2002 PLP 189 (MLD)

(3) Whether the suit is bad for non‑joinder of necessary parties? (4) Whether the suit is incompetent in its present form? (5) Who are in adverse possession of the suit land, i.e., the plaintiffs or defendants? (6) Whether the 'plaintiffs are entitled to the declaration as prayed for? (7) Whether the plaintiffs are entitled to the decree as prayed for? (8) Relief.

3. In the first round the suit of the plaintiffs was dismissed by the trial Court, i.e., Civil Judge, Balakot on 4‑11‑1991. The plaintiffs preferred an appeal against this judgment and decree and the Additional District Judge, Mansehra accepted the appeal on 13‑10‑1992, set aside the order of Civil Judge Balakot and remanded the case back to the trial Court for decision afresh after bringing the Revenue Record of Settlement 1904‑05 and 1946‑47 on file.

4. After the remand parties produced their evidence and Civil Judge Balakot passed a decree in favour of plaintiffs against defendants vide judgment and decree dated 17‑1‑1994 which was up‑set in appeal through judgment and decree dated 31‑1‑1995 passed by Additional District, Judge, Mansehra. The judgment and decree of the trial Judge was set aside and the suit of the plaintiffs was dismissed.

5. The petitioners feeling aggrieved have filed instant revision petition calling in question the validity of judgment and decree dated 31‑1‑1995 announced by Additional District Judge, Mansehra whereby the appeal filed by Malik Aman etc., (since dead and represented by his legal heirs) was accepted and judgment and decree of the trial Court was set aside.

6. Mr. Saleh Bin Ahinad Sultan, Advocate, for the petitioners questioned the correctness of the aforesaid judgment and decree, dated 31‑1‑1995 and contended inter alia, that the first appellate Court has not properly exercised its jurisdiction at the time of deciding the appeal and has failed to take into account the material brought on record by the petitioner6 in support of their contentions which has materially prejudiced the rights of the petitioners. To augment the submission the learned counsel contended that at the time of settlement of 1946‑47 when the area was reduced from the suit land and was adjusted in other land, the plaintiffs' predecessor was owner of both these lands and subsequently the defendants who were occupancy tenants at the time of Settlement of 1946‑47 became owners by virtue of section 4 of N.‑W.F.P., Tenancy Act, 1950. Owing to these facts, he added, the petitioners came to know of this fact when the respondents after becoming owners got demarcated their land in the year 1983. The learned counsel also challenged the finding given on the issue of limitation and tried to argue that the suit having been filed within time, a finding contrary to it has been erroneously given, which cannot be allowed to remain intact. He relied on 1993 SCMR 92 and PLD 1993 Lahore 566.

7. Adverting to the report of Commission (Exh.C.W.I/1) the learned counsel reiterated that the report having been prepared contrary to the directions of trial Court, should not have been made basis of the impugned judgment and decree and by doing so the first appellate Court has proceeded on wrong premises.

8. Qazi Ghulam Rauf, Advocate for the respondents when questioned as to how could he support the impugned judgment and decree, relied on 1989 CLC 2206 (Peshawar), 1992 CLC 382 (Peshawar) and PLD 1960 (W.P.) Lahore) 181, and contended that the findings on issue given against the petitioners are supported by actual evidence on record and no case for misreading or non‑reading of evidence has been made out to attract limited revisional jurisdiction of this Court under section 115, C.P.C. He also added that the report of Commission EXh.C.W.l/1 having not been objected to at the relevant time, it does not lie in the mouth of the petitioners to bring the same under challenge and assert that the first appellate Court was not justified to take the same into account and made it the basis for its judgment.

9. After hearing the arguments of learned counsel for the parties in the light of the material on file, I find that the learned counsel for the petitioners has not been able to point out any misreading or non‑reading of evidence warranting interference of this Court. It stands established from the material on record that Nawab Khan, predecessor of the petitioners was owner of suit land and predecessor of the respondents was in possession of the same as occupancy tenant on behalf of Nawab Khan. In Khasra Nos.677 and 678 Nawab Khan was owner to the extent of 1/4th share but inadvertently he was recorded owner to the extent of 1‑1/2 share in revenue papers and to this effect a Mutation No.363 was attested on 21‑12‑1900 about the correction of the share of Nawab Khan. Uptil 1947 defendants were the occupancy tenants of the suit‑land, but after the promulgation of section 5 of the N.W.F.P. Tenancy Act, 1950 defendants deposited the required rent and their status was converted to that of owners of the suit land. It is also evident from the record that in the year 1983 a suit was filed by the plaintiffs against the defendants for grant of a decree for issuance of perpetual injunction in respect of suit Khasra Nos.677 and 678 whereby the area of these Khasra numbers was mentioned as 6 Kanals, 10 Marlas. The suit was ultimately dismissed vide order Exh. D W.1 /4. A criminal complaint was also filed in this respect but with no success. Learned counsel for the petitioners has vehemently contended that the whole trouble has started due to collusion and conspiracy of the Revenue Officials which has led the parties to a protracted litigation but the learned counsel has not been able to substantiate his stand. So far as the report of Commission Exh.C.W.l/1 is concerned I find that the petitioners having failed to object to it at the relevant time cannot be permitted to assail the same at this juncture and contend that the report should not have been taken into account and made basis of the impugned judgment. Adverting to the documentary evidence on record, it stands proved that respondents had become owners of suit land by virtue of section 4 of N.‑W.F.P. Tenancy Act, 1950 after fulfilling at the legal requirements. The respondents are occupancy tenants with continuous possession since their forefathers and no mistake appears to have been committed in the Settlement of 1904‑05 and 1946‑

47. It has been contended with justification by learned counsel for the respondents that map and surveys made for revenue purposes are official documents prepared by competent persons, and with such publicity and notice to persons intended as to be admissible and valuable evidence of the state of things at the time they are made. They are not conclusive, and may be shown to be wrong, but in the absence of vidence to the contrary, they may be properly judicially received in evidence as correct when made. A survey map though trot direct evidence of title, but a survey map is direct evidence of possession at a particular time, namely, the time at which the survey map was made.

10. Regarding other objections raised on behalf of the petitioners concerning limitation, adverse possession and omission on the, part of the first Appellate Court to give finding on all the issues, I find that the objections are not tenable and the reasonings returned on the aforesaid issues are not effective in any manner and warrant no interference of this Court. All material issues have been discussed at length and no prejudice seems to have been caused to the petitioners. The case‑law cited on behalf of the petitioners is distinguishable and does not promote the case of the petitioners.

11. Resultantly, finding no force in this revision petition I dismiss the same and leave the parties to bear their own costs. H.B.T./377/P Revision dismissed.