Khalid Kamal & others Vs Sailati & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R No. 51-M/2016

Khalid Kamal and others Versus Sailati and others Present:

Muhammad Amin Yousafzai, Advocate for petitioners.

Mr. Said Jamil Shah, ASC for respondents.

Date of hearing: 29.06.2026

JUDGME NT

QAZI JAWAD EHSANULLAH, J.- Through the instant civil revision petition, the petitioners have called in question the consolidated judgment and decree dated 13.02.2016, passed by the learned Additional District Judge-II, Buner, whereby Appeal No.20/13, arising out of Suit No.80/1A instituted by respondent No.1 Sailati for permanent injunction (later amended to include possession), and Cross-Objections No.20-A/13, relating to Suit No.81/1 instituted by the present petitioners for declaration and permanent injunction, were accepted; consequently, the consolidated judgment and decree dated 19.06.2013, passed by the learned Senior Civil Judge, Buner, whereby Suit No.80/1 had been dismissed and Suit No.81/1 decreed, was set aside, resulting in dismissal of the petitioners’ suit (81/1) and decree of the suit (80/1A) of respondent No.1.

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

2.Briefly stated, the dispute emanates from two cross- suits concerning the same property. Respondent No.1, Sailati, initially instituted Suit No.80/1A on 30.05.2011 against the present petitioners for permanent injunction, which was subsequently amended to seek possession as well, asserting his entitlement on the basis of consistent entries in the revenue record showing him as owner of the suit property. On the other hand, the present petitioners instituted Suit No.81/1 on 04.07.2012 for declaration and permanent injunction against the respondents, claiming ownership on the strength of Sale Deed No.90 dated 25.01.1977 and documents dated 10.07.1979 and 11.07.1979. Both suits were contested through written statements and, owing to similarlity of the subject matter, were consolidated and tried together. Upon recording evidence, the learned Senior Civil Judge, Buner, through consolidated judgment and decree dated 19.06.2013, dismissed Suit No.80/1A instituted by Sailati and decreed Suit No.81/1 instituted by the present petitioners. Aggrieved thereby, Sailati preferred Civil Appeal No.20/13, while his brother Khairti (respondent No.2) filed Cross-Objections No.20-A/13. The learned Additional District Judge-II, Buner, vide consolidated judgment and decree dated 13.02.2016, accepted the appeal as well as the cross-objections, reversed the trial Court's findings, dismissed the petitioners' suit and decreed that of respondent No.1, giving rise to the instant revision petition.

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

3.Arguments heard and record perused.

4.At the outset, it may be observed that during the course of hearing, this Court, vide order dated 04.06.2026, noticed that the controversy mainly revolved around the comparative evidentiary value of the entries appearing in the columns of ownership, cultivation and lagan in the revenue record and, accordingly, learned counsel for the parties were required to assist the Court as to whether an entry in the column of lagan could, in the peculiar facts of the case, displace or override the entry appearing in the ownership column. The parties have since been heard on the said aspect. The order dated 04.06.2026 itself records that respondent No.1, Sailati, founded his claim upon the consistent revenue entries in the ownership column, whereas the petitioners sought to derive title principally from Tamassuk/Sale Deed No.90 dated 25.01.1977 (Ex.PW-4/5, 4/7)1.

5.Before addressing the evidence, it is necessary to notice the precise scope of the consolidated appellate adjudication.

The learned Senior Civil Judge, Buner, through consolidated judgment and decree dated 19.06.2013, had dismissed Suit No.80/1 instituted by Sailati and decreed Suit No.81/1 instituted by Khalid Kamal and others. Sailati assailed the former part of the judgment through Civil Appeal No.20/13, whereas his brother Khairati, who Pages 125 and 126 of the revision file Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

was affected by the decree passed in Suit No.81/1, preferred Cross- Objections No.20-A/13. The learned Additional District Judge-II, Buner, decided both matters through the impugned consolidated judgment dated 13.02.2016, accepted Sailati's appeal as well as Khairati's cross-objections, set aside the trial Court's consolidated judgment, dismissed Suit No.81/1 of the present petitioners and decreed Suit No.80/1 of Sailati. Thus, the correctness of the appellate judgment has to be examined not merely from the standpoint of Sailati's claim, but also in relation to the petitioners' failure to establish the title asserted by them against Khairati and the other recorded proprietors.

6.Examination of the revenue record brings the controversy into clearer perspective. According the available record, the suit Khasra No. 1305 was recorded in the ownership column in the names of Chari, Sailati, Khairati and Muhammad Ishaque sons of Qadar per Misl-e-Haqiat for 1977-782. The subsequent entries relied upon by the petitioners did not substitute their predecessor as owner; rather, they related to cultivation/possession. Likewise, in the Fard Jamabandi for 2003- 043, Sailati and his brothers continue to figure in the ownership column whereas Sher Dad, predecessor-in-interest of the petitioners, appears in the cultivation/possession column with the Page 51 of the revision file

Page 57 of the revision file Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

remark “”بوجہ بیع زبانی. In the subsequent Jamabandi for 2007-084, pertaining to the same Khasra No.1305, the corresponding remark is “”بوجہ رہن زبانی. The historical revenue record, therefore, does not show acquisition of proprietary title by Sher Dad; at its highest, it reflects possession attributed at different times to two materially different juridical bases, oral sale and oral mortgage.

7.The legal effect of such entries is well settled. In Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others5, the Supreme Court held that an entry in the cultivation column followed by an entry of Bila Lagan did not elevate the person in possession to the status of owner and, with reference to Themas v.

Mst. Bakhtawar6 and Shad Muhammad v. Khan Poor7, reiterated that an entry in the lagan column, unsupported by independent evidence, cannot prevail over the cultivation or ownership column.

Similarly, in Haji Fazal Shah and 2 others v. Shahbaz Khan and 5 others8, the Supreme Court recognized the presumption of truth attaching to entries in the Jamabandi/record-of-rights.

Consequently, the petitioners could not convert an entry concerning possession into proof of proprietary title; the burden remained upon them to establish, through cogent evidence, the transaction by which the proprietary interest recorded in favour of Page 58 of the revision file

2010 SCMR 984

PLD 1990 SC 629

PLD 1986 SC 91

1995 SCMR 85

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Sailati, Khairati and the other owners was allegedly transferred to their predecessor.

8.The petitioners sought to discharge that burden primarily through Tamassuk/Deed No.90 dated 25.01.1977 (Ex.DW-4/5)9, asserting that their predecessor had purchased the entire Khasra No.1305 measuring 01 Kanal 03 Marlas through the said transaction, followed by Iqrarnama No.1473 dated 10.07.1979 (Ex.DW-4/6)10. The learned appellate Court subjected these documents to independent scrutiny and found the foundational document No.90 legally and evidentially deficient. In particular, although the document purported to form the very basis for divesting the recorded owners of their proprietary rights, its execution was not proved through its marginal witnesses. The appellate Court specifically noticed that the beneficiaries of a document were required to establish its genuineness and that the non-production of the marginal witnesses assumed significance when execution itself was disputed.

9.Quite apart from the above, the petitioners' own documentary case is difficult to reconcile with the subsequent revenue record. Their pleaded source of title is the written transaction dated 25.01.1977, whereas the subsequent revenue entry describes Sher Dad's possession as “ ”بوجہ بیع زبانیand the Page 125 of the revision file

Page 127 of the revision file Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

later Jamabandi for 2007-08 describes it as “”بوجہ رہن زبانی. Neither description corresponds with the specific written transfer now set up as the source of proprietary title. These varying entries cannot, therefore, be treated as corroboration of Ex.DW-4/5; rather, they shatters the attempt to attribute Sher Dad's possession consistently to the transaction embodied therein.

10.There are further intrinsic difficulties in accepting document No.90 as proof of the title asserted by the petitioners.

The Misl-e-Haqiat for 1977-78 records Chari, Sailati, Khairati and Muhammad Ishaque as owners of Khasra No.1305, whereas Ex.DW-4/5 does not include Muhammad Ishaque amongst its executants/vendors. More importantly, it bears neither the signature nor the thumb-impression of Sailati. Khalid Kamal (DW-4) himself admitted during cross-examination that Sailati was abroad at the relevant time. The petitioners have not established through reliable evidence how Sailati's recorded proprietary interest, much less the proprietary rights of all the recorded owners, including Khairati, legally passed to their predecessor through a document not shown to have been executed by all such owners. These circumstances assume added significance because the petitioners' Suit No.81/1 sought a declaration founded precisely upon that alleged transaction and thus directly affected Khairati's recorded proprietary interest, giving rise to his cross-objections.

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

11.The learned appellate Court also examined document No.90 from the standpoint of its legal efficacy and observed that it was an unregistered instrument relied upon to establish transfer of rights in immovable property. Referring to the applicable provisions of the Registration Act, 1908 and Specific Relief Act, 1877, as well as the authorities discussed in the judgment, the appellate Court held that the document could not operate as an instrument transferring proprietary title in the suit property. The subsequent Iqrarnama No.1473 dated 10.07.1979 could not cure that foundational defect or independently confer the proprietary title which the petitioners claimed under document No.90 (Ex.DW-

12.The learned appellate Court further adverted to the nature of possession. The revenue evidence examined by it showed that the ownership entries continued in favour of the recorded proprietors while the petitioners' predecessor appeared on the cultivation side. Noor Farooq, Patwari Halqa (DW-2) also admitted in cross-examination that Khasra No.1305 was barren. The appellate Court, while examining the petitioners' plea of possession, relied upon the settled distinction between possession and ownership and concluded that possession, even if established, would not by itself mature into proprietary title in the face of the Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

subsisting ownership record and failure to prove the alleged transfer.

13.The appellate Court also considered the matter from the standpoint of limitation. It noticed that the ownership entries adverse to the title asserted by the petitioners had continued in the revenue record for a considerable period, whereas their declaratory suit was instituted much later. It accordingly held that a declaratory challenge to such long-standing entries and the proprietary rights reflected therein could not be maintained indefinitely merely on the strength of possession. This constituted an additional ground upon which the decree granted by the trial Court in Suit No.81/1 was found unsustainable.

14.Viewed cumulatively, the deficiencies are

fundamental rather than peripheral. The contemporaneous revenue record recognizes Sailati, Khairati and the other recorded proprietors as owners; the name of the petitioners’ father Sher Dad appears on the cultivation/possession side rather than as owner; the basis attributed to his possession varies between oral sale and oral mortgage; document No.90 dated 25.01.1977 was not proved through the marginal witnesses relied upon for its execution; Sailati neither signed nor thumb-marked it and, according to DW-4 Khalid Kamal, was abroad at the relevant time; Muhammad Ishaque, though appearing amongst the recorded owners, is absent from the Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

alleged transaction; the document relied upon for transfer of the immovable property was unregistered; and the subsequent Iqrarnama could not independently cure those defects or convey title. These circumstances fully justified reversal of the trial Court's decree in Suit No.81/1.

15.This also answers the position of Khairati, which requires separate notice. His cross-objections were not redundant merely because Sailati had independently preferred an appeal.

Sailati's appeal was directed against dismissal of his own Suit No.80/1, whereas Khairati's cross-objections assailed the decree passed in favour of the present petitioners in Suit No.81/1, which prejudicially affected his proprietary interest as one of the persons recorded in the ownership record. Once the very foundation of the petitioners' asserted title, document No.90 dated 25.01.1977 and the subsequent Iqrarnama, was found incapable of establishing transfer of the proprietary rights of the recorded owners, the decree passed against Khairati could not survive either. The learned appellate Court was, therefore, justified in allowing Cross- Objections No.20-A/13 and dismissing Suit No.81/1, while separately allowing Sailati's appeal and decreeing his Suit No.80/1.

This is precisely the distinction reflected in the operative portion of the consolidated appellate judgment.

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

16.The learned appellate Court has thus not merely substituted one possible view of the evidence for another; it has identified material defects in the very foundation of the petitioners' asserted title and has examined the revenue record, documentary evidence, possession, legal efficacy of the instruments and limitation before reversing the trial Court. Under section 115, C.P.C, interference in revision is warranted where the subordinate Court has exercised jurisdiction not vested in it, failed to exercise jurisdiction so vested, or acted illegally or with material irregularity in exercise thereof. As reiterated in Ahmad Nawaz Khan (supra), revisional jurisdiction does not permit of another view merely because a different appreciation may be possible where the impugned adjudication is free from jurisdictional defect or material illegality. No misreading or non-reading of material evidence, jurisdictional defect or material irregularity capable of unsettling the impugned appellate judgment has been shown.

17.For the foregoing reasons, the findings recorded by the learned Additional District Judge-II, Buner are well-founded on the record and do not call for interference in exercise of revisional jurisdiction under section 115, C.P.C. Consequently, the instant revision petition, being devoid of merit, is dismissed, with no order as to costs.

Announced -Sd- Dt:29.06.2026 JUDGE Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah