2018 PLP 87 (CLCN)

SHAKEEL AHMAD, J.

This civil revision is directed against the judgment/decree dated 02.02.2012 passed by the learned ADJ-III, Nowshera, whereby the learned ADJ dismissed petitioner's appeal against the judgment/decree dated 11.06.2014 of the learned Civil Judge, Nowshera dismissing the suit filed by the petitioners.

2. Precisely relevant facts of the case are that the petitioners/plaintiffs brought a suit in representative capacity and sought declaration to the effect that they being the original owner of Tal Shami Khel are owners in possession of the suit Khatha No.648/1113, Khasra No.778 as per jamabandi for the year 1995/1996 situated in estate of Dag Ismail Khel, District Nowshera details whereof is fully described in the heading of the plaint and that the respondents/defendants have no concern with it. It was further asserted in the plaint that the claim of the respondents/defendants to be the owners of the disputed property is wrong, illegal and ineffective upon the rights of the petitioners/plaintiff. As consequential relief permanent injunction was also sought, praying that the respondents/defendants be restrained from making any construction in the disputed property, and if any construction is made then its possession through demolition was also sought. It was further averred in the plaint that defendants Nos.4 and 6 in collusion with defendants Nos.1 to 3 have constructed three shades (Chapper) in the disputed property. It was further alleged that the information in this respect was also given to the police but in vain. However, a private complaint was lodged before the Judicial Magistrate, Nowshera and that in the original proceedings under section 145, Cr.P.C. (among the predecessors of the petitioners/plaintiffs and defendants Nos.1 to 3) on 21.06.1954, the disputed property was held to be the ownership of owners of Tal Shami Khel which attained the finality as no appeal was filed against that decision. On refusal of respondents/defendants to accept the claim, the petitioners/plaintiffs filed the suit.

3. Initially, the suit was decreed vide judgment/decree dated 01.03.1999 but later on it was set aside on 24.01.2001. The suit was contested by the defendants by way of filing written statement wherein legal and factual objections were raised. The learned trial Court keeping in view the contested pleadings of the parties framed the followings issues and directed the parties to produce their evidence in support of their respective claim. Issues:

1. Whether the plaintiffs have got a cause of action?

2. Whether suit of the plaintiff is maintainable in its present form?

3. Whether suit is liable to be rejected for non-joinder of necessary parties?

4. Whether suit is instituted to vex the defendants?

5. Whether defendants are entitled to special costs under section 35-A, C.P.C.?

6. Whether plaintiffs, defendant Nos.1 and 2 are co-owners in the suit property?

7. Whether defendants had constructed chappers over the property of the plaintiffs and had made encroachment over the suit property?

8. Whether the criminal complaint under sections 447/506/148/149, P.P.C. submitted against the defendants in Court of Judicial Magistrate has been dismissed?

9. Whether plaintiffs are entitled to the decree as prayed for in prayer "Alif", "Bay" and "Jeem" for the plaint?

10. Relief.

4. On the conclusion of trial, the suit was decreed vide judgment/decree dated 08.05.2003. Not contended with the same the petitioners filed the appeal which was accepted vide judgment dated 12.01.2004 and the impugned judgment/decree dated 08.05.2003 was set aside. Feeling aggrieved from the impugned judgment of the Appellate Court the respondents filed revision petition bearing No.26 of 2004 before this Court; vide judgment dated 14.02.2011 in civil revision No.26 of 2004 this Court, set aside the judgment dated 12.01.2004 of the learned District Judge, Nowshera and remanded the appeal for decision afresh and held that the parties would be at liberty to examine additional evidence, if so, desired. Vide judgment dated 18.10.2011, the learned Appellate Court allowed the parties to lead evidence, resultantly both the parties produced their additional evidence and at the same time they also relied upon the earlier evidence. During pendency of the appeal the respondents/appellants filed an application for appointment of local commissioner. The learned Appellate Court provided opportunity to both the parties to produce evidence.

5. The respondents/plaintiffs produced Patwari Halqa of Moza Dag Ismail Khel as PW-1. Naib Daftar Qanungo, Tariq Shah as PW-2, Iqbal Shah as PW-3, Mian Abdur Rehman as PW-4 and closed their evidence. After remand Haji Abdur Rehman was produced as RPW-1 by the respondents before the Appellate Court. The petitioner/defendants appeared as DW-1 and closed his evidence, however, after remand he produced Amjid Ali RPW-1 and Muhammad Farooq RPW-2. The learned Appellate Court after hearing the parties dismissed the appeal on 20.02.2012 and maintained the judgment/decree passed by the learned trial Court, hence this revision petitioner.

6. It has been argued by the learned counsel for the petitioners that the learned Appellate Court has dismissed the application of the petitioners for appointment of the local commissioner illegally. He further contended that the mandatory provision of Order I, Rule 8, C.P.C. has not been complied with which is essential for filing the suit in representative capacity, hence on this score alone the suit is liable to be dismissed. The learned counsel for the petitioners also relied upon criminal proceedings that took place between the parties and subsequent settlement on the basis of compromise.

7. Conversely, the learned counsel for the respondents argued that through the publication in the Newspaper, he complied with the provision of Order I, Rule 8, C.P.C. He also pointed out the application dated 01.01.1998 wherein the respondents sought permission of the Court for filing the suit in representative capacity where upon the publication was made in the Newspaper, and stated that the codal formalities were fulfilled while filing the suit in the representative capacity. The learned counsel of the respondents further argued that the respondents have proved their claim through cogent evidence, therefore the suit was rightly decreed in their favour and upheld by Appellate Court after proper appraisal of record.

8. The above mentioned arguments of the learned counsel for the parties have been considered with due care and attention and the available record perused with the assistance of both the learned counsel.

9. Coming to the application for appointment of local commissioner for spot inspection in order to locate the property in dispute and also to assess the cost of construction raised in the suit property. The evidence available on the record does not support the stance of the petitioners. No evidence was led by the petitioners/respondents to establish that they raised any construction in the suit property. Similarly as far as location of the suit land is concerned, the evidence produced by the petitioners/defendants clearly suggests that they have based their claim on the property in Khasra No.1665, whereas the suit property bears Khasra No.778 and revenue record produced on record reveals that both these khasra numbers are totally different, khasra numbers have no nexus with each other, therefore the request for appointment of local commissioner was rightly declined. The petitioners though claimed that they are in possession of the suit property since long being hisadar owners in Shamilat Deh and that the suit property is not of Tal Shami Khel, but, in fact it is Shamilat Deh of Dag Ismail Khel. Scanning of the evidence produced before the trial Court as well as additional evidence led by the parties before the Appellate Court reveals that as per revenue record old khasra number of the suit property was 1555 as per jamabandi for the year 1928/1929 and its previous Khasra number, was 1450 (RPW-1 and RPW-2). Naib Daftar Qanungo Tariq Shah when appeared as PW-2 before the learned trial Court, he also produced the relevant record to this effect, copy of which is EX.PW2/1. The petitioners/ defendants Fazal Ahmad recorded his statement before the trial Court as DW-1 alleging therein that the suit property bears Khasra No.1665 as per settlement of 1895 and this property was Shamilat Deh of Dag Ismail Khel where entry in their favour is also existed to the said effect till 1925/1926, but, the revenue record produced before the learned trial Court reflects that as per EX.PW1/6 Khasra No.1665 was split into khasra No.785, 786, 787, 788, 789 and 790 but does not find mention of Khasra No.778 which is the khasra number of the disputed property. When Amjid Ali Shah Patwari Halqa appeared as RPW-1 and produced relevant record EX.RPW1/24. Long standing entries in respect of the suit property since 1928/29 and till date clearly shows that the suit property is entered and recorded as of Tal Shami Khel and no entry in respect of the suit property of Shamilat Dag Ismail Khel is available. Similarly no nexus of the suit Khasra No.778 was established with that of old khasra No/1665 as alleged by the plaintiffs. Fazal Muhammad petitioner (DW-1) in his cross-examination admitted that in the year 1895, the status of the suit property was disturbed and it was changed into ownership/Malkiat. He further admitted that in the year 1954 he came to know about the wrong entries and till date it was neither challenged nor rectified. Petitioners also relied upon the decision of the Collector in revenue Suit No.149/1 decided on 30.06.1930, wherein it was held that Shamilat Deh of Dag Ismail Khel was incorrectly recorded as Tal Shami Khel and passed an order for correction of revenue record, however till then no application for correction of record has been made. It was also admitted by the petitioner in his cross-examination that the previous litigation took place in respect of suit property between Barkat Shah and others and Musharaf Shah and others and both the parties belonged to Tal Shami Khel i.e. Miangan and the dispute was in respect of the shares of the parties. He further admitted in his cross-examination that the petitioners are not Tal Shami Khel, therefore long standing entries in the revenue record exist in favour of respondents/plaintiffs, which cannot be ignored in the light of decision dated 30.06.1930, which was neither acted upon nor relief in terms of the said decision was ever claimed by the petitioners. DW-1 admitted in his cross-examination that the despite notice of alleged wrong entries in 1954 he never challenged the said wrong entries. In this respect reliance can well be placed on the case Misri through legal heirs and others v. Muhammad Sharif and others 1997 SCMR 338 wherein it was held as under; "Entry in revenue record proved to be illegal

Effect

One entry in revenue record was proved to be illegal, previous entry would be deemed to stand, inasmuch as, an entry would subsists till new one was lawfully substituted for it."

10. Coming back to the original proceedings that took place between the parties and subsequent settlement on the basis of compromise, perusal of record shows that criminal complaint was dismissed as withdrawn and the same does not prove in any manner possession of the petitioners.

11. This being a civil revision and this Court while sitting in revisional jurisdiction is not supposed to interfere in the concurrent findings of the two courts below unless it is established that the judgments of the two courts below were without jurisdiction or the two courts below acted illegally or with material irregularity resulting into miscarriage of justice. In case of Mst. Kulsoom Bibi and another v. Muhammad Arif and others (2005 SCMR 135), it was held that revisional jurisdiction cannot be equated with that of appeal or equal to appeal and the High Court before exercising revisional jurisdiction has first to satisfy itself whether the subordinate courts while passing the impugned judgments had the jurisdiction vested in them, or whether it was a fit case where the revisional jurisdiction ought to be exercised and whether the impugned judgments of the courts below suffer from illegality or material irregularity resulting into miscarriage of justice. It has also been held in the case of Shah Wali v. Muhammad Iqbal PLD 2005 Lahore 214 that the concurrent findings of fact returned in consonance with the record are immune from interference in revisional jurisdiction of High Court as mandated by Hon'ble Supreme Court of Pakistan in a chain of consistent judgment.

12. Perusal of findings of the two Courts below leave no doubt at all that either the same suffer from jurisdictional defect or result of misreading and non-reading of evidence on record or the same has been recorded illegally or with material irregularity resulting into miscarriage of justice.

13. The upshot of the above discussion is that this revision petition has no force and the same is dismissed with no order as to costs. MH/195/P Revision dismissed.