P L D 1993 Supreme Court 289 (PLP)

WALI MURAMMAD . KHAN, J‑‑‑Abdul Oayyum Beg, plaintiff/appellant herein, has called in question the judgment dated 27‑1‑1991 passed by a learned Division Bench of the Peshawar High Court, whereby his writ petition against the orders of hierarchy of special forums constituted for the decision of disputes in the Chitral District of Malakand Division, was dismissed. The leave granting order is as follows:‑‑ "The Deputy Commissioner, Chitral, earlier on 26‑10‑1977 decided the case in favour of the petitioner on the basis of the oath administered to him as per agreement and the facts narrated above are not considered by the High Court in the impugned judgment, prima facie, it appears that the finding of the High Court is based on misreading and non‑reading of material evidence. We, therefore, grant leave to appeal." The facts of the case, briefly stated, are that the appellant was undisputedly owner of about four Chakorams of land. It was alleged by him in his application dated 29‑7‑1968 addressed to the Deputy Commissioner, Chitral (respondent No.3 herein) that he had sold one Chakoram of land to Sher Muhammad, predecessor‑in‑interest of Rehmat Wali and Noor Wali, respondents Nos.1 and ' 2 herein, and that he, taking undue advantage of his absence from his village encroached upon the remaining area owned by him and that he may be restored to possession. This application was entrusted to the Tehsildar Chitral for necessary action, who, vide his order dated 25‑2‑1970, declined his prayer on the ground that neither he himself was willing to take oath nor is ready to administer oath to the witnesses of the respondent.‑The appellant preferred appeal to the Sub‑Divisional Administrator, Chitral, who accepted the same vide order dated 9‑12‑1975 and ordered the delivery of possession of land in excess of 1 Chakoram. to the appellant. On the respondents' appeal to the Deputy Commissioner, Chitral the matter was referred to Judicial Council which gave its report on 16‑9‑1976. In the meantime, the respondent offered oath in writing dated 19‑9‑1977 that if the appellant takes oath that he had not sold the excess land to him, he would be ready to deliver the possession thereof to the appellant. This offer was accepted by the appellant and the desired oath was taken on the basis of which the Deputy Commissioner, vide order dated 26‑10‑1977, ordered that I Chakorain of land should remain in possession of Sher Muhammad and the area in excess thereof shall be handed over to the appellant. The appeal filed against it was dismissed by the Additional Commissioner vide order dated 15‑9‑1978 but the revision petition was ultimately accepted and the matter remitted to the Judicial Council which gave a different report on 22‑6‑1982. The Deputy Commissioner dismissed the ‑petition of the appellant on the ground that he resiled from the offer of oath made to the witnesses of the respondent. The appeal, revision and writ petition filed against it having failed, the instant appeal through leave of the Court, has been filed in this Court. We have heard Mr. Ghulain Naqashband, Advocate for the appellant; Mr. Abdul Samad Khan, Advocate, for respondents I and 2; and have perused Al the record of the case. There is no dispute that the appellant was owner of the suit property. He admits to have sold one Chokoram of land to Sher Muhammad, father of respondents 1 and 2, and denies the sale of excess land to him. The respondents' predecessor‑in‑interest claims to have purchased the entire property and, as such, the only dispute between the parties is that what is the actual area sold by the appellant to Sher Muhammad, father of respondents 1 and

2. There is no record of lands maintained in the District of Chitral and consequently, the disputes are resolved through oral evidence and generally through administering oath to one party or the other or their witnesses. In the case in hand too, original oath was offered to the witnesses of respondent but they refused to take oath vide report of Qazi Rehmat dated 25‑11‑1975 (copy at page 44 of the paper book). Subsequently, as stated earlier,* the appellant was offered oath on the basis of which his application was allowed but that was set aside by the higher forums. Lastly, oath was offered to the witneses of the respondent by the appellant but when the witnesses put in appearance for the purpose, he resiled therefrom and on this account the Court drawing adverse inference, dismissed his application. We fail to understand why the decision of the competent Court on the basis of oath administered to the appellant was annulled by the highest forum of Additional Home' Secretary and the parties put to retrial. The perusal of the entire proceedings conducted by the special forums shows that even according to the version of the witnesses of the respondents, the entire consideration had not been paid to the appellant. We are, therefore, convinced that the appellant had rightly taken the oath that he had not sold more than one Chakoram of land and sanctity being attached to oaths, the decree based thereon could not be annulled on any ground by any higher forum. The entire proceedings conducted thereafter are, thus, without jurisdiction. In the absence of any legal/Constitution ' al command to the contrary, the Islamic mode for resolution of land dispute, was perfectly lawful. Resultantly, we allow this appeal, ‑set aside the impugned judgment of the lower forums and hold that the appellant had sold only one Chakoram of land and respondents I and 2 are directed to restore to him the‑possession ot excess land. However, in Islamic spirit the respondents I and 2 may offer to purchase the same on the present market value from the appellant who may favourably consider the offer. There is no order as to costs. AA./A‑990/S Appeal accepted.