Behram Khan and others Vs Abdur Rahim and others

v

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BAIIIIU BENCH

(Judicial Deparfinent)

C.R. No.13-B/2004.

Behram Khan and others Yersus

Abdur Rahim and others.

JUDGMENT

Date of hearing: 14.04.2025

For petitioners: HajiZafar Iqbal, Advocate.

For respondents: Mr. Salalmat Shah Mahsud, Advocate.

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MUHAMIIIAD TARIO AFRIDI, J.- The petitioners are challenging the legality and validity of the judgment and n decree passed by the Additional District Judge, Karak, dated 17-12-2003. This judgment dismissed their appeal and upheld the decision of the learned Senior Civil Judge, Karak dated 08-02-2000, whereby suit of the respondents No. 0l to 09 (the plaintiffs) was decreed against the petitioners (defendants).

2.The brief facts leading to the filing of this revision petition are that the ptaintiffs Abdur Rahim and 08 others, (hereinafter referred to as the respondents) filed a suit against the defendants Behram Khan and others (hereinafter referred to as the petitioners), seeking declaration, perpetual, prohibitory, ffid mandatory injunctions regarding the suit property, as specified in the plaint's head note. According to the respondents the petitioners (Behram Khan and others) to,

v held the suit properly as mortgagees, not owners, and therefore couldn't claim ownership rights. They challenged the District Collector Karak's order dated 18.11 .L997 and the mutation No. 4273, dated 14.01.1999, based on that order, as illegal, void, and ineffective regarding their rights. They also claimed that the fiansfer of suit property from Bibi Gula (petitioner No. 7) to petitioners No. 25 and 26 through mutation No. 4320 dated 12.02.1999, is invalid and should be cancelled, as it stemming from mutation No. 4213. The petitioners were asserted not to be owners but mortgagees of the suit property through mutation No. 2371, dated 08-06- ,e 1910. The respondents alleged that the petitioners own declaratory suit, "Ghani-Ur-Rahman and others -V- Mir Ali Shah & others," revealed that they claimed ownership through prescription rather than inheritance.

3.The controversy began with the petitioners'application dated 05.07.1998 to the District Collector, seeking correction of revenue record entries. Pursuant to the revenue authorities' report, the petitioners were declared owners, and mutation No. 4273 was sanctioned in their favour on 14.01 .1999.

Subsequently, mutation No. 4320 was attested on 12.02.1999, transferring property from petitioner No. 7 to petitioners No.

25 and26,prompting the cunent suit.

4.The petitioners were summoned; they appeared and contested the suit by submifiing the written statement. The divergent pleadings of the parties culminated in the framing

of various issues. After recording evidence and hearing the arguments of learned counsel for the parties, the suit of the respondents was decreed vide judgment and deoee dated 08.02.2000. Then petitioners challenged this decision through Appeal No. 69/13 of 2000, which was subsequently dismissed by the Additional District Judge-I, Karak, vide judgment and decree dated 17.12.2003. This led to the filing of the present revision petition.

5.The revision in hand (originally numbered as C.R No.

42912004) was dismissed by the Peshawar High Court, Bannu Bench vide judgment dated 08-12-2014 and the sarne was assailed by the petitioners before the august Supreme Court through C.P.L.A No. 82-Pl2015, which was allowed vide judgement dated l9-ll-2024; the impugnedjudgement dated 08-12-2014 was set aside and revision in hand was remitted to this court for decision afresh after rehearing both the parties.

6.Arguments heard and carefully perused the case record with the valuable assistance of leamed counsel for the parties.

7.It is evident from record that the petitioners by way of miscellaneous application No.13, instituted on 05.07.1998, applied to the Disnict Collector, Karak, to include their names as owners of half of Khasra No. 1675 in the record of rights for l99l-92. They claimed their predecessor, Sher Muhammad son of Pirak, was recorded as the owner in the periodical record for the years 1915-16 and l9l9-20 but his

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name was wrongly omitted in the periodical record for the year 1923-24 and the error continued in all the subsequent records of rights including the current one. The District Collector, Karak, obtained a report from the revenue staff and subsequently allowed the petitioners' application. The Collector ordered the correction of the revenue record to include the petitioners' names as owneni of the disputed property. Consequently, mutation No. 4273, dated 14.01.1999, was affested in their favour.

8.The petitioners assert in their written statement that, as 4 successors of Sher Muhammad, they own half of the disputed land (15 Kanal, 14 Marla) in khasra numbers 2701, 2702, 2703,2704,2705 and 2707 (Old Khasra No. 1675), while the remaining land was mortgaged with their predecessor before 1886-87. The record shows Sher Muhammad (petitioners' predecessor) as a mortgagee, not as an owner of the disputed property and the petitioners couldn't establish that Sher Muhammad, their predecessor, owned half of the disputed land through purchase or inheritance.

9.The petitioners claim that the respondents filed a civil suit (No. l22ll) on 01.09.1999, as a counter to their case, titled "Ghani-(Jr-Rahman and others Vs. Mir Alt Shah and others", wherein the petitioners claimed ownership of the suit property on the basis of adverse possession or acquisitive prescription. Needless to say, the petitioners' suit (No. 110/1 of l99l) was dismissed by the trial court on 08-02-2000 and

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the appeal was also dismissed on 17.12.2003, upholding the trial court's decision. The High Court of Peshawar, Bannu Bench, dismissed the petitioners' revision petition (No. 12- B/2004) on 08-12-2014 and upheld the lower courts' rulings against the petitioners. The Supreme Court of Pakistan dismissed the petitioners' Civil Petition No. 106-P/2015 on 25.08.2022 and thus all the courts rejected the petitioners' claim of ownership regarding the suit property, concluding the legal dispute against them.

10.The key issue is whether the District Collector Karak had the authority to order correction of entries in revenue 4 record and include the petitioners' names as owners. The record shows petitioners claimed their predecessor's name was wrongly in the record of rights for the year 1923- 24, and this continued in subsequent records until 1991-

92.They to the District Collector in 1998, who after receiving a from revenue staff, allowed the application vide order l8-ll-1998 and accordingly the correction was done 75 after the wrong entry in the revenue record occurred in I Record shows that the revenue officer did not issue to the respondents or co-owners regarding the application dated 15.07.1998 and the entire proceedings conducted without their knowledge, resulting in order dated I 8. I 1. 1998, potentially impacting their rights.

11.It is clear from record that during pendency of suit

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titled "Ghani-Ur-Rahman and others Vs. Mir Ali Shah and others. " in the court of learned Senior Civil Judge, Karak qua the suit property, the petitioners at the back of respondents, submitted a miscellaneous application No.l3, dated 05.07.1998, to the Distict Collector, Karak, for inclusion of their names as owners of half of l:hasra No. 1675 in the record ofrights for l99l-92, and illegally obtained relief from the Dishict Collector regarding the suit property, despite the fact that a civil suit was pending on the same matter' In view of the facts stated above, the District Collector's proceedings are flawed, invalid and legally unsustainable.

t2. It's undisputed that long-standing revenue record G entries involving property title and rights disputes should be decided by a civil court, and the District Collector lacks authority to alter these entries via a miscellaneous application, especially without providing an opportunity for hearing to all other co-sharers whose rights are thereby affected. Wisdom in this regard is sought from the case law reported as "Azad Khan and another Ys. SMBR, Khyber Pakhtunkhwa, Peshawar and 0j others." (PLD 2019 Peshawar 208). Para 05 ofthe judgment supra is reproduced for ready reference:

5.This is trite lavt that when the question of title qua parties is in dispute in civil Court then revenue forums could not assume jurisdiction in such like matters. In the instant case the official respondents while seized of the subiect despite lotowledge remained oblivious of pendency of civil suit between the parties

before the civil Court but still proceeded with the same by ignoring the well established principle as ingrained in section 141 of ibid Act of 1967 applied mutatis mutandis, hence could not be allowed to sustain on the ground oforc mentioned.

13.Admittedly, the wrong entries in the revenue record were never challenged by Sher Muhammad son of Pirak (the predecessor of the petitioners) during his life time, therefore, the petitioners had no locus standi to submit a miscellaneous application No.13, dated 05.07.1998, to ttre District Collector, Karak, for inclusion of their names as owners of half of n khasra No. 1675 in the record of rights for L99l-92.

Reference is made to case reported as "Muhammad Rustam and another Ys. Mst. Makhan Jan and others" (2013 S C M R 299). For clarity, Paru-3 of the judgrnent is reproduced below:

3.Having heard petitioners' learned counsel at some length, we find that admittedly the impugned mutation of inheritance bearing No.57l dated 9-7' 1927 was never challenged by Mst. Karam Jan; that she remained alive till 1975 and no reason whatsoever is reflected either in the plaint or in the evidence led to indicate as to why she did not challenge the said mutation. It has never been the case of the petitioners that either they or their predecessor-in'interest were unaware of the said mutation. In the afore'referred circumstances, the iudgment of the learned High Court is unexceptionable. Sofar as the precedent case'lan to which reference has been made by petitioners' learned counsel is concerned, the same ts distinguishable as in none of the judgments the question of locus standi was

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a moot point. In Abdul Haq v. Mst. Surraya Begum (2002 SCMR 13i0), this Court inter alia was seized of a similor issue and while dismissing the petttion, tt observed as follows:-

"11. Atta Muhqmmad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 obout nine yeqrs afier the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta A Muhammad through whom they claimed inheritance himself hod not challenged the sqme during his lifetime.

14.Legally speaking, the concurrent findings on record and appreciation of facts of the case by both the lower courts cannoi be disturbed in exercise of revisional jurisdiction under section I 15 of Code of Civil Procedure, 1908. Wisdom in this regard is sought from the case laws as "trIst. Zattoon Begum Vs. Nazar Hussain and another" (2014 SCMR 1469), "Cantonment Board through Executive Ofricer, Cantt. Board Rawalpindi Ys. Ikhlaq Ahmad and others" (2014 SCMR 161), "Muhammad Farid Khan v. Muhammad Ibrahim, etc."

(2017 SCMR 679), "Muhqmmad Sarwar and others Vs.

Hashmal Khan and others" (PLD 2022 Supreme Court 13) and "l4st. Zarsheda Ys. Nobat Khan" (PLD 2022 Supreme Court 2l) wherein it has been held that :

There is a dffirence between the misreading, non-

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reading and miss-appreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction mtut not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by o subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 16i0) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non- X reading of evidence and not suffering fro* any illegality or material irregularity fficting the merits of the case are not open to question at the revisional stage.

15.Further in judgment reported as "Salamot Ali and others Vs. Muhammad Din and others" (PLJ 2023 SC 8), the same view has been upheld that:-

Needless to mention that a revisional Court cannot upset afinding offact of the Court(s) below unless that fi.nding 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 fo, the reason that it fi.nds its own fi.ndtng more plawible than that of the Court(s) below.

16.In the case law reported as "ll,Ist. Farzana Zia and others Ys. Mst. Saadia Andaleeb" (2024 SCMR 916), it has invariably been held that:

judgment of today placed on B.A. No, 99-8/2025 Page-10-of10

(Muhammad Sher Vs The State etc), the tnstarfi 13. The High Court cannot substitute its own findings unless it is found that the conclusion drawn by the bail cancellation application, 1,€, No.10- lower courts were flawed or deviant to the erroneous proposition of law or caused serious miscarriage of 8,12025 is hereby dismissed nlbninie.

justice and must also avoid independent re-assessment of the evidence to supplant its own conclusion.

07.01.202s. 17. For the foregoing reasons, the revision petition in hand 'Inrdnulldh PS' being devoid of merits stands dismissed. No order as to the (S,B) Hon'ble Micosts.

lastlcc Abdal Fayaz

-Sd-

Announced Judge a Dt:14.4.2025 Imran/*

JUDGE

(s.8.)

Hon'ble Mr. Justice MuhammadTariq Afridi €AIItrD a1

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