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Civil Petition for Leave to Appeal No.653/R of 1983, decided on 31st January, 1984.

(On appeal from the judgment and order of the Lahore High Court, Rawalpindi Bench dated 28‑9‑1983 passed in Civil Revision No. 751/D of 1980)

‑‑‑Art. 185 (3)‑‑Civil Procedure Code (V of 1908), S.115‑‑Suit for pre‑emption ‑‑Revision‑‑Trial Court decreeing suit as upheld by appellate Court looking into plea of defendant that land in dispute, being situate within limits of Cantonment, was not pre‑emptible‑‑Order of High Court in revision remanding case for appointment of expert of Survey Depart ment as Local Commissioner for resolving matter in controversy and thereafter for proceeding in accordance with law‑‑Held, unexceptionable ‑‑Leave to appeal refused.

Malik Muhammad Ashraf v. Mst. Afredan Bi etc. C. P. L. A. No. 22/R of 1983 ref.

Bashir Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Maulvi Sirajul Haq, Senior Advocate Supreme Court (absent) and M. Afzal Siddiqui, Advocate‑on‑Record for Respondent.

Date of hearing: 31st January, 1984.

‑‑ Leave is sought from the judgment and order of the Rawalpindi Bench of Lahore High Court, dated 28‑9‑1983 passed in Civil Revision No.751/D/1980.

2. The predecessor‑in‑interest of the petitioners pre‑empted land measuring 17 Kanals 17 Marlas situate in village Dhama, Tehsil and District Rawalpindi, purchased by the respondent by a registered sale deed dated 31‑7‑1975 for a sum of Rs.4,500. The respondent had taken the plea that the land was not pre‑emptible as it was situate within the limits of Rawalpindi Cantonment. On 27‑1‑1977 the suit was decreed by the learned trial Court holding that the land was not situate within the Cantonment limits. Appeal of the respondent was dismissed vide judgment and order of the Additional District Judge, dated 15‑4‑1980. Revision, was then filed in the High Court which was accepted vide the impugned judgment and the case was remanded for appointment of an expert of the Survey Department as a Local Commissioner authorising him to record evidence as well for resolving the matter in controversy and thereafter to proceed in accordance with law after receipt of the report.

3.Learned counsel contended that the parties, respondent included, had produced their evidence in compliance with the order of the learned trial Court, dated 29‑10‑1976. The respondent could not question the order, dated 29‑10‑1976 of the learned trial Court in subsequent proceedings and was estopped from doing so; and that it is well‑settled that a concurrent finding of fact, however, erroneous or inexcusable, cannot be interfered even in the second appeal and the scope of revision is much more restricted.

4. The learned High Court Judge held that it was clearly a material irregularity within the purview of section 115, C . P . C . and referred to an unreported judgment of this Court in Malik Muhammad Ashraf v. Mst. Afredan Bi etc. C.P.L.A. No.22/R of 1983, decided on 29‑1‑1983 wherein under the similar circumstances the appointment of an expert of the Survey Department as a Local Commissioner by the High Court was upheld. Examining this proposition we find that this petition is without any legal force and the impugned order is unexceptionable. The petition is, accordingly, dismissed.

S. Q. Petition dismissed.

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