IN THE HIGH COURT OF SINDH
CIRCUIT COURT, LARKANA
Civil Revision Appln. : Rasool Bux Brohi and another vs.
No. S- 53 of 2020 Roshan Ali & others
For the Applicants : Mr. Muhammad Afzal Jagirani, Advocate
Date of hearing : 28.02.2022
Date of announcement : 28.02.2022
ORDER
Agha Faisal, J. (1) Deferred. (2) Granted; subject to all exceptions. (3&4) The applicants' suit for pre-emption was dismissed by the learned trial Court vide judgment dated 08.11.2016. The operative part thereof is reproduced herein below:
“In order to prove the case, plaintiff No.1 Rasool Bux examined himself at Ex.80. In his examination in chief he failed to mention a single word about his demand for purchase of suit land on the basis of right of pre-emption. Plaintiff No.2 Hussain Bux examined himself at Ex.81, who in his examination chief deposed that he does not remember the survey numbers and same are remembered to his cousin, plaintiff No.1. Plaintiffs in order to prove their case examined their two witnesses namely Ghulam Mustafa and Ghulam Rasool, in whose presence plaintiffs made their demands for purchase of suit land from defendant No.1 on the basis of right of pre-emption. Witness Ghulam Mustafa in his deposition nowhere mentioned that at what date, time and year he alongwith plaintiffs went to defendant No.1 for making demands for purchase of suit land. Same is the position of other witness Ghulam Rasool. Moreover, plaintiffs themselves have failed to mention that on which date, time they made their first and second demands for the purchase of suit land on the basis of right of pre-emption.
The upshot of above discussion is that plaintiffs have failed to prove that they made demands for the purchase of suit land on the basis of pre-emption in accordance with Muhammadan Law, hence issues No.2 and 3 are answered in negative.”
2. The applicants assailed the order in appeal and the learned appellate Court, vide judgment dated 22.02.2020, dismissed the appeal while observing as follows:
“It has borne out from the record that the plaintiffs/ appellants have failed to prove “Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusumat” as required under Section 13 of Pre-Emption Act, as such, the mandatory provisions have not been complied with by the plaintiffs/ appellants. Moreover, there is iota of evidence that soon after purchase of the land in question, the plaintiffs/ appellants made “Talb” then and there to purchase the said land from defendant/ respondent No.1 before witnesses as required under Pre-Emption Act. In additional to this the date, time and place for “Talbs” have not mentioned in the suit of the plaintiffs/ appellants. In that situation, the contention of the plaintiffs/ appellants at this stage carries no weight.
The over-all discussion involved a conclusion that the learned trial Court has rightly decreed the suit as discussed above, which even otherwise does not call for any interference by this Court. Consequently, the instant appeal merits no consideration, which is dismissed accordingly, with no order as to costs.”
3. The learned counsel submitted that evidence has not been properly appropriated by the Courts below; hence, this revision ought to be allowed.
4. Heard and perused. The judgments have clearly appreciated the evidence and concluded that the applicant remained unable to demonstrate any actionable claim meriting grant of the relief prayed. The original judgment as well as judgment in appeal appear to have considered the record and the law and no infirmity in respect thereof has been identified to this Court. It is settled law that in the presence of concurrent findings, coupled with preponderance of claim supported by evidence, a revisional court ought not to interfere even if another view was possible. Reappraisal of evidence was even otherwise undesirable in revisional proceedings[1].
5. It is imperative to denote that the present proceedings are revisionary and not yet another stage of appeal and that the dearth of evidence could not be transcended by recourse to revisionary jurisdiction.
6. This Court has considered the contentions of the applicant and has noted the inability to cite a single ground based upon which the jurisdiction of this Court could be exercised under section 115 of Code of Civil Procedure. There is no suggestion that the impugned judgments are either an exercise without jurisdiction or a failure to exercise jurisdiction or an act in exercise of jurisdiction illegally or with any material irregularity. It is trite law[2] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law. It is the considered view of this court that no manifest illegality has been identified in the judgments impugned and further that no defect has been pointed out in so far as the exercise of jurisdiction is concerned of the subordinate fora.
7. It is the considered view of this court that the applicant has remained unable to demonstrate any infirmity with the impugned judgments, meriting interference in revision under Section 115 C.P.C, therefore, this revision is hereby dismissed in limine.
JUDGE