' AKHTAR ZAMAN MALGHANI, J:--This revision petition is directed against the judgment and decree dated 20-11-2001 passed by District Judge, Pishin, whereby; judgment and decree dated 30-6-2000 rendered by Senior Civil Judge, Pishin decreeing the suit filed by the petitioners, was set aside.
2. Briefly stated, facts of the case are that the petitioners instituted suit for declaration, cancellation of mutation entries and permanent injunction against the respondents, wherein; it was averred that great grandfather of plaintiffs namely Gharzai by caste Lumar Salarzai of Kakar tribe was owner of water equal to 9 share out of 118 shares in the Mohal Pashai and the land on the basis of share in the water which was succeeded by the plaintiffs after the death of their father and grandfather. It was also stated that the plaintiffs were in peaceful possession of the said land without objection from any person, which they cultivated as and when water was available.
According to the petitioners, respondents Nos.1 to 7 having no concern whatsoever or interest in the lands in dispute started unlawful interference in their lawful possession and ownership. It was further stated that the plaintiffs or their predecessor had never sold away the property in dispute to the respondents or to their predecessors nor possession was handed over to them, however; they succeeded in getting revenue entries incorporated in their names in revenue record through fraud, misrepresentation and with connivance of concerned revenue staff behind back of the petitioners.
3. The suit was contested by the respondents claiming that the property in dispute was purchased by their predecessors from Salarzai and Bandarzai tribes in the year 1936 and since then they were in cultivating possession of the land as well as water.
' Out of pleadings of the parties, following issues were framed:-- "(1) Whether the suit is not maintainable in view of preliminary objections A to F?
(2) Whether the predecessor-in-interest of the defendants namely Nabo, and Samandar Khan had purchased 4 Shabanaroz from Salarzai and 2 Shabanaroz from Bandarzai in 1936?
(3) Whether the disputed land and water has been in the possession of defendants and their predecessor-in-interest since 1936?
(4) Whether the plaintiffs are legal heirs of Gharzai and have shares out of 118 of water in Mohal Pashai?
(5) Whether the defendants are lawful owner of disputed land?
(6) Relief?
' The plaintiffs/petitioners produced 4 witnesses besides statement of their attorney Haji Ikhtiar Muhammad, whereas; defendants produced 3 witnesses and Dr. Shah Muhammad got recorded his statement as attorney for the respondents.
4. The learned Senior Civil Judge, Pishin vide judgment and decree dated 16-5-2000 decreed the .Suit. The respondents being dissatisfied preferred an appeal before the District Judge, Pishin, which was allowed vide impugned judgment and decree dated 20-11-2001.
5. I have heard learned counsel for the petitioners as well as learned counsel for the respondents.
Learned counsel for the petitioners vehemently contended that the findings on limitation arrived at by the appellate Court were absolutely wrong because possession was with the petitioners and they could institute a suit as and when there was any threat to their title or possession. He further contended that the witnesses produced by the petitioners consistently deposed that they were in possession, whereas; the witnesses produced by the defendants were shaken during cross- examination, as such conclusion of appellate Court with regard to possession of the defendants over the property in dispute was contrary to record and liable to be set aside. He next argued that the defendants had admitted that the property in dispute was originally owned by the predecessor of plaintiffs/petitioners and according to their claim was purchased by their predecessors from them but they failed to prove purchase by producing any document. Learned counsel was of the view that findings of the possession recorded by Magistrate in proceedings under section 145 Cr.
P.0 could be reversed by Civil Court, as such; findings were subject to decision of the Civil Court. In support of his contentions learned counsel referred to the judgments reported in 1995 SCMR 284, PLD 1998 Quetta 12, PLD 2007 SC 287, 1992 SCMR 1832,1994 SCMR 1454, 2003 YLR 67 and 1999 MLD 763.
' On the other hand, learned counsel for the respondents vehemently contended that there was no misreading on the part of learned appellate Court, as such; findings of fact arrived at by it were not liable to be interfered in exercise of revisional jurisdiction. He further contended that in proceedings initiated under section 145, Cr.P.C. The Magistrate after due inquiry came to the conclusion that the petitioners interfered in possession of the respondents, as such; they were restrained, which findings were not further challenged by the petitioners in the same hierarchy, as such; it was proved that the petitioners were out of possession and the suit was barred by time as they have challenged the entries record in favour of respondents in the year 1940, He next argued that after recording of mutation entries in the year 1940 those were carried out in periodical Jamabandi prepared by the revenue staff, as such; strong presumption of truth was attached to such mutation entries.
6. I have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment as well as judgment passed by Senior Civil Judge, Pishin and evidence on record. It is case of the petitioners that the property in dispute was originally owned by their great grandfather Gharzai and was lastly recorded in the name of father of the private respondents No,1 and grandfather of petitioner No,2 namely Salah Muhammad and after his death they inherited the said property, which was in their possession, however; respondents with the connivance and collaboration of revenue staff succeeded in getting the said property recorded in their names in revenue record on the basis whereof they started illegal interference in their possession. Whereas; it is claim of the respondents that the property in dispute was purchased along with other property and water by their predecessors from Salarzai tribe, which was mutated in their names and they were also in possession of the said property. The documents produced during trial by the parties indicate that no mutation entry was produced indicating that the property was ever entered in the name of Salah Muhammad, however; Fard-e- Taqseem Aab, Mohal Pashai shows that Muhammad Noor son of Gharzai, Mst. Maroma wife of Muhammad Noor, Mian Khan son of Muhammad_ Noor, Mst: Tora daughter of Muhammad Noor, were owner of 4 Siri water, however; pedigree-table (Shajra-e-Nasab) was produced in evidence showing that Muhammad Noor and Mst: Maroma were .Survived by Salah Muhammad, Kosra and Mian Khan, whereas; Mian Khan was survived by Zabto and Salah Muhammad by Faizo and Ikhtiar Muhammad but same pedigree also indicate that they have sold away their property and were no more owner. The defendants in their evidence produced extract from Misl-eHaqiat showing that their predecessors Nabo and Samandar were owner of 5 Shabanaroz and 10 16/21 Mazigar water and land measuring 45 rod and 5 poles. They also produced extract from Jamabandi of the years 1961 and 1989 as Ex. D/7 to Ex. D/10 showing that the property in dispute was entered in the names of Nabo and Samandar during Jamabandi as well as Ex. D/11 extract from Intiqal entry showing the property was transferred in their names. Attorney for the petitioners Haji Ikhtiar Muhammad in his statement admitted that the predecessors of respondents have purchased property as well as water from Salarzai tribe and Bandarzai tribe but according to him they have only purchased three Shabanaroz from Salarzai tribe and one Shabanaroz from- Bandarzai tribe. After having admitting purchase by the predecessors of the respondents to some extent onus was heavily upon the petitioners to have proved that the mutation entries subsisting in the name of predecessors of respondents since 1940 were result of fraud and cheating as their predecessors had not sold away any property but also that they were in possession of the property in dispute. The petitioners to prove such fact have produced four ocular witnesses who stated that the petitioners were in possession of the property in dispute, whereas; defendants also produced ocular evidence as well as decision of the Magistrate recorded by him in the proceedings under section 145, Cr.P.C., which decision was not further challenged in the same hierarchy and it has gained finality and is admissible in evidence with regard to possession of parties. I was not persuaded to agree with contention of the learned counsel that the decision about possession made by Magistrate was not binding upon the parties and could be reversed by the civil Court. In my considered view civil Court cannot question findings under section 145, Cr.P.C. As to possession but it can decide that person found in possession had no right or title and can put any person in possession, if his title is established. To come to this conclusion, I am fortified by the judgment reported in AIR 1947 Lahore 173, wherein; it was observed as under:-- "The foundation of jurisdiction for a Court to pass an order under S.145 is only laid when a party is actually found to be in actual possession of the property on the date on which his possession was likely to be disturbed and to cause a breach of the peace. Unless these are found, the Court would have no jurisdiction to declare that a party was in possession of the property either on the date on which a breach of peace was likely to occur or within two months of that date and to order that his possession was not to he interfered with unless he was evicted in due course of law. It is not open to a civil Court to go behind or to question that finding, although it is open to a civil Court to decide that a person found or deemed to be in possession of the property had no right or title, whatsoever to be or to remain in possession and to put any other person in possession if his right or title to get into possession are found for him. At all events the legal effect of the order under S.145 would be to place the party found to be in possession, in possession which will be protected if any attempt is made to contravene the order."
' Assistant Commissioner/Sub Divisional Magistrate, Barshore in his order dated 26-9-1995 passed in proceedings initiated under section 145, Cr.P.0 on the complaint of respondent came to the conclusion that the petitioners illegally interfered in possession of the respondents and directed the petitioners to submit sureties in the sum of Rs,2,00,000 for not interfering in the land in dispute, which order was not further challenged by the petitioners and it has attained finality, therefore; evidence produced by the respondents supported by above decision concludes that the respondents were in possession of the property in dispute and not the petitioners and rightly held so by the learned District Judge. After having found the respondents in possession of the property in dispute the suit filed by the petitioners challenging mutation entries recorded in the name of respondents and their predecessors since 1940 after a period of about 56 years was clearly barred by time.
Furthermore; mutation incorporated in Jamabandi carries a presumption of truth and could not lightly ignore until and unless strong B evidence is produced by the party challenging such mutation entries. The Hon'ble Supreme Court in the judgment reported in PLD 1979 SC observed as under:- "When a mutation gets incorporated in Jamabandi (i,e, annual record) then as held in Bhagwan Das v. Mangal Said (AIR 1929 Lah. 93), Jamabandi carries a presumption of truth and the learned District Judge in the circumstances was not justified to ignore the said jamabandi and its corresponding supporting mutation".
' In view of above discussions, in my view the learned District Judge rightly held the respondents in possession of property in dispute, as such; judgments reported in 1993 MLD 763, PLD 1998 Quetta 12, 1995 SCMR 284 and 2003 YLR 67 would be of no help to the case of petitioners as in those cases it was held that plaintiff in possession of the property could institute suit for declaration and correction of mutation entries at any time whenever he faces threat to his title or possession and in such case the date on which such mutation entries were carried out would be immaterial for the purpose of limitation, whereas; in the judgment reported in 1994 SCMR 164 the Hon'ble Supreme Court held that mutation entries do not establish title which has to be independently proved and in case the mistake is obvious in giving effect to registered deed, the revenue authorities had gone beyond it. Similarly; in the judgment reported in 1992 SCMR 1832 the Hon'ble Supreme Court held that the mutation by itself does not create title and the person claiming title thereunder has to prove that the transferor did part with the ownership of the property in favour of the transferee and that the , mutation was totally entered and attested. It was also held that the presumption of truth is attached to entries made under section 42 and the mutation incorporated in subsequent Jamabandi therefore, if any person considered himself aggrieved by any entry in a record of right, he has to institute a suit for declaration within the statutory period for disputing genuineness of the transaction or collusion and fraud in the attestation of the mutation. In the instant case undisputedly property in dispute was recorded in the name of predecessors of the respondents in the year 1940, which entries were carried out in Jamabandi prepared periodically but the said entries were not challenged by the predecessors of petitioners during their lifetime therefore, it would not be justified to ask the respondents to prove sale transaction having taken place as far as back in the year 1936 between predecessors of petitioners and respondents, particularly; when they are found in possession of the property in dispute along with other property which they claimed to have been purchased by their predecessors from Salarzai and Bandarzai tribes and the petitioners' attorney in his statement on oath admitted in lukewarm manner about sale of property by said tribes but denied purchase of share of their predecessors by predecessors of respondents.
' For the foregoing reasons, I was unable to discover any misreading, non-reading, illegality or jurisdictional defect in the findings of fact arrived at by learned District Judge, Pishin warranting interference by me in exercise of revisional jurisdiction, as such; the petition being devoid of any merits is dismissed accordingly.