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Civil Petition No. 19‑R of 1984, decided on 18th March, 1984.
(On appeal from the judgment and order, dated 21‑11‑1983 of the Peshawar High Court, Circuit Bench, Abbottabad, passed in Civil Revision No. 40/1978).
‑‑‑S. 115‑‑Revision‑‑Misreading of documents by Courts below‑‑High Court justified in interfering with concurrent finding of fact‑‑Where on examination of record High Court found that Courts below had arrived at an erroneous conclusion which was based on misreading of documents, High Court, held, was justified in interfering with concurrent finding of fact.
Muhammad Rafiq Awan, Advocate Supreme Court instructed by Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 18th March, 1984.
Leave is sought against the order dated 21st of November, 1983 of the Peshawar High Court, Circuit Bench, Abbottabad, whereby Civil Revision No. 40 of 1978 was accepted and the petitioner's suit was dismissed. The dispute is in regard to 3 Kanals of land which was alleged to be in Hissadari possession of the petitioner.
The petitioner filed a declaratory suit to avoid the consent decree passed in Civil Suit No. 464/1 of 1983 where under respondent No. 1 was held to be the owner in possession of the disputed land by virtue of sale in his favour through Mutation No. 7103, dated 28th of August, 1973, which was earlier rejected by the revenue authority on the ground that the vendors were not in cultivating possession of the disputed land. The petitioner pleaded that he was in his Hissadari possession, therefore, the disputed land shown in the column of cultivation could not be sold.
The trial Court decreed the suit holding that no Tatima could be carved out on the sale mutation as the vendors were not in possession of the disputed land, and hence the decree was ineffective qua the possession of the petitioner over the disputed land. However, the sale in the column of ownership was held to be valid.
In appeal the District Judge, Abbottabad, confirmed the conclusion of the trial Court and dismissed the suit holding that the consent decree in Suit No. 464/1 of 1973 was ineffective as against the petitioner who was not impleaded as party and also for the added reason that the vendors were not in Hissadari possession of the disputed land.
The High Court upon its examination of Fard Jamabandi for the year 1964‑65 (Exh. P.W. 1/5) and Khasra Girdawari (Exh. P.W. 1/6) held that although the petitioner was, alongwith one Gul Muhammad, in Hissadari possession of 1/4th share in Khasra No. 2344 and 1/8th share in Khasra No. 2343 nonetheless it was not established that the petitioner was in Hissadari possession of the disputed land sold by the vendors. In other words, the petitioner had failed to identify that his Hissadari possession was in respect of the 3 Kanals of land which was the subject matter of dispute. Accordingly, the High Court held that the Courts below had erroneously concluded that the petitioner was in Hissadari possession on a misreading of these documents.
The learned counsel for the petitioner strenuously urged that the High Court could not have disturbed the concurrent finding of fact, but we see no substance in it as after examining these documents we have ourselves reached the conclusion that the petitioner has failed to establish his Hissadari possession of the disputed land, and the High Court was justified in interfering with the order which was based on a misreading of the documents.
Accordingly, this petition is without any substance and is dismissed.
M.I. Petition dismissed.
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