2016 PLP 110 (CLCN)

LAL JAN KHATTAK, J.

This revision petition under section 115, C.P.C. is directed against the judgment and decree dated 27.7.2011 of the learned Additional District Judge/Izafi Zilla Qazi , Swat, whereby appeal preferred by the respondents, against the judgment and decree dated 22.12.2010 of the learned Civil Judge/Illaqa Qazi-IX, Swat, has been accepted.

2. Brief facts of the case are that the respondents had brought a suit against the petitioners for declaration, permanent injunction, possession and correction of revenue record relating to the landed property duly depicted in the plaint (hereinafter to be referred as the suit land). According to the plaint, it was the respondents' case that the suit land is their ancestral property which has wrongly been recorded in the names of the petitioners during the settlement proceedings which entries are illegal and are liable to be corrected. Claim of the respondents was refuted by the petitioners in their written statement wherein they took up the plea that the suit land is their ownership and has correctly been recorded in their names by the settlement authorities. On the case issues, parties to the suit led their evidence whereafter the learned trial Court through judgment dated 22.12.2010 dismissed the suit. The dismissal was impugned in appeal which was allowed by the learned appellate Court and resultantly the suit was decreed, hence the instant civil revision.

3. Arguments heard and record gone through.

4. Perusal of the case record shows that in support of their case the respondents produced Sher Zada as PW-1 who deposed before the Court that the suit land was part and parcel of their landed property comprising of Khasra No.3551 but in the revenue record prepared by the settlement authorities in the years 1985-86, the same has unlawfully been recorded in the petitioners' names. Respondents had based their claim over the suit land for its being their ancestral property being portion of their recorded land viz Khasra No.3551. 4(sic.) In order to prove that the suit land was their ownership, a heavy burden lay on the respondents as they had desired the Court to pass a judgment and decree in their favour declaring the suit land to be their ownership. According to section 117 of the Qanun-e-Shahadat Order, 1984, burden of proof lies on a person who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Mere bald assertion or any omnibus statement would not by itself prove the existence of any fact which is required to be proved through some tangible evidence.

5. Learned counsel for the respondents had laid lot of emphasis on the point that the adjacent Khasra No.3551 belongs to the respondents and the suit land too was owned and possessed by them but during the settlement process, it wrongly went in the revenue record in the names of the petitioners. This contention of the learned counsel is of no help to him because in the first settlement before entering any land in the name of a person, the settlement authorities inspect the land in the company of elders of the area and claimants and after proper scrutiny and satisfaction as to its ownership, entry thereof is made in the revenue record. Therefore, strong presumption of truth and correctness is attached to such record of rights prepared during the first ever settlement. Reliance is placed on 1997 SCMR 1840 'Nawab Khan and others v. Said Karim Khan and others'. Though the ibid presumption is rebuttable but for rebuttal thereof, very strong and cogent evidence is required in order to dislodge such entries. In the instant case, the respondents have not brought any worth reliable evidence which could be made as a base to brush aside the longstanding entries figuring in the revenue record in the names of the petitioners.

6. Another important aspect of the case is that the impugned entries were made in the names of the petitioners in the year 1985-86 but the same were challenged by the respondents on 17.12.2008. Two-fold reasons were advanced by the respondents for their late assailing the entries. Firstly, that they were already in possession of the suit land and as such, limitation does not run against them; and secondly, that for the first time they came to know about the false entries when a suit was brought by the petitioners in a civil Court where they came to know about the wrong entries. The ibid explanation by the respondents is of no help to them as perusal of the revenue record of the suit land would show that it is "Khud Kasht" and in the column of ownership petitioners are figuring owners thereof. Therefore, per revenue record the respondents are not in possession of the suit land. Assertion of the respondents that their possession has been admitted by the petitioners, has no force in it as such admissions on the part of the petitioners would not be of any help to them because any admission made against an established fact would be of no legal effect.

7. Petitioners' ownership and possession over the suit land is proved through documentary evidence in the form of longstanding entries in the revenue record prepared in the first ever settlement to which strong presumption of truth is attached which has not been rebutted by the respondents through any worth reliable and confidence inspiring evidence. The learned appellate Court has not properly appreciated the case evidence in its true perspective and has committed an illegality by decreeing the respondents' suit. Therefore, on acceptance of the instant civil revision, the impugned judgment and decree of the learned appellate Court is set aside and suit of the respondents is dismissed with no order as to costs. ZC/357/P Revision allowed.