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Civil Revision No.286-D of 1986, decided on 21st December, 1986.

---S.115--Revisional jurisdiction, exercise of--Findings of fact unanimously arrived at by two Courts below, held, could not be interfered with by High Court in exercise of revisional jurisdiction in absence of any jurisdictional error, illegality or material irregularity resulting into miscarriage of justice.

Ch. Muhammad Mahmood for Petitioners.

This order shall also dispose of connected Civil Revision (No 287-D-86) as common questions of law a d facts are involved in both the cases. The Civil Revisions are directed against two separate judgments and decrees, both, dated 20-7-1985 passed by a learned Additional District Judge, Lahore.

2. The dispute in both the cases pertains to the roofs on the shops forming part of property No.S.W.104-R-82. Hota Singh Road, Sant Nagar, Lahore. This is a composite property consisting of a residential portion at the back and four shops in the front. The residential portion was transferred by the Settlement Authorities to the respondents while three out of four shops were transferred to the predecessor-in-interest of the petitioners in the under consideration two civil revisions. Admittedly, there is a 'Rarsati' built on the fourth shop which is in uninterrupted occupation of the respondents--the transferees of the residential portion. The stair-case for going over the roof of the residential portion as also of the shops is also located within the residential portion in occupation of the respondents.

3. In 1966, on the application of the respondents, demarcation was carried out and the then Deputy Settlement Commissioner, vide his order, dated 10-10-1966, held that the entire roof viz. the roof in the residential portion as also on the shops belonged to the respondents for being utilized as compound and that the petitioners their predecessors, who were transferees /occupants of shops, had nothing to do with the roofs. This order as also the demarcation proceedings were made and carried out without notice to the petitioners and their predecessors. It has been claimed by the petitioners that they came to know of the order, dated 10-10-196,6 when during the Martial Law period the dispute was taken before the Martial Law Authorities and the local police.

4. Thereafter, two declaratory suits were filed; one by Hissamuddin, giving rise to Civil Revision No.286 of 1986 and the other by Syed Abid Ali and nine others, petitioners in Civil Revision No.287 of 1986. In both the suits a declaration was sought to the effect that the order, dated 10-10-1966, passed at their back by the Deputy Settlement Commissioner, was void and ineffective and that they were the lawful owners and transferees of shops including the roofs thereon.

The respondents contested both the suits. They maintained that the roofs in question were their ownership; Those were transferred to them and not to the petitioners and that they were in occupation of the roofs and, therefore, the petitioners' suits in declaratory form were not competent. It was also alleged that the Civil Court lacked jurisdiction in the matter.

Necessary issues arising out of the parties' pleadings were framed. After recording the parties' evidence, the learned trial Court came to the conclusion that the respondents were in actual possession of the roofs in dispute and, therefore, the petitioners' -suits in declaratory form were not legally competent. It was further held that the disputed roofs belonged to the respondents. Regarding the question of jurisdiction, it was held that the Civil Court was possessed of the jurisdiction. The suits were thus dismissed by the learned trial Court on 7-3-1981. The petitioners preferred appeals in both the suits and the learned Additional District Judge, more, vide his judgment, dated 12-5-1983 reversed the findings .of the trial Court on the issue pertaining to the maintainability of the suits in declaratory form and also in regard to the question pertaining to the title of the roofs in question. He also allowed the petitioners to amend the plaint so as to claim the relief of possession as a consequential relief to the declared prayed for by them. The learned Additional District Judge, however instead of decreeing the petitioners' suits, remanded the case to trial Court for fresh decision.

The judgment and decree, dated 12-5-1983, passed by the learned Additional District Judge, Lahore, in both the cases were called in question before this Court through Civil Revisions No.1021 of 1983 and 1022 of 1983. Both the Civil Revisions were disposed by a consolidated judgment, dated 9-10-1984. It, was held that the learned lower Appellate Court has failed to decide the appeals accordance with law. It was found that the impugned judgments were violative of the provisions of Order XLI, rule 31 of the Code of Civil Procedure and that in the light of the findings arrived at by the lower Appellate Court, the appeals could be decided in entirety and there was hardly any occasion for remand. It was ultimately conclude that the impugned judgments passed by the learned Additional District Judge suffered from illegalities and material irregularities and were thus legally not sustainable. Consequently, the revision petitions were allowed and the case was remanded to the learned lower Appellate Court for deciding the appeals afresh in accordance with law, in the light of the observations made in the order, dated 9-10-1984. Consequently, the impugned judgments were passed on 20-7-1985 and thus the present Civil Revisions.

5. It has been urged on behalf of the petitioners that the learned lower Appellate Court while passing the impugned judgments has disregarded the observations made by this Court and that otherwise also the findings arrived at by the learned lower Courts were based on mis-reading of evidence and mis--construction of the relevant documents.

6. The pleas advanced on behalf of the petitioners have been thoroughly considered and minutely analysed. The learned trial Court as also the learned lower Appellate Court have found that a 'Barsati' built on the fourth shop was admittedly in uninterrupted occupation of the respondents. The passage leading to that 'Barsati' was through the disputed roofs. The staircase for going to the disputed roofs was located within the residential portion allotted to the respondents. In the light of these observations, the lower Courts have come to the conclusion that the roofs in dispute belong to the respondents and not to the petitioners. These findings of fact unanimously arrived at by the learned lower Courts cannot be interfered with by this Court in exercise of its revisional jurisdiction under section 115, C.P.C. in the absence of any jurisdictional error, illegality or material irregularity resulting into miscarriage of justice. No such shortcoming has been pointed out by the learned counsel for the petitioners nor has been noticed as a result of careful perusal of the records.

7. It has been vehemently argued on behalf of the petitioners that while disposing of the earlier Civil Revisions, this Court had observed that the order, dated 10-10-1966 passed by the Deputy Settlement Commissioner was made at the back of the petitioners without notice to them and as such was not binding on them, but the learned Additional District Judge while passing the impugned judgments has made observations that there was no harm if the demarcation was carried out on the application of the respondents without notice to the petitioners. It has further been urged that while making such observations the learned Additional District Judge has disregarded the observations made by this Court while disposing of the earlier Civil Revisions. This is true that at the time of disposing of the earlier Civil Revisions it was observed that the order, dated 10-10-1966 was passed at the back of the petitioners without impleading them as party and the otherwise observations made by the learned Additional District Judge, therefore, cannot be supported and maintained but the fact remains ..... ... ... ... ... ... ... ... cannot be interfered with in revisional jurisdiction.

8. In this view of the matter, the petitioners' suits have rightly been dismissed and there is no substance in the present Civil Revisions which are accordingly dismissed in limine.

H. B. T./A-55L Revision dismissed.

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