Mst. Farkhanda Jabeen and others vs. Sakhi Gul and others”

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

C.R. No.584-P/2023

Mst. Farkhanda Jabeen and others .......Petitioners Vs

Sakhi Gul and others........................Respondents Present: Muhammad Yasir Khattak, Advocate for the petitioners.

Mr. Asghar Ali, Advocate, for the respondents.

Date of hearing: 11.05.2026

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this Civil Revision Petition, petitioners namely, Mst.

Farkhanda Jabeen and others (who are the legal heirs of Arbab Shehriyar) have challenged the judgment and decree of the learned Additional District Judge- V, Peshawar dated 17.05.2023, whereby the appeal filed by the present petitioners was dismissed and thereby maintained the judgment and decree of the learned Civil Judge-II, Peshawar dated 31.01.2022, who vide the same had decreed the suit of respondent No.1/ plaintiff namely, Sakhi Gul.

2.Precisely, the facts leading to the filing of this petition are that initially respondent No.1/ plaintiff

namely, Sakhi Gul brought a suit against Arbab Musaddiq and Arbab Shehriyar for declaration to the effect that the mutation No.143 attested on 08.10.1998 in favour of Arbab Shehriyar (the predecessor-in-interest of the present petitioners) with respect to the land fully mentioned in the heading of that plaint is the result of collusion of defendant namely, Arbab Shehriyar with the official defendants No.5 & 6 and thus the same is illegal, ineffective and inoperative upon the rights of the plaintiff. The respondent No.1 / plaintiff had also prayed for issuance of permanent injunction restraining the defendants No.1 to 6 not to sell, mortgage or make any illegal entries in the revenue record. The defendants namely, Arbab Musaddiq and Arbab Shehriyar and others were summoned and the present petitioners then defendants No.2 to 4 submitted their written statement, whereas defendant No.1 namely, Arbab Musaddiq submitted cognovit to the said suit. During the pendency of the suit, an application under Order-VII Rule 11 CPC for the summary rejection of the said plaint was filed by the present petitioners which was duly contested by the respondent No.1 / plaintiff and the same was allowed

and the plaint filed by the present respondent No.1 / plaintiff was rejected vide judgment and decree dated 04.04.2006. The aforesaid judgment and decree was then challenged by respondent No.1 / plaintiff before the learned Additional District Judge-IV, Peshawar by filing an appeal, however, the same was also dismissed vide judgment and decree dated 23.05.2006. Thereafter, the aforesaid judgment and decree of the learned trial court dated 04.04.2006 and that of the learned Appeal Court dated 23.05.2006 were challenged by the respondent No.1 / plaintiff before this Court through CR No. 857/2006, and this Court after hearing the learned counsel for the parties, allowed the revision petition, and thereby set aside both the impugned judgments and decrees and remanded back the case to the learned trial court to record pro and contra evidence and to decide the lis on merits vide order and judgment dated 22.11.2013.

3.After the remand of the case by this Court, the respondent No.1 / plaintiff submitted an application for filing of an amended plaint which application was allowed as the present petitioners then defendants recorded their no objection to the same and as such the respondent No.1 / plaintiff namely, Sakhi Gul

filed an amended plaint for declaration to the effect that he is owner of the suit property fully mentioned in the heading of the plaint on the basis of mutation No. 119 entered on 06.04.1994, however, subsequently the said mutation has illegally been cancelled by the District Revenue Officer / defendant No.5. It has further pleaded that the said mutation is liable to be attested and the revenue record is required to be corrected. Similarly, the respondent No.1 / plaintiff namely, Sakhi Gul simultaneously challenged the legality and propriety of mutation No.143 attested on 08.10.1998 which was shown as attested by defendant No.1 namely, Arbab Musaddiq in favour of Arbab Shehriyar (the predecessor-in- interest of the petitioners). In the said suit, the predecessor of the present petitioners then defendants namely, Arbab Shehriyar was summoned and he submitted his written statement, whereas Arbab Musaddiq did not file his written statement to the amended plaint and thereafter in view of the divergent pleadings of the parties, the learned trial court framed as many as nine (09) issues and the parties were required to produce their respective evidence which they have accordingly led and

ultimately the suit of respondent No.1 / plaintiff was dismissed vide judgment and decree dated 08.11.2014. Respondent No.1 / plaintiff considering himself aggrieved of the said judgment and decree preferred an appeal before the learned Additional District Judge-V, Peshawar which was allowed and the case was remanded back to the learned trial court to re-write the judgment after providing an opportunity of hearing to both the parties and their learned counsels and to decide the case within thirty

(30)days positively by observing the provisions of Order-XX Rule 5 of CPC vide order and judgment dated 26.10.2021.

4.After the remand by the learned Appeal Court to the trial court, the learned trial court after hearing the learned counsel for the parties decreed the suit of respondent No.1 / plaintiff vide one of the impugned judgment and decree dated 31.01.2022. Being aggrieved of the said judgment and decree, the petitioners preferred an appeal to the Court of learned Additional District Judge-V, Peshawar, however, the same was also dismissed vide second impugned judgment and decree dated 17.05.2023, which both judgments and decrees have now been

challenged by the present petitioners / defendants before this Court through the instant revision petition.

5.Arguments heard and record perused.

6.During the course of arguments, learned counsel for the petitioners argued firstly that the respondent No.1 / plaintiff namely, Sakhi Gul has no title of the suit property as the mutation No.119 dated 06.04.1994 (Ex.PW 1/1) was attested in favour of Mumtaz, who is his brother; Secondly that mutation No.119 entered on 06.04.1994 has never been attested and the same has subsequently been cancelled on the application of Arbab Musaddiq, defendant No.1; thirdly that the respondent No.1 / plaintiff has not been able to prove the very execution of affidavit dated 22.06.2002 (Ex.PW 3/1) which was allegedly executed by said Arbab Musaddiq in favour of respondent No.1 / plaintiff;

fourthly that in a suit filed by Arbab Musaddiq (Ex.PW 6/2), no reference of mutation No.119 entered on 06.04.1994 or for that matter of the aforesaid affidavit dated 22.06.2002 (Ex.PW 3/1) has been made which falsify the plea of respondent No.1 / plaintiff and that if these were genuine documents

then the said Arbab Musaddiq should have been mentioned the same in his plaint; fifthly that the suit of the respondent No.1 / plaintiff was hopelessly time barred as on one hand the mutation was cancelled in the year, 1998 but the suit has been filed on 06.02.2006. Further stated that even if the date of knowledge of cancellation of mutation is considered from the date of filing of the initial suit by the respondent No.1 / plaintiff i.e. from 06.02.2006, but then subsequently he has sought permission of the Court to file an amended plaint which was accordingly granted to him and as such he filed the instant amended plaint on 27.01.2014 which is time barred on both ends; sixthly that the present suit is hit by the principle of res judicata as earlier with respect to the same property Arbab Shehriyar had filed a suit (Ex.DW 2/2) against Arbab Musaddiq etc. which was decreed in his favour vide judgment and decree dated 24.04.1999 and as it has attained finality upto the Apex Court; seventhly that the respondent No.1 / plaintiff has not challenged the cancellation order of mutation No.119 which was statedly entered in their names; and lastly that since there was a decree in favour of the present petitioners, therefore, the

respondent No.1 / plaintiff was required to have filed a 12(2) Petition instead of filing the instant suit.

7.As against this, the learned counsel for the respondent/plaintiff argued firstly that mutation No.

119 was entered in the names of both the brothers i.e.

Mumtaz Khan and Sakhi Gul, however, later on, the name of Sakhi Gul has been rubbed and as the other brother namely, Mumtaz Khan had died, therefore, the suit was filed by respondent No.1 / plaintiff namely, Sakhi Gul; secondly that the suit of the respondent No.1 / plaintiff was well within time as it is an established fact that the respondent No.1 / plaintiff went abroad in the year, 1996 and came back in the year, 2006 and during this period, he was in prison for more than nine (09) years in Republic of Azerbaijan; thirdly that the instant suit does not hit by the principle of res judicata as in the earlier suit, the respondent / plaintiff was arrayed as a party but later on, his name was deleted and as the earlier suit was for permanent injunction and the present suit is for declaration and over & above when the High Court in the earlier round had clearly opined that the present suit does not hit by the principle of res judicata and fourthly that earlier the respondent /

plaintiff filed a suit challenging mutation No.143 attested on 08.10.1998, however, subsequently he sought amendment in the plaint and has also challenged the cancellation of mutation No.119, and thus in view of the above contentions of both the parties, now this Court would proceed to analyze and evaluate that as to whether the two fora below have properly recorded their concurrent findings in favour of the respondent No.1 / plaintiff or not?

8.It is the case of respondent No.1 / plaintiff namely, Sakhi Gul that he is owner in possession of the suit property on the basis of mutation No.119 which was entered on 06.04.1994, however, when by the time, he was abroad and was confined in Jail for about long nine years at the Republic of Azerbaijan then during that period the said mutation No. 119 has been cancelled by the petitioner / defendant namely, Arbab Shehriyar with the active collusion of revenue officials and subsequently a mutation No.143 has been entered and attested on 08.10.1998 which is the result of fraud and thus ineffective upon the rights of the respondent No.1 / plaintiff. It is also the case of respondent No.1 / plaintiff that his vendor namely, Arbab Musaddiq has also executed an affidavit dated

22.06.2002 (Ex.PW 3/1), vide which he had owned and acknowledged the execution of mutation No.119 entered on 06.04.1994, whereas the case of petitioners / defendants is that the said mutation No.119 entered on 06.04.1994 has since been cancelled which cancellation order has not been challenged by the respondent No.1 / plaintiff and that mutation No.143 dated 08.10.1998 has rightly and validly been attested in favour of the predecessor-in- interest of the petitioners namely, Arbab Shehriyar..

9.It would be relevant to mention here that the vendor of both these mutations No.119 and 143 is one and the same person namely, Arbab Musaddiq who was initially impleaded as defendant No.1 in the instant suit and he has put his appearance before the trial Court and had submitted his written statement in the form of cognovit. The said cognovit would show that he has endorsed and owned the plea of respondent No.1 / plaintiff and has acknowledged the entry of mutation No.119 in favour of the respondent No.1 / plaintiff and has further pleaded that he has never cancelled the same, whereas he had specifically disowned the execution of mutation No.143 attested in favour of the

petitioners/defendants’ predecessor namely, Arbab Shehriyar and has termed the mutation No.143 in favour of the petitioners / defendants as fake and fictitious.

10.It is also part of the record that the said Arbab Musaddiq had filed a suit (Ex.PW 6/2) against Arbab Shehriyar for declaration to the effect that he is owner of the property mentioned therein and that mutation No.143 attested on 08.10.1998 in favour of the present petitioners’ predecessor is fake and fictitious. In that suit the present petitioners then defendants were summoned who submitted their written statement and in which the said Arbab Musaddiq, now defendant No. 1 had recorded his statement on 21.11.2013 as PW-3 which has been appended with this petition on Page-227 which would show that he after taking oath in the witness box too has stated that mutation No.143 attested on 08.10.1998 has been executed on his back and he has disowned the execution of the same. The said Arbab Musaddiq has been subjected to the cross examination as well but nothing favourable to the present petitioners’ predecessor then defendant could be extracted from him. The relevant portion of his

cross examination pertaining to the instant controversy is reproduced below:-

بحق ممتاز خان119 "ميں نے ايک انتقال نمبر وسخی گل پسران فياض گل درج کرايا تها۔ يہ غلط پر12.01.1998 ہے کہ ميں نے مورخہ تحصيلدار پشاور کو درخواست بابت اخراجگی دی تهی اور مجهے اس بارے ميں119 انتقال بخوبی علم ہے کہ درخواست مذکور ميں نے کبهی بهی روبرو تحصيلدار برائے خارج کرنے "انتقال مذ کور دی تهی۔

The record would further show that during the pendency of the said suit, the said Arbab Musaddiq had died and later on his LRs had withdrawn the said suit, therefore, in the given facts and circumstances, it is established and spelling out from the record that the said Arbab Musaddiq (who is the alleged vendor of both the parties) during his life time before two competent fora have denied the plea of the present petitioners that mutation No.143 has validly been executed and on the other by filing a cognovit to the suit of respondent No.1 / plaintiff, he had endorsed the plea of the respondent No.1 / plaintiff.

11.It would also be relevant to mention here that after the death of Arbab Musaddiq, he was survived by a widow alone and she through her attorney has also recorded a statement before the Appeal Court on 14.12.2015 and has stated that Arbab Musaddiq has

never gifted the disputed property to respondent No.

2 (Arbab Shehriyar) rather he had sold the disputed property in favour of the respondent / plaintiff No.1 namely, Sakhi Gul. She has further stated that respondent No.2 (Arbab Shehriyar) had illegally got a mutation attested in his favour which is false and bogus. She has further stated that her husband namely, Arbab Musaddiq had also filed written statement in the trial court in the instant suit which is correct and is admitted by her, but due to his death, he could not appear before the trial court. It is also relevant to mention here that the order sheet of learned Appeal Court dated 14.12.2015 would show that the learned counsel representing the present petitioner then respondent No.2 was present in the Court but he neither objected to the said statement nor he cross examined the said attorney, therefore, on this ground too, the plea of the respondent / plaintiff No.1 is factually correct, whereas that of the petitioners / defendants is not correct.

12.As against this, the plea of the petitioners / defendants is that Arbab Musaddiq had submitted an application before the revenue officials for cancellation of mutation No. 119 which was

exhibited as Ex.1/X-1, however, as stated / reproduced hereinabove that Arbab Musaddiq in the witness box has denied the filing of said application.

Furthermore, the plea of the petitioners / defendants that respondent No.1 / plaintiff has not challenged the cancellation of mutation No.119 also loose its significance when the very vendor of both the parties namely, Arbab Musaddiq has owned the mutation No.119 entered on 06.04.1994 and has denied the execution of mutation No.143 dated 08.10.1998 before the competent court of law by recording his statement as PW-3 in a suit filed by him against Arbab Shehriyar and thus under Article 91 of The Qanun-e-Shahadat Order, 1984 strong presumption of correctness and regularity is attached to the judicial proceedings to the effect that the said statement was truly made and duly taken and thus as such proceedings / statements have statutory preference over any other kind of proceedings / orders / actions etc. In a case1 the Apex Court in para No. 4 has held that as per dictates of Article 91 of the Qanun-e-Shahadat Order, 1984, judicial proceedings have got sanctity and a presumption of correctness is “Government of Punjab through Secretary Cooperative Societies Department, Lahore & others vs, Asad Abbas” reported as 2022 SCMR 739,

attached to the proceedings before a judicial forum.

Similarly, in Muhammad Ramzan’s case2 the Apex Court has categorically held that “strong presumption of correctness and sanctity of high degree is always attached to judicial proceedings. Reliance is also placed on Fayyaz Hussain v. Akbar Hussain (2004 SCMR 964) and Waqar Jalal Ansari v. National Bank of Pakistan (2008 CLD 1202).

13.It is also not out of place to mention here that the respondent No.1 / plaintiff has based his claim on the basis of mutation No. 119 entered on 06.04.1994 (Ex.PW 1/1) as well as on an affidavit dated 22.06.2002 (Ex.PW 3/1) which was executed by said Arbab Musaddiq to the effect that he has entered mutation No. 119 on 06.04.1994 (Ex.PW 1/1) in favour of Mumtaz Khan and Sakhi Gul and he has further stated that apart from the said mutation, he has neither entered any other mutation nor any deed(s). The respondent No.1 / plaintiff has produced the marginal witness of the said affidavit namely, Ihasanullah as PW-4 and brother of another marginal witness Khalid Khan namely, Asghar Khan as PW-5 and the learned counsel for the petitioners / “Muhammad Ramzan v. LDA” (2002 SCMR 1336),

defendants made reference to their cross examination and stated that such affidavit could not be entertained and appreciated in favour of the respondent No.1 / plaintiff, however, if the said affidavit is kept aside even then the said Arbab Musaddiq had appeared and filed his cognovit in support of the respondent No.1 / plaintiff and when he in the witness box has denied the execution of mutation No. 143 dated 08.10.1998 which was in favour of the present petitioners then as stated hereinabove, preference has to be given to the statement of Arbab Musaddiq recorded in the witness box before a competent court of law instead to the statements of those witnesses who have shown as marginal witnesses of the same.

14.It would also be relevant to mention here that withdrawal of suit filed by Arbab Musaddiq by his legal heirs after his death would not ipso facto stamped on the genuineness of mutation No. 143 dated 08.10.1998 as on one hand in the life time, he had challenged the validity of the said mutation and then in support of the same, he has also appeared in the witness box but after his death, his LRs have withdrawn the same and on the other the said suit has never been decided on its own merits as the same has

subsequently been withdrawn by the LRs of the deceased namely, Arbab Musaddiq, thus in the given facts and circumstances, the two fora below have rightly appreciated the said facts of the case on its factual as well as legal premises.

15.As far as the objection of the learned counsel for the petitioners that the respondent No.1 / plaintiff is not having any title of the suit property as the mutation No.119 was executed in favour of Mumtaz Khan who was the brother of Sakhi Gul, respondent No.1 / plaintiff, however, on one hand the mere perusal of said mutation (Ex.PW 1/1) would prima facie show that the same was executed in favour of Mumtaz Khan and Sakhi Gul sons of Haji Khiyal Gul but subsequently only the name of Sakhi Gul has been crossed without even crossing the word ""پسران which shows that the name of respondent No.1 / plaintiff has subsequently been rubbed and on the other the respondent No. 1 / plaintiff has not only based his claim on the basis of mutation No. 119 entered on 06.04.1994 but he has also based his claim on an affidavit dated 22.06.2002 (Ex.PW 3/1) duly furnished by Arbab Musaddiq which would show that he has owned the mutation No. 119

entered on 06.04.1994 in favour of both brothers i.e.

Mumtaz Khan and Sakhi Gul, therefore, the said objection is not legally sustainable.

16.As regards the second objection of the learned counsel for the petitioners that the respondent No.1 / plaintiff has not challenged the cancellation order of mutation No. 119, however, the very piths and substance of the instant suit filed by the respondent No.1 / plaintiff would show that he has based his claim with respect to the suit property on the basis of mutation No. 119 entered on 06.04.1994 (Ex.PW 1/1) as well as on the basis of an affidavit dated 22.06.2002 (Ex.PW 3/1) and has also challenged the execution of mutation No.143 dated 08.10.1998 in favour of petitioners / defendants, therefore, the respondent No.1 / plaintiff has disclosed his cause of action for filing of the instant plaint exclusively on the fact that mutation No. 119 was initially entered on 06.04.1994 but has wrongly been cancelled by the revenue officials with the active connivance of the present petitioners and then has wrongly entered mutation No. 143 and attested on 10.10.1998 in favour of the petitioners’ predecessor namely, Arbab

Shehriyar, therefore, this objection of the learned counsel for the petitioners is also misconceived.

17.As far as the third objection of the learned counsel for the petitioners that an affidavit dated 22.06.2002 (Ex.PW 3/1) has not been proved keeping in view the cross examination of it marginal witnesses i.e. PW-4 and PW-5 are concerned, however, as stated hereinabove that when the very vendor from whom both the parties alleged their title has personally submitted his cognovit in support of respondent No.1 / plaintiff and when the said vendor has also appeared in the witness box as PW-3 in his earlier suit, whereby he has challenged the execution of mutation No. 143 dated 08.10.1998 then this objection too does not carry any legal weightage.

18.As regards the fourth objection of the learned counsel for the petitioners that the instant suit is hit by the principle of res judicata, however, this objection too is not legally sustainable firstly as initially when the respondent No.1 / plaintiff filed a suit, the present petitioners filed an application under Order VII Rule 11 CPC for the rejection of the plaint on the ground of res judicata which application was allowed and appeal thereafter was also dismissed by

the appeal Court, however, when the matter landed before this Court through CR No. 857 of 2006, on 22.11.2013 this Court has observed as under:- “6. Perusal of the record would reveal that initial suit referred to in the order of the trial Court was with regard to permanent injunction wherein no rights of the parties qua the title were determined. Besides the above, the names of present petitioner and his brother Mumtaz Khan (defendants No. 28 and 29) were also deleted from the array of defendants vide order sheet dated 31.03.1998 and in the circumstances, there is no decree against them. Whereas the present suit of the petitioner is under Section 42 of the Specific Relief Act, 1877 for declaration of their rights in the property and apparently the question of res judicata is not applicable in the circumstances of the case. However, it is again left open for the trial Court to reconsider it but after recording of evidence. Hence, this revision petition is allowed and the judgments of both the Courts below are set aside and the case is sent back to Civil Judge-III, Peshawar to record pro and contra evidence and parties are directed to appear before the said Court on The aforesaid observations of this Court which has not been challenged by the petitioners / defendants would show that this Court has already rendered its opinion that prima facie the suit of the respondent No.1 / plaintiff is not hit by the principle of res judicata as the earlier suit was with respect to permanent injunction filed by the predecessor-in- interest of the petitioners namely, Arbab Shehriyar against respondent / defendant namely, Arbab

Musaddiq, whereas the present suit is for declaration of its title on the basis of mutation No. 119 entered on 06.04.1994 and affidavit dated 22.06.2002 (Ex.PW 3/1) and secondly that the present respondent No.1 / plaintiff was not party in that earlier suit and as such the said decree has no binding effect against the present respondent No.1 / plaintiff.

19.As far as the objection of the learned counsel for the petitioners that the respondent No.1 / plaintiff should have been filed a 12(2) petition against the judgment and decree dated 24.04.1999 passed in the case filed by Arbab Shehriyar against Arbab Musaddiq which has remained intact upto the Apex Court, however, as stated hereinabove that both the suits have been filed by different persons on different cause of actions and further, that their earlier suit was for permanent injunction filed by the present petitioners against Arbab Musaddiq, in which the present respondent No.1 /plaintiff was though arrayed as a party but his name was subsequently deleted and as such the said decree could not be said to have any binding effect against the present respondent No.1 / plaintiff.

20.As far as the objection of the learned counsel for the petitioners that the instant suit is time barred, the same too does not carry any legal weightage as it is an admitted fact that the respondent No.1/ plaintiff went abroad in the year, 1996 where he was convicted for an offence and remained in jail for almost nine (09) years and came back in the year, 2006 and then soon thereafter filed the instant suit, therefore, the said suit could not be termed as time barred as on one hand he was abroad and on the other, he was confined in jail and thus in view of the above, all the objections raised by the learned counsel for the petitioners could not be appreciated in his favour.

21.It would also be not out of place to mention here that civil disputes / cases are to be decided on the basis of preponderance of evidence and thus if the aforesaid yardstick is applied to the present case then the same surely tilts in favour of the respondent No.1 / plaintiff as against the petitioners / defendants on legal as well as factual premises as on one hand all the pleas of the petitioners have not been based on any legally admissible evidence and on the other the respondent No.1 / plaintiff has been able to prove his

stance. In a case3, the Hon’ble Apex Court has held that in civil dispensation of justice, courts are to adjudge the lis on the standard of preponderance of evidence produced by the parties. And the decision of the court would tilt in favour of the party having preponderance of evidence. As for the burden of proving a fact is concerned, it gains importance and relevance, only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the other, on the basis of evidence available on record of the case.

22.In this case, the two Courts below have concurrently recorded their findings of facts and law as against the present petitioners/defendants and in favour of the respondent No.1 /plaintiff, 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 its revisional jurisdiction under section 115 CPC. The scope, extent and domain of revisional jurisdiction of this Court has Abdul Rehman & others vs. Mst. Allah Wasai & others (2022 SCMR 399)

elaborately been dilated upon by the Hon’ble Apex Court in its recent judgment4, in which it was also held 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 conclusions arrived at by the courts below Nasir Ali vs. Muhammad Asghar. (2022 SCMR 1054)

while exercising power under section 115, C.P.C.

Similarly, in a case5, 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 a case6 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 Salamat Ali and others vs. Muhammad Din and others reported as PLD 2022 Supreme Court 353

Muhammad Sarwar and others vs. Hashmal Khan and others reported as PLD 2022 Supreme Court 13

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. It was also held by the Hon’ble Apex Court in para-10 of the judgment rendered in a case7 that in the case8 this Court declared that where two different interpretations were possible of the evidence brought on record, then appraisal of facts of lower Courts should not be overturned by the High Court in its revisional jurisdiction under section 115 C.P.C.

Between two possible interpretations, the one adopted by the trial and appellate Courts should have been maintained, keeping in mind the limited scope of revisional jurisdiction. In a case9 it was also held by the Hon’ble Apex Court that the High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and Mst. Zarsheda vs. Nobat Khan reported as PLD 2022 Supreme Court 21 Shahbaz Gul and others v. Muhammad Younas Khan and others reported as

2020 SCMR 867

Khudadad vs. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others reported as 2022 SCMR 933

visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court but confined 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 the conclusion drawn therein is perverse or contrary to the law, but interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered.

23.In view of the above discussion and exposition of law on the subject, the impugned judgment and decree of learned trial court dated 31.01.2022 and that of appeal court dated 17.05.2023 are neither the result of misreading or non-reading of evidence nor petitioners could pointed-out any material irregularities nor any jurisdictional defect in the same, therefore, the same are upheld and maintained

and consequently the instant revision petition being devoid of any merit is dismissed.

Announced 11.05.2026 Sd/-

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan Noor Shah