' This civil Revision Application under section 115, C.P.C. Is directed against the Judgment and Decree, dated 30-9-1980 and 14-10-1980, passed by the Additional District Judge, Hyderabad in Civil Appeal No, 22 of 1977, whereby he set-aside the Judgement and Decree, dated 10-11-1976 and 19-11-1976 respectively passed by the Civil Judge, Hala in Suit No, 18 of 1974 and dismissed the suit for possession and mesne profits filed by the applicant.
2. Succinctly, the facts leading to the filing of this revision application are that on 15-(sic)-1974, applicant filed a suit for recovery of possession and mesne profits against the respondent wherein he stated that he is exclusive owner of plot bearing S.No,422/1, 1-A admeasuring 3-31 acres Deh Bhit Shah Taluka Hala. In January 1972 respondent encroached an area of about 16 Ghuntas from this plot and constructed seven shops over it. The applicant disclosed the boundaries of such encroached area in pars 3 of the plaint and prayed for removal of encroachment and restoration of possession from the respondent and also prayed for mesne profits.
3. On service of summons respondent filed his written statement in Court on 30-1-1975 wherein he did not deny the ownership of applicant over plot bearing S.No, 422/1, 1-A but asserted that the plaintiff may prove this fact. He further stated that the suit plot was purchased by him from one Sabu son of Muhammad Siddique in the sum of Rs,2,000 and thereafter he raised construction of shops over it, which continued for three months. The respondent further stated that earlier when there was dispute between the parties applicant went to Khan Muhammad, Chairman Union Council Bhit Shah who after hearing the parties inspected the site and decided the matter in favour of respondent. Respondent also challenged the maintainability of suit being barred under Order 9, Rule 9, C.P.0 due to improper verification and also noncompliance of order 7 Rule 19, C.P.C.
4. On these pleadings of the parties lower Court framed following issues in the matter:
1. Whether the suit is barred under Order 9, Rule 9, C.P.C?
2. Whether the plaintiff is the owner of the disputed plot?
3. Whether the defendant has raised the un-authorized construction on the plot of the plaintiff?
4. Whether the plaintiff is entitled to the possession mesne profits, if so, at what rate?
5. What should the decree be?
5. At the stage of evidence plaintiff besides examining himself and producing documents Exhs.19 to 21 also examined witness Zanwar Sujawal and closed his side. From the respondents side, respondent examined himself and produced documents Exhs.41 to 42. He also examined two other witnesses Sabu Exh.43 and Khan Muhammad Exh.44. The Court of learned Civil Judge, Hala answered Issue No,1, in negative and Issues Nos.2 to 4 in affirmative and accordingly decreed the suit of the applicant.
6. Against the judgment and decree of the lower Court respondent preferred appeal before the District Judge Hyderabad, which was heard and decided by the learned lInd Additional District Judge, Hyderabad, who allowed the appeal and consequently dismissed the suit of the applicant.
7. Against the above judgment of the appellate Court present revision application was preferred by the applicant on 15-11-1980, which was allowed by this Court by its judgment announced on 15-11- 1999. Such judgment of this Court passed in this revision application was challenged by the respondent through Civil Petition No,22-K of 2000, which was disposed of by the Honourable Supreme Court of Pakistan with the following order:- ' By consent, the following order is passed:
(i) The impugned judgment, dated 15-11-1999 passed in Revision Application No,160 of 1986 is set aside.
(ii) The case is remanded to High Court to decide it afresh on merits after taking into consideration all the places which may be raised by the parties except the plea of maintainability of the suit.
(iii) The matter would be decided by High Court expeditiously preferably within 6 months from now.
(iv) No fresh notices would be issued to the parties and they are directed to appear before High Court on 15-11-2000.
(v) The petition is converted into an appeal and stands disposed of in above terms.
8. On 7-5-2001 when this revision application came up before me for regular hearing, after hearing the arguments of Mr.Jhamat, it was noticed that the objections to the Commissioner report, dated 4-11-1998, filed by the respondent on 10-12-1998, are still pending for disposal. Accordingly arguments of learned counsel on such objections were heard and the same were dismissed on 7- 5-2001.
9. Mr. Jhamat Jethanand. Learned counsel for the applicant arguing the merits of this revision application strongly contended that from the pleadings of the parties and the evidence adduced by them it was clearly established that the applicant is undisputed owner of the suit plot and the same is in unauthorized possession of the respondent and, in such circumstances the lower Court had rightly decreed the suit in favour of the applicant but the appellate Court without application of mind and on misreading of evidence set-aside such judgment. Learned counsel referred to paragraphs Nos.1, 2 and 3 of the plaint and its reply in the written statement to show that neither the title of the applicant over the suit plot was disputed by the respondent nor the fact that he was in possession of the same plot. He further contended that as the respondent pleaded that on 3-11- 1969 he purchased the suit plot from Sabu son of Muhammad Siddique Umrani in the sum of Rs,2,000- therefore the burden of proof of such plea was on him to show that what title Sabu son of Muhammad Siddique was holding in respect of suit plot owned by the applicant and how the same could be conveyed to the respondent.
10. Coming to the evidence of the parties learned counsel read the evidence of the applicant wherein he had categorically stated about his title in respect of the suit plot and was illegal possession by the respondent and contended that such statement on oath made by the applicant remained unchallenged in cross-examination and thus appellate Court had no jurisdiction to discard such evidence. He also referred to the report of Mukhtiarkar (Exh.21) produced by the applicant in his evidence to show that genuineness of report and its correctness was even not disputed by the respondent and therefore the appellate court committed gross illegality in ignoring such documentary evidence in favour of the applicant which proves illegal possession of suit plot by the respondent. Reverting to the evidence of respondent, Mr. Jhamat contended that even in his evidence respondent admitted that he is in possession of the same suit plot therefore the suit was rightly decreed by the lower Court. Referring to the report of the Commissioner appointed in this revision application, vide order, dated 9-10-1998. Learned counsel contended that such order of this Court was suo-motu order and it was never objected by the respondent as is evident from two orders, dated 9-10-1998 and 26-10-1998. The Commissioner/Additional Registrar has submitted his report on the basis of relevant record of the revenue department and the measurement taken by concerned official of the revenue department and such report also fully proves the case of the applicant regarding un-authorized and illegal construction of shops and possession of the respondent over the suit plot. Learned counsel also contended that due to the vague pleadings of the respondent even no evidence was required in the matter and the suit of the applicant should have been decreed on admissions. In this context learned counsel referred to the provisions of Order 8 rules 3, 4 and 5, C.P.0 and relied on the case of Inam Naqishband v. Haji Shaikh.Ijaz Ahmad (PLD 1995 SC 314). Where in Honourable Supreme Court held as under: "An examination of Rule 5 of Order VIII of C.P.0 will show that the allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability."
11. On the other hand, Mr. Ejaz Ali Hakro Advocate for the respondent referring to the pleadings, contended that in his pleadings respondent has only shown his ignorance about the title of the applicant in respect of the suit land and further categorically stated that it was for the applicant to prove his title over the suit land. Regarding possession also respondent categorically denied the allegations of the applicant and stated that he purchased the suit plot from one Sabu son of Muhammad Siddique for Rs,2,000 on 3-11-1969. In view of these pleadings of the parties heavy burden was on the applicant to prove his title over the suit plot and also its alleged unauthorized possession by the respondent, but the applicant failed to discharge this burden, even the documents produced by him were not proved in accordance with law, as also rightly held by the first appellate Court. Referring to the report of Commissioner dated 4-11-1998 learned counsel contended that the same cannot be used as substitute of evidence and thus no reliance can be placed on such report for granting any relief to the applicant. Lastly learned counsel contended that revisional powers of this Court are to be exercised only in the cases where it is found that there is some jurisdictional defect or some illegality or material irregularity has been committed by the Court which has affected the merits of the case but the applicant has failed. To show any such thing in the instant case and thus this revision application is ' liable to be dismissed. In support of his arguments learned counsel placed reliance on the cases reported as PLD 1971 Karachi 553, PLD 1997 Lahore 633, PLD 1975 Karachi 819, PLD 1969 SC 477, 1982 SCMR 738, 1994 SCMR 818, 2000 MLD 1013 and 1992 SCMR 2334.
12. I have carefully considered the arguments advanced by the learned counsel for the parties and perused the material placed on record. Perusal of the pleadings of the parties go to show that as regard to the averments of para No,1 of the plaint, wherein the applicant has claimed himself to be the exclusive owner of the plot bearing No,422/1 and 1-A admeasuring 3-31 acres in Deh Shit Shah Taluka Hala, the respondent did not specifically deny such allegation and only asserted that the applicant shall prove his title. As regards this aspect of the case at the stage of evidence not only the applicant produced certified true copy of the record of right showing his title over the suit land but he also made a clear statement in his evidence which was even not disputed by the respondent side in the cross-examination. On the point of possession the applicant in his plaint- (in paragraphs 2 and 3 of the plaint) mentioned the boundaries of the encroached area of the suit plot and stated that in January-1972 respondent illegally encroached an area of 16 Ghuntas from his lands and constructed 7 shops over it. A careful reading of reply submitted by the respondent in his written statement goes to show that regarding the possession of the suit plot also there was no specific denial from the respondent side and rather he stated that he purchased the suit plot from Sabu son of Muhammad Siddique and carried out construction over it which continued for 3 months. On the point of possession, at the stage of evidence also the applicant made clear and unambiguous statement about the possession of the portion of the plot admeasuring 16 Ghuntas by the respondent, but in his cross-examination no question was even suggested to the applicant to dispute this position. Thus in view of the above position it is clearly established from the record that the applicant not only proved his ownership of the said plot but also its unauthorized encroachment by the respondent. The lower Court in its Judgment dated 10-11-1976 had rightly examined the pleadings of the parties and evidence adduced by them and decreed the suit of the applicant but in contrast to it the appellate Court while setting aside the Judgment and decree of the lower Court, completely misread the evidence and did not even care to examine the documentary as well as oral evidence adduced by the parties. It will not be out of place to mention here that the authenticity and genuineness of certified true copy of the record of rights Exh.19 filed by the applicant showing his title in respect of S.No,422/1, 1-A area 3.31 acre.: in Deh Bhit Shah was not disputed by the respondent at any stage of the proceedings and in such circumstances presumption of ownership of S.No,422/1, 1-A deli Bhit Shah was created in favour of the applicant, which the respondent completely failed to rebut, In the case of Mst. Zareena and 5 others v. Syeda Fatima Bai (PLD 1995 Lahore 388), with reference to Article 132 of the Qanun-eShahadat Ordinance, 1984, it was held that material facts deposed in examination in chief by a witness, if remained unchallenged in cross-examination shall be deemed to have been admitted (also see: PLD 1995 Lahore 409). In the instant case, as discussed above, the evidence of the applicant on the issues Nos. 2 to 4 remained unchallenged in cross-examination and thus same is to be believed.
13. The report of the Commissioner, who visited the site under the orders of this Court dated, 9-10- 1998, goes to show that at the time of site inspection the Commissioner appointed by this Court had taken full care to seek assistance from the concerned. Government officials from the Revenue Department as well as from the Director Settlement, Survey and Land records Report dated 4-11- 1998 so submitted by the Commissioner, which is accompanied with sketch of site, duly signed by concerned Tapeder, Revenue Surveyor and Revenue Surveyor of Sukkur Barrage, also supports the case of applicant. There can be hardly two views on the point that such report of the Commissioner could be justifiably taken into consideration for proper appreciation of evidence adduced by the parties. Thus the contention of Mr. Ejaz Ali Hakro that no evidence can be placed on such report is misconceived.
14. Revealing to the contention of Mr. Ejaz Ali Hakro, Advocate, about the limited scope of revision under section 115, C.P.C., It may be observed that there is no cavil to this legal position that the revisional jurisdiction is primarily meant for correction of jurisdictional defects and such powers are not to be exercised, except in the cases which are covered by section 115 (1) (a), (b), and (c) C.P.C.
But there is ample law on the point that where findings of the Court are found to be perverse and based on misreading or non-reading of evidence then interference in such findings in the revisional jurisdiction of the Court will be justified. To fortify this view reference may be made to the case of Mohammad Bakhsh and 4 others v. Province of Punjab (1994 SCMR 1536), wherein the Honourable Supreme Court observed that High Court in its revisional jurisdiction could legally set at naught the concurrent findings of facts of two Courts below if it was satisfied that the finding was based on misreading or non-reading of evidence (also see: PLD 1989 SC 568 and 1985 SCMR 2029).
Thus this contention of Mr. Hakro, in the facts and circumstances of instant case, is also of no help to the respondent's case.
15. In view of the above discussion I have come to the conclusion that the findings of the first appellate Court in the impugned judgment, which are perverse and based on misreading of evidence, cannot be sustained. Accordingly this revision application is allowed and the judgment and decree passed by the first appellate Court are set aside. As a result the judgment and decree passed by the lower Court are restored.