Mst: Amtari vs MSt:Hakim Jan

2011 YLR 58

[Peshawar]

B e f o r e Mazhar Alam Khan Miankhel, J

Mst. AMTARI and others---Petitioners

Versus

Mst. HAKIM JAN and others---Respondents

Civil Revision No. 684 of 2005, decided on 20th September, 2010.

Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Suit for declaration-cum-injunction---Both Trial Court and Appellate Court had concurrently dismissed suit filed by the plaintiff---Validity---Plaintiffs who claimed to be owners in possession of suit property measuring 158 Kanals and 16 Marlas, had alleged that only 21 Kanals and 16 Marlas of land had been shown in their names in Revenue Record and remaining 137 Kanals had been incorrectly incorporated in the Revenue record in the name of defendants---Property in dispute was the common village property/Shamlat Deh though in possession of some of the plaintiffs and entire evidence on record was silent to the fact as to what was the actual ownership of the plaintiffs in the village and what was the share to be claimed by them in the village common property measuring 1764 Kanals 7 Marlas in total--- Mere assertions of the plaintiffs would not entitle them to claim the village common property to be their exclusive ownership---Plaintiffs had also failed to prove the factum of ownership of the entire property as claimed by them---While challenging the entries in the Revenue record and that too of the Settlement record they were required under the law to have brought specific and direct evidence in support of their claim---Nothing was on record which could suggest that it was actually the property owned by the plaintiffs and that defendants had no concern whatsoever with the same---Plaintiffs had failed to make out a case for interference in exercise of revisional jurisdiction of High Court---Concurrent finding arrived by the courts below, needed no interference.

Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 ref.

Altaf Ahmad for Petitioners.

Asghar Khan Kundi for Respondents.

Date of hearing: 20th September, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The impugned herein are the concurrent findings of the two Courts below whereby a suit for declaration-cuminjunction was dismissed throughout by the Courts below. The petitioners in their suit have alleged themselves to be the owners in possession of the suit property measuring 158 Kanals 16 Marlas fully explained in the head note of the plaint situated in Mouza Charh, Tehsil Daggar, District Bunir and the entries in the revenue record were incorrectly made whereby only 21 Kanals 16 Marlas of land was shown in their names and remaining 137 Kanals of the land was wrongly and incorrectly incorporated in the revenue record in the names of respondents. During the pendency of the suit, certain transfers of the disputed property were effected which were also challenged through amended plaint by the petitioners. The claim of the petitioners was denied by the respondents. After recording pro and contra evidence, the learned trial Court dismissed the suit vide its judgment and decree dated 27- 9-2002 and appeal there against of the present petitioners also met the same fate.

2.The learned counsel for the petitioners contended that the findings of the two Courts below are not only based on misreading and non-reading of evidence available on the record but the jurisdiction exercised by the two Courts below was also not in accordance with law. The revenue record specially Exh. P. W.1/3 and oral evidence of the petitioners was totally discarded. The findings of the learned Appellate Court are against the provisions of Order-XLI Rule 31, C.P.C., and are based on surmises and conjectures. He even failed to appreciate the pleadings of the petitioners while placing reliance on Gul Rehman v. Gul Nawaz Khan (2009 SCMR 589).

3.As against that, the learned counsel for the respondents submitted that the petitioners had no cause of action available to them and their present suit was also not maintainable. The petitioners under the law were required to have proved their case as per assertions made in the plaint. The suit property is `Shamilat-i-Deh' which cannot be the exclusive ownership of the petitioners and thereby supported the findings of the two Courts below.

4.Learned counsel for the parties were heard and record of the case was perused which would reveal that the petitioners have claimed to be the exclusive owners of the suit property whereas only 21 Kanals 16 Marlas have been shown in their names and remaining property measuring 137 Kanals was recorded in the names of respondents and he has sought the correction of the revenue record in this regard. The first ever settlement in the area took place in the 1977/78 and a document "Shart Wajibul Arz" Exh.P.W.1/3 besides the "Misal-i-Hagiat" was also prepared which would reflect that the suit property was the common village property though in possession of some of the petitioners but the entire evidence on the record is deficient to the fact that what was the actual ownership of the petitioners in the village and what was the share to be claimed by the petitioners in the village common property measuring 1764 Kanals 7 Marlas in total. Mere assertions of the petitioners would not entitle them to claim the village common property to be their exclusive ownership. The petitioners have also failed to prove the factum of ownership of the entire property as claimed by them. Their claim is based on oral evidence and that too is against the record. While challenging the entries in the revenue record and that too of the

settlement record, they were required under the law to have brought specific and direct evidence in support of their claim. There is nothing on the record which could suggest that it was actually the property owned by the petitioners and the respondents had no concern whatsoever with the same. As against their claim of the entire property, the revenue record reflects the same to be a village common property (Shamilat-e-Deh) wherein every owner recorded in the proprietary body of the village will have the proportionate right of ownership as per his ownership in the village. Even only purchases of village property will have no right in the village common property.

5.If para-4 of the plaint is taken into consideration that the petitioners were the actual owners of the suit property which was wrongly and incorrectly recorded as village common property again will have no support from the record or evidence led by the petitioners.

6.The learned trial Court had decided the issue of limitation in favour of the present petitioners which was never challenged by the respondents by way of separate appeal or cross objection but the learned appellate Court while considering the appeal of the petitioners without considering the facts and circumstances of the case has held the suit of the present petitioners to be time- barred. The revenue record available on the file would suggest that both the parties to the suit are cosharers/co-owners and the petitioners appear to be in possession of the same. So, every successive preparation of revenue record would give them a fresh cause of action. While considering the issue of limitation in this background, it appears to have been dealt with incorrectly by the learned appellate Court and even if such findings on the questions of limitation by the appellate Court are set aside would not affect overall merits of the case for which the petitioners have failed to prove their case.

7.What has been discussed above would reveal that the petitioners have bitterly failed to make out a case for interference in exercise of revisional jurisdiction by this Court. Hence, the concurrent findings arrived at by the Courts below need no interference and this revision petition is dismissed as such.

H.B.T./300/P Petition dismissed.