Briefly stated, the facts of the case in hand are that the petitioners/ palintiffs had instituted a suit, against the Government of N.W.F.P. etc. in the Court of the Senior Civil Judge, Dir at Temergara (Mr. Azhar Khan Naseem), in their representative capacity, for declaration that they were owners in possession of the suit land, fully detailed in the heading of the plaint, and that defendants/respondents had no right to pass any order of interfere with the land in question in any manner . The petitioners/plaintiffs prayed, additionally, for a permanent injunction restraining the defendants/respondents from interfering with the possession of the petitioners/plaintiffs.
2. The respondents/defendants contested the suit, filed their joint written statement and raised quite a few legal as well as factual objections.
3. The pleadings of the parties were reduced to the following issues:-
(1) Whether the plaintiffs have a cause of action?
(2) Whether the suit is competent in its present form?
(3) Whether the plaintiffs are estoppel by their conduct to bring this suit.?
(4) Whether the suit is res judicata?
(5) Whether this Court has got jurisdiction to entertain the suit?
(6) Whether the suit is bad for non-joinder and mis-joinder of parties?
(7) Whether the boundaries of the suit land are incorrect?
(8) Whether the suit is within time?
(9) Whether the suit had properly been valued for the purpose of court-fee?
(10) Whether the suit is mala fide if so its effect?
(11) Whether the plaintiffs are entitled to the decree prayed for?
(12) Relief.
4. After recording the evidence of the parties as they wished to produce the petitioner's suit was dismissed by the Senior Civil Judge, vide, his judgment of decree dated 31-5-1988.
5. Aggrieved by the said order the petitioners of plaintiffs filed an appeal before the District Judge Dir at Temergara, who by his judgment recorded on 28-9-1988 accepted the appeal and remanded the case back to the trial Court with the direction to frame an additional issue and then decide the case afresh after affording the parties the opportunity of producing further evidence if they so desired. Accordingly the trial Court framed the following additional issue:- Additional Issue. No.1 Whether the suit land has been declared as State Property Vide: DCR-I dated 28-6-1967, DCR-15 dated 26-8-1967 by the Land Dispute Inquiry Commission if so, its effect?
2. Relief.
6. The parties were directed to produce further evidence in support of their respective cases.
However, the respondents/defendants absented themselves from appearing in the Court, therefore, an ex pane decree was passed in favour of the plaintiff/petitioners on 5-12-1988.
7. Later, on the application filed by the respondents/Government, the said decree was set aside on 6-2-1989 and the parties were put on trial who produce the additional evidence in support of their respective cases.
8. After hearing the learned counsel for the parties and going through the record of the case, the trial Court by its judgment of decree dated 3-6-1989 dismissed the suit of the petitioners/plaintiffs.
9. Not content with the said order, the petitioners/plaintiffs challenged its validity of legality before the District Judge, Dir at Temergara (Syed Qabool Shah) who by his judgment of decree dated 10- 3-1990 dismissed the appeal.
10. Hence this revision petition, by the petitioners/plaintiffs, under section 115, C.P.C.
11. Barrister Jehanzeb Rahim, Advocate learned counsel for the petitioners/plaintiffs and Khawaja Azhar Rashid, learned counsel Assistant Advocate-General for the respondents/defendants present and heard at length.
12. I have had the advantage of going through the plaint/written statements/issues/evidence of the parties especially the plaintiffs/petitioners/judgments of the trial Court and the District Judge, with the able assistance of the learned counsel for the parties.
13. There is no need to give the detailed history of the case in hand because the same has been given by the trial Court as well as the District Judge in detail. However, the operative portion/part of the impugned judgment of the District Judge is reproduced for the sake of convenience:- "10. Appellants case is that they are owners in possession since their forefathers of the suit property while the respondents/Government claim that the land in dispute has been declared to be a State property by the land Dispute Inquiry Commission. Mian Gul Said, appeared as P.W.1 and stated that village Chukiyatan is situated in the area of Bar Jam and the Federal Land Commission held in its decision that the lands in physical possession of its occupants, are owners of the property possessed by them and since the suit land is in their physical possession, therefore, they are its owners. The attested copy of the judgment of Federal Land Commission is available on file and is marked as Exh.P.W.-1/1 which shows that this judgment is passed in certain revision petitions filed by Nadar Khan, Muhammad Ali Jan and Ajdar Khan against the Ex. Nawab of Dir. Neither of these petitioners are mentioned in the list of owners filed by their representatives appellants alongwith the plaint. The judgment of the Federal Land Commission appears to be in respect of bar Jam Darra and the plaintiffs/appellants have failed to bring on record that village Chukiyatan is also the part of said Dara Bar Jam,. Further the description of property is not given in the said judgment.
Therefore, the judgment of the Land Commission Exh. P.W. 1/1 cannot be said to be jugdment in respect of the suit land. It is to be noted here that earlier that case was remanded by the then learned District Judge vide order dated 28-9-1988 for the reason that there was no convincing evidence on record showing that the suit land is situated in the limits of Illaqa Bar Jam and further that the judgment of the Land Commission relied upon by the appellants did not disclose the description of the property and the names of the parties there-to. The parties were provided with an opportunity to produce further evidence in order to establish their rights over the suit land but again after the remand of the case plaintiffs/appellants failed to produce the list of the village included in Darra Bar Jam and the owners thereof whom the judgment of Land Commission Exh.P.W. 1/1 relates.
After the remand of the case only one witness was produced by the plaintiffs namely Hazara Khan Malak who in the cross-examination stated that he has got no written proof that village Chukiyatan is in the limit of Bar Jam. Since there is no evidence that the plaintiffs/appellants are the residents of the village falling in the limits of Darra Bar Jam or the judgment of the Land Commission pertain to the suit property and for that matter they were also parties before the land Commission, therefore, the appellants cannot draw any benefit out of the judgment of the land commission.
11. The plaintiffs claims to be in physical possession of the suit land and according to them the people who perform 'Begar' and paid 'Ushr' to the Ex. Nawab are owners of the lands in their possession. This contention of plaintiffs/appellants is not correct for the reasons that Mian Gul (P.W.1) in the cross-examination himself has stated that the land in dispute was given to them by the Ex. Nawab in lieu of 'Begar' performed by them. This simply means that the plaintiffs were not the owners of the suit land but were in possession of it as tenants of the Ex. Nawab. Buzarg Jamheer (P.W.2) also stated in the cross-examination that he was given land by the Ex. Nawab in lieu of his services towards the State. Mian Gul Said plaintiff when appeared as P.W.1 stated that Tour Lali and Sawal Faqir are not known to him while the other witnesses namely Momin Khan and Khan Lali stated that they know Tour Lali and Sawal Faqir and are co-villagers of the plaintiffs. Mian gul Said plaintiff thus wilfully denied that Sawal Faqir and Tour Lali are not known to him because Tour Lali and Sawal Faqir who are the residents of Chukiyatan earlier have claimed to be the owners of the land in their possession in village Chukiyatan and their claim was turned down by the Land Inquiry Commission through DCR No.15 copy of which is Exh. P.W.1/2 on file, eighty Motis of land in village Chukiyatan was held to be the State property. A writ petition No.336 of 1976 was filed by the son of Said Swal Faqir and others and the same was dismissed as withdrawn. Similarly Muhammad Arif (included in the list of owners attached with the plaint) resident of Chukiyatan made a claim to be the owners of the property in his possession and his claim was also turned down and vide DCR No. (Exh. D.W.1/1) four 'Motis' of land in village Chukiyatan was held to be the State Property.
Muhammad Arif also filed revision petitioner before the Federal Land Commission and the same was dismissed. Copy of the order of the Federal Land Commission in Exh. D.W.1/3 on file. Vide Gazette notification of the Government of N.-W.F.P. dated 15-9-1972 forty-eight 'Motis'of land was held to be the State property in view of DCR i and DCR 15. Copy of the notification is Exh. D.W.1/6 on file. In the light of above referred decisions of the Lands Inquiry Commission and the notification of the Government against which the writ petition filed before the Honourable High Court Peshawar was also filed and subsequently withdrawn the claim of the plaintiffs that they have been held owners of lands in their possession in village Chukiyatan by the Federal Land Commission cannot be sustained. Therefore, the judgment Exh. P.W.1/1 relied upon by the plaintiff of appellants, thus, does not pertain to the suit land.
12. There is no other convincing evidence brought on the record by the plaintiff/appellants in support of their claim. The evidence furnished by the plaintiffs/appellants witnesses is to the effect that the land in dispute had been given to the plaintiffs/appellants by the Ex: Nawab of Dir and they in lieu thereof used to perform 'Begar' and pay 1/10th share of produce to the Ex. Nawab. These witnesses stated that the plaintiffs/appellants are owners of the land in dispute in the light of the judgment of the Federal Land commission so relied upon by the plaintiffs and I already have held above that this judgment of the Land Commission does not pertain to the lands in dispute. In fact 93 'Motis' of land claimed to be owned by the plaintiffs/appellants have been held to be the State property in the light of the DCRs and the Government notification referred above.
13. As a result of the above discussion appellants have failed to establish their title over the land in dispute and the appeal being without any merit is dismissed with costs and the judgment and decree of the learned Senior Civil Judge is maintained. File be consigned to the record room after necessary completion."
14. It has probably escaped the notice of the learned counsel for the petitioners that section 115, C.P.C. applies only to cases involving the illegal assumption non-exercise or irregular exercise of jurisdiction by the lower Courts. The provision of section 115 cannot be invoked against conclusions of law or fact which do not in any way affect the jurisdiction of the Court, no matter, however, erroneous or wrong, the decision might be, either on question of fact or law, unless the decision involves a matter of jurisdiction. Needless to mention that if a Court has jurisdiction, then in that case, it has jurisdiction to decide one way or the other, and erroneous conclusion of law or fact and only be corrected in appeal but revision will not be competent on such a ground. In other words the High Court may interfere where subordinate Court has:-
(1) Exercised jurisdiction not vested in it, or
(2) failed to exercise a jurisdiction vested in it, or
(3) acted in the exercise of its jurisdiction illegally or with material irregularity.
15. where the above conditions are not satisfied the High Court would not interfere in its revisional jurisdiction. Section 115 (1)(c), C.P.C. is only applicable to the erroneous exercise of jurisdiction and not to erroneous decision. If a Court has jurisdiction to decide, it can decide one way or the other.
The learned counsel for the petitioners has miserably failed to convince me that the lower appellate Court had no jurisdiction to decide the appeal or that its decision is against some mandatory provision of law and, thus, a nullity and accordingly liable to be set aside.
16. Unfortunately, the learned counsel for the petitioners has also failed to show/point out that the judgment of the lower Courts are the outcome/result of either mis-reading or non-reading of evidence or that same were otherwise arbitrary.
17. Besides, the jurisdiction vested in the High Court under section 115, C.P.C. is discretionary in nature and, therefore, the Nigh Court will not interfere under this section to correct every irregularity in the exercise of its jurisdiction except where grave injustice or hardship would result on account of I B its non-interference. The learned counsel for the petitioners has not been able to convince me as to what type of grave injustice has been caused or what type of hardship would be faced by the petitioners if the revisional jurisdiction is not exercised.
18. Both, the Trial Court as well as the lower Appellate Court, have discussed the evidence thoroughly in their judgments and have given valid reasons for their conclusions.
19. Since the impugned judgment/decrees of the lower Appellate Court is neither arbitrary/perverse nor is there any misreading/non-reading of evidence produced by the petitioners/plaintiffs, therefore, no case for interference by the High Court in its revisional jurisdiction has been made out.
20. Needless to mention that the learned counsel for the petitioners remained unable to successfully assail the finding of facts against the petitioners/plaintiffs recorded by the two Courts below, therefore, this revision petition, obviously has no merit. Resultantly the same is dismissed with costs.