2020 PLP 11 (YLRN)

ALI BAIG, J.

Through the instant revision petition the petitioners/ plaintiffs have impugned the judgment/ decree dated 16-12-2014, passed by the learned District Judge Diamer whereby the learned 1st appellate court has dismissed civil 1st appeal of the appellants/plaintiffs and has maintained the judgment/decree dated 25-5-2009, passed by the learned Civil Judge 1st Class Chilas.

2. The brief facts of the case emerging from the pleadings of parties are that the present petitioners/ plaintiffs instituted a suit for declaration, permanent injunction and recovery of Rs. 165,290/- against the present respondents/defendants in the court of Civil Judge 1st Chilas claiming that they are descendants/ offspring of one Rustam Baig who was an owner/resident of Pashlote Haiti of village Goharabad. The above named person had two sons namely Juma Khan and Ghulam Hussain. Ghulam Hussain migrated from Goharabad and settled in Battogah Chilas before partition leaving his entire landed properties in the trusteeship ( ) of his brother namely Juma Khan which is still lying with the descendants of Juma Khan and the petitioners/plaintiffs are taking benefits there-from. The petitioners/ plaintiffs further averred in the plaint that being co-owners of pashlote Haiti, they have equal rights of grazing/pastures, reclaim/receive village shamilat lands and share in the royalties of forest like the defendants which have been denied by the defendants/respondents herein. Previously the dispute was resolved/decided by shari Arbitrator namely Molvi Abdul Jalil who has passed a shari verdict in favour of the petitioners/plaintiffs.

3. The present respondents being defendants in the suit contested the suit by way of filing their joint written statement in the trial court wherein they have raised seven preliminary objections. On facts the present respondents/defendants have repudiated the averments made in the plaint by pleading/allegeding that forefather of the petitioners/plaintiffs had migrated from Goharabad to Botogha Chilas by selling out his entire estate/ properties about 100 years ago and thereby has extinguished his collateral rights in the shamilat land of Pashlote Haiti Goharabad, royalties of Forests and the plaintiffs/petitioners have no rights whatsoever in the suit properties.

4. Out of divergent pleadings of parties the learned trial court framed the following issues:-

1. Whether the suit is within time? OPP

2. Whether the plaintiffs have got cause of action? OPP

3. Whether the forefather of the plaintiffs namely Ghulam Hussain had migrated to village Butogah Chilas and settled there by leaving his entire estate in the trusteeship of his brother Jumma Khan, which is still lying as such with his legal heirs? OPP

4. Whether the plaintiffs are entitled to equal rights in the shamilat land, grazing pastures and royalty and malikana amounts of forests like the defendants? OPP

5. Whether in the result of Shari arbitration the plaintiffs have been recognized as owners of Pashlote Heiti, Goharabad? OPP

6. Whether the plaintiffs have no locus standi to bring the suit in hand? OPD

7. Whether the plaint is ambiguous, prolix and not maintainable in its present form? OPD

8. Whether the suit of the plaintiffs is hit by the law of estoppel? OPD

9. Whether the suit of the plaintiffs is not maintainable due non-joinder of necessary parties? OPD

10. Whether the suit of the plaintiffs is based on malicious intentions as such not maintainable? OPD

11. Whether the plaintiffs have shown the number of plaintiffs more than the actual number while of the defendants are less than the actual number with malicious intentions? OPD

12. Whether the forefather of the plaintiffs namely Ghulam Hussain had migrated to Buttogah Chilas by disposing of through sale his whole estate to various people nearly 100 years ago? OPD

13. Relief?

5. After framing of aforesaid issues the learned trial court directed the parties to adduce their evidence as they wished to adduce. Accordingly the petitioners/ plaintiffs produced four oral witnesses namely (1) Abdul Hanan son of Abdul Manaf (2) Tajuddin son of Abdul Manaf (3) Noor Wali Shah son of Waliullah and (4) Farooq son of Jawer and have also relied on documentary evidence Exhs. P/1 and P/2. Exh P/1 is an opinion of Jirga members given to the then APA Chilas in the years 1947, and Exh. P/2 is verdict of sole Shari Arbitrator namely Molvi Abdul Jalil dated 26-4-1987. The plaintiffs/ petitioners have also got recorded their statement through one of their representatives namely Molvi Abdur Rehman.

6. Likewise the respondents/ defendants got recorded their statement in the trial court through one of their representatives namely Uzur Khan son of Ibrahim. The respondents/defendants have also produced four D.Ws. namely (1) Hakeem Shah son of Abdul Hakeem (2) Abdul Qader son of Daban (3) Juma son of Faqir Ullah and (4) Ghulamuddin son of Mohammad Jahan. The defendants/ respondents have also produced documentary evidence Exh. D/1 (a copy of compromise deed dated 01-4-1964 effected between the residents of Goharabad and residents of Raikot in Civil Suit No. 127/64) and Exh. D/2 (Iqrarnama dated 15-7-1973, effected between the residents of Raikot Goharabad and one Gulab Khan of Juglote sai regarding purchase/transaction of Raikot Forest.

7. One conclusion of trial the learned trial court after hearing arguments on behalf of the both the parties had dismissed the suit of the present petitioners/plaintiffs vide judgment/decree dated 25-5-2009, which was challenged in the court of the learned District Judge Diamer through civil 1st appeal. The learned District Judge Diamer on his turn has also dismissed the civil 1st appeal of the present petitioners/plaintiffs vide the impugned judgment/decree dated 16.12.2014, hence this civil revision petition.

8. The learned counsel appearing on behalf of the petitioners/plaintiffs contended that the impugned judgments/ decrees passed by the learned 1st appellate court and trial court are contrary to law and facts on the record of case as such the impugned judgments/decrees passed by both the both the learned courts below are not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that the impugned judgments/decrees passed by the learned courts below are result of misreading and non-reading of evidence of the parties and miss-appreciation of relevant law, thus the impugned judgments passed by the learned courts below are not sustainable in the eye of law. The learned counsel for the petitioners further argued that the petitioners had received royalty of Forest firstly in the year 1987 and secondly in the year 1997, hence the suit of the petitioners/plaintiffs was well within time and the learned courts below have wrongly held that suit of the petitioners/ plaintiffs was barred by time.

9. On the other hand the learned counsel for the respondents/defendants vehemently opposed this revision petition and controverted the arguments advanced by the learned counsel for the petitioners and supported the impugned judgments/ decrees passed by both the learned courts below by contending that both the learned courts below have passed the impugned judgments/decrees after proper evaluating of the evidence of the parties. The learned counsel for the petitioners further argued that admittedly forefather of petitioners had migrated from Goharabad to Batogah Chilas in the year 1947 and he had sold out his entire estate/landed property before leaving for batogah and the plaintiffs have filed suit in the year 1997 after about 50 years of migration of forefather of petitioners namely Ghulam Hussain, hence the suit of the petitioners/ plaintiffs was hopelessly time barred. The learned counsel for the respondents further argued that sons of Ghulam Hussain forefather of the petitioners namely Abdul Jalil and Noor Alam were alived at the time of institution of suit but the petitioners have failed to implead the above named persons as plaintiffs as such the suit of the petitioners is not maintainable due to non-joinder of necessary parties. Concluding their arguments the learned counsel for the respondents argued that DW-1 namely Haleem Shah son of Abdul Hakim and DW-2 namely Abdul Qadir son of Daban were impleaded as defendants in the suit but they have not filed conceded/ admissional written statement in the trial court. The learned counsel for the respondents further argued that some minors have been impleaded as plaintiffs in the suit but the plaintiffs/petitioners have failed to file the suit through next friend to the extent of minors as required under Order XXXII, Rule 2, C.P.C., hence the suit of the plaintiffs/petitioners was not maintainable and the learned courts below have rightly dismissed the suit of the plaintiffs/ petitioners.

10. I have given my thoughtful consideration to the contentions of the learned counsel for the parties and have gone through the record with their able assistance.

11. It is a case of the petitioners/plaintiffs that forefather of the petitioners/plaintiffs namely Ghulam Hussain had migrated to village Batogah Chilas from Goharabad and settled there by leaving/handing-over his entire landed property to his brother namely Juma Khan as amanat ( ) which is still lying with the L.Rs. of Juma Khan, therefore the petitioners are entitled to equal rights in the shamilat, grazing/pastures and royalty of Forests like the defendants.

12. The petitioners/plaintiffs have admitted in Para No.4 of the plaint that their forefather/ancestor namely Ghulam Hussian had migrated from Goharabad to Batogah Chilas in the year 1947 and the petitioners had alleged that their forefather had left/handed-over his landed properties to his brother namely Juma Khan. The petitioners/plaintiffs have further alleged that they have been receiving their due share from the benefits of peshlote Haiti and they have contributed in collective responsibilities but the representative of the petitioners/ plaintiffs in his cross-examination has admitted that till today defendants have received royalty amount and they did not pay the amount to the plaintiffs/ petitioners. The petitioners have also failed to produce any impartial evidence regarding receiving of their share from royalty amount of Forest which the respondents/defendants have received on different occasions. Ancestor/forefather of the petitioners had migrated to Batogah Chilas in the year 1947 and the petitioners/plaintiffs have filed suit in the trial court in the year 1997 after lapse of more than 50 years of migration of their forefather from Pashlote Haiti Goharabad, hence the suit of the petitioners/plaintiffs is hopelessly time barred as Article 120 of Limitation Act attracts to the case of the petitioners which provides six years period for filing of declaratory suit. The petitioners/ plaintiffs and their forefather Ghulam Hussain have relinquished and waived their rights after lapse of period of limitation. Moreover, the representative of plaintiffs/ petitioners at page No.4 of his cross-examination has categorically admitted that in the year 1960 royalty of Boyar Forest was received and distributed interse by the defendants/respondents while the plaintiffs/petitioners were deprived from their due share. He has further admitted at page No. 5 of his cross-examination that the respondents/ defendants have distributed all royalty amounts till to date among themselves and no share has been given to the plaintiffs. The plaintiffs/petitioners have kept mum till 1997 and have filed the suit in the year 1997, thus the petitioners/plaintiffs are estopped by their conduct and admission to institute the suit against the respondents/defendants.

13. From perusal of material available on record of the case file it reveals that grandfather/forefather of petitioners has migrated from Goharabad District Diamer to Batogah Chilas about 100 years ago. The forefather of the petitioners/plaintiffs namely Ghulam Hussain has never claimed the right of royalty/Malikana during his life time nor his first generation has claimed for the said collective rights of said village and now the third generation of the above named person have filed the instant suit claiming that they have right in the royalty of the Forest of Pashlote Haiti Goharabad on flimsy grounds. The plaintiffs/petitioners have not proved their ancestral property located at Pashlote Haiti Goharabad owned, possessed and look after by any of their relatives residing at aforesaid village. Thus the petitioners/plaintiffs have miserably failed to prove their claim by adducing cogent and reliable evidence in the learned trial court.

14. In view of above stated facts, circumstances and discussion I have come to the conclusion that the impugned judgment/decree dated 16-12-2014 passed by the learned District Judge Diamer and judgment/decree dated 25-5-2009 passed by the learned trial court are based on proper appreciation of facts and law on the subject. Moreover, no illegality or irregularity or jurisdictional error has been pointed out by the learned counsel for the petitioners in the impugned judg-ments warranting interference by this court through its revisional jurisdiction. Hence this civil revision petition being bereft of merits, is hereby dismissed leaving the parties to bear their own costs. File. ZC/100/GB Revision dismissed.