Short question involved in this revision petition under section 115, C.P.C. is whether the two Courts below committed a jurisdictional error by decreeing the suit for possession and permanent injunction brought by respondent Syed Kaural Shah (since dead) survived by his two sons since joined as respondents Nos.1-A and 1-B.
2. Respondent filed a suit for possession and permanent injunction against the petitioners in respect of a plot of land measuring 8800 sq. at Site Road purchased by him in open auction from the Revenue Authorities sometimes in 1971. He averred that after the confirmation of auction proceedings by Deputy Commissioner, Dadu, he deposited the sale consideration whereupon a sale-deed was executed in his favor whereas he was already in possession of the suit land prior to the sale. It was his case in the Trial Court that petitioners Nos.2 and 3 being his followers and respondent No,1 as a neighbored were allowed to settle in some portion of the plot in suit temporarily. According to him, petitioners used such portion for residential purpose by erecting Katcha construction thereon. In 1980 he moved Deputy Commissioner, Dadu for demarcation of the plot at whose direction Mukhtiarkar, Khairpur Nathan Shah in presence of the parties demarcated the land granted to him. Consequent upon demarcation, it was noticed that an area of 1216 S.ft. was in occupation of petitioner Abid Ali; 2688 S.ft. under occupation of petitioner Ghulam Asghar while 528 soft. in possession of petitioner Karim Bux. As in spite of repeated demands to vacate the suit land, petitioners kept him on false hopes and did not respond to his reasonable requests, he was constrained to file the suit before the Court of Civil Judge, Khairpur Nathan Shah.
3. On behalf of petitioners written statement was filed by petitioner No,3 which was adopted by other two petitioners expressing want of knowledge as to whether the respondent had purchased the plot in suit because he had not specified the location of the plot and its boundaries. They denied to be followers of the respondent and pleaded that they were residing at Sita Road, Station after having constructed their houses in Katchi Abadi for the last 18 years. It is their case that S.D.M., Khairpur Nathan Shah after visiting the site had directed the respondent that Katchi Abadi settlers should not be disturbed. Moreover, they claimed to be in adverse possession of the suit land. They raised legal pleas as well in their pleadings.
4. Pleadings of the parties were reflected in the following issues:--
(1) Whether the plot in suit measuring 8800 S.ft. is owned by the plaintiff?
(2) Whether the defendants are in possession of the suit premises since 18 years? If so, in what capacity?
(3) Whether the plaintiff is entitled to the relief?
(4) Whether the suit is maintainable in law?
(5) Whether the Court has jurisdiction?
(6) What should the decree be?
5. At the trial of the suit respondent examined himself and P.W. Abdul Rasheed whereas the petitioners appeared as their own witnesses in addition to Lal Din, Muhammad Suleman and Muhammad Urs.
6. On assessm ent of the evidence on record, learned Trial Court decided all issues in favour of the respondent and decreed the suit holding that Civil Court has the jurisdiction to try the suit and that the suit was maintainable at law.
7. Aggrieved by the judgment and decree petitioners filed Civil Appeal No,53 of 1993 before learned District Judge, Dadu who after examination of record and proceedings and hearing the parties, dismissed the appeal with costs which has been impugned in the present petition.
8. Before the learned District Judge finding on issue No,1 was not assailed by the petitioners. With regard to the jurisdiction of the Civil Court, learned District Judge held that the suit for possession was maintainable by reason of section 8 of the Specific Relief Act and that jurisdiction of the Trial Court was not barred in terms of section 172 of Sindh Land Revenue Act. As to the non- maintainability of the suit for want of sufficient description of the property in suit, learned Appellate Court expressed the view that maintainability of the suit could not be linked with "insufficient description of the property". On the question of acquiring title by prescription/adverse possession, Appellate Court expressed the view that the property in suit was purchased in the year 1971 whereas the suit was filed in 1981 which was well within time. Prior to the purchase thereof by respondent, the property was owned by the Government and in order to claim adverse possession against the Government, party in possession has to prove his possession for more than 60 years which was not the case of the petitioners. As no other point was urged before the Appellate forum, learned District Judge concurred with the findings of Civil Court and found no merit in the appeal.
9. At the hearing, learned counsel for petitioners raised the following contentions:--
(i) That since the respondent did not seek declaration of his title, suit for possession simplicitor could not be maintained at law.
(ii) That the Appellate Court did not comply with the provisions of Order XLI, Rule 31, C.P.C. which enjoin upon it to formulate the points for determination; decision thereon and the reasons for such decision.
(iii) That the Courts below did not appreciate the plea with regard to adverse possession raised by the petitioners.
10. Adverting to the first contention raised on behalf of petitioners, suffice it to say that along with the plaint respondent submitted copy of order issued by Deputy Commissioner, Dadu Annexure "A", copy of treasury challan to prove the deposit of sale consideration Annexure "B", copy of the agreement to sell executed by Mukhtiarkar, K.N. Shah Annexure "C", copy of measurement certificate by Mukhtiarkar, K.N. Shah Annexure "D" and copy of sketch of the plot showing the entire area in possession of the petitioners Annexure "E". In his evidence, respondent produced valid documentary evidence in support of his case including the confirmation of auction by Deputy Commissioner, Dadu, and treasury challan, demarcation of the plot and the sketch map of the suit land in occupation of the petitioners. He also examined P.W. Abdul Rasheed Junejo, Clerk in the Office of Mukhtiarkar, K.N. Shah who produced the papers relating to the property in suit in favor of the respondent. Their evidence was duly scrutinized and appreciated by the Trial Court which does .not suffer from misappreciation, non-reading or mis-reading of the evidence on record. Since sufficient oral as well as documentary evidence was placed on record and petitioners had adequate opportunity to rebut the same, no fault can be found with the findings of fact recorded by the Trial Court and affirmed by the District Court in the exercise of appellate jurisdiction. In any event, petitioners failed to show as to whether any serious illegality or material irregularity was committed by the Courts below by accepting the legal evidence placed on record by the respondent.
11. Learned counsel was at pains to point out that the petitioners had produced certain documents from Secretary, Town Committee, Sita Road to show that the petitioners were lawful occupants of the piece of land in their possession but no such case having been pleaded, such evidence is beyond their pleadings and, thus, inadmissible at law. In any event, this point was not raised before the learned District Judge, therefore, this Court in the exercise of its provisional jurisdiction is not required to re-appraise the evidence unless it can be shown that the appreciation of evidence is whimsical, fanciful or perverse. C Furthermore, since the petitioners did not challenge the title of the respondent to suit land it was not necessary to seek such declaration from the Court.
12. Reverting to the second contention raised by the learned counsel, it may be observed that the sole question for determination before the Appellate Court was whether the defendants were in possession of the property in suit for the last 18 years and, if so, in what capacity? Occupation of the property in suit by petitioners was never disputed. On the contrary at the stage of evidence, petitioners set up a defense of their lawful ownership of their respective portions which was neither averred nor pleaded in their written statement. Even otherwise such defense could not be reconciled with the plea of the petitioners relating to acquisition of right by adverse possession.
Indeed a person can be either owner of a property in his own right or by way of setting up adverse possession against the real owner. At any rate, Appellate Court substantially dealt with the points raised before him and no point was left untouched. It is evident from the judgment that the learned District Judge was fully conscious of the matter involved in the appeal and his decision is founded on the basis of the material on record. Moreover, the provision of law as envisaged by Order XLI, Rule 31, ID C.P.C. is obligatory as no adverse consequences are postulated in the event of non- compliance. It is only in suitable cases that the provisional Court may remand the appeal to the Court whose judgment has been impugned in order to enable it to record a fresh judgment in accordance with law. In the case in hand, since the Appellate Court dealt with all aspects of the case, agitated before him and substantially the conclusion is justified by the evidence on record, I am of the view that the facts of the case do not warrant an order of remand at this stage.
13. Likewise there is hardly any substance in the third contention with regard to the appreciation of plea of adverse possession raised by the petitioners. Indeed both the Courts have dealt with this aspect of the case in a most rational manner and the petitioners cannot succeed on the so-called plea of adverse possession since the suit for possession was filed well within the period of limitation prescribed by law. As rightly pointed out, the petitioners did not claim to be in adverse occupation of the suit land against the Government. In law such possession must have been continuous, open, notorious, hostile and uninterrupted for a period of over 60 years. It is obvious that the petitioners miserably failed to substantiate the plea of adverse possession raised by them; therefore, on this score also I find no infirmity in the judgments of the Courts below.
14. Needless to observe provisional jurisdiction is purely discretionary and intended to correct the errors of law committed in the exercise of jurisdiction. It is not the function of the provisional Court to re-appraise the evidence to find out whether any different conclusion can be drawn. Surely concurrent findings of fact cannot be set aside on the ground that application of evidence was not proper. It is well-settled that concurrent findings may not be sacrosanct but the Provisional Court is generally slow in interfering with such findings unless such findings are not supported by legal evidence or are contrary to the settled principles of law or perverse on the face of record.
15. For the aforesaid facts and reasons revision petition must fail and is hereby dismissed with costs.