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Civil Petition No. 114‑P of 1985, decided on 19th October,1985.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 13‑3‑1985 passed in Civil Revision No. 331 of 1980).

‑‑‑Art. 185(3)‑‑Finding of fact‑‑Findings concurrently arrived at by Courts below on issue of fact upheld by High Court in its impugned judgment‑‑Such findings would call for no interference by Supreme Court‑‑Leave refused.

S. Safdar Hussain, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 19th October, 1985.

The petitioner having lost his application for revision in the High Court as per impugned judgment has brought this petition for leave to appeal.

2. The dispute relates to land bearing Khasra No. 2626 measuring 2 Kanals 9 Marlas situated in the area Tall, District Kohat. The land belonged to Hindu migrants and was treated as evacuee property. It was transferred to one Chotey Khan and latter half share in this Khasra number was sold to the plaintiff /respondent vide mutation, dated 24‑9‑1961.

3. The respondent Abdul Majid filed a suit on 22‑9‑1971 in the Civil Court at Kohat for possession of the entire Khasra number by demolition of the 'Abadi' on a portion of it, on the ground that he had acquired the same by purchase and the defendant/ petitioner had raised construction without the permission of the concerned authorities or its legal owner. The suit was resisted by the petitioner. The trial Court framed various issues in the suit, including one regarding valuation for the purpose of Courts‑fee and jurisdiction.

4. The learned counsel for the petitioner mainly addressed us on issue No. 1 as to "whether the defendant had made any improvement, if so, how much and to what effect". In the first round of litigation, which culminated with the judgment, dated 7‑11‑1977 passed on petitioner's appeal by the Additional District Judge, Kohat, the judgment and decree passed by the trial Court was set aside and the case was remanded to it with direction to proceed with the trial oft the case afresh according to law. On re‑trial of the case the finding recorded by the learned Civil Judge, Kohat on issue No. 1 was as under:‑‑

"It is correct that the defendant has raised a house on 131 Marlas as per report of the Commissioner but the plaintiff is not concerned with it because his area can very easily be met out of the vacant area of 351 Marlas in the ends of justice and to avoid hardship to both the parties."

Aggrieved by this judgment Muhammad Sharif petitioner, filed an appeal which was dismissed by the Additional District Judge, Kohat on 25‑2‑1980. The petitioner thereupon applied for revision of the orders, dated 28‑3‑1979 and 25‑2‑1980 of the learned Civil Judge and Additional District Judge, Kohat respectively. The revision too was dismissed as per impugned judgment.

5. We heard the learned counsel for the petitioner at some length. The learned counsel laid great stress on the observations of the Additional District Judge in his judgment, dated 7‑11‑1977 wherein, while discussing the question of payment of Court‑fee, the learned Judge, inter alia, observed "that the defendant is entitled to the cost of improvement". It was claimed by the learned counsel that this observation was a finding given in petitioner's favour which was liable to be implemented. This argument overlooks the fact that by the said judgment the petitioner's appeal was accepted and the judgment and decree of the trial Court was set aside and the case was remanded to the trial Court. The relevant passage from the judgment of the trial Court on the issue No. 1 has already been reproduced hereinabove. The observation or so‑called finding relied upon by the learned counsel was thus thrown overboard upon the setting aside of the judgment and decree on the trial Court and remand of the case for trial afresh. The finding on issue No. 1, as reproduced above, alone holds the field. As per said finding, although it was held that the petitioner/defendant had raised construction of a house on 131 Marlas as per report of the Commissioner but the plaintiff /respondent was not concerned with it because his area could very easily be made out of the vacant area of 351 Marlas in the land. This finding was upheld on petitioner's appeal and the concurrent findings of the learned two Courts on the said issue were not interfered by the High Court as per impugned judgment.

6. As discussed above, the findings arrived at in the case are one of fact and call for no interference by this Court. The petition merits no consideration and is dismissed accordingly.

M. Y. H. Leave refused.

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