This revision petition is directed against the judgment, dated 29-5-2001 passed by learned Additional District Judge/Izafi Zillah Qazi, Dir Bala in Civil Appeal. No.82/14 of 1999 dismissing the appeal filed by the petitioners and maintaining the judgment and decree, dated 25-9-1999 of learned Civil Judge/Illaqa Qazi, Dir Upper.
2. The litigation between the parties started on 4-10-1990 when Fateh Rehman's, son of Said Shah, resident of Dundari, District Dir and his brothers filed a suit in the Court of Extra-Assistant Commissioner, Sheringal District Dir for a declaration to the effect that plaintiff-petitioners are owner of suit land having inherited the same from their forefathers; that defendant-respondents are in possession of it on behalf of the plaintiff-petitioners as 'Ijaradars--- on payment of rent that the defendant-respondents are not justified to deny title of the plaintiff --petitioners and assert their own. A prayer for recovery of Rs. 1,000 as 'Ijara' for the year 1989-90 and grant of permanent injunction restraining the defendant-respondents to interfere with rights of the petitioner-- plaintiffs, was also made.
3. The suit initially filed in the Court of Extra-Assistant Commissioner, Sheringal Dir His transferred to Civil Court in view of the repeal of PATA Regulation. Efforts for reconciliation were made which proved futile. The defendant-respondents contested the suit on all grounds and following issues were formulated for trial:--- (1)Whether the plaintiffs have got cause of action?
(2)Whether the suit-land is ancestral property of plaintiffs and defendants are in possession of the same as Ajaradars' on payment of Rs.500 per year as rent (Ijara) and defendants had been regularly paying rent (Ijara) to the plaintiffs since 1989?
(3)Whether the boundaries of suit land had been wrongly entered?
(4)Whether the defendants are owners in possession of suit and plaintiffs have no concern with it?
(5)Whether the letter produced by the plaintiffs is fictitious/bogus and based on collusion?
(6)Whether the plaintiffs are entitled for the relief prayed for?
4. In evidence, Fazal, Sultan, Abdur Raziq and scribe of receipt (Exh. P. W.1 /2) namely Pishor appeared on behalf the pliantiff-petitioners whereas Arvin Khan (Special Attorney), Amir Sultan and Zafar Ali appeared in the witness-box on behalf of the defendant-respondents.
5. After assessm ent of the evidence produced by the parties, the learned trial Judge proceeded to decide Issues Nos.2 and 4 together and came to the conclusion that plaintiff-petitioners have not been able to substantiate their claim by producing cogent and reliable evidence. Having held so he dismissed the suit with cost vide judgment and decree, dated 25-9-1999. An appeal was preferred the re against which met the same fate, giving rise to the filing of instant revision petition.
6. Mr. Khalil Khan Khalil, Advocate for the petitioners strenuously contended that a perusal of the judgments of the two Courts below will show that important and vital aspects of the case having direct bearing on the controversy involved, have been totally ignored and the material brought on record ire support of the claim of the plaintiff-- petitioners has been put at shelf and excluded out of consideration which has resulted in manifest injustice. The learned counsel contended that the findings on Issues Nos. 2 and 4 are in direct conflict with the evidence and cannot be allowed to remain intact. Additionally the learned counsel submitted that the judgments of the Appellate Court should have contained the points to determination and the decision thereon and the reasons for the decision. The trial Courts and the Appellate Court are duty bound to consider and discuss the evidence of both the parties satisfactorily so that it may be visible that the Courts below have applied their mind and that they have based their findings on proper appraisal of such evidence. The grievance of the learned counsel is that both the Courts below have not referred to the evidence of the parties and have disposed of the issues in a cursory manner in violation of the provisions of Order 41, Rule 31, C.P.C.
7. Keeping in view the principles laid down by the superior Courts, it is to be seen if the Courts below while recording the findings of fact have either misdirected the evidence or ignored any material piece of evidence on record or the finding is perverse. Merely because a conclusion different from that arrived at by the two Courts below was possible shall not be made a ground justifying interference with a concurrent finding on a point of fact and unless it is established that findings are based on no evidence and are result of conjectures in consequence of fallacious appraisal of evidence, misreading, non-reading or perverse appreciation of evidence the finding of First Appellate Court cannot be disturbed in exercise of revisional jurisdiction.
8. The basic question requiring determination would be whether the petitioners have been able to establish by any cogent evidence either oral or documentary that the. Land in suit belongs to them and they have inherited the same from their forefathers. There is nothing in evidence in support of the claim of the petitioners. The petitioners have also remained unable to show that the land in litigation was given by them to the respondents on ' Ijara' on payment of rent and that a receipt (Exh. P.W.1/2) evidencing payment of rent was executed between the parties in this respect. The submission of the learned counsel for the petitioners that respondents have not been able to disprove claim of the petitioners is not tenable. It is the established principle of law that plaintiff has to stand on his own legs and E any, weakness or shortcoming in the claim of the defendant would be irrelevant for lending strength to his own weak case.
9. A perusal of section 115, C.P.C. Would show that its scope is limited to cases where subordinate Court has exceeded its jurisdiction or has declined to exercise jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. None of these defects were either pointed out in the proceedings or were glaringly apparent on the record. The mere assertion of the learned counsel for the petitioners that findings of the Courts below suffer from gross misreading and non-reading of evidence, without a positive attempt on his part to substantiate the same, is of no consequence. The petitioners' have not been able to prove their case and the receipt (Exh. P.W.1/2) has been rightly excluded out of consideration for want of proof.
10. So far as the objection regarding non-compliance of Order 41, Rule 31, C.P.C. Is concerned both the parties have led their respective evidence and findings have been given on all issues in the light of the material on record. It is settled law, that where the parties were conscious of the real factual discard between them and had led evidence accordingly, subsequently for not framing of a specific issue, the trial Court judgment and decree are not vitiated. In this case, learned counsel for the petitioner has not been able to persuade me to hold that the judgments and decrees of the Courts below are not in consonance with the requirements of Order 41, Rule 31, C. P. C. And the matter has been dealt with in a cursory manner.
11. On the evidence as it stands the petitioners have failed to establish their case. As the findings are those of facts and the Courts below have concurred in them, those are binding now and cannot be disturbed in revision. This revision petition is, therefore, dismissed in limine.
Q.M.H./M.A.K./619/P