2004 PLP 211 (CLC)

Muqarrab Khan and others respondents/plaintiffs filed suit for possession of land measuring 41 Kanals, 2 Marlas mentioned in the heading of the plaint against Gul Rahim and other petitioners/defendants in the Court of learned Civil Judge/Illaqa Qazi Dargai. The said suit was resisted by the petitioners/defendants by filing written statement. The learned trial Court after framing issues and recording pro and contra evidence of the parties, decreed the suit in favour of the respondents/ plaintiffs vide judgment and decree dated 7-3-2002. Feeling aggrieved with the said judgment and decree, the petitioners/defendants filed Civil Appeal No.18 of 2002 in the Court of learned Additional District Judge/Izafi Zilla Qazi Malakand at Dargai but the same was dismissed vide judgment and decree, dated 7-5-2002. Being not contented with the judgments and decree passed by the learned Court below, the petitioners/defendants have filed the revision petition in hand.

2. Mr. Abdul Latif Afridi, the learned counsel representing the petitioners/defendants, argued that the petitioners had proved that the land in dispute was Serai land which was given in lieu of service rendered by them on the shrine of Ziarat Mussa Baba-and the petitioners being Majawars were in possession of the suit-land since the time immemorial, therefore, they could not be dispossessed and the learned Courts below have failed to appreciate the legal position. Reliance in this regard has been placed on Azizur Rehman and another v. Atai Khan (represented by his heirs) and 6 others PLD 1976 Pesh. 60, Muhammad Atiq and others v. Tayubuddin and others PLD 1998 Pesh. 47 and Muhammad Saleem Shah and others v. Azizur Rehman Shah and others PLD 2002 SC 280.

3. On the other hand, Mr. Muhammad Aman Khan, the learned counsel representing the respondents, argued that : the petitioners/ defendants nowhere in their written statement had stated that the suit- land was Seri land, rather they claimed to be the owners of the suit-land independently but failed to prove their ownership. On the other hand, the respondents/plaintiffs have proved their ownership over the suit-land by producing Fard Jamabandi for the year 1916-17 (Exh.P.W.l/1).

5. It was also argued that the judgments relied upon by the learned counsel for the petitioners/defendants were not applicable to the case in hand because in the said judgments plaintiffs grandfather owned the land in dispute as Seri.

6. I have heard the learned counsel for the parties at length and perused the record of the case.

7. In order to prove their case, the respondents/plaintiffs examined Ibrahim Shah, Patwari Halqa as P.W.1, Muhammad Sherin appeared as P.W.2 and Abdur Raziq as P.W.3, while Zarif Khan was examined as P.W.4.

8. In rebuttal, the petitioners/defendants examined Sami Gul Bacha as D. W. I and Zagrawar Khan as D. W.2 thus the evidence of the parties was closed. .

9. The question that requires determination in this case is as to whether the petitioners /defendants were owners of the property in dispute or they were in possession of the same as Serikhors. The answer to this question is that they were not owners of the property in dispute but were Serikhors. The respondents/plaintiffs not only in their plaint stated that the petitioners/defendants were Serikhors but Muhammad Sherin (P.W.2) in his statement before the Court stated that the property in dispute was about 41 Kanals and was known as Seri of Mussa Baba. 1i5 the examination-in-chief he stated:-- In cross-examination this witness admitted that the petitioners defendants were still known as Majawars in this area. He also admitted that the land in question was given as Seri before his birth. It is worth-mentioning that at the time of recording his statement, he was of 74 years. He further admitted that there were grown trees in the land in dispute which was made cultivable by the petitioners.

10. Abdur Raziq (P.W.3) stated that the land in question was known as Seri of Mussa Baba and that the same was given to the petitioners/ defendants as Seri because the elders of the petitioners /defendants were not only looking after the shrine of Mussa Baba but were also in service of the people of village at the time of their ceremonies. He also admitted that the petitioners/defendants had grown trees in the suit-land and made the same cultivable. He, however, denied that the petitioners/defendants had made any construction over the suit-land. He further admitted that the petitioners/defendants were known as Majawars in the area. Similar are the statements of Abdur Raziq P.W.3 and Zarif Khan P. W .4.

11. It stands proved on record that the land in dispute was Seri land and the petitioners/defendants were Serikhors. Their possession was admittedly more than eighty years old. Their predecessor had been in service of the shrine of Mussa Baba and the people of village at the time of their ceremonies. The expression Seri was discussed in Muhammad Saleem Shah and others v. Azizur Rehman Shah and others PLD 200? SC 280, Haji Muhammad Bashir and others v. Mst. Zardan Bi and others 2001 CLC 784, Muhammad Atiq and others v. Tayubuddin and others PLD '1998 Pesh. 47 and Azizur Rehman and another v. Atai Khan and others PLD 1976 Pesh. 60.

12. In all the above quoted judgments, Serikhors were held to be Malikan-e-Qabza and they were not owners of the land in village. Since the petitioners/defendants were Serikhors and not the owners of the land in dispute and because they have improved the lane in question by making the same cultivable and have grown trees thereon therefore, they could not be dispossessed. The proprietary body of the village notionally remained the owners of the land. The learned Courts below have failed to appreciate the said legal position. I, therefore, allow the revision petition, set aside the judgments and decrees dated 7-3-2002 and 7-5-2002 passed by the learned two Courts below and the suit of the respondents/plaintiffs is dismissed with no order as to costs. H.B.T./962/P Revision allowed