Suit No,11/1 was instituted by Qadeem Shah and his two brothers sons of Tawab Shah of Zarin Abad, Tehsil and District Charsadda against Yaseen, Islam Gul and others for declaration, permanent injunction and possession of a house mentioned in the heading of the plaint. This suit was instituted on 20-3-2001, was amended with the permission of the Court in order to include other defendants Nos.3 to 39, and was decided on 30-7-2004. The suit was contested by defendants Nos.1 and 2 who claimed that the suit house was given to the predecessor of defendant No,1 by the owners of the area as gift due to his services to them and defendant No,2 was living with defendant No,1 as his tenant. The newly-added defendants contested the suit on the ground that their ancestors had gifted that house to the grandfather of defendant No,1 in lieu of his services. Issues were framed on the basis of the pleadings of the parties.
2. The plaintiffs examined Fazalur Rahman son of Mir Rahman as P.W.1 who produced a Register of Petition Writer, Muhammad. Aslam, deceased for the years 1936 to 1939 and exhibited a copy of the dower deed, as Exh.P.W.1/1, which appeared at Serial No,249 of the said Register. It was so exhibited subject to objection of the counsel for the defendants. He also exhibited the copy of the original deed on the file as Exh.P.W.1/2. On cross-examination he stated that Muhammad Aslam, Deed Writer had died in 1965, and had left the Register with his son, namely, Yousaf Jan, who also died about 3 years ago and left the record in possession of P.W.1. He was cross-examined in detail regarding the said deed and the Register. Muhammad Azam, Registration Muharrir, Office of the Sub-Registrar, Peshawar, was examined as P.W.2 who produced the original register regarding deed Register vide No,175 dated 13-3-1907. The copy of the said deed was exhibited as Exh.P.W.2/1.
He was also cross-examined on behalf of defendants Nos.3 to 12 and 17 as well as on behalf of defendants Nos.1 and 2.
3. Qadeem Shah, as. P.W.3, appeared for himself and as special attorney of the other two plaintiffs.
He stated that the suit house had come to the share of Waqiullah from whom it got transferred to his son Habibullah who transferred the same to his wife. Mst. Zewara, in lieu of dower. He referred to the dower deed Exh.P.W.1/1. This witness further stated that out of 10 Marlas of the said house, 5 Marlas were directly sold by Mst. Zewara to Tawab Shah, father of the plaintiffs, while the remaining 5 Marlas were sold to Buzurg Shah, uncle of the plaintiffs; vide deed copy of Exh.P.3/3. These documents were also exhibited subject to objection of counsel for the defendants. This witness further stated that the 5 Marlas share of Buzurg Shah was given to Tawab Shah as a result of family partition. Qadeem Shah stated that defendants Nos.1 and 2 were members of "Hajjam" Qaum, were residing in the suit house as "Hamsaya" of the plaintiffs, were paying "Torah" and Khakshora" to the plaintiffs but later on refused to pay the same and claimed the ownership of the house, hence the suit. P.W.3 also produced a document copy Exh.P.W.3/4 in order to show that Abdul Matin, grandfather of defendant No,1, had accepted the ancestors of the plaintiffs as his landlords regarding the house in-question. Zafar Shah, aged about 90 years, examined as P.W.4, stated that Abdul Matin was "Kasabgar" and the ancestors of the plaintiffs had given the suit house to Abdul Matin, grandfather of defendant No,1, for residence as "Hamsaya" in his presence, and that the defendants Nos.1 and 2 have been paying "Torah" and "Khakshora" to the plaintiffs. Abdullah Shah son of Tawab Shah appeared as P.W.5; and stated that the house in question was given to his brothers, the plaintiffs, by family partition, and then the evidence of the plaintiffs was closed.
4. Sher Akbar, Clerk of Excise and Taxation Office, Charsadda, appeared as D.W.1 who produced the record of his office regarding the suit house which shows that Yaseen son of Said Muhammad was residing in the suit house and the documents of his office were in the name of Yaseen. He also stated that they used to just ask the resident of the house about the ownership of such house for preparing the record of their office regarding the tax. Rozi Akbar, D.W.2, of the office of the Revenue Officer, PESCO, Charsadda, produced record to the effect that the electricity bill and the meter were in the name of Yaseen. He could not show that when the meter was installed and whether his record was regarding the house in-question or not. Inayat Khan, aged about 80 years, appeared as D.W.3, and stated that the suit house was given to Abdul Matin by his ancestor because the ancestor of the defendants was their "Kasabgar" and was performing services to them. He stated that the defendants Nos.1 and 2 had given "Dheran" to him many times which he had taken to his own lands. He claimed that defendants Nos.1 and 2 were their "Hamsaya". He also stated that other houses, besides the house in-question were given to the ancestors of the plaintiffs by the ancestors of the witness which were sold by the plaintiffs. Fazal Rabbi also appeared as D.W.4 in support of defendants Nos.1 and 2 and stated, like D.W.3, that the suit house was given by their ancestors to the ancestor of defendants Nos.1 and 2, free of costs. He, however, stated that they have never taken "Torah, Khakshora and Dheran" from the defendants Nos.1 and 2.
5. Yaseen, defendant No,1, appears as D.W.5 and stated that the suit house was given to his ancestor by the owners of Kandi Mamakhel as "Hibba", that they had constructed the boundary and gate as well as 3 rooms in the suit house; that they have never paid any Torah, Khakshora or Dheran to the plaintiffs or their ancestors and that the electricity and water connection to the suit house were installed at the instance of the said defendants and the said house was entered in the office of Excise and Taxation as the property under their ownership. He further stated that he was "Hajjam" by profession and that defendant No,2 was his nephew (sister's son). He stated that he had no deed in his possession regarding the Hibba and he could not produce one in this respect.
The evidence of defendants Nos.1 and 2 was closed.
6. Wajid Ali (D.W.6) appeared as attorney for defendants Nos.3, 12, 17 and 19-39 and also for himself as defendant No,4. He repeated the same version as was given by defendant No,l. He did not have any document regarding the tenancy of the suit house. The evidence of the parties was then closed.
7. After hearing the arguments, the learned Civil Judge, vide his judgment and decree dated 30-7- 2004, issued the decree as prayed for in the heading of the plaint in favour of the plaintiffs against the defendants. The learned Additional District Judge-V, Charsadda, vide his judgment and decree in Civil Appeal No,57/13 instituted on 27-10-2004, dismissed the appeal of Yaseen Shah and others on 4-1-2005. Hence this civil revision.
8. In order to properly appreciate the evidence of the parties and judgment/decrees delivered by the two Courts, it is necessary to explain the meaning of certain words. The word "Hamsaya", in local language, does not mean neighbourer, as is usually understood by now. This word actually means a tenant in a residential house under a landlord, who is also the owner of the said house, besides the agricultural landed property in a "Khel" of a tribe. Such tenancy was not on payment of an amount in cash. The conditions for the said tenancy were that the tenant would perform services to the landlord and his family at his Hujra and house normally and at the time of "Gham Khadi" (Shadi Ghami) and on special occasions specially, as well as at the times of cutting, threshing and storing the produce of the lands of the landlord. The tenant would also collect extra dust of his house and left over chaff and fodder etc. Of his cattle as "Dheran" which would be given to the landlord for use in his fields as fertilizer. The tenant had to pay the share of the amount to be given to the members of other "Kasabgar" classes for the special services rendered by them at the occasions of "Gham-Khadi" of the family of the landlord.
9. The word "Khidmat" meant the compulsory service as mentioned above to the landlord and his family members by the tenant of the house under him. The word "Khakshora" as already explained, was the surplus dust of the house and the left over fodder and litters etc. Of the cattle of the house of the tenant which were to be collected as "Dheran" and were to be given to the landlord for his land as fertilizer The word "Torah" was a customary tax on the tenant on behalf of the landlord which was to be collected from him at the time of "Gham-Khadi" for payment. To the other Kasabgars for their special services at specific occasions. The word "Torah" by itself, originally, mean Rewaj, Custom, usage tradition or law. The word "Kasabgar" was used in contrast to the word "Zamindar" (Zamindar-landowner). These classes of persons were professional by caste as well as personally and included the class of "Naiee" (HajjaniBarber), "Kutat" (cook) "Tarkhan" (Carpenter- doing the wooden work), "Lobar" (Blacksmith-doing the iron work), "Chaniyar" (shoe-maker) and "Baghwan" (cultivator of land and trees thereon). The landowner used to be called as "Khan" and the tiller of his land used to be called Dekan (Dehqan).
10. The evidence of the plaintiffs in this case, supported by the evidence of the defendants, is that defendants Nos.1 and 2 belong to the "Kasabgar" class, were not entitled to possess land under the Rewaj and had no right to own or purchase land until recently, that the defendants Nos.1 and 2, and their ancestors, were tenants under the landlord, and had to perform services, and to pay "Torah and Khakshora" for their tenancy under the landlord. These facts are duly proved and admitted.
The only controversy between the parties was whether the ancestors of the plaintiffs, and then, the plaintiffs were the owners of the suit house or the other owners of Kandi Mamakhel had gifted the suit house to Abdul Matin, grandfather of defendant No,1. The evidence of the plaintiffs as mentioned above is sufficient to prove their ownership over the suit house. The evidence of the defendants is not supported by any document or other convincing material. The supporters of defendants Nos.1 and 2 are not sure whether the defendants were giving "Torah and Khakshora" to the other owners or not. There is no document or other reliable evidence with defendants Nos.1 and 2 to the effect that the suit house was gifted to Abdul Matin, grandfather of defendant No,l. The learned original Court and the learned Appellate Court have taken into consideration all this evidence of the parties while deciding the case in their Courts.
11. The learned counsel for the petitioner discussed the whole evidence in detail but could not be able to show any misreading, non-reading or over-reading of the evidence by the two learned Courts, and could not show any perversity, illegality or irregularity in the judgments and decrees in- question. Both the respective Courts had jurisdiction to deal with the case before them and have properly exercised the jurisdiction. In revisional jurisdiction of this Court, the concurrent findings on fact arrived at by the learned original Court and the learned final Court of facts (Appellate Court) in the absence of any misreading, non-reading or over-reading of evidence, or illegality, material irregularity, or non-use or misuse of jurisdiction, resulting in miscarriage of justice, do not warrant any interference in this case. The guidelines in this respect are already available in the judgments reported as 1994 SCM R 222, 2002 SCMR 222, 2003 SCM R 1476; 2001 CLC 1819, 2002 M LD 861, 2003 CLC 1428, 2005 CLC 154 and 2005 SCM R 135. The Civil Revision in this case is bereft of substance. I, therefore, find no merit in the present civil revision, which is dismissed in limine.