2015 PLP 1481 (MLD)

ABDUL LATIF KHAN, J.

This civil revision has been filed against the judgment and decree dated 22-2-2005 passed by the learned Additional District Judge-II/Izafi Zila Qazi, Buner at Daggar , whereby, judgment and decree dated 31-5-2002, passed by the learned Civil Judge/Ilaqa Qazi-III, Buner at Dagger has been maintained.

2. Arguments heard and record perused.

3. A perusal of record reveals that the plaintiff/petitioner filed a suit for declaration regarding disputed property and claimed himself to be owner in possession of the property and entries in revenue record made during settlement in the name of owners of ( ) village proprietary body are wrong, illegal and ineffective upon his rights and in alternative if the property is not proved the ownership of the plaintiff by dint of deed No.242 dated 11-10-1940, sought perpetual injunction to the effect that he being owner in ( ) to the extent of five (5) "paisas" and one "damrai" dautar is owner in possession of the property and till legal partition by metes and bounds. The defendants are not entitled and be restrained to interfere in possession of the plaintiff. The correction of record and possession were also sought as consequential reliefs by the plaintiff. The defendants contested the suit by filing written statement and in earlier round of litigation, which was decided on the basis of oath; this Court remanded the matter to the trial Court in the year 1994 for decision on merits.

4. The plaintiff has produced Tehsildar as P.W.1, who has brought on record deed No.242 dated 11-10-1940 as Exh.P.W.1/1. The deed does not contain the signature of Tehsildar. Patwari Halqa was examined as P.W.2, who has produced the list of owners of ( ) which are placed on file as Exh.P.W.2/1 to Exh.P.W.2/6. He also produced the revenue record regarding the suit property. Attorney for the plaintiff, Haroon-ur-Rashid appeared as P.W.3, one Abdur Razaq was examined as P.W.4 and Zarawar Khan was examined as P.W.5, whereas the defendants produced four (4) witnesses in support of their stance. The document relied upon by the plaintiff was executed in the year 1940, which is deficient to the effect that how many properties have been sold and descriptions of the properties alongwith khasra numbers are also not found mentioned in the document. No witness to the document has been produced and cannot be based for claim of property as the same has not been proved. Needless to mention that the document is 30 years old, but the same cannot be taken as gospel truth simply for the reason, as period has been elapsed, at least the plaintiffs were supposed to prove it in the evidence as the oral evidence produced by the plaintiff is not sufficient regarding the proof of this document. It is pertinent to mention that the plaintiff has not produced this document at the time of settlement to the settlement authorities, had he produced this document at the relevant time and entry in the name of plaintiff made on the basis of it, there would have no dispute between the parties. The document has not been acted upon and has been kept, if at all, it is presumed that it was executed in the year 1940, unattended and not acted upon and, as such, the plaintiff cannot be given benefit under Article 100 of Qanun-e-Shahadat, being 30 years old document.

5. Apart from this, the plaintiff has filed the instant suit in the year 1986 for the first time, which is hopelessly time-barred, as period prescribed for filing of declaratory suit under Article 120 of the Limitation Act, 1908 is six (6) years and, as such, the suit is hopelessly time-barred.

6. The petitioner has mainly relied on the point that commission was appointed and Courts below have considered the report of local commission in the impugned judgments despite of the fact that it was neither confirmed nor rejected and submitted that the impugned orders are liable to be annulled on the analogy that no order has been made regarding the report of commission, which is misplaced for the reason that the commissioner was appointed with consent of the parties, who participated in the proceedings and after the submission of report, they submitted objections on 26-4-2002 and the statement of local commissioner was recorded and the trial Court apart from discussing all the evidence in detail has referred also the report of commission regarding the boundaries of the property, which are not matching. So far is the documents Exh.P.W.3/4, Exh.DW-1/1 and spot inspection are concerned, the trial Court has not mainly relied upon on the report of local commissioner rather delivered the judgment on the basis of evidence and has passed the judgment in line with law. The judgment of trial Court has not hinged upon only the opinion of local commissioner rather it has been considered as one piece of the evidence along with other documentary evidence, revenue record and the oral evidence produced by the parties. Needless to mention that revenue record has got presumption of truth and cogent and confidence inspiring evidence is required to rebut the same, which is not available in the instant case and the Courts below have decided the "lis" pending before them with conscious application of independent mind; warrants no interference. For the aforementioned reasons, the instant petition being bereft of merit is hereby dismissed. ZC/11/P Revision dismissed.