1. ' The brief facts giving rise to this revision petition are that petitioner filed a suit for declaration against late Shamoon 'and Muhammad Younas before the Civil Judge Shahpur on 31-5-1983. The contents of the plaint reveals that petitioner/plaintiff is owner of Plot No,166-R and late Shamoon/ respondent No,1 is owner of Property No,62- 52-B. The respondents have got shown the Property No,166-R as Property No,62/52-B which is incorrect, fictitious and in order to snatch the ownership of petitioner/plaintiff, the respondents were asked to recognise the legal heirs of petitioner/plaintiff over the suit property. The respondent No,1 filed written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues:- -
(1) Whether the suit cannot proceed in its present form? OPD.
(2) What is the effect of Preliminary Objection No,2 of the written statements? OPD.
(3) Whether the suit property is incorrectly described if so, with what effect? OPD.
(4) Whether the plaintiff has no cause of action and locus standi to bring this suit? OPD.
(5) Whether this Court lacks jurisdiction to adjudicate upon the matter? OPD.
(6) Whether the plaintiff is estopped from bringing the suit by his act and conduct? OPD.
(7) Whether the plaintiff is in collusion with the defendant No,2? OPD.
(8) Whether the suit is mala fide? OPD.
(9) Whether the plan annexed to the plaint is incorrect? OPD.
(10) Whether the suit has been undervalued for the purposes of court-fee and jurisdiction, if so, what is the correct valuation and to what effect? OPD/OP Parties.
(11) Whether the suit is false, vexations, if so, whether defendant No,1 is entitled to special costs of section 35-A, C.P.C, if so, to what amount? OPD.
(12) Whether the plaintiff is owner of the suit property? OPP.
(13) If Issue No,12 is answered in affirmative, whether the plaintiff is entitled to the relief sought for?
2. OPP.
(14) Relief.
3. ' The learned trial Court decreed the suit vide judgment and decree, dated 23-4-1986. The respondent No,1 being aggrieved filed C.R. No,1608 of 1986 before this Court which was accepted and the case was remanded to the District Judge vide judgment, dated 15-11-1990 to decide the .Case afresh.
2. The learned counsel for the petitioner submits that learned Additional District Judge was erred in law to decide the case beyond the para-meter prescribed by this Court in the remand Order. He further submits that learned Additional District Judge erred in law to rely upon Exh.D.9 which is fabricated document as is evident from the entries mentioned' against schedule of property. Firstly it was house which was crossed and word 'shop' was inserted. Similarly in the schedule of transfer the word 'shop' was inserted in place of house. The learned First Appellate Court was erred in law to ignore these material facts at the time of deciding the appeal. He further submits that suit was filed by the petitioner on 1-6-1983 during the pendency of the suit report was prepared by Safdar Hussain, Settlement Clerk on 27-7-1986. The same is not sustainable in the eyes of law. He further submits that learned First Appellate Court was erred in law to rely upon the report which was not proved as genuine in terms of the provisions of Qanun-e-Shahadat Order, 1984. He further submits that Safdar Hussain, Settlement Clerk did not enter appearance to prove/establish the contents of the report but this fact was not considered by the First Appellate Court. He further submits that petitioner objected qua the admissibility of report Exh.D.9 on the ground that the document is not per se admissible in evidence. The learned First Appellate Court overruled the objection merely on the ground that this Court had allowed the respondent No,1 to produce the documents whereas this Court remanded the case to the learned District Judge, Sargodha who was directed to entertain the documents filed by respondent No,1 before this Court through C.M. 4265-C of 1986 and allowed the petitioner to rebut the same. The learned First Appellate Court was erred in law to rely upon Exh.D.9 as if this Court allowed the document to be exhibited but the position is otherwise.
4. The petitioner has objected the admissibility of the document in question but the First Appellate Court had erred in law to reject the objection on surmises and conjectures. He further submits that during the pendency of the suit aforesaid report was manoeuvred by the respondents but this fact was not considered in its true perspective by the First Appellate Court. He further submits that respondent No,1 never appeared in the witness-box, and Muhammad Younas, Special Attorney appeared on his behalf as D.W.4 who did not know the facts of the case, therefore, respondent had withheld the best evidence and the inference must be drawn against the respondent. In arriving to this conclusion he relied upon Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767. He further submits that P.W.1 is the only independent witness who admitted in evidence that there are cuttings in Exh.P. 10 and competent authority has not signed after insertion of shop in place of house. He further submits that Exh.D.10 also reveals that shop was substituted in place of house and the word 'house' was crossed, without any signatures by the competent authority. He further submits that respondents accepted this fact in written statements in respect of para. 2 on merits.
5. He further submits that Shop No,62/52, Sahiwal was allotted in the name of Shamoon as is evident from Exh.P.8. He further submits that First Appellate Court erred in law to decide the case without adverting to the reasoning of the trial Court.
3. The learned counsel of the respondents submits that respondents filed C.S. Form on 14-7-1959 which reveals that respondent No,1 filed a claim for the allotment of shop. He further submits that P.T.D. Was also issued in favour of respondent No,1 qua Shop No,62/52-B as is evident from Exh.12.
6. He further submits that respondent No,1 had given the shop in question on rent to Younas respondent No,2 Late Shamoon tiled ejectment petition against Younas on 7-12-1982 before the Rent Controller. Respondent No,2 filed a written statement and admitted the relationship of landlord and tenant but subsequently petitioner and respondent No,2 in connivance with each other and petitioner filed the suit against Shamoon and Muhammad Younas respondent. He further submits that site plan Exh.P.I at page 76 shows disputed property in black colour after Shop No,62/52-A and before Shop No,62/53 of Rayast Ali. The site plan clearly reveals that in-between Shop No,62/52-A and 62/53 Shop No,62-52/B situated in terms of number of shops as alleged by the respondents; whereas the stand of the petitioner/plaintiff is false and fabricated that property in question is Plot No,166-R/3; he further urged that Exh.D/1 also reveals that stand of respondent is valid which clearly shows shop in question No,62/52-B after Shop No,62/52 of Ashiq Ali; that Exh.D/6 clearly reveals that Shop No,62/52-A belonged to Ashiq Ali and Exh.D/7 reveals that Shop No,62/53 belonged to Basit Ali; that this fact is duly admitted by P.W.6 in cross-examination. The description described by Qabool Khan P.W.6 verified/proved the contents of Exh.D/1 and Exh.P./l that late Shamoon did not enter appearance in witness-box on account of ailment as is evident from examination-inchief of Muhammad Younas D.W.4. The petitioner/plaintiff's counsel did not cross- examine qua this fact; that objection was raised qua the non-appearance of late Shamoon. The same was rejected by the trial Court as is evident from cross-examination by petitioner/plaintiff's counsel to D.W.4; that P.W.1 Faiz Muhammad admitted in examination-in-chief that shop in question was allotted in favour of late Shamoon; that D.W.1 admitted in cross-examination, "that pass book of late Shamoon for adjustment of rent of Shop No,62/52-B, Sahiwal in his possession balanced up to 31st December, 1958 nil"; that Ghulam Yasin also admitted in cross-examination that shop in question belonged to Shamoon; that respondents are estopped to raise objection qua the admissibility of Exh.D/9 as the respondents failed to produce evidence as is evident from para.3 of impugned judgment; that in case Exh.D/9 is excluded even then impugned judgment is in accordance with evidence on record; that petitioner's counsel failed to point out any piece of evidence which was misread by the 1st Appellate Court; that 1st appellate Court decided the appeal within the parameter prescribed by this Court in earlier round of litigation; that evidence, in the form of document required from the respondent could not be examined or relied upon against alleged certain formalities were not observed in taking into possession is no more valid law. The Court has ample powers to consider the documentary evidence. In support of his contention he relied upon (PLD 1992 SC 96--Messrs Visvil Spinners' case; that attested copies of Exh.D/9 should be read in the evidence even if the same contention was not formally tendered in evidence. In support of his contention he relied upon Mangha's case (1992 MLD 2170).
3. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. The petitioner's counsel had emphasised much that 1st Appellate Court was erred in law to rely upon Exh. D/9 as the same was not established/approved in terms of Qanoon- e-Shahadat Order, 1984.
7. It is pertinent to mention here that case was remanded by this Court vide judgment, dated 15-11- 1999 in C.R. No,1608 of 1986 in the following terms:-- "The case is remanded to the learned District Judge, Sargodha who is directed to entertain the documents filed by the petitioner before this Court through C.M. No,4265-C of 1986 and the respondents to rebut the same."
8. ' The 1st Appellate Court provided opportunity to the petitioner to rebut the same but the petitioner failed to avail the opportunity as is evident from para.3 of the impugned judgment of 1st Appellate Court in the following terms:--- "After remand of the case the appellant produced documents, copy of application Exh.D/8, copy of report on the application Exh.D/9 (under objection) copy of P.T.O. Exh.D/10, copy of register Exh.D/11 and copy of PTD in favour of Shamoon Exh.D/10. The learned counsel for respondent No,1/plaintiff, however, relied upon the previous evidence and did not opt to produce the evidence. Similarly respondent No,2 also made a statement on 14-12-2000 that he did not intend to produce any further evidence."
9. ' In view of the aforesaid findings of the 1st Appellate Court, the petitioner is estopped to object the aforesaid documents on the well-known principle of estoppel and waiver. In arriving to this conclusion I am fortified by Ghulam Rasul's case (PLD 1971 SC 376). Reliance is also placed on Muhammad Bashir's case (1986 MLD 2759). It is settled proposition of law that the documents produced by the respondent were received in evidence without any objection and no exception can be taken to the said documents merely for the reason that the author of the said document was not examined. Reliance is also placed on the following judgments: ' Malik Din and another's case (PLD 1969 SC 136); ' Faizyab Ali Khan's case (1982 SCMR 358), and ' N.B.P. v. Syed Mir (1987 CLC 1103).
10. ' Even otherwise the documents received without objection is admissible-in-evidence by virtue of Order 13, Rule 4, C.P.C. In this behalf reliance is placed on Manga's case (1992 MLD 2170).
11. ' In view of what has been discussed above, the objection of petitioner's counsel qua the Exh.D/9 has no force. The question arises that report of Settlement Clerk Exh.D/9 is public document or not?
12. Exh.D/9 shows that it is office noting which cannot be termed as public document. It was held in Tarkeshawar Parsad Tawari v. Denendra Prasad Tewari (1992 Indian Cases 184) that a plaint is not public document, therefore, certified copy of it is not admissible in proof, of the age of the person signing it. This clearly excludes Exh.D/9 from the perview of Article 88 of Qanun-a-Shandat Order, 1984. As regards the contention of respondents' counsel that Exh. D/9 report of Settlement Clerk received in evidence before the First Appellate Court without objection by the opposite-party, I am inclined to agree with the respondents' counsel. Since Exh.D/9 had been received in evidence by the 1st Appellate Court without objection of petitioner having taken any exception to it, therefore, 1st Appellate Court was justified to rely upon Exh.D/8. The report is not a public document. It is settled principle of law that normally whenever inadmissibile evidence has been made the basis of a finding, the Court notwithstanding any objection or want of objection on the part of a party as the case may be would not only be justified in excluding such a piece of inadmissible evidence from consideration, but that would be the only proper course for it to do. In arriving to this conclusion I am fortified by the decision of Division Bench of Karachi High Court in M/s. Formos Trading Company's case (PLD 1988 Karachi 131). In this view of the matter, the learned 1st Appellate Court was erred in law to rely upon Exh.D/9. Since the matter is old one and in the earlier round litigation the case was remanded to the 1st Appellant Court to decide fresh, therefore, instead of remanding the same to 1st Appellate Court, I intend to decide it on merits, on the basis of evidenceon-record.
13. ' The respondent did not appear himself in witness-box and his Attorney Muhammad Younas D.W.4 appeared and explained the reason of non-appearance of respondent No,1 before the trial Court in the following terms:- {{URDU TEXT}} ' The petitioner did not cross-examine D.W.4 qua the aforesaid portion of his evidence. It is settled proposition of law that if a specific assertion made by the witness material to the controversy of the case is not challenged in cross-examination by putting contrary suggestion then the same is to be given full credit and usually accept as true unless displayed by reliable, cogent and clear evidence as per pronouncement of the Hon'ble Supreme Court in Mst. Noor Jehan Begum's case (1991 SCMR 2300). Reliance is also plated on Luqman's case reported as (1985 CLC 2327). In this view--- of the matter, the second contention of petitioner's counsel has also no force qua the nonappearance of respondent No,1. The judgment relied upon by the petitioner's counsel reported as (PLD 1976 SC 767) is distinguished on facts and law. The respondents produced Exh.11.12 qua the entitlements of the shop in question. Exh.D/1 also confirms the Exh.D/12, P.W.6 Qabool Khan plaintiff admitted in cross-examination the description of the shop in question in cross-examination. P.W.5 also admitted in cross-examination in the following terms:- ' Similarly P.W.1 admitted in examination-in chief in the following terms: {{URDU TEXT}} ' Adjustment as rent of Shop No,62/52, Sahiwal in possession balance up to 31-12-1958 nil.
14. ' It is also admitted fact that this witness mentioned that initially it was house but subsequently the word 'shop' was inserted, cutting was not signed by the competent authority. In case statements of P.W.1 and P.W.5 and P.W.6, D.W.4 Exhs.P.1 and D/1 are put in juxta position then it is crystal clear that Plot No,166 R/3 is not situated between Shop No,62/52-A and Shop No,62/53. In this view of the matter, the judgment of trial Court is result of misreading and non-reading of the record. The aforesaid documents coupled with the deposition of P.W.1 Faiz Muhammad, P.W.5 Ghulam Yasin, P.W.6 Qabool Khan and D.W.4 Muhammad Younas established the ownership of respondent No,1 in respect of property in question. "The judgment of 1st Appellate Court is m accordance with law laid down in Ismail's case (1993 MLD 977) and Abdul Latif's case (1993 MLD 643). It is settled principle of law that findings recorded by the Court of competent jurisdiction cannot be interfered with by the High Court, in exercise of its revisional jurisdiction, under section 115 of C.P.C. Unless such findings suffer from jurisdictional defect illegality or material irregularity as the law laid down in venkat Ragwon's case (PLD 1949 PC 26) and the relevant observation is as follows:--- "This section empowers the High Court to satisfy itself upon three matters:
(i) That the order of the subordinate Court is within its jurisdiction.
(ii) That the case is one in which the Court ought to exercise jurisdiction.
(iii) That in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have effected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
15. ' No jurisdictional defect has of course been pointed out in this case. Similarly no legal infirmity in the impugned judgment has been alleged.
16. ' In view of the aforesaid discussion, there are no merits in this revision petition and the same is dismissed with no order as to costs.