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Rent Appeal No.222 of 1977, decided on 5th February, 1986.

‑‑‑Ss.5 a 115‑‑Declaratory suit‑‑Courts below arriving at concurrent findings on evidence produced‑‑Interference declined by High Court in revisional jurisdiction.

‑‑‑S.100‑‑Second appeal‑‑Concurrent findings of fact‑‑Concurrent findings of fact given by lower Court cannot be challenged in second appeal even if erroneous.

P L D 1958 F C 3819; 1978 S C M R 922 and 1984 C L C 1984, 2104 rel.

Ahmedullah Farooqui for Appellant.

S.A. Kirmani for Respondents.

Date of hearing: 5th February, 1986.

This Revision Application is directed against the judgment of Mr. Abdul Aziz M. Memon, dated 13‑8‑1977, the then Vth Additional Sessions Judge, Karachi, whereby he upheld the judgment of Mr. Saiful Haque Hashmi, dated 31‑3‑1976, the then Vth Senior Civil Judge Karachi, dismissing the appellant's suit.

The appellant filed the present suit stating that he is the owner of house No.G/4 on Plot No 12/2, S.R. 8, Narain Valji Street Ramji, Maraj Compound, Bunder Road, Karachi. It was transferred to him by the Settlement Department'. P . T . O . and P . T . D . , dated 28‑8‑1963 and 13‑8‑1965 respectively, were issued in his favour. The respondent is the owner of adjoining to House No.G/3. There is a common well in between the said two houses.

On or about 22‑3‑1969, in absence of the appellant the respondent demolished the said common wall and raised a new wall in place thereof, but in the portion of appellant's premises. Thus, he encroached upon the piece of land of the appellant illegally, without his consent and permission, hence the suit. The respondent contested the suit and denied that disputed wall was in appellant's portion. He stated that it was situated within the area of his own house. He alleged that he had constructed this wall in 1968 in the area transferred to him with the consent and knowledge and in the presence of the appellant.

The learned trial Court as well as the learned first appellate Court have considered the evidence led by both the parties and after hearing their Advocates came to the conclusion that the respondent had not encroached upon any portion of the appellant's land and that the disputed wall was constructed entirely in the respondent's own area. The evidence on the record consisted of only transfer documents of the Settlement Department and the sketch prepared by the architect and produced by either side, in support of their oral evidence. Hence there was evidence of nearly similar weight produced by the either side. The sketch Exh.P.8 on which the appellant had mainly relied upon was rightly criticised by the first appellate Court as not having been properly proved. It was rightly pointed out that the architect who had prepared the same, was not examined.

Under these circumstances I do not find any justification for interfering with the concurrent finding of the Court below.

It is settled law that the great weight is to be attached to the concurrent findings of fact given by the lower Court. The same cannot be challenged in second appeal even if these were erroneous. Reference in this connection may be made to P L D 1958 F C 3819, 1978 5CMR 922 and 1984 C L C 2104.

I, therefore, dismiss the Revision Application with costs.

M.Y.H Petition dismissed.

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