2001 SCMR 363 (PLP)

MUHAMMAD BASHIR JEHANGIRI, J.

The appellant filed a suit against private respondents Nos. l and 2 and official respondents Nos. 3 to 5 for a declaration that he was ancestral owner of 1/2 share of the land bearing Khasra Nos.107 to 120, 122 to 130; 132 to 141 situate in the revenue estate of Karadok, Tehsil Dalbandin and that the entries of the land in dispute in the Settlement of the land for the year 1962-65 in Khatooni No.28 omitting his status as Lath Band Bazgar in column of cultivation of the disputed land bearing Khasra Nos. 107 to 120 were void and ineffective qua his right and, therefore, he was entitled to 5/6th share of the mesne ,profits besides having similar proprietary rights therein and that respondent No. l was entitled to 1/6th of the produce if he redeemed the land from him. Further declaration sought for was that the respondents could not have sold the rights of Lath Band Bazgar of the appellant to respondent No.2 and, therefore, sale transaction by respondent No. l in favour of respondent No. 2 and mortgage thereof by the latter to respondent No.3 to the extent of 5/6th share of the property were void and ineffective qua the rights of the appellant on the ground of misrepresentation and fraud. Respondents Nos. l and 2 contested the suit by filing their joint written statement wherein the claims of the appellant was completely repudiated. The entries in the first-ever Settlement Record for the year 1962-65 were admitted to be valid and the appellant's status as not Lath Band Bazgar of respondent No. l and further that he had never paid anything out of the produce as 'Malkana' to him was absolutely termed a farce. The factum of sale of the disputed land by respondents Nos. l to 2 was conceded and further that respondent No. 2 had mortgaged the land purchased from respondent No. l with Regional Development Finance Corporation was also with lawful authority.

2. On the pleadings of the parties, as aforesaid, the learned trial Judge concluded as many as seven issues including the relief but for the purpose of this appeal, the following three issues are crucial:-- "(4) Whether the plaintiff is in occupation of the land in dispute as Lath Band Bazgar and mortgagee? (5) Whether the transaction made by the defendants Nos. l and 2 are based on misrepresentation and fraud? (6) Whether the plaintiff is entitled for the relief claimed for?"

3. The learned Civil Judge-IV, Quetta, dismissed the suit on 31-12-1990 on the finding that the appellant has failed to prove Issues Nos.4, 5 and

6. The appellant thereupon filed an appeal before the learned Additional District Judge-III, Quetta but to no avail inasmuch as it was also dismissed on 18-3-1992.

4. Feeling still dissatisfied, the appellant filed a revision petition wherein the learned Single Judge of the High Court of Balochistan, held that there was no point of difference between the parties in respect of the proprietary rights to the extent of 1 /2 share of the appellant in the disputed land. The controversy, according to the learned Single Judge, revolved around the claim of the appellant as Lath Band Bazgar of the property which was in his possession as mortgagee. The learned Single Judge re-appraised the evidence both oral as well as documentary and reached the irresistible conclusion that in Column No.3 of the extract from the Settlement Record for the year 1962-65 the status of the appellant has been confirmed as a co sharer to the extent of 1/2 share and as mortgagee. The reliance of the appellant on the document Exh.P.3., was also held to be misplaced inasmuch as it also was not of any assistance to him the learned Single Judge, therefore, upheld the findings of the two Courts below and held that if the appellant had been Lath Band Bazgar of the disputed land under respondent No.1, it would have found its way in the first ever settlement record prepared in the revenue estate. The learned Single Judge also noticed the effect of the dismissal of another revision petition in the High Court of Balochisan arising out of a suit for pre-emption brought by the appellant against the sale of the disputed land by respondent No. l in favour of respondent No.2, wherein he had never asserted his status as a Lath Band Bazgar of the disputed land. The learned Single Judge of the High Court of Balochistan finally noticed the order of the Officers in the revenue hierarchy of Balochistan under the Balochistan Land Revenue Ordinance (XXIV of 1978), wherein the appellant had challenged the transfer of half of the disputed land by respondent No. l in favour of respondent No.2 which indicated that the appellant had never urged before those authorities that he was Lath Band Bazgar of the disputed land. Perhaps the learned Single Judge was of the view that the appellant's present claim was barred by constructive res judicata. Ultimately the civil revision filed by the appellant was dismissed.

5. Feeling still aggrieved the appellant sought leave to appeal which was granted to him to consider "whether the learned two Courts below and the learned High Court of Balochistan while dealing with the case, had wrongly interpreted the entries in Column No.3 of Register Haqdaran of village Karondak to hold that the appellant was not co-sharer of the land and further whether the relevant entry recorded in the revenue record to the following effect:-- which implied that as a co-sharer of the land with Abdullah respondent, the appellant was also mortgagee in possession thereof and lastly, whether the appellant was not "Lath Band Bazgar" under respondent No.1 and he would be deemed to be co-sharer in the said property."

6. We have examined the record of the case with the assistance of Mr. Tahir Muhammad Khan, learned Advocate Supreme Court, appearing on behalf of the appellant and we agree with the learned High Court that the learned trial Judge had rightly non-suited the appellant duly affirmed by the learned Appellate Court which finding was upheld by the leaned revisional Court. This Court generally does not undertake the process of re-appraisal of evidence but in the instant case we did undertake this process and reached the conclusion that the appellant has miserably failed to prove on record by any credible evidence that omission of his name as Lath Band Bazgar in the first ever Settlement Record for the year 1962-65 of the village was without lawful authority. In point of fact, the appellant was not Lath Band Bazgar of the land but was a co-sharer to the extent of 1/2 share and mortgagee of 1/2 share of the land belonging to respondent No. l which entries were duly recorded in the aforesaid record with clarity when the status of the appellant as Lath Band Bazgar was not in existence how the hierarchy in the Settlement Department could record such status of the appellant. It is settled law that presumption of truth of the highest degree is attached to the entries of the first ever Settlement Record of a revenue estate: In order to dislodge this entry extraordinary strong evidence is required which, in the instant case, is not at all available on the record.

7. On merits, therefore, we concur with the findings of the learned two Courts below which have been duly affirmed by the learned High Court that the appellant has been unable to prove himself to be Lath Band Bazgar of the disputed land and that the entries of the Settlement Record aforesaid were correct and legally not amenable to any exception. The suit for declaration as claimed by the appellant was, therefore, rightly dismissed by the trial Court to the extent of his claim to his right as Lath Band Bazgar only and that entries of the Settlement Record for 1962-65 qua the parties are quite valid which findings have been duly affirmed by the learned Appellate Court and the learned Revisional Court.

8. Subject to above observations, the appeal is dismissed with costs. Q.M.H./M.A.K./A-98/S Appeal dismissed.