Naseeb Gul Vs Hayat Mir etc

.Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Civil Revision No. 527-A/2011.

JUDGMENT

Date of hearing.....................05.04.2017..............................................

Petitioners (Naseeb Gul & 02 others) By Mr. Mehboob Ali, Advocate.

Respondents.(Hayat Mir & 08 others) By Mr. Muhammad Ilyas Khan, Advocate.

MUHAMMAD GHAZANFAR KHAN, J.- The instant matter was decided by this court vide judgment dated 11.05.2016 whereagainst the respondents have preferred an Civil Petition bearing No. 2309/2016 before the Supreme Court of Pakistan which was allowed by converting the same into appeal and remanded the case back to this court with direction to decide it on merits.

2.Through the instant petition, the petitioners have called in question the impugned consolidated judgments and decrees of the learned Civil Judge-III Battagram and that of the learned District Judge Battagram dated 23.06.2010 and 06.05.2011 respectively whereby the suits and appeals of the petitioners and that of respondent No.4 were concurrently dismissed, hence, the instant civil revision.

3.Brief facts leading to the instant petition are that the petitioners / plaintiffs brought two suits bearing No. 128/1 of

2008 and 129/1 of 2007 against the respondents for declaration to the effect that they are owners in possession of the suit land, fully described in the heading of the plaint, on the basis of agreement to sell deed bearing No. 681 and 682 dated 15.05.2006, also challenging the validity of register sale deed No. 102/1 dated 20.11.20067 and consequently mutation No.

1124 attested on 14.02.2008 whereby the respondents No.1 to 3 sold the suit property in favour of respondent No.4. The petitioners/ plaintiffs also claimed specific performance of agreement to sell against the respondents / defendants. The respondent No.4 too filed suit bearing No. 130/1 of 2008 against petitioners No.2 & 3 and respondent No.5 & 6 for possession of the suit land situated at Khasra No. 393 in terms of Section 9 of the Specific Relief Act, averring therein that he is the owner in possession of suit land to the extent of 50 Kanals and 10 Marlas on the basis of mutation No. 1057 attested on 13.08.2005 and registered sale deed No.102 dated 20.11.2007. It was further averred therein that he took the possession after the execution of both sale deeds, but fifteen

(15)days prior to the institution of suit, he was forcibly and illegally dispossessed by the defendants i.e. petitioners No.2 & 3 as well as respondents No.5 & 6,

4.Both the suits were consolidated and the learned trial court framed relevant issues, out of divergent pleadings of the

parties, and then directed both the parties to adduce their evidence, who produced their respective evidence. The learned trial court, after recording pro and contra evidence of the parties and hearing learned counsel for the parties, dismissed the suits of the petitioners and that of the respondent No.4 through a consolidated judgment and decree dated 23.06.2010.

5.Both the parties, feeling dissatisfied from the above impugned consolidated judgment and decree of the learned trial court, preferred two separate appeals bearing No.

125/13/2010 and 126/13/2010 before the learned District Appeal Court, who, after going through the entire record and hearing learned counsel for the parties, also concurred with the findings of the learned trial court and as such dismissed the appeals, hence, the instant civil revision by the petitioners.

6.The learned counsel for the petitioners argued that the judgments and decrees of the courts below have been passed in clear negation of law and without adhering to the dictum laid down by the superior courts; besides, the record available on file was neither properly thrashed nor was over read, hence, solicited for setting aside the impugned judgments and decrees of the courts below.

7.On the contrary, learned counsel for the respondents argued that the judgments passed by the courts below are well reasoned and in accord with the evidence produced by the

parties on the file and the law on the subject. He kept on arguing that the learned counsel for the petitioners has failed to point out any irregularity or material illegality or any misreadinig or nonreadinig of the evidence or jurisdictional defect in the impugned judgments rendered by the courts below which are necessary for interference in revisional jurisdiction, so he solicited for dismissal of the instant civil revision.

8.I have heard the arguments of learned counsel for the parties and gone through the entire record with their valuable assistance.

9.The present petitioners derive their title from two deeds which are placed on file as Ex.PW-2/1 and Ex.PW-2/3. It is pertinent to mention here that validity of both theses two deeds were questioned in a previous suit bearing No. 31/1 of 2008 in which the present petitioners were defendants and they submitted cognovits to the claim of the then plaintiffs. These documents have been exhibited in the proceedings of subsequent suit which is now in questioned before this court.

Similarly, on the deeds in questioned a pre-emption suit was filed wherein on denial of the vendor regarding execution of the sale deed, the pre-emption suit was withdrawn, meaning thereby that fate of the deeds relied upon by the present

petitioners have already been decided by the courts of competent jurisdiction.

10.Now the only legal proposition involved in this case is that whether the proceedings of previous suits can be read and could be produced as evidence in the subsequent suit as has been done in the instant case.

11.This question can be answered after going through Articles 90, 91 & 92 of the Qanun-e-Shahadat Order, 1984.

The respondents have exhibited certified copies of previous litigation qua the same deeds which are disputed herein, so any decision made by a competent court of jurisdiction regarding genuineness or otherwise of those deeds is a relevant factor which can rightly be adjudged after going through the record.

12.The learned counsel for the petitioners has also made a reference to Article 47 of the Qanun-e-Shahadat Order, 1984, however, the said article does not relate to a situation like in the instant suit because Article 47 of the Order ibid only deals with the statement of a person, who, after giving statement or producing some document in previous litigation between the parties, is dead or his attendance cannot be procured with an amount of delay or expenses, so this is not the case in hand. In this case it is simply the respondents, who in rebuttal of the claim of the present petitioners, have produced certified copies of the judgments and decrees, fate of which has already been

decided by the courts of competent jurisdiction, so this argument of learned counsel for the petitioners is of no help to him.

13.Resultantly when there is no ground for interference in the well reasoned impugned judgments and decrees of the courts below, the instant revisioin petition, being bereft of any merits, stands dismissed.

Announced:

JUDGE

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