Amir Zada through LRs and others Vs Haji Ahamd Noor and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R. No.88-M/2012.

JUDGMENT

Date of hearing: 16.3.2015.

Petitioners: (Amir Zada through Legal heirs and others) by Muhammad Zahir Khan Advocate.

Respondent: (Haji Ahmad Noor & others) by Mr.Abdul Halim Khan, Advocate.

HAIDER ALI KHAN, J.- This revision petition is directed against the judgment and decree dated 30.11.2011 of the learned Additional District Judge/ Izafi Zilla Qazi, Malakand at Batkhela whereby appeal of the petitioner preferred against the judgment and decree dated 25.5.2010 of the learned Civil Judge/Ilaqa Qazi Malakand at Batkhela has been dismissed.

2.Brief facts of the case are that the petitioner/plaintiff filed a suit for deceleration, possession and permanent injunction against the Tajamul Khan/Steno* [C.R No. 88-M/2012 Amir Zada Vs. Haji Ahmad Noor & others]

respondents/defendants to the effect that they being original residents of village Hero Shah and belong to Kaka Khel tribe are entitled to 5/105 shares of common property of the village and by dint of the said ownership they are entitled to recovery of Rs.4716/- of the royalty of Chromite mines besides they are also entitled to proportionate employment in the said mining operation.

3.The suit was contested by

respondents/ defendants No.1, 2 and defendant No.5 of the first suit i.e. Project Director Chormite Mine, by filing their written statements whereas respondents No.3 and 4 filed their cognovits. On divergence of the pleadings, issues were framed on which the parties adduced their respective evidence whereafter the trail Court dismissed suit of the petitioner vide judgment and decree dated 18.3.1996. The petitioners filed an appeal against the said judgment and decree which was allowed Tajamul Khan/Steno* [C.R No. 88-M/2012 Amir Zada Vs. Haji Ahmad Noor & others]

vide judgment and decree dated 01.7.1996 by the learned appellate Court and the case was sent back to the trail Court with the directions to direct the plaintiffs to file their suit in representative capacity by impleading all the owners of Deh Hero Shah and decide the case on merits after recording evidence of the parties. In compliance with the directions of the appellate Court, the petitioners filed a representative suit. Amended written statements were filed by the defendants wherein averments of the petitioners were refuted. Issues were again framed on the divergence of amended pleadings. After recording pro and contra evidence, the trail Court vide its judgment and decree dated 30.7.2002 decreed the suit of the petitioners/plaintiffs against which the respondents preferred on appeal which was dismissed by the appellate Court on 15.11.2003. Even still dissatisfied, the respondents filed a revision petition before the principal seat at Peshawar Tajamul Khan/Steno* [C.R No. 88-M/2012 Amir Zada Vs. Haji Ahmad Noor & others]

which was accepted vide judgment dated 19.9.2006 and the case was remanded to the trial Court for determination of four additional issues which are reproduced for convenience herein below:

1.Whether the plaintiffs are the original owners in the village, if so, what is their ownership as per Revenue record already available.

2.What is the share i.e. “Muti Shmaran” of Kakakhel tribe and what are the total numbers of “Mutis” in the village.

3.What is the true value of Rewajnama and particularly the opinion of Dala Mustamir Khan relating to agriculturist and non- agriculturist tribes in the Rewajnama of the area.

4.What is the validity of Rewajnama of Malakand Agency after the promulgation of the PATA Regulations No.1 and 2 of It is noteworthy that present petitioners filed a civil petition before the august Supreme Court of Pakistan against the above referred judgment of this Court which was dismissed by the apex Court on 05.3.2009. On remand of the case, the petitioners once again filed amended plaint against Tajamul Khan/Steno* [C.R No. 88-M/2012 Amir Zada Vs. Haji Ahmad Noor & others]

which amended written statements were filed and claim of the petitioners was denied. The petitioners while relying on their previous evidence produced and examined APW-1 and APW-2 in addition, whereas the respondents relied on their previously recorded evidence, whereafter the trail Court dismissed suit of the petitioners vide judgment and decree dated 25.5.2010. Being aggrieved of the judgment of the trail Court, the petitioner filed an appeal which too was dismissed by the learned Additional District Judge, Malakand at Batkhela vide his judgment and decree dated 30.11.2011, hence the instant revision petition.

4.Arguments heard and record perused.

5.Perusal of the record would reveal that after remand of the case by the appellate Court, statement of Patwari of the concerned revenue circle was recorded as APW-I wherein he has stated in categoric terms that four Kandis Tajamul Khan/Steno* [C.R No. 88-M/2012 Amir Zada Vs. Haji Ahmad Noor & others]

namely Toorabaz, Mandoni, Alaq Shah and Nelao are the original owners of Mauza Hero Shah whereas the property situated in Batkhela is basically the ancestral property of three Khels (tribes) i.e Hussain Khel, Maday Khel and Ibrahim Khel and rest of the people can become owners only through sale, gift and other modes prescribed by the Transfer of Property Act and in that eventuality they do not become entitled to take share in Shamilat Land. In the present case the petitioners are Miangan and they are recorded as owners vide EX.APW1/1 and EX.APW 1/2 and as such are not entitled to the Shamilat land in questions. The witness has further stated that names of the petitioners are not entered in the list of “Motai Shmaran/stakeholders/shareholders”.

The relevant portion of his statement is reproduced as under:-

مدعيان کا موٹئی شماران کے فہرست ميں اندراج موجود نہ ہيں اور نہ موٹئی شماران ميں شامل ہيِں۔

Tajamul Khan/Steno* [C.R No. 88-M/2012 Amir Zada Vs. Haji Ahmad Noor & others]

6.Admittedly, the petitioners are Kaka Khel Miangans and as per statement of APW-1, Kakakhel Miangan are entered as “Malikan-e- Qabza”. The term Malikan-e-Qabza has been discussed by the Superior Courts in various judgments and is defined in Law Lexicon as “The expression Malikan-e-Qabza means, proprietor of plot or holding in his possession; use of a person having full right in his own holding, but who has lost (or never had) any share in the profits of the entire village or estate”. The term has also been defined by Sir James M. Douie, as “Malikan-e- Qabza are those owners of the land who had purchased it without share of Shamilat in the village. Such vendees are recorded in the column of cultivation as (Malikan-e-Qabza.” Hence, the petitioners own the land actually in their possession but they are not entitled to any share in the common property of the village i.e shamilat property or any joint rights or profits thereof.

Tajamul Khan/Steno* [C.R No. 88-M/2012 Amir Zada Vs. Haji Ahmad Noor & others]

Reliance in this regard can be placed on PLD 2002 Supreme Court 200, PLD 2007 Lahore 583 and PLD 1984 Peshawar 28.

7.Both the learned Courts below have passed the impugned judgments and decrees after proper appreciation of the material available on the record. Even otherwise, revisional jurisdiction is meant for correction of jurisdictional error and material illegalities or irregularities and in absence thereof, the concurrent findings cannot be interfered with. Reliance can be placed on 2012 SCMR 370 (Administratore, Thal Development through EACO Bhakkar and others Vs. Ali Muhammad) and 2012 SCMR 685 “Mst.

Rehana Zeb Vs. Dr. Matwarra Hussain and others). No misreading, non-reading or unlawful exercise of jurisdiction could be pointed out by the learned counsel for the petitioners to interfere with the concurrent findings of both the Courts below.

Tajamul Khan/Steno* [C.R No. 88-M/2012 Amir Zada Vs. Haji Ahmad Noor & others]

For the foregoing reasons, the

revision petition being meritless, is hereby

dismissed.

Announced.

Dt: 16.3.2015. JUDGE

Tajamul Khan/Steno* [C.R No. 88-M/2012 Amir Zada Vs. Haji Ahmad Noor & others]