2015 PLP 290 (CLC)

LAL JAN KHATTAK, J.

Petitioner, through the instant revision petition under section 115, C.P.C. has assailed the judgment and decree dated 22-7-2011 of the learned Additional District Judge/Izafi Zilla Qazi, Bahrain, District Swat, whereby his appeal, against the judgment and decree dated 18-12-2010 of the learned Civil Judge/Illaqa Qazi-III, Bahrain, District Swat, has been dismissed.

2. Short facts of the case are that the petitioner had filed a declaratory suit to the effect that he is owner in possession of the suit land through purchase against a sum of Rs.22,000 and the respondents have no right or authority to deny his such entitlement in the suit land. Petitioner had also prayed for a decree to correct the revenue record pertaining to the suit land. The suit was contested by the respondent No.1 while rest of the respondents tendered their joint cognovit. Parties to the suit led their evidence whereafter the learned trial Court dismissed the suit which dismissal was maintained in appeal, hence the instant civil revision.

3. At the very outset, learned counsel for the petitioner contended that before the appellate Court, the petitioner had moved two miscellaneous applications, one for recording additional evidence and the second one for decision of the case on special Oath but without deciding these applications, the learned appellate Court dismissed the petitioner's appeal which is an illegality and, therefore, the case be remanded to the appellate Court for giving its decision on the referred applications as well as on appeal. Learned counsel further argued on merit of the case which arguments were duly controverted by the learned counsel for the respondents.

4. Arguments heard and record gone through.

5. First of all, I would advert to the submission of the learned counsel for the petitioner that the two miscellaneous applications have remained un-decided. No doubt, an appellate Court is duty bound to decide first a miscellaneous application before the disposal of appeal which is legal duty but in case the appellate Court fails to perform his such legal function, then its such omission ipso facto will not nullify its judgment on main appeal. The omission will be seen in juxtaposition with merit of the case and contents of the miscellaneous application. If the un-attended and un-decided miscellaneous application has no direct bearing on the merit of the case, then in such like eventuality non-disposal of the application would not be taken seriously and on this score alone a case should not be remanded to the appellate Court for re-decision.

6. In the two referred miscellaneous applications, one is for production of a copy of a compromise deed dated 8-10-2010 allegedly executed between the petitioner and the respondent No.1. This deed is scribed subsequent to the alleged sale effected by the petitioner with the respondent No.1 and therefore, has no nexus with or direct bearing on the initial cause of action of the petitioner, therefore, non-disposal thereof has no serious repercussion or consequences on the main case. So far as the second application for decision of the case on special Oath is concerned, suffice it to say that non-disposal of this application too would not be a factor which could be made a base and ground to remand the case as its decision will not affect merit of the case. Therefore, it is held that though the two miscellaneous applications were not decided by the learned appellate Court but non-disposal thereof have not brought any prejudice to the petitioner's case, therefore, argument of the learned counsel to the above effect is of no help to him.

7. Now I come to merit of the case. Thorough and careful examination of the case record would show that the petitioner has averred in his plaint that in the year of 1995 he purchased the suit land from the respondent No.2 against a sale consideration of Rs.22,

000. Petitioner appeared before the Court as PW-2 and reiterated whatever he had averred in his plaint but he has given no details about the sale that when he had purchased the suit land. He has also deposed that the sale was a verbal one and that at the time of sale no other person except respondent No.1, his seller, was present with him. When not only the sale is verbal but there is no witness in its support, nor the petitioner has given any specific date about it, then in such circumstances, it can safely be held that the Courts below have rightly non-suited the petitioner for his failure to prove his case.

8. On the other hand, the respondent No.1 has figured out as a recorded owner of the suit land in the Revenue Record which is Exh.PW1/1 to Exh.PW1/2. In the area, settlement was carried out and completed in the year 1985-86 and since then the suit-land has been recorded in the name of the respondent. It is well-settled that presumption of truth and correctness is attached to revenue record and especially to the one prepared in the first ever settlement though such presumption is rebuttable but for rebuttal thereof very strong evidence is required which is not the case here. In view of the longstanding revenue entries in the name of the respondent No.1 qua the suit land, the alleged purchase made by the petitioner from respondent No.2, who was a non-recorded owner of the suit land, does not appeal to a prudent mind as the petitioner was supposed to know about the real owner of the suit land by having a look at the revenue record which exercise he has not carried out which omission is one of the factors to non-suit him.

9. Both the Courts below have properly appreciated the case evidence whereby the petitioner's suit was concurrently dismissed. There is no illegality, misreading or any non-reading of the case evidence which could be made a base for a revision of the judgments and decrees impugned herein. Therefore, the instant revision petition, being bereft of any merit, is hereby dismissed. AG/450/P Revision dismissed.