Mirbad (late) through legal heirs Anwar Khan and others vs. Muhammad Umer and others

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

C.R. No.201-P/2025

Mirbad (Late) through legal heirs Anwar Khan and others ................. ..........................Petitioners Vs Muhammad Umer and others .............Respondents Present: Mr. Fayaz Khan Chamkani, Advocate for the petitioners.

Respondents are not represented being a motion case.

Date of hearing: 22.06.2026

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this Civil Revision Petition, petitioners have challenged the order and judgment of the Additional District Judge- I, Tehsil Pabbi District Nowshera dated 16.10.2024, whereby the appeal filed by the present petitioners was dismissed and thereby maintained the judgment and decree of the learned Civil Judge-VIII, Nowshera dated 11.04.2018, who vide the same had dismissed the suit of the present petitioners.

2.Precisely the facts leading to the filing of this petition are that initially, the predecessor-in-interest of the petitioners namely, Mir Bad Khan filed a suit for declaration to the effect that, being the legal

representatives of Baidar Shah, they, along with respondents / defendants No. 25 to 40, are the joint owners in possession of the suit property. It was pleaded that respondents / defendants No. 1 to 24 and their predecessors-in-interest have no legitimate claim to the suit property, as the same was neither sold nor transferred nor alienated in their favour. It was further pleaded that the predecessors-in-interest of respondents / defendants No. 1 to 24 fraudulently entered Mutations Nos. 268, 269, 270 and 271, dated 23.03.1942, resulting into incorrect entries in the revenue record, which require correction. As a consequential relief, he also sought possession of the suit property, in which, the respondents / defendants were summoned. In response, the legal

representatives of respondents / defendants No. 2, 6, 7 and 14, along with respondents / defendants No. 3, 5, 8, 17, 19, 20, 24 and 30 put their appearance and contested the suit by filing their respective written statements, whereas the remaining defendants were placed exparte. During the proceedings, the respondents No.1 & 2 submitted an application under Order VII Rule 11, which after due contest, was allowed and the suit of the petitioners / plaintiffs was

rejected by the learned trial court vide judgment and decree dated 23.05.2013. Being aggrieved of the same, petitioners / plaintiffs preferred an appeal which too was dismissed vide judgment and decree dated 17.03.2014, thereafter petitioners/ plaintiffs filed civil revision petition No. 454-P/2014 before this Court. This Court after hearing the learned counsel for the parties allowed the Civil Revision Petition, set aside the judgments and decree of the learned two courts below and remanded the case back to the learned trial court for framing of issues including limitation and res judicata in the light of the pleadings of the parties and thereafter decide the matter afresh vide order and judgment dated

3.After remand, the learned trial court, in view of the controversies between the parties, framed as many as ten (10) issues and thereafter both the parties adduced their respective evidence and ultimately the suit was dismissed by the learned trial court vide one of the impugned judgment and decree dated 11.04.2018. Petitioners / plaintiffs being aggrieved of the aforesaid judgment and decree preferred an appeal to the Court of learned

Additional District Judge-I, Tehsil Pabbi District Nowshera however, the same was also dismissed vide the second impugned judgment and decree dated 16.10.2024, therefore, petitioners have now approached to this Court by filing the instant petition.

4.Arguments of learned counsel for the petitioners were heard in considerable detail and record perused with his able assistance.

5.It is the case of petitioners / plaintiffs as pleaded by them in their plaint that they are owner in possession of the suit property measuring 3 kanals 12 marlas situated in Khasra No. 242 at Mouza Saleh Khana District Nowshera and that the four (04) mutations bearing No. 268 to 271 of even dated i.e.

23.03.1942 in favour of Masoom Shah, the predecessor-in-interest of respondents No.1 to 24 by Beedar Shah, the predecessor-in-interest of the petitioners / plaintiffs and respondents / defendants No. 25 to 40 are wrong, illegal, void and thus ineffective upon their rights, whereas the case of respondents / defendants is that their forefather namely, Masoom Shah had purchased the suit property way back in 1942 from the predecessor-in- interest of the petitioners / plaintiffs and since then

they are in possession of the same and as such the impugned mutations had validly been executed mutations. Keeping in view the aforesaid rival contentions of the parties, now this Court would proceed that as to whether on the available record, the claim of the petitioners / plaintiffs is correct or not?

6.In order to establish their stance, the petitioners / plaintiffs have themselves brought on record documentary material which goes a long way against their stance as one Asim Ali Shah, Patwari Halqa Mouza Saleh Khana was produced as PW-1 and he has produced the revenue record right from 1928 till Jamabandi zair-e-kar which were exhibited as Ex.PW 1/1 to Ex.PW 1/22. Similarly, he has also produced the impugned mutations of even dated i.e.

23.03.1942. He has further endorsed that after 1942, the name of the predecessor-in-interest of the respondents / defendants is appearing in all the subsequent jamabandis from 1951-52 till date and as against this long standing entries in the revenue record spreading over for almost eight (08) decades.

The petitioners / plaintiffs have merely produced oral assertion through PW-3 namely, Ghafoor Khan and

PW-4 namely, Khairbad Khan, who are respectively 34 and 65 years of ages and as such their oral evidence is based on hearsay. PW-4 namely, Khairabad Khan has also admitted that impugned mutations were executed before his birth and that his father namely, Mustanghfar Shah has died in 1964-

7.In view of the above, when on one hand, there is a documentary evidence and on the other, there is only mere oral assertion then it is always the documentary evidence which are to be given preference and as such the learned two courts below have rightly dismissed the suit of petitioners / plaintiffs as it is settled law that whenever oral evidence is pitched up against documentary evidence, then it is the latter which has to be respected and prevailed. In a case1 the Hon’ble Apex Court has held that there is nothing to discuss that oral evidence could not be given preference over documentary evidence. Similar view was also reiterated by the Sindh High Court in its judgment rendered in the case2 by holding that it is settled law that documentary evidence prevails over the oral Shamshad vs. Arif Ashraf Khan & others reported as 2010 SCMR 473 Muhammad Rasheed v/s Mst. Saeeda Bano & 04 others reported as 2014 CLC

evidence and if documentary evidence is recorded by a public officer in discharge of official duty it would be preferable to an oral statement of a witness, and thus, in view of the above discussion oral evidence of petitioners/plaintiffs could not be given any preference over the documentary evidence which are in favour of respondents/defendants.

8.It would also be relevant to mention here that the suit of the petitioners / plaintiffs was hopelessly time barred as the petitioners / plaintiffs have challenged mutations No. 268 to 271 which were attested on 23.03.1942, whereas the instant suit has been filed in the year, 2012 i.e. exactly after 70 years. It is also an admitted fact that the predecessor- in-interest of the petitioners / plaintiffs has not challenged the impugned mutations in his lifetime. It is also relevant to mention here that the present petitioners / plaintiffs were in the knowledge of the impugned mutations as Ghafoor Khan who is the son of Mirbad Khan when appeared in court as PW-3, he in his cross examination has admitted as under:- "مجهے والد ام نے بتايا تها کہ انتقال متد عويہ " غلط ہے۔1942 مصدقہ

however, his father Mirbad did not challenge the impugned mutations which were allegedly executed

by his father Baidar Shah. Furthermore, it is part of the record that the date of birth of father of the PW-3 is 08.11.1947 which obviously means that at the time of execution of impugned mutations, he was hardly five years of age and as such he too could not have either recollected or could at least assert any transaction executed by his father namely, Baidar Shah, who was the grandfather of PW-3. In view of the above, when the petitioners / plaintiffs were allegedly informed by his father about the execution of impugned mutations attested by the grandfather of the petitioners / plaintiffs then in such eventuality the instant suit is / was squarely time barred as these mutations have been challenged by the third generation as neither Baidar Shah in his life time nor his son Mirbad Khan in his lifetime and now the present petitioners being LRs of Mirbad Khan and Mustanghfar Shah have challenged the same. It is the statutory duty of the Court under Section 3 of The Limitation Act, 1908 to see that whether a lis instituted by a party is within the prescribed period of limitation, even if no such objection has been raised by the opposite party, and thus on this score alone,

the suit of petitioners / plaintiffs was not maintainable.

9.It would also be relevant to mention here that since petitioners were plaintiffs, for obtaining a favourable decree, therefore, they were bound to prove all those facts which they have pleaded in their plaint as under Article 117 of The Qanun-e-Shahadat Order, 1984, if any person who desires to obtain a favourable judgment from the Court of law is bound to prove all those facts which he/she has taken in his plaint. Article 117 being relevant is reproduced below:-

“117. Burden of proof.– (1) Whoever desires any Court to give judgment as to any legal right of liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2)When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

The aforesaid Article of The Qanun-e- Shahadat Order, 1984 declares that any person who desires a Court to issue a judgment in his/her/their favour, has/have to prove the existence of all those facts which he/she/they has/have pleaded in his/her/their plaint, and as stated hereinabove that the

record/evidence would reveal that petitioners/ plaintiffs have not proved the existence of all those facts on which they have based their plaint. In this case, petitioners/plaintiffs have not able to prove their claim through legally admissible cogent and confidence inspiring evidence as their case is entirely based on oral assertions which further based on hearsay, whereas respondents /defendants have proved their case through documentary evidence by producing longstanding entries in revenue record. In a case3 it was held by Hon’ble Apex Court that according to the Article 117 of The Qanun-e- Shahadat Order, 1984, if any person desires a court to give judgment as to any legal right or liability, depending on the existence of facts which he asserts, he must prove that those facts exist and burden of proof lies on him. The terminology and term of phrase "burden of proof" entails the burden of substantiating a case. The meaning of "onus probandi" is that if no evidence is produced by the party on whom the burden is cast, then such issue must be found against him. The burden of proof for the deceitful transaction rests normally on the person “Nisar Ali vs. Muhammad Asghar” reported as 2022 SCMR 1054

who impeaches it. Where the evidence of plaintiff was self-contradictory and not confidence inspiring then he must fail and where the case is doubtful, the decision must be given in favour of defendant rather than the plaintiff. It is a well settled exposition of law that the plaintiff must succeed on the strength of his own case rather than the weakness of the defendant. The lawsuits are determined on preponderance or weighing the scale of probabilities in which Court has to see which party has succeeded to prove his case and discharged the onus of proof which can be scrutinized as a whole together with the contradictions, discrepancies or dearth of proof.

It is the burdensome duty of the Court to detach the truth from the falsehood and endeavor should be made in terms of the well-known metaphor, "separate the grain from the chaff" which connotes and obligates the Court to scrutinize and evaluate the evidence recorded in the lis judiciously and cautiously in order to stand apart the falsehood from the truth and judge the quality and not the quantity of evidence. Similarly, in a case4 the Lahore High Court has held that it is settled proposition of law that a “Muhammad Latif vs. Bashir Ahmed and 7 others” reported as (2004 CLC

party has to succeed on the basis of his own evidence and not on account of lapses in the case of his adversary. In the instant case, Since petitioners were plaintiffs before the trial court, therefore, they were required to establish that the impugned mutations were the result of fraud and misrepresentation as alleged by them in the plaint, however, subsequently they could not brought on record an iota of evidence worth the name to establish the same and their whole claim is based on hearsay evidence / oral assertions which could not be given preference over the documentary evidence.

10.As far as the case of respondents / defendants is concerned, since there are long standing entries in favour of their predecessor-in-interest followed by in favour of their father and now at their names, therefore, such longstanding entries could not be ignored as under Section 52 of The Land Revenue Act, 1967, a strong presumption of truthfulness is attached to the revenue record. In a case5, the High Court of Balochistan has held that the learned trial Court as well as appellate Court resolved the issue No. 4 against the respondents/ defendants. Though Qahaim Khan and 4 others vs. Amar Khan and 2 others reported as 2022 CLC

the respondents/ defendants have not challenged the findings of the Courts below regarding issue No. 4.

The court has power in revisional jurisdiction to correct any illegality appeared in the judgments of the courts below. Both the courts below have overlooked the mutation entries effected in favour of the respondents/defendants. The record transpires that the property bearing khasra No. 367 measuring 2646 square feet mutated in the name of respondent/ defendant No.1 in the record of right, which was transferred in his name in the year 1989 by his father Zaffarullah. While khasra No. 366 measuring 11147 square feet mutated in the name of Government of Balochistan. Both the mutations produced before the trial court as Ex: D/3-A and Ex: D/3-B respectively.

The long revenue entries carries weight and presumption of truth attached with such entries which could not be discarded on verbal assertion unless proved through cogent trustworthy evidence.

The documentary evidence cannot be rebutted by oral evidence. The documentary evidence prevails over the oral evidence if proved according to established procedure and law. The analogy is based on principle that men can lie but document cannot.

Under Section 52 of the Land Revenue Act, 1967 (Act, 1967) presumption attached to the entries in the record of right. It would be appropriate to reproduce the relevant section:

"Section 52. Presumption in favour of entries in record-of-rights and periodical records. Any entry made in the record-of-rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted thereof. " The Honorable Supreme Court of Pakistan in case of Mazloom Hussain v. Abid Hussain (PLD 2008 SC 571), has also held:

"10. The High Court has observed that the entries in the Revenue Record in favour of the appellants were not made in accordance with the prescribed procedure provided in law. The answer to the foregoing objection is that the said entries emerged in the record of rights for the year 1965-66 have not been challenged by the plaintiff-respondents Nos.1 and 2 before the Revenue functionaries or through a civil suit. As provided in section 52 of the West Pakistan Land Revenue Act, 1967, the presumption of truth is attached to the revenue entries which has also been upheld by this Court in the case of Hakim Khan v. Aurangzeb and another (1979 SCMR 625). The relevant portion of the judgment is as under: "The entries in Jamabandis, as is obvious, carried a statutory presumption of truth under section 44 of the Punjab Land Revenue Act (XV of 1887) and section 52, West Pakistan Land Revenue Act (XVII of 1967)."

The documents produced by the plaintiff/respondents Nos.1 and 2 also correspond with evidence produced by the appellant. As against the aforesaid entries, mere bald verbal statements of the kind can hardly cut any ice. Even otherwise, the documentary evidence cannot be rebutted by oral evidence. Another case Mt. Wallan v. Fazala

and others AIR 1939 PC 114 can also be referred in this behalf.

Where a presumption of truth is attached to a document, it cannot be discarded unless proved otherwise by convincing and cogent evidence and the burden of proof that the entries in the record of rights are wrong, is on the party who alleges it. Reliance can be placed in this context on the cases of Sundar Singh v. Chhajju Khan AIR 1934 Lahore 309 and The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others

1990 SCMR 725."

and thus by applying the aforesaid yardstick, the two fora below have rightly appreciated the revenue record exist in favour of the respondents / defendants since their forefather and have thus rightly dismissed the suit of petitioners / plaintiffs being bundle of oral assertions and based on hearsay evidence.

11.It is also settled law that civil cases are to be decided on the basis of preponderance of evidence.

In the present case, the same surely tilts in favour of respondents/defendants and as against this, the petitioners/plaintiffs have not succeeded to put any legal weight in their scale so as to turn it in their favour by producing any legally admissible evidence and thus they have to face its consequences. In a case6 the Hon’ble Apex Court has held that in civil dispensation of justice, courts are to adjudge the lis on the standard of preponderance of probability of “Abdul Rehman & others vs. Mst. Allah Wasai & others reported as 2022

SCMR 399

evidence produced by the parties, and the decision of the court would tilt in favour of the party having preponderance of evidence. As for the burden of proving a fact is concerned, it gains importance and relevance only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the other, on the basis of evidence available on record of the case.

12.In this case, the two Courts below have concurrently recorded their findings of facts and law as against the present petitioners/plaintiffs and in favour of the respondents/defendants, which this Court found them as perfectly in accordance with the available evidence of the parties and thus the same neither suffer from any misreading or non-reading of evidence nor the same suffer from any illegalities or material irregularities, so as to warrant the interference of this Court in its revisional jurisdiction under section 115 CPC. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Hon’ble Apex Court in its recent judgment7, in which it was also held that section 115, C.P.C empowers and mete out Nasir Ali vs. Muhammad Asghar. (2022 SCMR 1054)

the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the conclusions arrived at by the courts below while exercising power under section 115, C.P.C.

Similarly, in a case8, it was also held that a revisional Court cannot upset a finding of fact of the Court(s) Salamat Ali and others vs. Muhammad Din and others reported as PLD 2022 Supreme Court 353

below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below. Similar view also reiterated by the Hon’ble Apex Court in a case9 where in para-6 it was held that it is well settled exposition of law, deducible from plethora of dictums laid down by superior Courts that section 115, C.P.C. empowers and meted out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or Muhammad Sarwar and others vs. Hashmal Khan and others reported as PLD 2022 Supreme Court 13

law. It was also held by the Hon’ble Apex Court in para-10 of the judgment rendered in a case10 that in the case11 this Court declared that where two different interpretations were possible of the evidence brought on record, then appraisal of facts of lower Courts should not be overturned by the High Court in its revisional jurisdiction under section 115 C.P.C. Between two possible interpretations, the one adopted by the trial and appellate Courts should have been maintained, keeping in mind the limited scope of revisional jurisdiction. In a case12 it was also held by the Hon’ble Apex Court that the High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court but confined to Mst. Zarsheda vs. Nobat Khan reported as PLD 2022 Supreme Court 21 Shahbaz Gul and others v. Muhammad Younas Khan and others reported as

2020 SCMR 867

Khudadad vs. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others reported as 2022 SCMR 933

the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law, but interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered.

13.In view of the above discussion and exposition of law on the subject, the impugned judgment and decree of learned trial court dated 11.04.2018 and that of appeal court dated 16.10.2024 are neither the result of misreading or non-reading of evidence nor petitioners could pointed-out any material irregularities nor any jurisdictional defect in the same, therefore, the same are upheld and maintained and consequently the instant revision petition being bereft of any merit is dismissed in limine.

Announced

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan Noor Shah