1. Defendant Rasul Bakhsh under section 24 of the Dastur-ul-Amal Diwani, Kalat read with section 100 of the Civil Procedure Code has assailed the judgment and decree dated 18th April 1977, of the Majlis-e-Shoora, KaUt Division, whereby the judgment and decree of the Kazi was set aside and consequently the suit of the plaintiff Mst. Gul Bibi was decreed.
2. The brief facts giving rise to this petition are that Mst. Gul Bibi had filed a suit against appellant Rasul Bakhsh and her husband Muhammad Yaqub in respect of a piece of land. She alleged that six or seven years before filing of the suit, her husband Rasul Bakhsh bad sold her land to the appellant for consideration of Rs. 2,000 without her consent. Albeit, she has admitted that her husband had informed her that he had mortgaged her property but had undertaken to redeem it.
3. However, after cording to know of the alleged sale she moved an application before the Naib--- Tehsildar for action. The Naib-Tehsildar referred the dispute under section II of the Dastur-ul-Amal Diwani to the Kazi for its adjudication. Before the trial Court the parties adduced their evidence in support of their contentions. However, the learned Kazi being satisfied with the averments of the appellant dismissed the suit. Against the decision, Mst. Gul Bibi preferred an appeal before the first appellate Court, the Majlis-e-Shoora. The Court did not agree with the decision of the trial Court and reversed its decision and decreed the suit.
4. Mr. Muftakhiruddin, Advocate, Quetta appeared for the appellant Rasul Bakhsh. Mst. Gul Bibi was unrepresentated. Badal Khan her attorney assisted her before this Court. It was vehemently contended by Mr. Muftakhiruddin that the appellate Court bad not properly appraised the evidence of the parties. It was his contention that the plaintiff had not produced sufficient evidence in support of her claim, which could have justified the passing of the decree in her favour.
5. Additionally the learned counsel raised two objections :-
(i) that the plaint was not verified by the plaintiff, and
(ii) the Naib-Tehsildar was not competent for having referred the dispute to the Kazi for its adjudication.
6. These two objections did not help the appellant in any way. The appellant bad not raised these objections before the Naib Tehsildar, the Kazi and the Majlis-e-Shoora. Such objections for first time have been taken before this Court, as such are not tenable.
7. It was pointed out to Mr. Muftakhiruddin that the value of the suit was below Rs. 2,000 as such second appeal under section 102 of the Civil Procedure Code was barred. Finding difficult to meet with the situation, learned counsel requested that the memo. Of appeal be treated as revision petition. His request was allowed. The matter is being disposed of as a revision petition under section 115 of the Civil Procedure Code. Indeed, power under section 115 are narrower than that under section 100 of the Civil Procedure Code. Revisional powers are exercised in cases where it appears----
(i) that subordinate Courts have exercised jurisdiction not vested in law ;
(ii) failed to exercise jurisdiction vested in law ;
(iii) exercised jurisdiction illegally or with material irregularity.
8. The instant case indeed is not covered by the first two conditions. The learned counsel sought for relief under the third condition. The learned counsel tried to urge before me that it was case of no evidence on which the appellate Court had passed the decree in favour of the plaintiff. Under the circumstances, the exercise of jurisdiction was illegal and with material irregularity. Indeed, I am not satisfied with this contention of the learned counsel for the defendant. The record of the case clearly shows that the plaintiff in support of her contention had examined witnesses Ghulam Muhammad, A.I Bakhsh, Jumma and Pir Bakhsh. It cannot be said that there was no evidence produced by the plaintiff in support of her contentions. However, it was for the first appellate Court to have duly appraised the evidence and given weight and value to the evidence produced before the trial Court in order to re-appraise the evidence in revisional jurisdiction.
9. The last objection regarding limitation is also based on factual side. It is not based on question of law only, as such it cannot be considered at' this stage. Besides such objection was never raised before the lower Court, it thus could not be given weight now. However in the prevailing circumstances of the case, Mr. Muftakhiruddin has totally failed to make out a case calling for interference of this Court. The petition therefore, stands dismissed with no order as to costs.