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Civil Petition for Leave to Appeal No. K‑252 of 1983; decided on 19th June, 1983.

(On appeal from the judgment and order of Sind High Court; Sukkur Bench, Sukkur, dated 4th May, 1983 in Civil Revision No. 83 of 1981).

‑‑‑‑‑ Art. 185 (3) read with Civil Procedure Code (V of 1908), S. 115‑ Evidence Act (I of 1872), S. 68‑‑Revision‑Concurrent findings of fact ‑Question involved in revision application found to be one of law, jurisdiction and interpretation of S. 68, Evidence Act‑Order of High Court disturbing findings of Courts below on such question‑Held, unexceptionable‑Leave to appeal refused.

Kanwal Nain v. Fateh Khan P L D 1983 S C 53 distinguished.

Faizanul Haq, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 19th June, 1983.

This petition for special leave to appeal is from the judgment and order of the learned Sind High Court dated 4‑5‑1983 whereby the revision application of the respondents against the judg ments/decrees, dated 15‑10‑1970 and 28‑2‑1975 passed by the learned Civil Judge, Rohri and the learned Second Additional District Judge, Sukkur, respectively in Suit No. 32 of 1968 and Civil Appeal No. 179 of 1970, was disposed of and the case was remanded to the learned trial Court with the direction to proceed with the case afresh in terms of the observations made in the impugned judgment.

2. The trial Court had non‑suited the respondents holding that they had no cause of action for bringing the suit on the ground that since the dispute land was surrendered one the vendor of the land Syed Muhammad Aala could not have sold the same as he had not paid the full amount of the surrendered land and the clearance certificate produced by him vide Exh. 42 was not conclusive proof of payment of instalments.

3. The learned High Court after having examined the pleadings of the parties found that the petitioners had not raised any plea in their written statement to the effect that the transfer of the land in favour of Syed Muhammad Aala by the Settlement Department was void or illegal on account of non‑payment of the full price by him to the Settlement Department or that the clearance certificate was not issued or that Muhammad Aala could not have transferred the land to the respondents on account of non‑payment of the full price. In spite of absence of any such plea the learned Courts below had committed illegal error: in non‑suiting the respondents on a ground which was not taken in the written statement. The learned High Court further found that the execution of the sale‑deed and payment of consideration was duly proved by the vendor Syed Muhammad Aala himself, who had appeared before the trial Court and as such there was no necessity of examining any attesting witness in view of the proviso to the section 68 of the Evidence Act. It was also found that the clearance certificate Exh.42/A was duly produced in the trial Court through the petitioner's own witness Syed Ali Hassan and that it had also come in the evidence of Syed Muhammad Aala that he had produced the clearance certificate before the Sub‑Registrar at the time of the registration of a sale‑deed. In the circumstances, the learned High Court was of the view that the learned two Courts below were not entitled at the relevant time to go into the question of the legality of the clearance certificate of the transfer of the land issued by the Settlement Department in favour of Syed Muhammad Aala and such a question could only be agitated before the Settlement authorities under sections 10 and 11 of the Displaced Persons (Land Settlement) Act of 1958.

4. The only contention raised by the learned counsel for the petitioner before us was that the findings of fact arrived at by the learned two Courts below could not be disturbed by the learned High Court in the exercise of its revisional jurisdiction under section 115 of the Civil Procedure Code. This contention was raised before the learned High Court and was rightly repelled on the ground that in fact the question involved in the revision application was one of law, jurisdiction and the interpretation of section 68 of the Evidence Act.

5. This finding of the learned High Court is indeed, unexceptionable. The learned counsel however, invited our attention to a judgment of this Court in the case of Kanwal Nain v. Fateh Khan (PLD 1983 SC 53), which is distinguishable on facts of this case and is of no help to the petitioner.

6. In the circumstances, we find no substance in this petition which is dismissed.

S.G.D Petition dismissed.

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