' Facts relevant for the disposal of this revision petition are that Kamal Khan, respondent No,2, herein, brought suit on 5-12-1976 regarding certain property with turn of irrigation water and 'Mooshanja' etc. Against Mirza Jan and others, before Assistant Commissioner, Mastuj, District Chitral, exercising powers of Deputy Commissioner under the PATA Regulation. On 20-5-1977, the Assistant Commissioner appointed a Jirga, comprising five members including Tehsildar, Mulkhu as Chairman and authorized them to represent the parties to the case. Subsequently, the parties entered into a compromise and a decree was accordingly passed vide order, dated 22-6-1978.
Mirza Jan, Dulan and Mir Ayub instituted a suit on 12-11-1984 in the Court of Senior Civil Judge, Chitral, seeking declaration as well as restoration of possession of land delivered to the defendants pursuant to order, dated 22-6-1978, with the assertion that at the time of institution of suit on 5-12- 1976 before Assistant Commissioner, Mastuj, Mir Ayub was minor and thus the Assistant Commissioner was not justified to proceed with the matter. A prayer was made to the effect that proceedings initiated by Assistant Commissioner, Mastuj be declared null and void and ineffective on the right of Mir Ayub. The suit was resisted and the allegations were controverted. The parties were put to trial on the following issues:---
(1) Whether the plaintiffs have got a cause of action? OPP
(2) Whether the suit is within time? OPP
(3) Whether the plaintiffs are entitled to declaratory decree and decree for possession of the suit property? OPP
(4) Whether the suit is hit by the principle of res judicata? OPD
(5) Whether the suit is time-barred? OPP
(6) Whether the suit is incompetent in its present form? OPD
(7) Whether the plaintiffs are estopped to sue? OPD
(8) Whether the plaintiffs have waived their rights? OPD
(9) Whether the suit is based on mala fide? OPD
(10) Whether the suit is bad for want of court-fee? OPD
(11) Relief.
2. Upon consideration of the evidence produced by the parties in support of their respective contentions the learned Senior Civil Judge, Chitral through his judgment and decree, dated 16-8- 1988 proceeded to hold that at the time of filing of suit before Assistant Commissioner, Mastuj, Mir Ayub was minor and trial Court was not competent to adjudicate upon the dispute within the meanings of subsection (2) of section 3 of the N.-W.F.P. Civil Procedure (Special Provisions) Act, 1997 (N.-W.F.P. Act No,IX of 1977). Ultimately, the proceedings initiated by Assistant Commissioner, Mastuj were declared null and void and Mir Ayub including other plaintiffs were held entitled to take back possession of the property given to defendants in the light of decision dated 22-6-1978 of Assistant Commissioner, Mastuj. Feeling aggrieved, an appeal was preferred by Muhammad Azam Khan and others, before learned District Judge, Chitral. The appeal was accepted through judgment dated 18-12-1989, the judgment and decree of learned Senior Civil Judge, Chitral was set aside and it was pointed out that Mir Ayub was not minor at the time of filing suit before Assistant Commissioner, Mastuj. Saifullah Jan, Mir Muhammad sons of Mirza Jan and Mir Ayub son of Mir Sala, petitioners herein feeling dissatisfied have filed instant revision petition.
3. Appearing on behalf of the petitioners Mr. Lal Jan Khattak, Advocate bitterly criticised the impugned judgment and decree of learned District Judge and attempted to argue that sufficient material was available on the file to demonstrate that at' the time of institution of suit before Assistant Commissioner, Mastuj, Mir Ayub was minor and Assistant Commissioner was not competent to deal with the matter but the learned Appellate Court did not advert to this aspect of the case and reversed the judgment and decree of learned Senior Civil Judge, Chitral holding that at the relevant time i.e, at the time of filing suit before Assistant Commissioner, Mastuj, Mir Ayub was not minor. The learned counsel added that there was hardly any material available on record justifying the reversal of the judgment and decree of learned Senior Civil Judge, Chitral. To substantiate the contentions, reliance was placed on Ghulam Hussain and others v. Ghuas Bakhsh and others 1968 SCMR 991 and Mst. Rooh Afza v. Sher Aman Khan and others PLD 1993 Pesh.
49.
4. While opposing the above submissions of learned counsel for the petitioners and supporting the impugned conclusion of learned District Judge, whole-heartedly, Mr. M. Waris Khan, Advocate for the respondents, contended that learned District Judge has recorded a detailed and well- reasoned judgment taking all the aspects of the case into consideration and thus the impugned judgment does not suffer from any legal and factual infirmity.
5. It is an established principle of Qanun-e-Shahadat that a person who asserts/alleges a particular fact and wants the Court to believe that such fact exists, he shall be required to prove the existence of such a fact. In the instant case, stand of Mir Ayub is that at the time of institution of suit before Assistant Commissioner, Mastuj on 5-12-1976 he was minor and as such the Assistant Commissioner was not competent to deal with the matter, ignoring the fact of minority of Mir Ayub.
In this respect, Bulbul Aman, Syed Ibrahim Shah and Muhammad Zar have been examined as P.W.1, P.W.2 and P.W.3 respectively. As against this, Muhammad Azam Khan appeared in the witness-box as D.W.1 and stated that at the time of filing suit. Mir Ayub was twenty years of age and he was present in Jirga constituted under the chairmanship of Tehsildar Manchu. He also stated that defendant No:7 was attorney of Mir Ayub and the latter was also present in the Jirga at the time of compromise. Sher Nawaz Khan (D.W.2) also supported the version of D.W.1 and stated that at the relevant time Mir Ayub was a young man and had participated in Jirga proceedings.
6. Having considered the arguments of learned counsel for the parties in the light of the material on file I find that if the evidence of the parties is weighed in the scale of veracity, the scale tilts in favour of the conclusion drawn by the learned District Judge that at the time of institution of suit on 5-12-1976 in the Court of Assistant Commissioner, Mastuj, Mir Ayub was not minor and the Assistant Commissioner was competent to deal with the matter. It has been contended by learned counsel for the petitioners that material available on the record has not been properly assessed and appreciated. The submission is devoid of force. The learned counsel has failed to point out any piece of evidence which was misread and non-read by the Appellate Court or violated any principle laid down by the superior Courts. The mere assertion of the learned counsel that evidence has not been scrutinized in its true perspective, without a positive attempt on his part to substantiate the same, is of no consequence. The factum of proving minority was placed on Mir Ayub and he was under legal obligation to prove within the parameters of law but he has miserably failed to discharge the onus. The evidence produced by him is discrepant and has been ignored for valid reasons. There is no cavil with the proposition that the revisional Court has the jurisdiction to correct the error resulting, from nonreading/misreading of evidence or where the Courts below are found to have failed to exercise the jurisdiction vested in them. In the instant case no such infirmity has been pointed out. It is the duty of the Appellate Court to assess the evidence of the parties, examine findings recorded by the trial Court and to give reasons for upholding or reversing the same. The learned Appellate Court has advanced solid reasons for displacing the findings of the learned trial Court. It may not be out of place to mention here that suit before Assistant. Commissioner, Mastuj was filed on 5-12-1976 whereas the verdict given by him was challenged before Senior Civil Judge, Chitral through suit filed in the year 1984. This long silence on the part of Mir Ayub has not been explained satisfactorily. If Mir Ayub was aggrieved of the finding of Assistant Commissioner, Mastuj, he could have gone in appeal before Additional Commissioner, Malakand Division. Mir Ayub has chosen not to do so for reasons not far to seek. Even his co- plaintiffs have taken no trouble to go to the higher forum to ventilate their grievance. This silence on the part of Mir Ayub is meaningful and cannot be ignored.
7. It needs no reiteration that to attract the provisions of either one of the clauses of subsection (1) of section 115, C.P.C. The revision petition is legally obliged to make out a case for exercise of its jurisdiction by the High Court. His burden is to prove that either appellate forum was not possessed of the jurisdiction to decide the matter or that it has declined to exercise jurisdiction vested in it or that it has acted in the exercise of its jurisdiction illegally or with material irregularity. It is trite law that in the absence of either one of the above three conditions forthcoming in a given case, the Revisional Forum, in this case, the High Court, can ill-afford to reverse the findings of the appellate forum, section 115, C.P.C. Applies to cases, involving illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which, do not, in any way, affect the jurisdiction of the Court, no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or D law, unless the decision involves a matter of jurisdiction. As erroneous conclusion of law or fact is liable to be corrected in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion an error of law, has been committed, Muhammad Nasir Mahmood and others v. Mst. Rashida Bibi 2000 SCMR 1013 and Abdur Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346.
8. Adverting to the case-law, cited on behalf of the petitioners I feel that the same is distinguishable and does not promote the case of the petitioners in any manner. Following observations were made in Mst. Rooh Afza v. Sher Aman Khan and others PLD 1993 Pesh. 49:-- - ' "A minor defendant or a minor respondent cannot be i.e, placed ex parte at all even if the proposed guardian does not turn up in spite of service. In fact a minor cannot be considered to be a party to a suit unless he is properly represented in the suit by a duly qualified guardian. A decree passed against an unrepresented minor in a decree against a person not a party to the suit and is, therefore, without jurisdiction and void... Where a minor is represented in a suit by a duly qualified guardian only then he becomes legally a party to the suit and the Court acquires jurisdiction to decide his case."
' In the other cited authority i.e, Ghulam Hussain and others v. Ghaus Bakhsh and others 1968 SCMR 991, which has no bearing on the facts and circumstances of the present case, an ex parte decree was passed against minor without appointment of guardian ad litem, it was observed by the Court that without appointment guardian ad litem the ex, parte decree was nullity in the eye of law. In the instant case the controversy is altogether different.
9. In the wake of above discussion, finding no substance in this revision petition, I dismiss the same and maintain the impugned judgment and decree of the learned District Judge, Chitral dated 1842-1989. No order as to costs.