case perused.
9. It may be stated at the very outset that section 115, C.P.C. Does not confer any substantive right to the petitioner because a revision is a matter between the higher and the subordinate Court and the right to move a petition in this respect is merely a privilege. The provisions of section 115, C.P:C.
Are in two parts. The first part lays down the conditions under which the revisional Court may interfere and the second part specifies the types of orders that are susceptible to revision.
Accordingly the revisional Court can interfere in revision only if the following conditions are fulfilled: --
(i) Where a case has been decided;
(ii) the decision has been given by a Court which is subordinate to the High Court; and
(iii) no appeal lies to the High Court from such a decision.
10. Where the conditions mentioned above are fulfilled the High Court ma interfere if the subordinate Court has
(i) exercised a jurisdiction not vested in it; or 1
(ii) failed to exercise jurisdiction vested in it; or
(iii) acted in exercise of its jurisdiction illegally or with material irregularity.
11. See in this context, it may be stated that both the Courts below have discussed each and every issue framed in the suit in detail and have given their findings correctly. Since in the case in hand only a question of fact is involved and both the lower Courts have concurred, in arriving at the same decision, on the basis of evidence produced and have thus committed no illegality or material irregularity, and therefore, interference by this Court is not warranted. The learned counsel for the petitioner has not been able to convince me as Ito what was wrong with the orders passed by the learned lower Courts. In the circumstances, mentioned above, 'I am of the considered view that this case is not a fit case in which this Court should exercise its revisional jurisdiction under section 115, C.P.C.
12. Even on merits, the petitioner-defendant has no legs to stand upon. This case was one remanded by the then learned Additional District Judge (II), Nowshera vide his order dated 9-3- 1987 and on his direction the trial Court had appointed a Local Commissioner. (Mr. Sharif Hussain, Advocate Nowshera) and directed him to find out as to whether or not the contention of the plaintiff-respondents was correct. The Local Commissioner visited the spot, in the presence of the parties as well as the Patwari Halqa, and prepared his report Exh.CW1 wherein he clearly stated as under: --
13. Thereafter, Mr. Sharif Hussain, Advocate (Local Commissioner) was examined on oath by the trial Court as a Court-witness and the parties were given the opportunity of cross-examining him.
When he was cross-examined by the defendant-petitioner, he stated as under: --
14. "It is incorrect that the path in question was not in existence. There is no other alternate oath on the spot except the disputed one through which the plaintiff could approach their houses."
15. Vide Order Sheet No.37 dated 10-3-1991 the trial Court confirmed the report of the Local Commissioner. Whereas, it may be noted, that the impugned decree was passed, in favour of the plaintiff-respondents, on 14-12-1991. The defendant-petitioner, it appears from the record, did not bother to challenge the verdict of the trial Court vide: which the report of the Local Commissioner was confirmed for reasons best known to him.
16. In my opinion, the Courts below have discussed and evaluated the evidence produced by the parties properly, without committing any error or default in appreciating the material brought on record. Besides, I have also not been able to find any infirmity in the impugned judgments/decrees of the Courts below, legal or otherwise, therefore, I am not inclined to interfere with the concurrent findings of the said Courts in revisional jurisdiction. This revision petition is devoid of any substance and is accordingly dismissed with costs.