2000 PLP 1890 (MLD)

S. Zafar Abbas Zaidi for Petitioner. Dost Muhammad Khan for Respondents. Date of hearing: 11th January, 1999. Suit of plaintiff Faizullah Khan for declaration that he and pro forma defendants Nos. 16 to 21 are the owners in possession of the suit land situate in village Mira Khel and that Mutations Nos. 18596, 18597 and 18598 based on fraud are void and ineffective on his rights was once dismissed by the judgment and decree, dated 25‑2‑1979 of the Senior Civil Judge, Bannu. Appeal filed in the Court of District Judge, Bannu also failed by the judgment and decree, dated 7‑3‑1981. In Civil Revision Petition (No.30 of 1981) an Hon'ble Judge of this Court by order, dated 22‑12‑1984 while accepting the petition set aside the judgments and decrees of the two Courts below and remanded the case to the trial Judge to bring on record the complete Revenue Record from 1905‑6 onward and after affording the parties opportunity of producing such further evidence as they may like to adduce, decided the case afresh as expeditiously as possible. After remand by his judgment and decree, dated 7‑10‑1987, the Senior Civil Judge, Bannu, decreed the suit of the plaintiff as prayed for with a direction that defendant No. l shall be entitled to recover Rs.2,000 from the legal heirs defendants Nos.2 to 15. Muhammad Ayub Khan defendant feeling aggrieved against the said judgment preferred appeal in the Court of the learned District Judge, Bannu and by judgment and decree, dated 12‑1‑1988, the learned Additional District Judge, who was seized of the matter dismissed the appeal. Haji Muhammad Ayaz challenged the said judgments and decrees in this Court by way of Civil Revision No.48 of 1988. By order, dated 29‑5‑1991, the Hon'ble Judge of this Court allowing the revision petition, set aside the judgment and decree of the Additional District Judge and remanded the case to him. with the direction to afford an adequate opportunity to both the parties and record such additional evidence as he deemed fit in the circumstances and whereafter to decide the appeal afresh issuewise. The learned Additional District Judge, Bannu by his judgment and decree, dated 3‑4‑1994, pursuant to the remand order, dismissed the appeal obliging Muhammad Ayyaz to file the instant civil revision petition. 2. The case of the plaintiff Faizullah Khan is that the suit land was their ancestral property including the pro forma‑respondents and that the entries in the Revenue Record to the contrary were wrong and as such mutation attested inter se, the contesting defendants on the strength of those entries were wrong. 3. After the first remand order of this Court referred to above, Patwari Halqa was summoned who filed in Court extract from the Revenue Record since 1905‑6, Exh.P.W.1‑A, alongwith "Goshwara' of the "Jamabandi' after 1905‑06 Exh.P.W.1‑A/1. Supplementary statement of the said Patwari was also recorded. From the statement of the Patwari and the Goshwara Exh.P.W.1A/1, it is clear that the predecessor‑in‑interest of Faizullah Khan, plaintiff purchased the suit land in the cultivation column through Mutation No. 1608 which was accordingly given effect in the settlement 1905‑06. However, in the 'Jamabandi' for the year 1925‑26, the name of predecessor -in‑interest of the plaintiff was omitted which was subsequently rectified through correction Mutation No.5135 attested on 6‑7‑1928. Consequently, the name of the predecessor‑in‑interest of the plaintiff was recorded in the following Jamabandi for the year 1931‑32. It is also clear from the record that through Mutation No.7334 attested on 23‑2‑1940, the plaintiff inherited the suit property from his father Muhammad Akram. While from the Jamabandi for the year 1944‑45 certain shares of the plaintiff in the suit property had been omitted by the revenue staff for reasons best known, at least not ascertainable from record, in the Jamabandi for the year 1958‑59 and the subsequent Jamabandi of the year 1962‑63, the name of the plaintiff was completely omitted. It is worth to be mentioned that in the Jamabandi for the year 1962‑63, the plaintiff was shown as tenant in the 'Khana Kasht' with no reference to his ownership. On the basis of these omissions defendants Nos.2 to 15 managed to transfer of share of the plaintiff through Mutation No. 18596 attested on 29‑10‑1974 and 18598 attested on 25‑1‑1975. Defendant No.9 appearing as D.W.2 in the trial Court after remand could not substantiate through any evidence, oral or documentary, as to how he and the other contesting defendants got the suit land in their names. Needless to say here, that defendant No. 9 is one of the vendors who. sold the suit property to defendant No. 1, the vendee, through Mutations Nos. 18596 and 18598. The Courts below i.e the trial Court, the Appellate Court in its judgment, dated 12‑1‑1988 and again by the Appellate Court in its judgment, dated 3‑4‑1994 have come to a concurrent finding of fact that omission of the plaintiff and pro forma defendants from the Revenue Record was the result of wrong entries in the revenue papers occurring for the first time in 1926, subsequently rectified in 1932‑33 but again repeated in 1958‑59 and 1962‑63 without any justification. 4. It is well‑settled law that in exercise of its revisional jurisdiction, the High Court is not supposed to interfere with concurrent findings of fact by the Courts below unless the said Courts have exercised a jurisdiction not vested in them or have failed to exercise the jurisdiction or that in exercise of its jurisdiction they acted illegally or with material irregularity. There is obviously no jurisdictional error aid findings of facts concurrently reached at by the Courts below are based on the evidence duly supported by Revenue Record and as such the same cannot be held to be the result of either misreading of evidence or non‑reading of the material evidence. In this view I am fortified by the observations of their Lordships of the Supreme Court in Malik Hidayatullah and 2 others v. Murad Ali Khan (PLD 1972 SC 79) wherein it was held that:‑‑‑‑ "High Court could interfere under section 115, C.P.C. only if Court below acted illegally or with material irregularity." Learned counsel for the petitioner made stress that the plaintiff having once pre‑empted the suit land on the basis of tenancy he had admitted his position as tenant as such he was stopped to raise a contradictory plea of claiming ownership of the said property. In this connection it may be pointed out that having come to know of the sale and seeking remedy of correcting the wrong entries in the Revenue Record omitting him from the ownership, the plaintiff felt advised to bring a pre‑emption suit on the basis of tenancy, as available to the tenants under the law then prevalent, I am not in agreement with the learned counsel that it amounted to an estoppel. Since, the plaintiff was recorded as tenant in the cultivation column as a result of wrong entries as explained above, pending correction of the said entries through a legal process, if the plaintiff pre‑empted the said land it cannot be hold to be a hurdle to prevent him from seeking his legal rights. For what has been said above, I find no substance in this civil revision petition which is hereby dismissed with no order as to costs. Q.M.H./M.A.K./133/P Revision dismissed.