livelawpk.com - Preference of Lower Appellate Court's Order.

High Court while exercising its Revisional Jurisdiction under section 115 of CPC; the preference would be always given to the findings of the Appellate Court, unless those are suffering with any legal infirmity or material irregularity --- Lahore High Court, Lahore

8 months, 3 weeks
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Islamabad 26-03-2024: The Lahore High Court, Rawalpindi Bench, Rawalpindi while hearing [Civil Revision No.573-D of 2014] involving a dispute between “Muhammad Azram and Muhammad Altaf and another” made observation in respect of limitation in suit for declaration when property is not in possession of the plaintiff. The brief facts of the case are as Muhammad Azram claimed to be the son of Mst. Zar Begum and filed a Suit seeking the Cancellation of Mutations related to a piece of land. The petitioner alleged that the respondent, Muhammad Altaf, obtained mutations in his favor through fraudulent means and further transferred the land to the second respondent. The case was initially decreed by the trial court but was later overturned by the appellate court.

The crucial aspects of the case, such as the issue of limitation for filing the suit and the possession of the disputed land are discussed in detail. The Suit for declaration of a right or title is to be instituted by the person seeking declaration of any right as to any property in terms of Section 42 of the Specific Relief Act, 1877. The limitation of a suit under the above mentioned provision is to be regulated and governed by Article 120 of the Limitation Act, 1908 which provides six years period for such suit, which starts when the right to sue accrues. The petitioner pleaded that he attained the knowledge about the mutation in question after incorporation of gift mutation in favor of respondent No.2 by “respondent”. It is also asserted by the petitioner in his plaint that he is in possession of the “suit land”. In the course of evidence, the petitioner himself deposed that the possession is not with him but it is with respondent No.2, who raised the construction upon the “Suit Land” as well. The right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. The possession of the “Suit Land” lies with the “respondent” since effecting of sale mutation in the year 1996, suit of the petitioner thus cannot be termed as within time.

This petition is arising out of divergent views of the Courts below as the conclusion are contrary to each other but this Court, while exercising Revisional Jurisdiction is supposed to make comparative analysis of both the judgments in order to determine their validity on the touchstones of Section 115 of CPC. It is cardinal principle of law that in the matter of giving preference to the judgments of Lower Courts, while analyzing the same in exercise of Revisional Jurisdiction, the preference and regard is always given to the findings of the appellate court, unless those are suffering with any legal infirmity or material irregularity.

Finally it is held that the petitioner has failed to point out any illegality or material irregularity in the impugned judgment, warranting interference by this Court in exercise of Revisional Jurisdiction so as to set at naught the impugned judgment. The instant petition thus fails and is dismissed with no order as to costs.