Gul Bahadur vs Gul Akbar

2012 Y L R 542

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

GUL BAHADUR and others---Petitioners

Versus

GUL AKBAR and another---Respondents

Civil Revision No.1008 of 2004, decided on 3rd October, 2011.

(a)Civil Procedure Code (V of 1908)---

----S. 115(1)--- Revision petition---Petitioner's application in year 2007 for placing on record additional documents not filed along with revision petition in year 2004---Respondent's objection that such documents could not be placed on record and considered after expiry of ninety days of passing of impugned judgment/decree---Validity---Requirement of S. 115(1), C.P.C., for being procedural and directory could not be used as a detrimental object to refuse substantial justice--- Main documents i.e. impugned judgment and decrees had already been annexed with revision petition---Additional documents sought to be placed on record were certified copies of judicial record of case, thus, consideration thereof could not be refused---High Court accepted such application as same would not cause pre-judice to respondent.

Mst. Banori v. Jilani through legal heirs and others PLD 2010 SC 1186 ref.

(b)West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Entry as tenant-at-will of property recorded in Settlement Record " " in its column of rent in shape of " "---Evidentiary value---Such entry alone would not be sufficient to rebut entries made in column of ownership---No one could claim to have become owner of property on basis of such entry.

(c)West Pakistan Land Revenue Act (XVII of 1967)---

----S.42---Unambiguous revenue record---Evidentiary value---Such record could not be brushed aside merely on verbal assertions of a party.

(d)Civil Procedure Code (V of 1908)---

----S.115---Revisional jurisdiction of High Court---Scope---Concurrent findings of fact by courts below---Such findings could not be interfered with, if same were based on evidence available on record and not suffering from any jurisdiction defect or misreading or non-reading of any material evidence.

Executive Engineer, C&W, Mansehra and 2 others v. Muhammad Nasim Khan and 4 others 2002 CLC 427 ref.

S. Wilayat Ali Shah Bokhari for Petitioner.

Mir Qasim Shah for Respondents.

Date of hearing: 3rd October, 2011.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The petitioners being the legal heirs of plaintiff Sher Bahadur have filed the present revision petition by feeling themselves aggrieved of the judgment and decree dated 8-6-2004 of Additional District Judge-XIII, Peshawar who thereby allowed the appeal of defendant/respondents and set aside the judgment and decree in favour of present petitioners dated 23-12-2003 passed by learned Civil Judge Peshawar.

2.Learned counsel for the respondents, at the very outset, raised a preliminary objection that 1st proviso to subsection (1) of section 115, C.P.C. requires that all the documents along with evidence should be annexed with the petition under section 115, C.P.C. and the petitioners have failed to bring on record all the necessary documents with their petition which was filed somewhere in the year, 2004 and now through a separate application (C.M. No. 993 of 2001) filed in July, 2011, cannot place on record further documents as time requisite for filing of revision petition is ninety days as provided in 2nd proviso of subsection (1) of section 115, C.P.C. Record annexed with the C.M. thus cannot 2 be considered. He placed reliance on Mst. Banori v. Jilani through legal heirs and others (PLD 2010 SC 1186).

3.Learned counsel for the petitioners submitted that the findings of the Court of appeal are totally against the law and record of the case and the same are the result of misreading and non- reading of the material evidence available on the file. He next contended that the judgment rendered by the appellate Court is also not a judgment in the eye of law being violative of Rule 31 of Order XLI of C.P.C. and requested for setting aside of the same. In support of his contentions, the learned counsel placed reliance on Executive Engineer, C&W, Mansehra and 2 others v. Muhammad Nasim Khan and 4 others (2002 CLC 427). The learned counsel in reply to the preliminary objection submitted that no doubt it is requirement of procedural law but cannot be used against the dispensation of substantial justice to the parties.

4.As against that, the learned counsel for the defendant/respondents submitted that they being the owners, are in possession of the suit property and the petitioners or their predecessor had got no concern whatsoever with the suit property and their instant suit for declaration was also not maintainable being barred by law. He next contended that the petitioners even failed to prove their assertions made in the plaint and requested for dismissal of their suit along with present revision petition.

5.Learned counsel for the parties were heard and record of the case was perused. The record of the case would reveal that predecessor of the present petitioners filed a suit for declaration by claiming himself to be the owner of the suit property fully described in the head note of the plaint and has further challenged the entries in the column of cultivation being incorrect and has wrongly been recorded as by requesting for correction of the same. Perusal of the record would further reveal that the predecessor of petitioner based his claim of ownership on the strength of a sale-deed dated 3-11-1927 vide which his mother allegedly purchased the suit property from the predecessor of defendants/respondents. It is strange to observe that the sale-deed referred above was for the first time introduced by the predecessor of petitioners while filing an application for correction of entries in the column of rent of the Revenue Record i.e. dated 26-9-1983. Though his said application was allowed by the revenue officials but the District Collector vide his order dated 18-11-1985 set aside the said order and his appeal and revision in the revenue hierarchy were accordingly dismissed, which has resulted into filing of instant suit.

6.Under the settled law of the land, it was for the predecessor of the petitioners stepping into the shoes of her mother being vendee of the property to have proved the genuineness of sale transaction embodied in the alleged sale-deed. Though the sale-deed which was denied by defendant/respondents could not be proved in terms of Article 79 of the Qanun-e-Sahadat Order, 1984 but the sale transaction embodied in the above 2 referred sale-deed was required to be proved independently through cogent and reliable evidence. Being unregistered deed, the father of the petitioners was also required to prove the possession over the suit property as owner on the strength of above referred sale-deed to get the support of section 53-A of the Transfer of Property Act, 1882. Though no description of the property in the shape of Khasra number has been mentioned in the alleged sale-deed in spite of the fact that Revenue Record was available at that time but the Khasra number referred to by the learned counsel for the petitioners regarding the suit property is 3431. The perusal of evidence and available Revenue Record since 1929- 30 till 1961-62 copies of which are Exh.P.W.1/1 to Exh.P.W.1/8 do not reflect the possession of the predecessor of the petitioners or his mother in any form. The predecessor of the petitioner for the first time was recorded as tenant-at-will of the property and in the rent column entry was made in the shape of " " as reflected in settlement record " " for the year 1971-72 copy of which is Exh.P.W.1/9 but said entry alone would not be sufficient to rebut the entries made in the column of ownership and the petitioners/their predecessor cannot claim to have become owners of the property on the strength of this very entry. Their claim is further denied as the description of the property made in the alleged sale-deed does not tally with the description given by D.W.l. The plaint is also deficient with regard to description of property as no name of village has been mentioned in the plaint. Similarly, none of the adjoining land-owners was produced as a witness in support of the assertions made in the plaint.

7.Such an unambiguous Revenue Record cannot be brushed aside only on the verbal

assertions of the plaintiff/petitioners. The concurrent findings of the facts based on the available evidence and record would call for no interference in revisional jurisdiction of this Court unless the same are clothed with some jurisdictional defect or the findings arrived at are based on misreading or non-reading of material evidence. So, the findings of the Courts below bereft of above disqualifications, cannot be interfered with.

8.The preliminary objection raised by the learned counsel for the respondents, no doubt, is the directory form of procedural law and is meant for early decision of the civil revisions but said procedural requirement cannot be used as a detrimental object to refuse substantial justice. Yet another aspect in this regard is that the additional documents annexed with the C.M. in question were certified copies of judicial record of this case which in this view of the matter too cannot be refused to look into as the main documents i.e. the impugned judgment and decrees were already annexed with the main revision petition. So, mere allowing this C.M. would cause no prejudice to the respondents.

9.So, what has been discussed above, would not permit this Court to intervene by exercising its revisional jurisdiction, hence instant revision petition being meritless is dismissed as such with no order as to costs.

S.A.K./317/P Revision dismissed.