2005 PLP 1233 (CLC)

Khan Siddique and his .other near relatives brought suit No.41/1 instituted on 6-12-2003 decided on 21-2-2004 against Abdul Akbar Khan and others for declaration to the effect that the plaintiffs had become owners of 3 Kanals, 17 Marlas, 8 Sersai land in Khasra No.5027 of Mauza Chak Turangzai, Kandi Badra Khel, by inheritance, while the remaining half property was owned by the owners of Kandi Maroof Khel, that defendant No.1 was not entitled to sell the total land measuring 8 Kanals, 1 Marla, and that the sale of the suit property by defendant No.1 in favour of defendants Nos.2 to 5, vide Mutations Nos. 7725, 7726 and a 7727 attested on 21-11-1993 to the extent of above mentioned shares of the plaintiffs was wrong, void, illegal and the result of fraud and was liable to cancellation: The suit was also for an order of injunction restraining the defendants till the decision of the case, and for possession of the suit property.

2. The suit was contested by defendants Nos. 1 to

5. Issues were framed. The parties examined Amir Zaman Khan Patwari Halqa as P.W.1, Muhammad Riaz A.D.K. Charsadda as P.W.2, Muhammad Diyar again as P.W.2, Khan, Raziq plaintiff No.2 as P. W.3 as well as Anwarullah Junior Clerk E.D.O. Health Office as D.W.1, Fazal Subhan as D. W.2, Ajab Ghani as D. W.3, Sajid Khan attorney of defendants Nos. 1 and 4 as D. W.4, and Syed Shoreen Shah Patwari Halqa was also examined as witness on the request of the plaintiff. The evidence was, then, closed. The learned Civil Judge Charsadda, after hearing arguments, and vide judgment and decree dated 21-2-2004, dismissed the suit of the plaintiffs. The learned Additional District Judge-V, Chersadda, vide his judgment and decree in Civil Appeal No.47/13-Neem instituted on 12-4-2004, dismissed the appeal also on 19-11-2004. The application for further examining Patwari Halqa and Dafter Qanungo was also dismissed. S.M. Atique Shah, Advocate, for the petitioners and Mr. Muhammad Iqbal Khaki, Advocate, for respondents Nos.1 to 5, on pre admission notice, argued the case. I also perused the available record.

3. It was clearly admitted by P.W.1 Amir Zaman Patwari, Halqa that Dad Gul, Taza Gul, Akbar Ali and Syed Hassan sons of Haider Ali were not entered as owners in the suit property. The plaintiffs were claiming their rights through the said persons. The Patwari Halqa produced copies of mutations dated 21-11-1993 concerning defendant No.1, which were still intact till the time of evidence of the parties. Mead Riaz A.D.K. stated that Abdul Akbar Khan sold the whole area of 8 Kanals, 1 Marla vide Mutations Nos.7725, 7726 and 7727, copies Exh. P.W.2/1, Exh. P.W.2/2 and Exh. P. W.2/3 in Khasra No.5027. These mutations were not objected to at the relevant time. It was, however, brought on record that 7 Kanals land was transferred to Abdul Akbar Khan defendant No.1 vide Mutation No. 7723.

4. The plaintiffs could not produce any reliable evidence to sow that why the names of their forefathers were not entered as owners in, the Revenue Record, why they were excluded specifically from the ownership of the suit property, and why the plaintiffs and their ancestors remained silent for such a long period. Fair chance of egg and cross-examining the witnesses and for production of Revenue Record through them was given to the plaintiffs, which they did not avail at the proper time. A party cwt be allowed to fill up the gaps by production of evidence again and again. It could not be shown by the plaintiffs that such a fair chance was not provided to them. The negligence of the plaintiffs or their counsel to produce the relevant record at the proper time should not prejudice the defendants at any stage. Rounds of litigation in a case are not to be allowed litigation during the process of litigation in a are not to be allowed only in order to satisfy a party.

5. The learned Original Court and the learned Appellate Court have properly appreciated the evidence available on record and have properly disallowed the application of the plaintiffs for other rounds which, if allowed, would have amounted to filling up the gaps in their evidence, and unnecessary delay in disposal of the case at the cost of injustice to the defendants. The law would help vigilant and not the indolent is the established maxim of Jurisprudence. 1999 SCMR 1326. I do not find any defect in the judgment of the learned Appellate Court which had correctly confirmed the judgment of the learned Original Court. The concurrent findings on facts of the two Courts do not warrant interference at this stage. I, therefore, dismiss the civil revision in limine as being without any merit. Revision Dismissed. H.B.T./394/P