Sarfaraz Khan Vs Ilyas Masjid etc

JUDGMENT SHI1ET

PESHAWAR HIGH COURT. ABBOTTAI}AD I}ENCH

JUDICIAL DEPARTMENT

Civil Rcvision No.243-A of 2008

.IUDGMENT

Date qf hearing 2 t.12.2018

Pelilioner(s) ...(Sarfaraz Khan etc) by Mr. Sultan Ahmad Jqmshed, Adyocale... ... ...

lle spondent(s) ... (llyasi Masiid, through, Khateeb Jqmia Masiid llyas, ,4bbottabad etc) by Mr.

Nadee m ll i Yous ctJza i, .4dvocqt e

SYED MUHAMMAD ATTIOUE SHAH. J.-

'l'he instant revision petition has bccn filcd by the pelitioners against the judgment and decrce dated 21.07.2008 passcd by lcarncd Additional District Judgc-1, Abbottabacl, vidc which Civil Appeal No.76113 licld by thc rcsponclcnts against thc judgrncnt and dccrcc dalcd 27.05.2006 o1'lcarncd Civil Judgc-ll, Abbottabad, was acccpted and the suit No.379ll lrled by thc petitioners was dismisscd.

2 Ilriel'lacts of the prcscnt casc are that tl.rc pctitioners institr-rtcd suit No.379ll ol 1993 lor

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dcclaration to thc cffcct that thcy wcrc owncrs in posscssion ol land 'Khasra' No. l 30 mcasuling 5 'Marlas ', siluatcd in'Matrza ' Nawanshchr, 'l'chsil & I)istrict Abbottabad, thcrcby sccking correction of cntrics in the revenue record, besides, prayers for posscssion of disputed propcrly and permancnt injunction, against thc rcspondcnts bclbrc thc Couft o1'lcarncd Civil Judgc-ll, Abbottabad. 'l'hc lcamcd trial Court summoncd thc rcspondcnts, who appcarcd and submitted their writtcn statcment. 'I'he lcarncd trial Court, aftcr rccording cvidcncc ol both thc parlies, decreed the said suit, vidc its judgment and dccrcc datcd 27 .05.2006. 'l'hc rcspondents impugncd thc said findings/dccrcc ol' lcarncd trial (lourt bclorc thc lcarncd Appcllatc (lourt in Appcal No.76l13 o1'2006. 'l'hc lcarr.rcd Appcal Court, aller hcaring both thc parties acccptcd thc said appeal, set asidc thc judgmcnt and decrce of thc lcamed trial Court and dismisscd thc suit of thc pctitioners vidc its judgmcnt and dccrcc datcd 21.07 .2008.

3 Now, thc pctitioner, bcing aggricvcd of thc irnpugnccl lindings/dccrcc of thc lcarncd Appcal

Coult datcd 21 .07.20011 havc assailcd lhc samc bclbrc this Court, through instant rcvision pctition.

4.Argumcnts ol thc lcarncd counscl lor thc parlics heard and record perused with thcir valuablc assistancc.

5 '['hc casc o1'thc pctitior-rcrs was that thcy wcrc owncls ln posscssion ol 'Khasra ' No.l30, mcasuring 5 'Marlas ' sincc thcir Ibrclathcrs and cntrics in thc rcvenuc rccord in rcspect of the dispulcd propcrty in thc name of rcspondenls/ dclcndants 'Ilyasi Masjid' was thc rcsult of fraud, lbrgcry and misrcprcsentation. I lowcvcr, on thc othcl hand, thc rcspondcnts havc takcn thc stancc rn thcil writtcn slalcmcnt that disputcd ' Khasra' numbcr bcing part of old'Khasra ' No.87,88, was no1 thc ownership of pctilioncrs rathcr i1 was owncrship ol'llyasi Masjid' and has bccn rccordcd in the rcvcnuc papcrs as 'Ghair Mumkin Qabrislan' .

'l'hcy lurrhcr statcd that disputccl 'Khasra' numbcr was lcascd out lo Abclul Lati 1' Khan, f'athcr of prcscnt pctitioncrs l"hrougl-r lcasc dcccl c]atcd 09.02.198 1, who had been paying rent 1o the 'Masjid' for the said

propcfly and thcy havc bccn cntcrcd as 'Ghair Dakheelkar' in thc rcvcnuc rccord.

'l'hc lcarncd trial Cou( rccordcd thc

statcmcnt olS0.K as l)W-1, who trlought on rocolcl, thc rccord ol' rights ctc in rcspcct ol' disputcd propcrty as Iix.PW 1/l to lix.Pw l/13. llc slatcd that'Khasra ' No.87 has bccn dividcd into diffcrcnt parls and as per 'Misl-i-haqiat' for thc ycar, 194t1- 49, 'Khasra ' No.87 mcasuring 15 'Kanals' 9 'Marlas 'is recorded as'Shamilcrl l)eh Qabrislan', whcrcas, 'Khasra ' No.ttlS (old 2391 ) is rccordcd as 'C hcrir Muntkin llun' in posscssion o| ' Jlycrs i Masjid' . PW-2, 'Patwari Ilalqa' also brought rcvenuc rccord pcflaining to thc year 19tt2-83, 1986- 87 and 1990-91 as Iix.PW 2/l to lix.PW 2/4.

Pctitioncr/plaintifl' Sarlaraz Khan was cxamined as PW-5, who stated that'Khasra'No. 130 has bccn in thcir posscssion sincc thcir lirrc l-athcrs, howcvcr, tl.tc 'Mas jid' Committcc got rccoldcd thc disputcd propcfly in thc name of 'Masiid llyasi' and the pctitioners wcrc shown as'Ghair Dakheelkar'. llc lurthor staled that both thc propcrtics arc in dillcrcnt 'Mauzcts ' i.c. Nawansh ahr ',lunub i ' and Nawanshchr

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'Shumali' and thcrc is dislance of aboul two furlongs bclwccn di sputccl propcrty and' l,Ia s j i d' lly as|.

6 Pcrusal of 'lt'ard Jamabandi' pertaining to thc year 1948-49 (Ex.PW 1/10) would show that 'Khasra' No.87 (old 'Khasra' No.2390) has been rccordcd as 'Shamilat Deh', whereas,, in the column of cuhivation, thc possession was shown with 'Maqbooza Ahel-e-lslam' bcing 'Ghair Mumkin Qabristan'and thc samc cntrics arc also rcpcalcd in 'liard Jamabandis' tor the years, 1952-53, 1957-58, 1961,62, 1962-63 and 1964-65. However, subscquently, vide Ilx.PW 115('Jamabandi' for the ycar" 1982-83), thc prcdcccssor ol pctitioncrs, Abdul Latil'has bccn shown in posscssion of 5 'Marlas' as 'Ghair Dakheelkar',which was lurthcr modilicd in subscqucnt 'Jamabandi' for the ycar 1986-ti7, as 'llyasi Mas.jid' through Abdul Latif 'Ghair Dakheelkar'. Ilowever, the petitioners/plaintiffs failcd to substanliate thcir claim as asscrtcd by them in thc plainl. Similarly,, thc respondcnts also not cstablishcd thcil claim that thc disputcd propctly bcaring 'Khasra ' No.130 old It7 mcasuring 5 ' Marlas' 'Ghair Mumkin Qabristan' is the

o\\'ncrship of 'llyasi Masj id' . It is worth to mention that thc propcrty of 'Ilyasi Mas,jid'lrespondcnt cornprising tn old'Khasra 'No.ltil, prcscnt 'Khasra' Nos.126, 127,128 and 129,, measuring 2'Kanals' 1 ' Marla' is available on the spot and a pl,aza has been construcled thcreon. I'hus, both the parties failed to brought on record any cvidence in support of thc said cntrics as wcll as thcir rcspcctivc claims, thcrclorc, this Court has no othcr option but to dcclarc thc said cntries illcgal, hcncc, tl.rc sallc arc declared as such and thus the original entries rcgarding 'Maqbooza Ahel-e-Islam ' are restored. As it is well settled that oncc 'Shamilat Deh' ts rcservcd fbr common gravcyard, thcn subscqucntly neither its slatus could bc changcd, nor could it bc utilizcd for any other purposc and object, as thc same has assumcd the character o1' a'Waql' propc(y and thus no one could claim its ownership. Hence, the Sccrctary, Auqaf, Minority and Itcligious Affairs, (iovcmmenl of KI'}K is dircctcd 1o takc posscssion of thc samc and maintain thc samc Ibr thc purposc nrcntioncd thcrcin in accordancc rvitb lar'r'.

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1 'fhcrcfore, kccping in vicw thc abovc slatccl .l-acts, circumstances and discussion madc thcrcupon, thc impugncd lindings of both the Courts arc sc1 asidc ancl thc prcscnt rcvision pctition is disposed of in the above terms. Olllcc is dirccted to scnd copy of this judgmcnt to thc Sccrctary, Auqaf, Minority and Ilcligious Affairs, (iovcmmcnt ol KI)K, I)cshawar for compliancc. 'l'he Sccretary shall sr,rbmit his rcport to thc Additional Ii.cgistrar of this Courl.

Dt.21.12.2018. .f l) E

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iSB) ttt' .lustic( S].€d !\,hthalndd ilttique Shah