' This petition is directed against the judgment and decree, dated 29-4-1993 passed by Senior Civil Judge, Quetta dismissing the suit of the petitioners and judgment and decree, dated 19-6-1996 passed by District Judge Ad hoc, Quetta whereby the appeal filed against the judgment and decree, dated 29-4-1993 was also dismissed.
2. The factual background of the case is that the petitioners filed a suit for declaration and permanent injunction against the respondents in the Court of Senior Civil Judge, Quetta on 12-9- 1989 averring therein that the petitioners are owners of property bearing Khasras Nos.230/1, 230/3, Khatooni No,63/124 and 63/122 situated in Mahal and Mauza Rode Bazar Kohna, Tappa Saddar, Surkhab, Tehsil and District Pishin, and further stated that the said property was purchased by the petitioners from its previous owners (Morosi Buzgars) and it is stated that the statutes of Morosi Buzgar is that of owner whereas actual ownership belongs to the Central Government.
3. It is the case of the plaintiff-petitioners that adjacent to the property purchased by the petitioners is the property bearing Khasra No,230/5 measuring about 1060 poles which was barren and was in possession of the petitioners (hereinafter referred to as the property in dispute). In the year 1989 respondents Nos.1 to 3 forcibly started occupying the said property. The petitioners filed a suit for declaration and permanent injunction in the Court of Civil Judge, Quetta against the respondents. From the written statement filed by the respondents, it transpired that the respondents had purchased the said land in the year 1987. To verify the said fact, the petitioners approached the Revenue Authorities and thereafter, sought permission to file fresh suit which was duly allowed by the learned Civil Judge-III, Quetta on 11-7-1989. Thereafter, the suit in hand was filed. On enquiry it was revealed that respondents Nos.1 to 3 in connivance with respondent No,4 have entered mutation on 24-12-1987 and fee in respect of the said mutation was paid on 23-4- 1989 which shows that fraud has been committed. Petitioners have further stated that respondents Nos.1 to 3 are neither in possession of the property in dispute nor have any title over the same and have prayed that the mutation, dated 24-12-1987 be declared as illegal and respondents may he restrained from occupying the premises in question.
4. Written statement was filed by respondents Nos.1 to 3 on 10-2-1990 disputing the claim as put forth by the petitioners. Respondent No,4 also filed his written statement on 20-12-1989 denying the contentions raised in the plaint. Out of the pleadings the following issues were framed:--
(i) Whether the suit is time-barred?
(ii) Whether the suit is bad for misjoinder and non-joinder of parties?
(iii) Whether the suit is not properly valued while deficient court-fee has been affixed?
(iv) Whether defendants Nos.1 to 3 in connivance with defendant No,4 have fraudulently entered the land in question in their names?
(v) Whether defendants Nos.1 to 3 are owners of land in question?
(vi) Whether the plaintiffs are entitled to the relief claimed for?
(vii) Whether relief?
' In support of their contentions, the petitioners produced only one witness namely Saleh Muhammad, Patwari who tendered documents Exh.P..l to Exh. P.4 and the statement of petitioner No,2 Mir Ahmad was recorded as Attorney for all the petitioners. In rebuttal respondents produced D. W.1 Pir Abdul Qadir, D.W.2 Muhammad Ghayas and D.W.3 Saleh Muhammad, Patwari who tendered documents marked as Exh.D/1 to Exh.D/2 and the statement of respondent No,2 was recorded as attorney for respondents Nos.1 to 3. In his statement, respondent No,2 tendered documents Exh.D/4 also.
6. After arguments were heard, the case was fixed for final judgment; the petitioners filed an application on 25-3-1995 under Order VI, Rule 17, C.P.C. For amendment of the plaint to seek possession also. Rejoinder to the said application was filed on 10-5-1994 wherein amendment was vehemently opposed by the respondents. The learned Senior Civil Judge rejected the application for amendment on 27-4-1993. Thereafter, the suit was dismissed by the learned Senior Civil Judge, Quetta vide judgment and decree, dated 29-4-1993.
7. Being aggrieved from the judgment and decree, dated 29-4-1993, the petitioners preferred an appeal before the District Judge, Quetta who, transferred the same to the Court of District Judge, ad hoc, Quetta. During the pendency of the appeal, the petitioners filed an application under Order 41, Rule 47 on 20-4-1994 for producing additional evidence. Respondents filed rejoinder to the said application on 10-5-1994 opposing the same. The learned District Judge ad hoc, Quetta rejected the application for additional evidence vide order, dated 5-7-1994. However, another application was also filed for additional evidence which was contested by the respondents. The same was also rejected by the learned District Judge ad hoc, Quetta vide order, dated 29-4-1995. Thereafter, the petitioners filed an application under Order 23, Rule 1, C.P.C. For withdrawal of the suit with permission to file afresh on the same cause of action.
' The said application was allowed by the learned District Judge ad hoc, Quetta vide order, dated 8-8-1995. Being aggrieved from the said order, respondents Nos.1 to 3 filed a revision petition before this Court being Civil Revision No,344 of 1995. The said revision was allowed and the order dated, 8-8-1995 was set aside and the case was remanded back to the District Judge ad hoc, Quetta. After remand the petitioners filed another application under Order 23, Rule 1, C.P.C. For withdrawal of the suit with permission to file afresh on 9-4-)996. Respondents filed a rejoinder to the same on 14-4-1996 and contested the same. The learned District Judge ad hoc, Quetta rejected the application for withdrawal of the suit vide order, dated 6-5-1996. Thereafter, the learned District Judge heard the parties on merits and dismissed the appeal on 19-6-1996; hence this petition as mentioned hereinabove. Petitioner's alongwith the petition have also filed an application under Order 23, Rule 1, C.P.C. For withdrawal of the suit with permission to file afresh.
Respondents Nos.1 to 3 have filed rejoinder to the same and have vehemently contested the same.
8. I have heard Mr. K.N. Kohli, Advocate for the petitioners and Mr. Naeem Akhtar, Advocate for the respondents.
9. Mr. K.N. Kohli, Advocate only advanced arguments in support of the application under Order 23, Rule 1, C.P.C. And contended that the suit may be allowed to be withdrawn with permission to file afresh. In support of the said application, the learned counsel contended that the mutation entries, dated 24-12-1987 were fraudulently entered, as fee of the same was paid after a lapse of two years i,e, on 23-4-1989. The learned counsel further stated that the report of the Revenue Authorities, dated 24-11-1993, 29-8-1994 and order of the Assistant Commissioner, dated 28-12-1994 are very much important to be placed on record as the petitioners were not in possession of the same during the trial. The learned counsel further stated that since the petitioners had also prayed for amendment of the suit which was not allowed by the trial Court; as such he may be allowed to withdraw the suit with permission to file afresh. The learned counsel further contended that as the suit of the petitioners suffers from inherent defects such as not seeking possession and properly assisting the Court in respect of the fraudulent mutation entries, dated 24-12-1997, he may be allowed to withdraw the suit with permission to file afresh.
10. Mr. Naeem Akhtar, learned counsel for respondents Nos.1 to 3 emphatically urged as under:--
(i) That the suit of the petitioners was heard and dismissed on merits by both the lower Courts and the petitioners failed to prove their case; such the petition is liable to be dismissed.
(ii) That the learned trial Court rejected the application of the petitioner for amendment of the suit vide order, dated 27-4-1993. The said order has attained finality as the petitioners did not challenge the same; as such the petitioner at revisional stage is estopped to agitate the said ground.
(iii) That the application for withdrawal of the suit was rejected by the appellate Court vide order, dated 6-5-1996. The said order has not been assailed before this Court and thereafter, appeal was heard on merits; as such the petitioners are estopped to seek withdrawal of the suit with permission to file afresh as the question of withdrawal was decided by the appellate Court and the same has not been challenged.
(iv) That the so-called reports of the Revenue Authorities relied upon by the petitioners do not pertain to the property in dispute i,e, Khasra No,230/5 whereas the said report purported to be tendered in evidence relate to Khasra No,230/3 with which the respondents have no concern.
(v) The learned counsel urged in support of mutation entry, dated 24-12-1987 that said mutation entry was exchanged. Respondents Nos.1 to 3 have given the share of their property to some other persons in exchange; as such the said mutation entry was effected and the Patwari had deposited the fees on 25-4-1989 with which the respondents had no concern.
(vi) The learned counsel further contended that the respondents are owners in possession of the property in dispute and have been entered as owners since 1975-76.
11. I have heard the arguments of the learned counsel for the parties and have minutely perused the record.
12. Adverting to the arguments of Mt. K.N. Kohli, Advocate for the petitioners, it may be pointed out that the case of the petitioners is in respect of property bearing Khasra No,230/5 and he has prayed that the respondents be restrained from interfering in the property in dispute and have also challenged the mutation entry, dated 24-12-1987. It is worth mentioning that the mutation entry, dated 24-12-1987 is exchange of property entered into between the respondents Nos.1 to 3 and one Abdul Ali son of Habibullah.
13. From the perusal of the said mutation it is revealed that respondents have in exchange transferred 200 rods from the property in dispute i,e, Khasra No,230/5 in favour of said Abdul Ali and it is worth mentioning that though the appellants-petitioners have challenged the said mutations but have not impleaded Abdul Ali son of Habibullah in whose favour 200 rods of the property have been mutated. From the perusal of the record, it is also transpired that the property in dispute which is measuring about 1060 poles has been entered in the name of the respondents Nos.1 to 3 since, 1986. The petitioners have failed to prove their entitlement over the property in dispute. Both the learned trial Courts have discussed the evidence and have answered all the issues in the suit in detail and have come to conclusion that the petitioner has failed to prove his entitlement over the property in dispute. The learned counsel for the petitioners failed to point out any misreading of the evidence by the Courts below nor any jurisdictional defect was pointed out.
14. Thus, this Court cannot set aside the concurrent findings arrived at after proper appreciation of evidence in revisional jurisdiction. In this regard reliance is placed on the case of Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 wherein the Honourable Supreme Court observed as under:-- "It is well-settled law that a concurrent finding of fact by two Courts below cannot be disturbed by the High Court in second civil appeal muchless in exercise of the revisional jurisdiction under section 115, C.P.C. Unless the two Courts below while recording the finding of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding of fact recorded by the two Courts below is perverse. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. Is still narrower.
The High Court in exercise of its jurisdiction under 115, C.P.C. Can only interfere with the orders of the subordinate Courts on the grounds that the Court below has assumed jurisdiction which did not vest in him, or has failed to exercise the jurisdiction vested, in him by law or that the Court below has acted with material irregularity affecting its jurisdiction in the case, (see Umar Dad Khan v. Tilla Muhammad Khan PLD 1970 SC 288, Muhammad Bakhsh v. Muhammad Ali 1984 SCM R 504, Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 89 and Abdul Hameed v. Ghulam Muhammad 1987 SCM R 1005. Under this jurisdiction the High Court only corrects the jurisdictional errors of subordinate Courts. The fact that the High Court while reappraising the evidence on record reached a conclusion different from those arrived by the two Courts below could never be a ground for justifying interference with the finding of a fact muchless the concurrent findings recorded by the two Courts below on the basis of evidence produced before them, in exercise of its revisional jurisdiction under section 115, C.P.C."
13. Now reverting to the main arguments of Mr. K.N. Kohli, Advocate on the application under Order 23, Rule 1, C.P.C., suffice it to observe that as mentioned hereinabove, the application for withdrawal of the suit was filed before the Appellate Court. After hearing both the parties, the learned District Judge ad hoc, Quetta dismissed the appeal vide order, dated 6-5-1996. Thereafter, the petitioners accepted the said order and did not assail the same before this Court and after passing of the order, dated 6-5-1996 the appeal was heard on merits and was rejected vide impugned order, dated 19-6-1996 by the learned District Judge ad hoc. As the application under Order 23, Rule 1, C.P.C. Was rejected vide order, dated 6-5-1996, the said order still subsists and has not been challenged, the arguments of Mr. Naeem Akhtar, Advocate for the respondents have substance. As the petitioners have not challenged the order, dated 6-5-1996; as such are they estopped to file a fresh application before this Court for seeking withdrawal of the suit with permission to file afresh without challenging the previous order. Thus, the arguments of Mr. K.N. Kohli, learned counsel for the petitioners, are repelled.
14. Besides the aforesaid reasons, even otherwise the application for withdrawal of the suit is also not maintainable. Mr. K.N. Kohli, Advocate for the petitioners stated that to prove the factum of fraud, the reports of the Revenue Authorities were very much essential as the same could not be produced before the trial Court. From the perusal of the report of Revenue Authorities, dated 24-11- 1987, 29-8-1994 and order of the Assistant Commissioner, dated 29-9-1994 it is revealed that the said documents pertain to Khasras Nos.230/3 and 230/2 whereas the suit of the petitioners is in respect of Khasra No,230/5. The learned counsel for the respondents Mr. Naeem Akhtar, Advocate categorically stated that the respondents have no concern with Khasra Nos.230/3 and 230/2; assuming that the said documents came into possession of the petitioners at a later stage and could not be tendered in evidence before the trial Court in time, even otherwise, the said documents would not serve the purpose of the petitioners. As observed hereinabove, the same do not pertain to the property in dispute. Thus, the withdrawal of the suit with permission to file afresh would be futile.
15. The petitioners have also failed to point out any inherent defect in the pleadings on the basis of which permission could be allowed to file fresh suit. Before the Courts below the suit was contested on merits and the Courts below have dismissed the suit and the appeal of the petitioners by giving detailed reasons.
16. Thus, the contentions raised by Mr. K.N. Kohli, Advocate are devoid of force and, thus, are repelled.
17. For the foregoing reasons I see no merits in the petition; the same is dismissed with costs throughout.