Zardad & others Vs Mst. Muhammad Zubair & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department) C. R No. 395-A/2010

Zardad and others.

(Petitioner/s)

VS

Muhammad Zubair and others

(Respondent/s)

Present: Mr. Sajjad Ahmand Abbasi, Advocate, for petitioners.

Mr. Niaz Khan Jadoon, Advocate for the respondents.

Dates of hearing: 10.02.2026

JUDGMENT

AURANGZEB, J.- Through the instant civil revision petition, the petitioners/plaintiffs have challenged the judgment & decree of learned Additional District Judge-III, Abbottabad dated 24.03.2010, whereby, appeal filed by the present petitioners was dismissed and thereby maintained the judgment and decree of the trial Court dated 28.05.2009 who vide the same had dismissed the suit of petitioners/plaintiffs.

2.Briefly stated, the facts giving rise to the filing of the instant civil revision petition are that the petitioners/plaintiffs instituted a suit for declaration

asserting that they had been in uninterrupted, continuous and peaceful possession of the land comprised in Khasra Nos. 3866, 3869, 3868 and 3951 for a period exceeding one hundred and twenty (120) years, without any interference from the defendants or their predecessors-in-interest. On the basis of such alleged long, continuous and hostile possession, they claimed proprietary rights through adverse possession and sought a declaration that the revenue entries reflecting the names of the defendants in the ownership column were illegal, contrary to the factual position and liable to cancellation, with a consequential direction for incorporation of the names of the plaintiffs as owners in the revenue record. They also impugned the deletion of the names of plaintiffs Nos.

1, 2 and 4 from the cultivation column, terming the same to be unlawful and against the record, and challenged the entry of “Khud Kasht” recorded therein as incorrect and liable to rectification. In addition to declaratory relief, the plaintiffs prayed for recovery of possession along with decrees for permanent as well as mandatory injunction against the respondents, the details whereof were fully set forth in the plaint. Upon issuance of summons, the respondents/defendants entered appearance, and respondents Nos. 4, 5 and 6

contested the suit by filing written statements controverting the averments of the plaint. After completion of pleadings, the learned trial Court framed requisite issues, recorded evidence of the parties and heard their learned counsel. Upon conclusion of the trial, the suit of the petitioners/plaintiffs was dismissed vide judgment and decree dated 28.05.2009, with the observation that the plaintiffs might seek remedy before the appropriate forum. Feeling aggrieved, the petitioners/plaintiffs preferred an appeal before the learned appellate Court; however, the said appeal too met the same fate and was dismissed vide judgment and decree dated 24.03.2010. Having remained unsuccessful before both the Courts below, the petitioners/plaintiffs have now invoked the revisional jurisdiction of this Court through the instant civil revision petition.

3.Arguments advanced by the learned

counsel for the petitioner were heard and the record was perused with his able assistance.

4.From an exhaustive and penetrating

examination of the entire record, it becomes abundantly clear that the petitioners erected their claim upon the plea of long, continuous and allegedly hostile

possession over the suit property comprising Khasra Nos. 3866, 3869, 3868 and 3551, situated in Revenue Estate Nawanshahr Janubi, Tehsil and District Abbottabad, asserting that such possession had its origin in their forefathers and had continued for more than one hundred and twenty years without interruption, obstruction or assertion of title by the respondents or their predecessors-in-interest. On the strength of this alleged prolonged possession, they sought declaration of ownership through adverse possession, correction of the revenue record wherein the respondents were recorded as owners, and consequential reliefs of recovery of possession coupled with permanent and mandatory injunctions. They further pleaded that the land had been made cultivable by their efforts, trees had been planted and acts of ownership had been exercised openly; however, their own pleadings disclose that upon scrutiny of the revenue record they discovered deletion of their names from the cultivation column to the extent of Khasra No. 3951 measuring 06 Kanal 19 Marlas, whereas the remaining land stood recorded as “Khud Kasht” in the relevant Jamabandi.

5.The documentary evidence produced

through official revenue functionaries, including

successive Jamabandis, Khasra Gardawaries, Khatauni extracts and Fardh entries of different settlement years does not lend support to the plea of hostile or ownership-based possession. On the contrary, Khasra Nos. 3666, 3668 and 3669 consistently stand entered as “Khud Kasht” in favour of the recorded proprietors, entries which carry a statutory presumption of correctness under the revenue law and continue to hold the field unless rebutted through cogent evidence.

Even qua Khasra No. 3951, the possession reflected is neither exclusive nor proprietary, as it is shown partly in the name of petitioner No. 3 along with other individuals who are strangers to the lis, and the nature of such possession is recorded as “Ghair Dakhilkar,” which in revenue parlance denotes permissive, precarious or tenant-at-will occupation, legally incapable of ripening into adverse ownership.

6.A deeper analysis of the record further reveals that the revenue entries do not, at any stage, characterize the petitioners as adverse occupants, nor do they depict possession hostile to the title of the recorded owners. Even where some of the petitioners appear in isolated cultivation entries, the legal character of such possession remains undefined, thereby depriving it of the essential attributes required

to sustain a plea of adverse possession. The oral evidence adduced is equally inconclusive and deficient; the witnesses, including the principal petitioner appearing on his own behalf and representing others, failed to specify the point of commencement of adverse possession, the manner of its continuity, the assertion of hostile title or the knowledge of the true owners, all of which are indispensable legal ingredients. It is a settled principle within the framework of the Limitation Act, 1908, read with the Qanun-e-Shahadat Order, 1984, that the burden to establish adverse possession is exceptionally stringent, as the claimant seeks to defeat lawful title through operation of limitation. Such possession must be open, notorious, continuous, exclusive and hostile, accompanied by clear animus possidendi, and must be specifically pleaded with precision as to time, nature and extent. Mere long possession, cultivation, plantation or user of land, howsoever extended in duration, does not ipso facto mature into ownership unless coupled with hostile intent and unequivocal denial of the true owner’s title.

7.Furthermore, where the revenue record persistently reflects ownership and cultivating possession of recorded proprietors, a strong

presumption of truth attaches to such entries, which cannot be displaced through vague assertions or incomplete evidence. The cumulative evaluation of pleadings, oral depositions and documentary material thus unmistakably demonstrates that the petitioners’ possession, even if assumed arguendo, remained non- exclusive, permissive in character and legally non- hostile, falling far short of the threshold required to establish adverse possession under Pakistani civil and revenue jurisprudence. Building upon the foregoing legal and factual matrix, what further weighs with this Court is the inherent inconsistency between the nature of relief claimed and the legal posture adopted by the petitioners. A party invoking declaratory jurisdiction must succeed on the strength of its own title and not on the perceived weakness or inaction of the recorded proprietors. The petitioners, however, neither produced any documentary instrument conferring proprietary rights nor demonstrated succession through any recognized mode of transfer under the governing civil law. No sanctioned mutation, no partition proceedings, nor any revenue order conferring proprietary status was brought on record. In the absence of a lawful root of title, the attempt to secure ownership through declaratory decree amounts to seeking judicial sanction

for extinguishment of recorded rights without fulfillment of statutory pre-conditions. It is equally significant that the suit, as framed, sought correction of revenue entries without first availing the efficacious and specialized remedy before the revenue hierarchy, which under the scheme of the revenue law is the primary forum for adjudication of record-of-rights disputes. Civil jurisdiction in such matters, though not entirely barred, is circumscribed and is ordinarily exercised where entries are shown to be the result of fraud, misrepresentation or patent illegality, elements conspicuously absent in the present lis. The cumulative effect of these legal deficiencies renders the petitioners’ claim structurally infirm, disentitling them from equitable as well as declaratory relief within the contemplation of law.

8.During the course of arguments, when the attention of learned counsel for the petitioners was invited to the judgment rendered by the Hon’ble Supreme Court of Pakistan in the case of “Maqbool Hussain vs. Government of Pakistan”, he maintained that the possession of the petitioners over the suit property has admittedly been adverse, open, and within the

knowledge of the respondents. In elaboration of this contention, he submitted that the petitioners have specifically pleaded in their plaint that they have been in continuous, open, and uninterrupted possession of the disputed property for the last 120 years. It was further argued that the petitioners never remained tenants under the respondents, nor did they ever pay any produce or rent to them, and that, by sheer afflux of time, their possession has ripened into ownership, thereby maturing their title over the suit property on the basis of adverse possession much prior to the cut- off/target date of 31.08.1991 as envisaged in the pronouncement of the apex Court. Conversely, learned counsel appearing on behalf of the respondents vehemently controverted the aforesaid stance. He categorically denied the alleged possession of the petitioners and, in order to substantiate his submissions, placed on record the latest revenue extracts, namely Fard Jamabandi, Khasra Girdawri wherein the names of the petitioners do not find mention as persons in possession of the suit property.

He thus contended that the plea of long, hostile possession set up by the petitioners is belied by the contemporary revenue record.

9.This Court, in order to ascertain the true import and legal effect of the judgment rendered in the case of Maqbool Ahmed, undertook an independent search of the law on the subject. The exercise was conducted with particular reference to the question as to whether a right, claimed on the basis of adverse possession and asserted to have matured prior to the cut-off/target date fixed therein, could be reopened for reconsideration, or whether such a claim would fall within the domain of a past and closed transaction, immune from subsequent disturbance. The operative part of the judgment titled “Maqbool Ahmed vs.

Government of Pakistan” reported as 1991 SCMR 2063 is reproduced below;

خلاصہ يہ ہے کہ ليميٹيشن ايکٹ کی نے غير منقولہ جائيداد کے٢٨ دفعہ قبضے کو منقولہ جائيداد اور دوسرے مقدمات سے الگ کر کے اس ميں عدالتی چاره جوئی کو ختم کرنے کے ساته ساته جس طرح حق ہی کو ختم کر وه قرآن و سنت کے احکام،رہا ہے قرآن و سنت کے،سے متصادم ہے احکام کا تقاضہ يہ ہے کہ جس طرح منقولہ جائيداد اور قرضوں ميں ميعاد سماعت گزرنے کے بعد بهی حق اسی طرح،بذات خود باقی رہتا ہے غير منقولہ جائيداد ميں بهی يہ حق اور مخالفانہ،باقی رہنا ضروری ہے ( قبضےAdverse Possession) کے ذريعے جائز ملکيت کے حصول کا جو وه،تصور اس دفعہ ميں ديا گيا ہے قرآن و سنت کے احکام کے قطعی خلاف ہے۔

اپيل کننده نے ليميٹيشن ايکٹ کے کو بهی١۴۴ پہلے شيڈول ميں آرٹيکل ، کے ساته چيلنج کيا ہے٢٨ دفعہ اور اس کو بهی قرآن و سنت سے متصادم قرار دينے کی درخواست کی

ہے ،ليکن ميں سمجهتا ہوں کہ شيڈول کا آرٹيکل ١۴۴در حقيقت قبضے کی واپسی سے متعلق مقدمات کے لئے باره سال کی ميعاد سماعت اور اس ميعاد کا نقطہ آغاز بتانے کے لئے وضع کيا گيا ہے ،اس ميں بذات خود قبضہ مخالفانہ کے ذريعے مالک کے حق کے خاتمے يا ناجائز قابض کی ملکيت ثابت ہو جانے کا کوئی حکم موجود نہيں ہے ،يہ آرٹيکل در حقيقت اس وقت قرآن و سنت کے احکام کے خلاف نتائج پيدا کرتا ہے جب اسے ايکٹ کی دفعہ ٢٨کی روشنی ميں پڑها جائے ،ليکن اگر دفعہ ٢٨ايکٹ ميں موجود نہ ہو تو يہ آرٹيکل محض ساده ميعاد سماعت کے بيان پر مشتمل ہے ،جس کے بارے ميں يہ قرار دے چکا ہوں کہ وه اس عدالت کے دائره اختيار سے باہر ہے ،اور اس ميں کوئی شرعی خرابی بهی نہيں ہے، لہذا اگر دفعہ ٢٨قانون کا حصہ نہ رہے ،تو پهر آرٹيکل ١۴۴کے باقی رہنے سے محض اس آرٹيکل کی بنياد (Adverseپر قبضہ مخالفانہ کے ذريعے ملکيت کا )Possession حصول اور اصل مالک کی ملکيت کا خاتمہ ممکن نہيں رہے گا ،لہذا دفعہ ٢٨کے قرآن و سنت سے متصادم اور بے اثر قرار پاجانے کے بعد پہلے شيڈول کے آرٹيکل ١۴۴کو قرآن و سنت سے متصادم قرار دينے کی کوئی ضرورت ميرے نزديک باقی نہيں رہتی۔

اس پوری بحث کا نتيجہ يہ ہے کہ ميں يہ اپيل منظور کرتے ہوئے ليميٹيشن ايکٹ کی دفعہ ٢٨کو قرآن و سنت کے احکام سے متصادم قرار ديتا ہوں ،يہ فيصلہ مورخہ اگست ء کو مؤثر ہوگا ،جس کے ساته ١٩٩١ ہی ليميٹيشن ايکٹ کی دفعہ ٢٨بے اثر ہو جائے گی اور قانون کے طور پر باقی نہيں رہے گی۔

10.In the above case the Honorable Shariat Appellate Bench has declared Section 28 of the Limitation Act, 1908, as repugnant to the Injunctions of Islam, insofar as it provides for extinguishment of the right in property and the determination of the period prescribed for instituting of a suit for

possession of the said property. It was further held therein that the decision shall take effect from 31st August, 1991, and on that date Section 28 of the Limitation Act, 1908, shall cease to have effect.

11.This Court find that the apex Court has already thrashed out this question in detail. In the case of “Ch. Muhammad Aslam Khan through LRs and others vs. Malik Sher and others” reported as 1994 SCMR 1637 it has been held as under;

“5. We have heard learned counsel for the parties and have perused the record. In the instant case the plaintiff claimed that he had purchased the property from Malik Abdul Karim and Malik Atta Muhammad and became owner in possession thereof since then. The appellant on the other hand also maintained that he had, purchased the property from Malik Abdul Karim and Malik Atta Muhammad and was in possession thereof. The plaintiff on learning from the contents of the written statement that the defendant had pleaded that he had also purchased the property from the same owners, moved application for amendment of the plaint so as to take up additional plea of adverse possession against the defendant. The question as to whether the plea of adverse possession is destructive to the plea of ownership depends upon the circumstances of each case and determination whereof depends on the basis of the evidence brought on the record. The plaintiff has yet to lead evidence in support of his case. We have noticed that neither the nature of the suit nor the relief claimed therein by the plaintiff is changed by virtue of the proposed amendment in the plaint. The discretion exercised by the revisional Court in allowing amendment of the suit, was in our view rightly not disturbed by the learned Single Judge in Constitutional jurisdiction of the High Court. As to the dictum laid down in

Maqbool Ahmed v.

Hakoomat-e-Pakistan (1991 SCMR 2063) (Shariat Appellate Bench), the learned Single Judge of the High Court advisedly did not enter into the retrospective application of the law laid down therein, on cases already decided or pending, before it was to take effect. We may, however, observe that in case the plaintiff ultimately succeeds on the plea of adverse possession that finding will be assailable on the principle enunciated in the aforementioned case being repugnant to injunction of Islam subject of course to the determination of its retrospective application”.

12.In the case of Durranai and 35 others Vs. Hamidullah Khan and 15 others (2007 SCMR 480), it was held that:

“A suit for prescription of title could be fruitful only if mortgagee is fortunate to obtain a decree before 31.8.1991 because, after the aforesaid target date, the right or title of the mortgagor shall not be deemed extinguished. We, therefore, hold that if a mortgagee makes an option to bring a suit for prescription of title, it must be brought so as to obtain a decree before 31-8- 1991. A similar view has been taken by this Court in Muhammad Hussain’s case 2004 SCMR 1137”.

13.In the case of Jan Muhammad Shah and others Vs. Custodian of Evacuee Property, Lahore and others (PLD 2009 Supreme Court 501), regarding the issue of adverse possession, the apex Court discussed Section 28 and Article 144 of the Limitation Act and its repugnancy to the Injunctions of Islam and held as under:-

“There is another aspect of the case. Predecessor-in-interest of the

petitioners was claiming half of the land on account of adverse possession. All the forums, except Deputy Custodian, refused to recognize his plea. Litigation started from the date of passing of order dated 31.3.1949. The learned Shariat Appellate Bench of this Court in a case reported as Maqbool Ahmed v. Hakoomat-e-Pakistan (1991 SCMR 2063)” declared section 28 and Article 144 of the Limitation Act, 1908 repugnant to the injunctions of Islam in so far as, same provided for extinguishment of right in the property, and it was held that decision of this Court would take effect from 31st August, 1991, on which date petitioners’ constitutional petition was pending. It was neither finally concluded at any stage nor any decree was passed favouring the petitioners to the effect that Pir Zaman Shah was in adverse possession of half of the land. Petitioners’ constitutional petition was pending on the day, on which the judgment of Maqbool Ahmed (ibid) was to take effect, thus it cannot be pleaded that the case of petitioners qua adverse possession was a past and closed transaction. In view of case of Maqbool Ahmed (ibid), petitioners’ plea of adverse possession has lost its efficacy, if there was any. Learned counsel for the petitioners, when confronted with the case of Maqbool Ahmed (ibid) stated that the said judgment cannot be applied retrospectively and thus it had no effect on the case of the petitioners. Suffice it to say that the said plea has little substance, as dictum laid down in the case of Maqbool Ahmed (ibid) would not affect only past and closed transactions, while in the case the matter of adverse possession was never treated as past and closed transaction. The predecessor-in-interest of the petitioners was never finally conclusively determined and held to be in adverse possession of the disputed land by any of the Courts. In view whereof, besides the reasoning advanced by the learned High Court for dismissal of petitioners’ writ petition, we feel that the case of the petitioners is also hit by the case of Maqbool Ahmed (ibid) and the petitioners could not succeed on the plea of adverse possession”.

14.This view of the apex Court was reiterated in the case of Muhammad Afsar and others Vs. Rab Nawaz (Deceased) through L.Rs and others (2015 SCMR 301), wherein it was held that:

“4.Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for the appellants, after making reference to the leave granting order dated 30-4- 2004, to show the formulations made therein, strongly contended that the judgments of the first appellate Court and the revisional Court against the appellants are result of misreading and non-reading of material pieces of evidence, which had conclusively established the ownership of the appellants over the suit land by way of adverse possession. He further contended that before the appellate Court by filing C.M.A. No.1788-L of 1996, which was allowed on 7-11- 1996, the appellants have produced four additional documents to further strengthen their claim of ownership over the suit land by way of adverse possession, but these documents were not taken into account by the revisional Court and, thus, it is a fit case where the matter should be remanded to the revisional Court for rehearing of the revision petition and its disposal on merits, after taking into account all the documentary and oral evidence adduced by the parties to this litigation. He also made reference to the judgments in the cases of Haji Khan v. Aijaz Ali (PLD 1981 SC 302) and Mandan Gopal v. Maran Bepari (PLD 1969 SC 617) to add force to his submission that in a case where the judgment of the two Courts below are at variance, it was the duty of the revisional Court or the second appellate Court, as the case may be, to consider both the judgments in a judicious manner before recording its conclusion. He also contended that in the case of Maqbool Ahmed v. Hakoomat-e-Pakistan (1991 SCMR

2063), the cutoff date of 31-8-1991 laid down by the apex Court in the context of section 28 of the Limitation Act, 1908, has no bearing to the fate of this appeal, as the ownership of the appellants by way of adverse possession has matured much earlier to this cutoff date. In the end, making reference to copies of khasra gardawri placed on record, as an alternate plea, he contended that the long standing possession of the appellants over the suit and was an undisputed fact, therefore, even if their plea of adverse possession was not accepted, their status as tenant(s) over the suit land qua tenancy rights could not be denied. Thus, no relief can be granted to the respondents in their suit as they could only file a suit for possession against the appellant to deprive them of their possession over the suit land in a lawful manner”.

In Para 10 of the judgment the Hon’ble Apex has held that;

“This being the position, we have no hesitation to hold that the concurrent findings of the appellate Court and the revisional Court recorded in favour of the respondents are the outcome of proper appreciation of evidence, which has dislodged the claim of adverse possession raised by the appellants. Apart from it, the judgment in the case of Maqbool Ahmed (supra), containing the cutoff date as 31-8-1991, is also fatal to the claim of the appellants, as vide judgment of the appellate Court dated 16-6-1991, the plea of adverse possession set up by them was rejected, thus, their title had not matured to hold the field after this cutoff date. This legal position is amplified from the cases Durrani v. Hamidullah Khan (2007 SCMR 480) and Jan Muhammad Khan v. Custodian of Evacuee Property, Lahore (PLD 2009 SC 501), which laid down that after the judgment in Maqbool Ahmed’s case (supra), providing for the cutoff date as 31-8-1991, the pending claims of adverse possession could only bore fruit if the same had matured through a Court decree subsisting on the cutoff date. Besides, we are also in agreement

with the submissions of Mr. Gulzarin Kiyani that when the suit land was in Shamlat Deh and uncultivated since long, mere plea of adverse possession setup by the appellant was of no avail. Even if the appellants had been in possession, still to establish their claim of adverse possession, they had to meet the criteria of open and hostile possession of the suit land against its owner and to his knowledge, which is totally lacking in the present case”.

15.In the case “Mst. Kalsoom Bibi and others vs.

Muhammad Amin Agha (deceased) through LRs and others” reported as 2022 S C M R 929 the Honorable Supreme Court held that;

“Even otherwise now the ownership on the basis of adverse possession being contrary to the Islamic Injunctions is not available to the appellants in the light of judgment reported as "Maqbool Ahmad v.

Hakoomat-e-Pakistan" (1991 SCMR

16.The Hon’ble Shariat Appellate Bench, in Maqbool Ahmed, declared Section 28 of the Limitation Act, 1908, repugnant to the Injunctions of Islam to the extent it provided for extinction of proprietary rights in immovable property on the basis of adverse possession. It was held that the concept whereby the title of a lawful owner stood extinguished merely by efflux of limitation was inconsistent with Islamic jurisprudential principles. The declaration was, however, made operative prospectively with effect

from 31.08.1991, from which date Section 28 ceased to hold the field. The august Supreme Court, while examining the legal consequences flowing from the said pronouncement, clarified that the effect of the judgment had to be considered in light of the status of each claim. It was observed that only those rights founded upon adverse possession which had already crystallized into a decree or had attained finality before the cut-off date could be protected as past and closed transactions. Conversely, claims which were pending adjudication, under challenge, or had not yet ripened into ownership through a judicial determination, could not escape the application of the law declared in Maqbool Ahmed. It was further elucidated that mere long, continuous or even uninterrupted possession, absent proof of its hostile, open and exclusive character to the knowledge of the true owner, was insufficient to confer proprietary title. The doctrine of adverse possession, particularly after the target date, could not be invoked to defeat recorded ownership unless it had matured into a legally recognized right prior thereto. Thus, the consistent view emerging from the jurisprudence of the apex Court is that post- 31.08.1991, unperfected or inchoate claims of adverse possession stand substantially eclipsed, and only those

claims which had culminated into a subsisting decree before the said date could be treated as legally enforceable.

17.It would not be out of place to observe here that, during the course of arguments, learned counsel for the petitioners/plaintiffs laid considerable emphasis upon the assertion that the petitioners and their predecessors had been owners of the suit property for the last one hundred and twenty (120) years and that their possession has continued uninterrupted to date. The said contention, when tested against the documentary record, does not withstand judicial scrutiny. A careful perusal of the revenue record, particularly the Fard Jamabandi pertaining to the relevant settlement years, manifestly reflects that the names of the petitioners/plaintiffs do not figure in the column of ownership at any point in time. The proprietary rights consistently stand recorded in favour of the respondents and their predecessors-in-interest, and such entries, carrying a statutory presumption of correctness, remain unrebutted on the record.

18.It is further borne out from the record that the instant suit was instituted by the

petitioners/plaintiffs as late as in the year 2004, which

circumstance, in itself, casts a serious shadow upon the plea of settled, hostile, and ownership-based possession allegedly spanning more than a century.

Had the petitioners truly been exercising rights of ownership in the manner asserted, nothing prevented them from seeking correction of the revenue entries or appropriate declaratory relief at a much earlier point in time. The belated institution of the suit, coupled with the complete absence of their names in the record-of- rights, materially weakens the probative force of their claim and renders the plea advanced at the bar more rhetorical than legally substantiated.

19.It is well settled that the High Court's jurisdiction under Section 115 of the C.P.C. is limited in cases of concurrent findings by competent Courts. It can only intervene if there are serious legal flaws, such as insufficient evidence, misreading or ignoring material evidence, reliance on inadmissible evidence, abuse of jurisdiction, or perverse conclusions. Mere disagreement with factual findings or reappraisal of evidence does not justify interference unless there is gross misreading or overlooking of crucial evidence. In the case of “Aamir Afzal and another vs. S. Akmal (deceased) through L.Rs and 2 others” reported as

2024 SCMR 1649 the Hon’ble Apex Court has held that;

“While exercising jurisdiction under Article 115 of the C.P.C. the High Court has to first satisfy itself: (i) that the order of the subordinate court is within its jurisdiction, (ii) that the case is one in which the court ought to exercise jurisdiction; and that in exercising jurisdiction that court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. Section 115 applies only to cases in which no appeal lies, and where the legislature has provided no right of appeal. The manifest intention of the legislature is that the order of the trial court, right or wrong, shall be final, except in specific circumstances. It is, therefore, obvious that unless the case is not covered under Section 115 of the C.P.C. and the High Court was satisfied in this regard, then in such a case no power could be exercised to interfere simply because it differs, however profoundly, with the conclusions of the subordinate court regarding questions of law and facts.

Kanwal Nain and others v. Fateh Khan and others PLD 1983 SC 53 and Umar Dad Khan and another v. Tila Muhammad Khan and others PLD 1970 SC 288 ref.

The scope of jurisdiction of the High Court under Section 115 of the C.P.C. is limited in relation to concurrent findings of the competent courts. The exceptions to this rule are when the findings are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, patent errors of law, consideration of inadmissible evidence, abuse of jurisdiction, and when the conclusions drawn are perverse and based on conjectural presumptions. The erroneous decisions of fact are ordinarily not revisable and the mere fact that the

High Court may differ on a question of fact or mixed question of law and fact is not a valid ground for interfering with findings. Moreover, the concurrent findings recorded on the basis of evidence are not susceptible to further review to justify interference by the High Court in revisional jurisdiction. The interference by a High Court in such jurisdiction would not be justified on the ground that reappraisal of evidence might suggest another view of the matter unless there has been a gross misreading of evidence and material evidence was ignored”.

20.In this case, the two Courts below have concurrently recorded their findings of facts and law, which this Court found them as perfectly in accordance with the available evidence of the parties and thus the same neither suffer from any misreading or non- reading of evidence nor the same suffer from any illegalities or material irregularities, so as to warrant the interference of this Court in a revisional jurisdiction under section 115 CPC. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Hon’ble Apex Court in the case of “Nasir Ali vs. Muhammad Asghar” reported as 2022 SCMR 1054 that section 115, C.P.C empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted

illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C. Similarly, in the case of “Salamat Ali and others vs. Muhammad Din and others” reported as PLD 2022 Supreme Court 353, it was also held that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that

it finds its own finding more plausible than that of the Court(s) below. Similar view also reiterated by the Hon’ble Apex Court in the case of “Muhammad Sarwar and others vs. Hashmal Khan and others” PLD 2022 Supreme Court 13, where in para-6 it was held that it is well settled exposition of law, deducible from plethora of dictums laid down by superior Courts that section 115, C.P.C. empowers and meted out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law.

21.In view of the above discussion, the impugned judgments and decree of the two Courts below are neither the result of misreading and non- reading of evidence, therefore, the same are upheld and

maintained and consequently the instant revision petition is dismissed.

Announced

Kamir Fiazi

JUDGE