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Second Appeal No. 126 of 1973, decided on 26th January, 1984.

--S.100--Concurrent findings of two Courts below not showing that same were against law--Evidence on record not suffering from any infirmity within meaning of S. 100, C.P.C.--Appeal dismissed.

Muhammad Ibrahim Memon, Addl: A.-G. for Appellant.

Nisarally for Respondent.

Date of hearing: 26th January, 1984.

This second appeal has been filed against the judgment and decree passed on 20th October, 1972 by the learned Additional District Judge, Nawabshah, in Civil Appeal No.4 of 1971 whereby the said appeal was dismissed and the judgment and decree passed by the trial Court (Civil Judge First Class, Nawabshah) in F.C. Suit No.8 of 1969 in favour of the plaintiff decreeing the said suit for Rs.1,319.14 paisa with proportionate costs with maintained.

1. The facts which both the Courts concurrently found on the evidence led are that the building of the respondent (hereinafter referred as to the plaintiff) situated in village Zahro Khan Chang, was taken and occupied by the defendants as tenant for running a primary school and that it was agreed between the parties that the rate of rent payable by the government for the said building would be decided on the report of the Executive Engineer, B & R. It is admitted that the said Executive Engineer fixed the rate of rent at Rs.76.42 per month and he certified that the said rate is reasonable as per existing condition of the building. This certificate is dated 30th August, 1962 and marked Exh.23. The letter dated 1-1-1962 Exh.22 produced in evidence shows that the department occupied the said building from 1-1-1962 for running the school.

Subsequently on 3rd June, 1967 the District Inspector School wrote a letter to the Executive Engineer B & R requesting him that the rent fixed at Rs.76.42 per month be re-fixed as the certificate earlier issued by him was for the whole of the building consisting of 5 rooms whereas the department had occupied only 3 rooms for running the school and the remaining 2 rooms were not in their possession. There is no evidence on record however to show that the Executive Engineer thereafter refixed the rent or reduced the amount of rent payable by the defendants /appellants to the respondent /plaintiff. Finding of the two Courts below that the entire building was occupied by the department for running the school is supported by the evidence of Haji Ali Sher P.W.1 (Exh.21) and Bahawal P.W.2 (Exh. 26). The defendant/ appellant examined one Mr.Shamsuddin D.W.1 (Exh.31) the senior clerk in the office of the Deputy District Inspector School, Nawabshah. In his cross-examination the said witness stated that he had never visited the school premises himself. The plaintiff's statement that he received rent paid to him at Rs.40 per month under protest has not been challanged before this Court by the learned Additional Advocate-General.

The learned Courts below having found as above held that the plaintiff was only entitled to payment of Rs.36.42 per months being the difference between Rs.76.42 per month from 10th August, 1965 upto 31st, July, 1968 amounting to Rs.1,319.14 for which amount the suit was decreed. Since the suit was filed on 9-8-1981 the claim for the earlier period was held to be barred by time.

2. Mr. Ibrahim Memon, Additional A-G. has appeared for the appellant but in view of the evidence on record and concurrent findings arrived at by the two Courts below, was unable to show that the same are against the law, evidence on record or suffered from any infirmity within the meaning of section 100, C.P.C. The findings of fact given by the two Courts below supported as they are by material on record concludes the controversy so far as this Court is concerned. Mr.Nisa Ali, the learned Advocate for the respondent/ plaintiff admits that the amount decreed has already been received by the plaintiff.

3. For the reasons stated above this appeal is dismissed as having no merit. There shall however be no order as to costs. The surety furnished by the plaintiff /respondent at the time of withdrawal of the amount from the Court is discharged.

M.A.K. Appeal dismissed.

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