2011 PLP 1523 (YLR)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioner is feeling aggrieved of the judgment and decree dated 25-1-2007 of Additional District Judge/Izafi Zilla Qazi-II, Swat, whereby his appeal against the judgment and decree dated 4-10-2004 of Civil Judge/Illaqa Qazi-II, Swat was dismissed and thereby his suit for declaration with regard to the property in dispute, fully described in the head note of the plaint, was dismissed.

2. Learned counsel for the plaintiff-petitioner submitted that the findings of the two Courts below are not only based on misreading, non-reading of material evidence on record but are also in disregard of the law; both the Courts below have admitted the possession of the petitioner over the suit property and have wrongly declared the petitioner to be the tenant of the suit property. He further submitted that through instant suit, the petitioner has not challenged the findings of the Land Commission given in favour of respondents but has only challenged the entries recorded in the Revenue Record in the names of respondents, for which his suit was maintainable but the two Courts below have wrongly held it to be otherwise. The learned counsel, with regard to adverse possession claimed by the petitioner, however, frankly conceded to the legal aspect regarding adverse possession.

3. As against that, learned counsel for the respondents submitted that the respondents had raised objections under the relevant provisions of MLR-123 with regard to the suit property before the Land Disputes Enquiry Commission, which were decided in their favour and the respondents were declared owners of the property. Appeal against the same was also dismissed and decision of the' "Commission", as such, attained finality in their favour; which cannot now be challenged before any Court because of specific bar contained in MLR-123. He further submitted that the other aspect of the case is the first ever settlement in the area remained in progress for about 5 to 6 years, which was finally concluded in the year 1986 and the respondents were recorded as owners of the property in dispute in the Revenue Record which have got presumption of truth. The petitioner; against the said proceedings, neither raised any objection nor filed any appeal, so the present suit of the petitioner is not maintainable and liable to be dismissed.

4. Learned counsel for the parties were heard and record of the case perused. The same would reveal that through instant suit petitioner has claimed himself to be the owner in possession of the suit property, fully described in the head note of the plaint, since his fore-fathers. Besides, the petitioner also claimed prescriptive title through adverse possession. The said claims of the petitioner were refused by the trial Court and his appeal there against also met the same fate.

5. The record of the case would further reveal that after merger of the States of Swat and Dir, a Land Dispute Enquiry Commission was appointed in the area under MLR-123, whereunder a special procedure was provided for filing of objections and a right of appeal was also given to the affected party. Under section 3(3) of MLR 123, there was an ouster of jurisdiction of any other forum. Evidence of respondents reveals that they had approached the "Commission" and verdict of the Commission in their favour has attained finality but the relevant record in this respect is not available. So, no verdict/definite findings can be given in this regard.

6. As there was no Revenue Record in the area, so first ever Settlement was ordered by the Provincial Government which was completed in the year 1986 after an hectic exercise spreading over a period of about 5 to 6 years. The entries made in the Revenue Record with regard to the suit property on the basis of first Settlement in the area would reveal that the same were made in the name of respondents. It has also been admitted by the petitioner himself that he was aware of the settlement process in the area and he had also requested the concerned revenue officials to record his name in the Revenue Record as an owner but his name was not recorded as such and instead he was recorded as a tenant of the property. The record of the case is silent with regard to any such application moved by the petitioner before the Settlement Staff or any appeal filed by the petitioner against wrong entries made in the Revenue Record as per his version. The entire evidence of the petitioner if seen is not credible, which could be accepted against the entries made in the Revenue Record by the settlement officers. Presumption of truth is always available to the entries made in the record of rights, though the same is rebutable, but the first ever settlement record has got a precedence over the general principle, as such entries are made by the settlement officers on the basis of evidence produced by the parties regarding their entitlement, so a very strong and authentic evidence is required to rebut such presumption of correctness attached to the first settlement in the area. Reference in this regard can be made to Nawab Khan and others v. Said" Karim Khan and others (1997 SCMR 1840). Relevant portion reads as under: "Record of rights which also included the settlement record was being followed with more or less exactness by the Settlement Officers, which included Wajib-ul-Arz, Jamabandi and the portion of Shajra-Nasb or genealogical tree of the proprietors

Presumption of truth is attached to record of rights generally but to the first ever Settlement Record in particular

Very strong evidence is required to rebut the presumption of correctness attached to the first Settlement of an area

Where no evidence of any consequence had been adduced in rebuttal of the entries of the Settlement Record, interference with the authenticity of the record was declined by Supreme Court."

7. The submissions of the learned counsel for petitioner that the respondents were also required under the law to have proved their case but they failed to prove the same as only the statement of DW-1 was recorded in rebuttal of the evidence led by the petitioner would have no legal force at all. According to law, it was the plaintiff-petitioner to have proved through cogent and reliable evidence regarding his claim to shatter the evidence available on the record in the name of respondents in the shape of Revenue Record prepared after due diligence during the first ever settlement.

8. In exercise of revisional jurisdiction, this Court has a very limited scope and can only interfere when the Courts below have failed to appreciate the evidence in its true perspective or there is any jurisdictional defect in exercise of jurisdiction vested in the Courts below. The concurrent findings of facts alone in absence of any misreading or non-reading of evidence cannot be interfered with. The learned counsel for the petitioner was unable to refer any such misreading or non-reading of evidence or any unlawful exercise of jurisdiction by the Courts below, which could have made a room for interference. Hence this revision petition, being meritless, is dismissed as such with no orders as to costs. H.B.T./104/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.