'Instant Civil Revision is directed against the judgment and decree dated 8-4-1999 passed by the learned Additional District Judge, Gujranwala whereby he confirmed the judgment and decree dated 17-6-1998 passed by the Civil Judge Ist Class, Gujranwala.
2. Briefly stated the facts are that property described fully in para. No,1 of the plaint was purchased by one Abdul Rasheed in an open auction which auction was confirmed by the Additional Settlement and Rehabilitation Commissioner, Lahore vide letter No,D.S.C. F-4832, dated 29-12-1960.
Later on the said property was purchased by the plaintiff/respondent vide sale-deed dated 13-5- 1964. A transfer order No,89342 was also issued on 3-4-1993 in favour of said Abdur Rashid After the verification of transfer order mutation No,474 was sanctioned on behalf of the Provincial Government in favour of Abdur Rashid and subsequently mutation No, 475 was also attested on behalf of Abdur Rashid in favour of plaintiff/respondent on 28-4-1993. As the defendant/petitioner who is a real brother of the plaintiff/respondent had no residential place so he was given a portion of the property referred above and the remaining portion of the same kept in the possession of plaintiff/respondent. The area in possession of defendant/petitioner has been depicted by A, B, C, D, whereas the area in possession of the plaintiff/respondent has been disclosed as A, C, D, F, G, H, in the site-plan annexed to the plaint. As the defendant/petitioner constructed his own house in Samandad, so the plaintiff/respondent requested him to vacate the said area upon which dispute arose between the parties and the matter was referred to Subedar Mushtaq Ahmed, Councilor, in the capacity of an arbitrator. The dispute was resolved through an agreement by the arbitrator dated 2-12-1989 wherein the defendant/petitioner admitted the plaintiff/respondent to be owner of the disputed property. However as defendant/petitioner failed to hand over the possession of the suit property, so the plaintiff/respondent was constrained to file suit for possession and as a consequential relief restraining the defendant/petitioner for further alienating the same. The suit was resisted by the defendant/petitioner wherein he raised various preliminary objections and asserted that property purchased by Abdur Rashid consisted of land 22 x 37 feet and there was one room constructed on it. He denied other averments of the plaintiff/respondent and asserted that he had constructed the house on the evacuee property and plaintiff/respondent had no concern with it. He thus prayed that the suit be dismissed.
3. Out of the pleadings of the parties the following issues were framed by the Trial Court:---
(1) Whether the suit is incorrectly valued for the purpose of Court-fee and jurisdiction, if so, its effect? OPD
(2) Whether the plaintiff has no cause of action to bring this suit? OPD
(3) Whether the plaintiff is estopped to bring this suit and to his own words and conduct? OPD.
(4) Whether the suit is false and fictitious and has been filed with unclean hands, if so, whether the defendant is entitled to get special costs under section 35-A, C.P.C., if so, to what extent? OPD
(5) Whether the plaintiff gave possession of the disputed portion of his house to his real brother (defendant) on temporary basis, if so, whether he is entitled to recover the possession, from the defendant regarding the disputed portion? OPD
(6) Whether the defendant has raged some construction from his own pocked upon the disputed portion, if so, what is it valuation? OPD
(7) If issue No,6 is proved in affirmative whether the defendant is entitled to recover this amount from the plaintiff at the time of vacation of possession? OPD.
(8) Relief.
4. In support of his stand plaintiff/respondent examined Muhammad Iqbal Shah P.W.1, Manzoor Hussain P.W.2, and appeared himself as P.W.3. His learned counsel initially produced documents Exh. P-1 to P-11 and thereafter P-12 to P-14. In rebuttal the defendant/petitioner examined Mushtaq Ahmad D.W.1, Mehr Din D.W.2 and appeared himself as D.W.3.
5. After going through the evidence produced by the parties, the Trial Court decreed the suit of the plaintiff vide judgment and decree dated 17-6-1998. The defendant/petitioner felt aggrieved of the said judgment and decree and filed an appeal which was dismissed vide judgment and decree dated 8-4-1999. Hence the instant civil revision.
6. Arguments have been heard and record perused.
7. Learned counsel for the defendant/petitioner has assailed the impugned judgment and decree on the ground that no document showing the entitlement over the suit property of the plaintiff/respondent is available on record, that the area of the property alleged to be in possession of defendant/petitioner has not been given, that only an agreement regarding the purchase of property executed by Abdur Rashid in favour of Muhammad Bashir Ahmad/plaintiff-respondent has been brought on record, but no sale-deed was ever executed between the parties on the basis of said agreement, that as per arbitration decision dated 2-12-1989 plaintiff/respondent was bound to make the payment to the defendant/petitioner and thereafter defendant/petitioner had to vacate the disputed premises, that even the compliance of this arbitration decision dated 2-12- 1989 has not been made by the plaintiff/respondent. He thus submitted that all the points raised, need consideration, as such the revision petition be admitted for regular hearing.
8. Conversely, the impugned judgment and decree has been supported by the learned counsel for the plaintiff/respondent. He further contended that in the instant case as many as 8 issues have been framed out of which issues Nos. 1, 2, 4 and 5 were challenged in appeal whereas the defendant/petitioner did not challenge the findings recorded against him vide issues Nos.6 and 7, that issues Nos.6 and 7 pertain to the question of construction upon the disputed portion by the defendant/petitioner, that findings on issues Nos. 6 and 7 having not challenged it stands proved that construction on the spot has been admitted to have been raised by the plaintiff/respondent, that so far findings on issues Nos.1, 2, 4 and 5 are concerned, plaintiff/respondent has brought on record copy of site-plan Exh.P.1, copy of suit for permanent injunction filed by defendant/petitoner Exh.P.2, copy of interim injunction moved by the defendant/petitioner Exh.P.3, copy of written statement Exh.P.4, copy of reply to the said application Exh.P.5, copy of statement of defendant/petitioner Exh.P.6, copy of order dismissing the suit of the defendant/petitioner Exh.P.7, copy of agreement Exh.P.8, copy of mutation No, 395 Exh.P.9, copy of Mutation No,604 Exh.P.10, copy of Jamabandi 1980-81 Ex.P.11, copy of mutation No,474 regarding transfer of property by the Provincial Government in favour of Abdur Rashid Exh.P.12, copy of mutation No,475 pertaining to transfer of suit property by Abdur Rashid in favour of plaintiff/respondent Exh.P.13, and copy of Jamabandi 1991-92 Exh.P.14, that all these documents clearly prove that suit property initially belonged to Abdur Rashid who entered into a registered agreement with the plaitiff/respondent Exh.P.8 and later on got the said land mutated in his favour vide mutation No, 475 Exh.P.13, that no evidence regarding ownership of defendant/petitioner over the suit property has been either brought or referred by the defendant/petitioner, that both the trial Court as well as the Appellate Court have discussed the evidence and have returned the concurrent findings which cannot be interfered with by the High Court in its revisional jurisdiction under section 115, C.P.C. In this respect he relied upon Abdul Hakeem v. Habibullah and 11 others 1997 SCM R 1139, Sheikh.Muhammad Bashir All and others v. Sufi Ghulam Mohi-ud-Din 1996 SCM R 813, Muhammad Sharif v. Fazal Hussain 1992 ALD 612 and Muhammad Ibrahim v. Nazir Ahmd and 5 others 1999 M LD 1923.
9. It is evident from the facts stated above that plaintiff/respondent has based his claim over the suit property on the basis of agreement Exh.P.8 whereby he purchased the suit property from one Abdur Rashid. It is also evident from record that on the basis of transfer order, suit property was alienated by Provincial Government in favour of Abdur Rashid vide mutation No,474, dated 28-4- 1993 Exh.P.12. Later on the property was alienated by Abdur Rashid in favour of Muhammad Bashir Ahmed/plaintiff/respondent vide mutation No,475, dated 28-4-1993 Exh.P.13. This property now stands in the name of plaintiff/respondent as is evident from copy of Jamabandi 1992-93 Exh.P.14.
The stand of plaintiff/respondent is that he had given this property to the brother defendant/petitoner who had been living in the same and had promised to restore its possession after constructing his own house. However, stand of plaintiff/respondent had been controverted by the defendant/petitioner as he claimed that it was he who had constructed the said property.
Regarding the point issues Nos.6 and 7 were framed as is evident from the issues noted above. It is fact that trial Court decided issues Nos. 6 and 7 against the defendant/petitioner but even then findings on the said issues were not challenged by him in the Appellate Court, as he only challenged the findings in respect of issues Nos.1 to 5. Thus, it stands proved that construction upon suit property was not raised by the defendant/petitioner but it belonged to the plaintiff/respondent.
10. So far as entitlement of the plaintiff/respondent over the suit property is concerned, he has brought on record the initial agreement Exh.P.8 which clearly shows that he had purchased the suit property from Abdur Rashid. As discussed above the suit property was purchased by Abdur Rashid in an open auction which was confirmed by the Additional Settlement and Rehabilitation Commissioner vide his order dated 29-12-1960. Later on transfer order was issued in favour of Abdur Rashid on 3-4-1993. On the basis of transfer order dated 3-4-1993 mutation No,474, dated 28-4-1993 was sanctioned in his favour and on the same day he alienated the suit property vide mutation No,475 Exh.P.13. The trial Court as well as the First Appellate Court have discussed the evidence adduced by the parties in detail and thereafter have returned findings against the defendant/petitioner and in favour of plaintiff/respondent.
11. Admittedly the scope of interference with the concurrent findings of fact by the High Court in exercise of its revisional jurisdiction is very limited. High Court while examining legality of judgment and decree under section 115, C.P.C. Cannot upset findings of fact, however erroneous such finding is, on re-appraisal of evidence and taking different view of evidence. Such finding of fact can only be interfered with by High Court under section 115, C.P.C. If Courts below had either misread evidence on record or while assessing or evaluating evidence had omitted from consideration some important piece of evidence which had direct bearing on issues involved. Finding of fact would also be open to interference under section 115, C.P.C. Where approach of Courts below was perverse. High Court is not competent to reassess entire evidence on record and then discard conclusion of Courts below on account of being inconsistent with its own assessment of evidence, such process of examination for upsetting concurrent findings of fact in exercise of revisional jurisdiction is not permissible. Wrong or erroneous conclusion on question of fact by Courts below is not open to interference by High Court in its revisional jurisdiction. Reliance is placed upon Abdul Hakeem, v. Habibullah and 11 others 1997 SCM R 1139 (appellate jurisdiction), Again while dealing with the revisional power of High Court under section 115, C.P.C. It has been held in Sheikh Muhammad Bashir Ali and others v. Sufi Ghulan Mohi-ud-Din 1996 SCM R 813 as follows: "The above enunciation of the scope of the revisional power vesting in the High Court clearly shows that no interference was called for in this case and upsetting the conclusions of the Courts below virtually on the question of fact by way of re-examination of the evidence at revisional stage it has overstepped the limits or its jurisdiction".
12. Be that as it may, Section 115 of the Civil Procedure Code applies to cases, involving illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be involved against conclusion of law or fact, which do not, in any way, affect the jurisdiction of this Court; no matter, however erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. As erroneous conclusion of law of fact is liable to be corrected in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion an error of law is manifestly shown to have been committed.
13. Neither any such aspect has been put forth or highlighted, nor is seemingly available so as to attract or entail provisions of Section 115, Civil Procedure Code, which thus, can neither, come into play nor press into service, Judgments and decrees, now sought to be impeached and set at naught are accusingly, unexceptionable as the same neither appear to suffer from any infirmity or any irregularity, what to speak of material irregularity, nor perversity or arbitrariness.
' Hence viewed from any angle, revision petition merits dismissal and is, hereby dismissed, with no order as to costs.