This revision application is directed against the Appellate Court's judgment dated 10-8-1994 upholding the judgment of the trial Court decreeing respondents' Suit No.97 of 1989 in their favour.
2. Dispute between the parties relates to transfer of house constructed on Plot No.89 C.S. No. 451 situated at Tando Wali Muhammad, measuring 543 sq. Feet in favour of respondents vide conveyance deed dated 22-1-1985 executed by Hyderabad Municipal Corporation.
3. As the applicant happened to be in occupation of the house to suit respondents filed Rent Case No.179 of 1987 against him before the Rent Controller at Hyderabad seeking his eviction on the ground of default in payment of rent and personal bona fide requirement. Applicant resisted the eviction proceedings for the reason that on the basis of his old occupation he was entitled to its transfer from Hyderabad Municipal Corporation. He further claimed that his wife Mst. Zulekha had filed Suit No.343 of 1987 against the respondents as well as Hyderabad Municipal Corporation for declaration of her title to the transfer of the plot in suit and permanent injunction restraining the respondents from interfering with her possession of the property in suit.
4. On assessm ent of the parties' evidence learned Controller by his order dated 7-2-1989 dismissed the ejectment application on the ground that there was no relationship of landlord and tenant between the parties. According to the learned counsel for the applicant since no appeal was preferred from this order it has attained finality in the eyes of law.
5. Subsequently respondents filed Suit No.97 of 1989 for declaration, possession and mesne profits against the applicant seeking the following reliefs:
(a) That, this Honourable Court may be pleased to declare that the plaintiffs are owners of property i.e. Premises No.89, C.S. No.451, Ward "A", Kumbhar Para, Tando Wali Muhammad, Hyderabad admeasuring 543 sq. Feet and entitled to recover possession from the defendant and the defendant has no right, title, character over the suit property.
(b) That, defendant be ordered to vacate the suit property admeasuring 345 sq. Feet premises No.89 of C.S. No.451, Ward "A", Kumbhar Para Tando Wali Muhammad, Hyderabad, Sindh and deliver its vacant possession to the plaintiffs.
(c) That, defendant be ordered to pay mesne profits at the rate of Rs.100 p.m. For the last 3 years as well as current and future mesne profits at the same rate till defendant delivers the possession of the suit property."
6. Applicant resisted the suit and referred to the suit brought by her wife. On the pleadings of the parties' learned trial Court settled the following issues:
(1) Whether the plaintiffs are owners of suit property viz. No.89, C.S. No.451, Kumbhar Para, Hyderabad?
(2) Whether presently the defendant is in unauthorised occupation of suit property?
(3) Whether the plaintiffs are entitled to the possession of the suit property from the defendant?
(4) Whether the plaintiffs are entitled to the mesne profits? If yes at what rate and period?
(5) What should the decree be?
7. Both the parties adduced evidence in support of their respective cases. On consideration of the evidence learned Senior Civil Judge held that the respondents are the owners of the property in suit; that the applicant is using the said property without their consent and denying to be a tenant.
She further held that the respondents are entitled to claim mesne profits from the applicant at the rate of Rs.50 p.m., w.e.f. 15-3-1989 when they brought the suit. Applicant impugned this judgment and decree in Civil Appeal No.78 of 1994 before the learned District Judge, who on examination of the evidence on record and hearing the parties' counsel dismissed the appeal thereby upholding the judgment and decree. It is as against the concurrent findings of fact that the present revision application was filed.
8. I have heard learned counsel appearing in support of this revision application at quite some length and gone through the material evidence on record.
9. It was contended that in the face of Suit No.343 of 1987 filed by Mst. Zulekha wife of the applicant seeking her right to property in suit Courts below committed an error of law by decreeing the suit.
There is no substance in this contention as admittedly the property in suit was transferred in favour of the respondents by a competent authority i.e. Hyderabad Municipal Corporation as far back as January, 1985. The applicant did not challenge the transfer of property in favour of the respondents and instead of claiming any right in his favour he managed to file a suit in the name of his wife on the strength of his occupation since long. Evidently ownership of the property in suit in favour of the respondents is intact and not upset by any authority or a Court of law. Mere fact that wife of the applicant has claimed her right to transfer of the property in suit on the strength of her occupation would not be sufficient to disturb the findings that the respondents are not the lawful owners of the property and thus not entitled to claim possession and mesne profits from the applicant. Since the occupation of the property in suit by the applicant has not been disputed at any stage and as found by the trial Court he is occupying the premises without the consent of the owners in law he cannot defend his occupation merely because a suit filed by his wife before a Civil Court is sub judice. Likewise hecannot lawfully deny the claim on account of mesne profits for use and occupation of the property in suit to which he has not established any of his rights or lawful interest.
10. It was next contended that the respondents/plaintiffs had no cause of action to bring the suit as it was not stated in the plaint that the applicant occupied the property in suit after its transfer in their favour. Be that as it may, no issue was settled on this point by, the trial Court and no effort was made to agitate this point before the trial Court or the first Appellate Court because there is no discussion on this issue in the judgments. Mere statement in the pleadings that there is no cause of action without attempting to establish the point or to raise the same at the stage of arguments before the Courts of law would not per se be sufficient to set aside the concurrent findings of fact.
Indeed the scope of revisional jurisdiction is restricted and findings of fact cannot be ordinarily interfered with unless it is shown that these are perverse, arbitrary or based on misreading or non- reading of legal evidence. By not raising this issue before the lower Courts, the applicant is deemed to have abandoned the point taken in his pleadings. Since the issue raised at this stage is a mixed question of fact and law it cannot be raised for the first time at the stage of revision in the exercise of jurisdiction under section 115, C.P.C. Which is essentially meant for correcting the errors of law and not for reappraisal of evidence.
11. Lastly it was contended that after losing the rent case before the Controller, respondents could not be permitted to file a suit for possession and mesne profits and their suit is barred by the provisions of Article 114 of the Qanun-e-Shahadat which reads as under:--- "114. Estoppel. --When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceedings between himself and such person or his representative, to deny the truth of that thing. "
12. On a plain reading of this provision, it is difficult to subscribe the view of the learned counsel that the respondents by their declaration, act or omission, intentionally permitted the applicant to believe a thing to be true and to act upon such belief. Indeed no declaration of fact was made by the respondents to be believed and acted upon by the applicant in terms of the doctrine of estoppel. Simply because in the rent proceedings respondents had described the applicant as their tenant which was disputed by the applicant himself and later, by filing a suit for possession and mesne profits, respondents cannot be said to have acted in violation of doctrine of estoppel as enunciated in Article 114 of the Qanun-e---Shahadat which in fact is hardly attracted in the circumstances of the case.
13. On a close scrutiny of the judgments passed by both the Courts below, I am of the considered view that both the Courts have appreciated the evidence on record in its proper perspective and did not act illegally. Their assessme nt of facts and circumstances of the case is neither unreasonable nor irrational. Indeed no inherent defect or lacuna in the judgments has been pointed out to exist. There is thus no warrant for interference with the exercise of their jurisdiction which is neither improper nor unreasonable. Needless to reiterate some amount of sanctity is attached to concurrent findings of fact unless shown to be perverse or not supported by evidence on record. No authority is required for this proposition yet a reference may be made to Haji Muhammad Zaman v. Zafar A.I Khan and others PLD 1986 SC 88 and Sheikh Muhammad Bashir A.I and others v. Sufi Ghulam Mohiuddin 1996 SCM R 813.
14. For the aforesaid facts and reasons, there is no absolutely no merit in this revision application which must fail and is hereby dismissed alongwithC.M.A. No.73 of 1995.