' IJAZ-UL-HASSAN KHAN, J.---This appeal is directed against the judgment and decree dated 16-2- 2005, passed by learned Civil Judge, Peshawar, whereby suit of Amir Khan, plaintiff-appellant for declaration-cum-injunction and recovery of Rs,12,50,000 as price of suit property, was dismissed, mainly on the ground that claim of the plaintiff-appellant was not substantiated by cogent and convincing evidence.
2. The litigation between the parties started when Amir Khan plaintiff-appellant instituted suit against Ajab Khan and others, defendants-respondents, in the Court of Senior Civil Judge, Peshawar, claiming a declaration to the effect that plaintiff was owner in possession of suit property measuring 1 Kanal, 10 Marlas, bearing Khasra Nos.660, 772 and 826/3 situate in 'Mama'
Laram, Tehsil and District Peshawar, and sale Mutations Nos.6023, 6024, 6025 and 6026, attested on 13-6-1997, in favour of the defendants-respondents, were void, illegal, based on fraud and thus ineffective on the rights of the plaintiff-appellant and liable to cancellation. In the alternative, the plaintiff-appellant also prayed for recovery of Rs,12,50,000 as sale price of suit property. The plaintiff-appellant further prayed for grant of permanent injunction, restraining defendants- respondent from interfering in his possessery rights or alienating the property in suit in any manner.
3. It was averred in the plaint that plaintiff constructed a house over suit property and sold the same in favour of defendant No, 1, in consideration of Rs,12,50,000 but payment of sale price was delayed on one pretext or the other, which led the plaintiff to file suit.
4. The defendants appeared in Court and resisted the suit on all grounds, legal as well as factual.
They repudiated the assertions of the plaintiff and claimed to have paid him the entire sale consideration of suit property. In view of divergent pleadings of the parties, following issues were framed:--
(1) Whether the plaiuntiff has got a cause of action?
(2) Whether the plaintiff is estopped to sue as Mutations Nos.6023, 6024, 6025, 6026 dated 13-6- 1997 have been attested by plaintiff at "Jalsa Aam" and at the same time mutations were entered in their names by him and sale consideration of the suit property was received by him?
(3) Whether the suit requires summary dismissal under Order VII, rule 11, C.P.C. For want of proper court-fee?
(4) Whether the suit is infructuous in its present form?
(5) Is the suit within time?
(6) Whether the suit is bad for misjoinder/non-joinder of necessary parties?
(7) Whether the plaintiff has instituted this suit so as to harass the defendants as such the defendants are entitled to receive special costs?
(8) Whether the suit house is in possession of tenants namely, Naeem Gul, Juma Gul, Raj Muhammad, Faqir Muhammad and Wazir Gul and plaintiff has got no possessery rights over it?
(9) Whether the plaintiff is entitled to the decree for declaration to the effect that he is still owner of suit property measuring 1 Kanal, 10 Marlas out of the total of 8 Kanals, 13 Marlas and Mutations.
Nos.6023, 6024, 6025 and 6026 Dated 13-6-1997 requires cancellation, as the same areineffective upon his rights?
(10) Whether plaintiff is entitled to recover an amount of Rs,12,50,000 from defendants in alternate?
(11) Whether the plaintiff is entitled to the permanent injunction as prayed by him in (jeem) of the plaint?
(12) Whether the plaintiff is entitled to the decree as prayed for?
(13) Relief.
5. At the conclusion of trial, learned Civil Judge, Peshawar, seized of the matter, decided Issues Nos.1, 9, 10, 11 and 12 together and found the same in negative, holding that plaintiff has not been able to substantiate his claim through strong and cogent evidence. Having held so, suit was dismissed through the impugned judgment and decree; as mentioned and detailed above.
6. Mr. Iftikhar Butt, Advocate, appearing on behalf of the appellant contended that judgment of the trial Court is tainted with illegality of misreading of evidence and suffers from the defect of material irregularity and run counter to the evidence on the file and as such, is not sustainable at law. The learned counsel submitted that sufficient material was available on the file in support of the appellant's claim, which has not been appreciated in its true perspective and instead shaky and defective evidence of the respondents has been given undue weight, which has resulted in manifest injustice. In this regard, reliance was placed on PLD 1986 SC (AJ&K) 109.
7. Miss Nusrat Yasmin, Advocate of the respondents, on the other hand, refuted the arguments of learned counsel for the appellant and supported the impugned judgment and decree whole heartedly.
8. I have heard at length arguments and submissions of learned counsel for the parties and perused the record with their able assistance.
9. It is established principle of civil law that the plaintiff has to prove his case from his own evidence and cannot benefit from the weaknesses in the defendant's case.
10. Amir Khan, plaintiff-appellant, in order to prove his case, produced six witnesses in all, including Raz Muhammad Khan and Saeed Khan, Patwari Halqa Laram, Peshawar. On the contrary, solitary statement of Awal Khel, special attorney for defendants, was recorded as D.W.1. The onus regarding non-payment of sale consideration, was heavily placed on the shoulders of plaintiff-appellant but he has failed to discharge the same through cogent and convincing evidence. The evidence produced by him in support of his claim is discrepant and pregnant with serious infirmities and flaws and has been discarded by the trial Court for valid reasons. The trial Court adverted to every aspect of the case, rightly discussed the issues, as agitated and rendered a reasoned judgment, which is not open to exception. It has come in evidence that the mutations in question had been attested in lalsa Aam' in the presence of revenue officials, marginal witnesses to the mutations and same were duly thumb-impressed by the plaintiff-appellant. The mere assertion of the plaintiff- appellant that sale consideration was not paid to him and the same was delayed by the defendants-respondents for one reason or the other, without a positive attempt on his part to substantiate the same, is of no consequence. Although the records of rights are not instrumental of title, but they are certainly presumptive pieces of evidence to prove a person's title. An entry made in a record of rights in according with the law for the time being enforced must be presumed to be correct until the contrary is proved or a new entry is lawfully substituted therefor. Onus lies heavily on the person who asserts that revenue entries are incorrect. The plaintiff in order to succeed must establish that the mutation order is a false document. The mere fact that the patwari has committed some irregularity in submitting the record on whom the order of mutation is insufficient to displace the presumption, which arises under section 52 of West Pakistan Land Revenue Act, 1967 and in the absence of a definite proof that the order of mutation itself is false. The plaintiff cannot be held td have discharged the onus that lay on him. It is incumbent on him to lead evidence to show that a fraud had been practised by the defendant on the revenue authorities by giving a wrong address or in any other manner. The mere fact that sale consideration has not changed hands in presence of the revenue officials, by itself, cannot be considered a ground to believe the plaintiff's claim. It is not the requirement of law that sale consideration must be paid by the purchaser to the owner in the presence of the Revenue Officials. In this regard I am fortified by the observations made in Muhammad Sadiq and 2 others v. Barkat Ali and 4 others (1990 CLC 533 Lahore), Rana Muhammad Shabbir (deceased) through his 10 L.Rs, v. Muhammad Ismail and 3 others (1990 CLC 546 Lahore) and Allah Dad v. Government of Pakistan and 53 others (1989 CLC 1571 Peshawar).
' In the ultimate analysis, I am of the firm view that the impugned judgment is neither contrary to the evidence on record nor in violation of the principle of administration of justice. The appeal having been found bereft of merit, is dismissed, with no order as to costs.