2011 PLP 216 (MLD)

SYED SAJJAD HASAN SHAH, J.

Saleem Khan and 10 others petitioners by way of instant petition under section 115 of C.P.C. have challenged the judgment and decree, dated 14-5-2005 passed by the Additional District Judge/Izafi Zilla Qazi Buner, whereby appeal filed against the judgment and decree, dated 1-11,2003 passed by the learned Civil Judge-III/Illaqa Qazi Buner was dismissed.

2. Brief facts of the case are that the petitioners have filed a suit seeking the decree for declaration to the effect that they are enjoying the possession of land to the extent of 2.1/2 Paw Daftar out of 10 Paw Dafter Hujra Gonga measuring 57 kanal, 12 marlas as being ancestral property, the detail has been given in the plaint, the entries made in the Revenue Record are in excess of the shares of the respondents, therefore, unlawful, liable to correction, they have also claimed the houses, as being ancestral and in joint possession of all the legal heirs, perpetual injunction has also been prayed for. The defendants/ respondents contested suit by filing their written statement, issues were framed, arising out the pleadings of the parties, evidence was recorded. The learned trial Court while seized of the matter, dismissed the suit of the petitioners appeal has also been met the same fate, hence the present revision petition.

3. Learned counsel appearing on behalf of the petitioners, vehemently argued that the admission made by the defendants/ respondents in their written statement that the plaintiffs/petitioners have got no Daftar, however, their predecessor had sold their properties during Pushto period, after such admission the burden of proof lies on the defendants/respondents that how and when it was sold, but they have failed to discharge the same. It is also contended that the predecessor of plaintiffs/petitioners was murdered by Tarboors, therefore, they have shifted to Karachi, the elder of the family left the native village and went abroad, after acquiring knowledge about the settlement of land in the area and the amalgamation of the boundaries of their, landed property with that of respondents with the collusion of Revenue staff, then came to know about the entire fraud played by the defendants/respondents, he further contended that the suit of the petitioner was dismissed as same was time barred, appraisal of evidence has also not been made according to principles of law, laid down in this respect. He further argued that the learned trial Court has also been persuaded by the defendants/ respondents that the suit is hit by principle of estoppel, although, there is no material, whereby in this regard findings could be made, he has also argued that the suit of the plaintiffs/petitioners is competent in its present form and not hit by bar contained in law, therefore, the judgments and decrees of both the Courts below are suffering from material illegality and irregularity caused miscarriage of justice, thus prayed for the setting aside the impugned judgments and decrees of both the courts below, and the suit may be decreed as prayed for.

4. Learned counsel appearing on behalf of the respondents contended that the suit of the plaintiffs/petitioners was hopelessly time-barred, no evidence has been brought on record in order to prove the allegations levelled against the defendants/respondents, the plaintiffs/ petitioners have no property left as they have claimed in their plaint, rather, their predecessor has alienated the same during the Pushto period, this fact has also been proved on record, he further argued that the suit of the plaintiffs petitioners is not competent in its present form, as they have not challenged the entries made in the Revenue Record during the settlement proceedings before the revenue hierarchy, thus, cannot be challenged .in the Civil Court, the suit of the plaintiffs/peti?tioners was not filed as per requirement of .Order-I Rule-8, moreover, the suit is hit by principle of estoppel, therefore, both the courts below 'have no option, but to pass the judgments and decrees against the plaintiffs/petitioners as the claim of the plaintiffs/petitioners was not supported by any evidence available on record.

5. Arguments of the learned counsel for the parties heard and record carefully perused.

6. At the very outset, it was argued on behalf of the plaintiffs/petitioners that as admitted in the written statement, the predecessor of the plaintiffs/petitioners had sold their share during the Pushto period, the burden of proof has not been discharged regarding the alleged sale of share of the plaintiffs/petitioners. The perusal of record reveals, that the plaintiffs/petitioners have produced on record pedigreetable as Exh.P.W.2/1, wherein, the full particulars of the predecessors and successors of Gonga Hujra Tul Abbaskhel have been given in detail, the plaintiffs/petitioners have also been shown in that very pedigreetable, but it is recorded therein in following words:--

7. Whereas, rest of the owners who have been recorded in the said pedigreetable, detail of their ownership in the village given at the foot of the pidegreetable, since the forefathers of petitioners have sold their share, therefore, duty never lies on the shoulder of the defendants/ respondents to prove that how and when the property was alienated by the plaintiffs/petitioners' predecessors, specially, when the sale was made, no Revenue Record was in existence, as the settlement operation was effected in the year, 1981 to 1984, in such situation it is difficult to prove that by whom and in whose favour the sale has been made, it is quite evident from the conduct of the plaintiffs/petitioners that they remained silent, never claimed the suit property for a sufficient long time, in spite of the knowledge of the ground realities, although, from the circumstances brought on record, it transpires that the plaintiffs/petitioners are residing there for the last 17/18 years, but they have not made efforts to enquire about their landed property, moreso, they have not inspected the Revenue Record, although P.W.3 admitted that he is running a filling station in Mauza Cheena for the last 17/18 years and the ownership recorded in the Revenue Record in his name of the said filling station, he has stated that in those days he was present in the village, the site for installation of filling station was also purchased, on payment of sale consideration, further admitted that a marble factory in Cheena was also purchased for the last 5/6 years. It is in his statement that no profit or produce of the suit property ever given to the plaintiffs/petitioners.

8. The plaintiffs/petitioners have not challenged in their evidence, the settlement proceedings as well as the factum of sale of their property as recorded at the foot of pedigreetable Exh. P. W.2/ 1, same was produced by the plaintiffs/petitioners in their evidence, in cross-examination Patwari Halqa P.W.2 deposed about the sale of the property in Pushto period. Likewise, file No.7 instituted on 8-8-1977 decided on 5-1-1978 by Tehsildar settlement/empowered as Assistant Collector, whereby the findings were recorded that Umra Khan son of Rehmatullah Khan the defendant/respondent No.1 is the owner of Hujra Gonga and Geedar, this fact has not been challenged in their evidence, rather, it is proved by them by producing above mentioned documents ttfat during the course of settlement proceedings, decision was taken by Tehsildar settlement and the note of sale of the property has also been mentioned in the pedegreetable. Sani Mulla Patwari Halqa P.W.2 in his statement disclosed in following words:--

9. The settlement operation was conducted in the year, 1975, finalized in the year 1978 as brought on the record, during the said period all the entries were recorded pertaining to the settlement operation in presence of the entire propriety body of the village by the Settlement officer, before preparation of record the detail inquiry was to be conducted and thereafter, those entries to have been made as the part of the settlement record, but the claim of the plaintiffs/petitioners, presuming for a moment is correct, then out of the entire village population none informed to the settlement officer, that the plaintiffs/ petitioners are also owners in the village particularly Hujra Gonga and Geedar.

10. The much more evidentiary value attached to the entries made during the settlement proceedings than those, as made in the office of Patwari during the preparation of Jumabandi, as the periodical record prepared after each four years, not to be considered at same pedestal as the entries recorded during the settlement operation, being more authentic and enjoying the presumption of truth. Therefore, the presumption attached to the settlement record can be dislodged by the authentic and confidence-inspiring evidence which is lacking in the instant case, rather, the plaintiffs/petitioners relied upon the documents whereby their claim have been negated. In this respect reliance can be placed upon a case titled Allah Dad v. Government of Pakistan and 53 others reported in 1989 CLC 1571 (Peshawar) reproduced as under: (a) West Pakistan Land Revenue Act (XVII of 1967).. ....Ss.52 & 116

"Settlement record" and "Jamabandi" Entries in Mode of preparation. Extent of presumption to be attached. Much stronger presumption was attached to the entries of Settlement record than to the entries of "Jamabandi".

11. The `Jamabandi' is prepared by the Patwari Halqa, taking assistance from the mutations attested during the intervening 4 years and the entries of the Khasra Girdawari immediately preceding the preparation of the `Jamabandi' in question. No independent inquiry is made by the Patwari regarding the title or possession of the parties concerned whereas the record of right is finalized after physical measurement is made by the Settlement Officer on the spot, proper inquiry is conducted regarding the ownership and possession of the respective fields on the spot and the entire populace of the estate have knowledge and are supposed to associate themselves with the settlement operations. Consequently much stronger presumption is attached to the entries of settlement record than the entries of the Jamabandi. (b) West Pakistan Land Revenue Act (XVII of 1967). ...S.53. Limitation Act (IX of 1908), Art.120...Suit by person aggrieved of entries in record of rights...Limitation...Persons claiming to be recorded in possession of land prior to Settlement operations of 1905 whereafter entries were varied against them. Two Settlement operations having been carried out in the year 1905-1906 and in 1948-1949 at the conclusion whereof, record of rights prepared, showed the land as having been recorded in the ownership of Government and in the possession of the Military. Aggrieved persons including plaintiffs could file a suit for declaration to challenge the entries within six years from the time of first entry, which having not been availed of, suit filed after the statutory period of limitation was patently time-barred.

12. In the above referred judgment the principle enunciated is about the entries made in the settlement proceedings as they were enjoying much more presumption of truth, the rule laid down with reference to the judgment of this Court and the question of limitation has also been resolved in a case titled "Muhammad Shah and others v. Mir Zaman and others" reported as AIR 1943 Peshawar 83, reproduced as under: (a) Record of Rights

Jamabandi

Distinction

Record of rights is a document entirely different from the jamabandis. It is prepared at the settlement after careful enquiry from all concerned and forms the basis of the land records to come. But the same cannot be said of the jamabandis which are prepared by the patwari as he pleases. The opposite party is summoned at the preparation of the record of rights but no such step 'is taken when the jamabandi is prepared. There is thus no comparison whatsoever between a record of rights and a jamabandi.

13. In the instant case two Settlement operations have been carried out, firstly in the year 1905-1906 and, thereafter, in the year 1948-49 and in the record of rights prepared at the conclusion of both the aforesaid settlements the suit land was recorded as the ownership of the Government and in the possession of the Military. The aggrieved persons; including the plaintiff-petitioner and the defendants Nos. 1 to 22 and 26 to 49 could file a suit for declaration to challenge entries within six years from the date of first, entry, which they have not availed of, thus, the instant suit is patently time-barred. 15(sic) There are certain admissions made by P.W.3 in his statement regarding the possession that during the period of Nawab of Swat, no property was in their possession, but in possession of the defendants/ respondents, also stated that during the partition of property their great grandfather was given "Paimana-e-Hqaiat".

16. The above mentioned legal aspect and circumstances of the case are sufficient to hold that the plaintiffs/petitioners are not entitled for the decree as prayed for, moreso, they have also claimed the share in Shamlaat-e-Deh as specified in Exh.DW.2/1 and about the property which is in the ownership of the other people who have not been impleaded as party in the instant suit, therefore, the suit of the plaintiffs/ petitioners not seems to be in its proper form.

17. The respondents have purchased the sufficient chunk of property, the detail of the said purchase of property has also been brought on record by the defendants/respondents and admitted in evidence as Exh.D.W.1/1 to Exh.D.W.1/32 and also Exh.D.W.3/2 to Exh.P.W.3/55 the same has also been included in the instant litigation.

18. The accumulative effect of the documentary and oral evidence as discussed above is that the claim of the plaintiffs/petitioners is not supported by any evidence, therefore, they have rightly been non-suited by the learned Courts below.

19. The judgments and decrees passed by the learned courts below, not being suffering from any illegality or jurisdictional error, therefore, maintained.

20. This petition is being without substance, hereby dismissed. M.U.Y./327/P????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.