IN THE HIGH COURT OF SINDH

CIRCUIT COURT AT LARKANA

Civil Revision Application S-50 of 2017

Javed Ali Lashari

vs.

Adeel Hassan Brohi

For the Applicant:                  Mr. Ghulam Dastagir A. Shahani

                                                Advocate

Date of Hearing:                    10-09-2018

Date of Announcement:       10-09-2018

ORDER

Agha Faisal, J.     The respondent herein had preferred a suit against the present appellant before the I-Senior Civil Judge, Jacobabad, which was decreed. The aforesaid judgment and decree were the subject of appeal before the court of learned Additional District Judge-II, Jacobabad and the said appeal was dismissed, hence the applicant has preferred the present Civil Revision Application.

2. The respondent’s suit for declaration, possession, mesne profits and permanent injunction was decided by the learned Trial Court vide judgment dated 29.03.2014 and the decree pursuant thereto is reproduced herein below:

“The above suit came up for final hearing before Mr. Muhammad Saleem Meo, Ist-Senior Civil Judge, Jacobabad, on 29.03.2014, in presence of both the parties. The plaintiff had proved his case so the suit is decreed with costs declaring that the plaintiff is lawful purchaser of the property bearing city survey No.222/3, Ward No.5, ad-measuring 1487.2 Sq. Yards situated at Quetta Road Jacobabad, through sale deed No.225, dated 13.03.2006 and is entitled for possession of the 2 shops and for mesne profits of the shops at the rate of Rs.2000/- per month of each shop from last 3 years prior to filing of the suit and up till possession of the 2 shops is handed over to him. The defendant is also restrained permanently from handing over possession of the shops to any other person except to the plaintiff. The defendant is directed to hand over the shops to the plaintiff in 30 days.” 

3. The present applicant filed an appeal, against the aforesaid judgment and decree, which was dismissed vide judgment dated 13.10.2017. The operative part is reproduced herein:

“It is the case of appellant that, he is owner of two shops ad-measuring 1000 square feet situated at Quetta Road Jacobabad and he has purchased the same from one Assadullah through sale agreement and he is in its peaceful possession. In this regard, the appellant was examined by the learned Trial Court, but he has not produced any document to prove his ownership of the suit property. Prior to this, the appellant also filed a suit for declaration, specific performance of Contract, cancellation of sale deed and permanent injunction against the respondent Adeel Hassan, but the same was dismissed on 18.02.2011 and he has not preferred any appeal against the said judgment. Moreover, respondent has filed the suit for declaration, possession, mesne profits and permanent injunction against the appellant where respondent was examined before learned trial court and he produced the original sale deed of suit property and instant suit was decreed by the learned trial court with costs declaring the respondent as a lawful purchaser of the property. In the present case in hands, the trial court had rightly dismissed the suit of appellant/plaintiff on the ground that the appellant/plaintiff had no legal character right or to claim a declaration from the court. Since, Section 42 of Specific Relief Act clearly restrict a declaration to be awarded in a case provided i.e. where the party appearing before the court must prove any legal character or right as to any property. In the above circumstances, I am of the humble view that, the learned Trial Court has passed impugned judgment and decree legally and as such the same do not required any interference. I, therefore, answer the point No.1 in the negative.

Point No. 2:

          Based upon observation made supra, I am of the view that, judgment and decree passed by learned Trial Court need not require any interference by this court and the same is passed on sound legal principle after proper appreciation of evidence brought on record, therefore, the impugned judgment and decree are maintained. Hence, the appeal in hand stands dismissed with no order as to costs and decree be prepared accordingly.”

4. Mr. Ghulam Dastagir A. Shahani, learned counsel for the applicant, stated that the aforesaid judgments were delivered upon a mis-appreciation of facts and without considering the evidence in its true perspective. The brevity of the appellate judgment was also highlighted and it was submitted that issues could not be determined in such an abridged manner. The main thrust of the learned counsel’s arguments was that since the applicant was a tenant in respect of the property, purchased by the respondent subsequent to the creation of the tenancy, therefore, his eviction could not have been ordered in the manner adopted by the learned trial court.

5. The Court has considered the arguments of the learned counsel and is of the view that there exist two concurrent judgments and that no infirmity has been identified in respect thereof. With regard to the issue of tenancy, the learned counsel for the applicant was confronted with the following segment of the applicant’s written statement:

“That, the contents of Para No.05 and 06 of the plaint are vehemently denied and opposed to the extent that neither Assadullah Khan handed over the possession of the suit shops to plaintiff nor he has got sale out the same to him nor defendant No.01 is the tenant of the plaintiff or any other person, question for relationship of tenant and land lord between the parties does not arise and no such kind of rent agreement has come on record.”

6. Upon so confronted, the learned counsel withdrew the said argument and admitted that the same was in dissonance with the pleadings before the trial / appellate courts.

7. It is noted that the matter proceeded originally before the trial court and after recording of evidence the same was decided in favor of the respondent herein. The findings of fact, and law, were assailed before the appellate Court whereat the trial Court judgment was maintained. In the presence of two concurrent findings of fact no justifiable rationale has been advanced to merit the exercise of revisional jurisdiction.

8. It is trite law that the concurrent findings coupled with a preponderance claim supported by evidence may not be ordinarily interfered with by a Court in exercise of revisional jurisdiction. It is also within the contemplation of this Court that the exercise of revisional jurisdiction does not generally entail reappraisal of evidence. Reliance in this regard is placed upon the judgments of the superior Courts reported as 1997 SCMR 1139, 2000 SCMR 431, 2004 SCMR 877 and 2002 CLC 1295.

9. It is observed that the two concurrent judgments have eloquently addressed all the issues in dispute between the parties inter se and that no impropriety or misfeasance whatsoever has been demonstrated to have occurred in such regard.

10. In view of the foregoing, it is the considered opinion of this Court that present Civil Revision Application is devoid of merits and the same, along with listed application, is hereby dismissed.

                                                                                                      Judge

Abdul Salam/P.A