' MAZHAR ALAM KHAN MIANKHEL, J.---A representative suit for declaration filed by the plaintiff/petitioners for correction of entries in the Revenue Record in the name of defendant/respondents since settlement record of 1895-96, was dismissed by the learned Senior Civil Judge, Swabi vide his judgment and decree dated 25-11-2006 and appeal thereagainst also met the same fate vide judgment and decree dated 4-5-2007 of the learned Additional District Judge-IV, Swabi. Hence present Revision Petition.
2. The suit property measuring 1 Kanal, 12 Marlas bearing Khasra No, 2791 as claimed by the petitioners, is a common property of the village (Shamilat Deh) known as "Tal Oriya Khel" and owned by land owners of village Marghaz Aka Khel to the extent of respective share of each land owner in the revenue estate and the entries of Revenue Record made in the name of predecessor of respondents Nos. 2 to 6 as occupancy tenants and thereafter sale, mortgage and redemption of mortgage mutations in the name of respondents are wrong and incorrect having no adverse effects against the rights of the petitioners and they have no concern as such with suit property and their possession as such is unlawful and illegal.
3. Learned counsel for the petitioners in support of his petition submitted that the findings of the two courts below have been based on wrong entries of the Revenue Record. The respondents since their predecessor were the tenants under them and entries in the name of predecessor of respondents Nos. 2 to 6 as that of occupancy tenants are wrong. Sale, mortgage and then redemption of mortgage mutations by the predecessor of respondents are incorrect. Similarly inheritance mutations attested on the strength of such wrong entries are also liable to be cancelled. Continuation of such entries in the name of predecessor of respondents and thereafter in the name of respondents have no adverse affects on the proprietary rights of the petitioners.
Against the findings of the learned two courts below on the question of limitation, he was of the view that wrong entries in every successive record of rights would give them fresh cause of action and as such their suit was within the prescribed period of limitation.
4. Learned counsel for the respondents while supporting the findings of the learned two courts below in their favour, vehemently argued that the petitioners have badly failed to prove their case.
The respondents being owners of the revenue estate of village Marghaz Aka Khel have correctly been recorded in the proprietary body of the village common land. The change of ownership in the name of predecessor of respondents being occupancy tenants was rightly made under the law and such change was then incorporated in the Revenue Record by way of mutation. He further submitted that the stance of the learned counsel for the petitioners on the point of limitation is misconceived. They having knowledge of the alleged adverse entries since long and without possession, their suit was rightly held as barred by law of limitation. In addition to above all, he referred to a judgment given by this court in C.R. No, 908 of 2007 filed by the present petitioners, involving the similar question of law and fact, was discussed and the present petition also deserves the same treatment.
5. Learned counsel for the parties were heard and record of the case was perused. The same would reveal that the petitioners were under bounden duty to have proved what was alleged by them in their pleadings. The entire evidence of the petitioners is based on the statement of P.W.1 ADK and then he recorded his statement by producing certain copies from the Revenue Record. The overall evidence of the petitioners would reflect that the nature of evidence which ought to have been produced was even not touched. There is nothing on record to suggest that the entries in the name of predecessor of respondents Nos. 2 to 6 namely Awal Khan as occupancy tenant were wrong or incorrectly recorded in his name and that too in the year, 1895-96 when the first settlement in area took place. During this period spreading over more than 100 years, three settlements took place in the area. There are sale mutations, mortgage and redemption of mortgage mutations in the column of cultivation and then many of the inheritance mutations took place with regard to the suit property in the name of the respondents. The sale of occupancy rights was made and the same was incorporated in the Revenue Record. Ultimately change of ownership with regard to the occupancy rights also took place with the result of which change of ownership and partition mutation were attested under the provision of Section 4 of the N.-W.F.P. Tenancy Act, 1950 and the notifications of Govt. Of N.-W.F.P. The property in dispute throughout remained in the possession of respondents. It is unbelievable that all this went unnoticed by the petitioners and none of them or their predecessor failed to take notice of the same as the entries in the name of respondents spread over more than 100 years which clearly establishes that the suit of petitioners is hopelessly time-barred. The Revenue Record available on the file would reflect that since 1963-64, respondent No,1 is recorded as owner in possession (Hissadari) who has admittedly not paid any share of produce to any one as he himself is an owner in possession. This would be another stance which goes against the petitioners. The status of respondent No,1 as such has also not been challenged.
6. The respondents besides themselves produced Patwari Halqa as DW-1 who produced the relevant Revenue Record including the pedegree table of the owners of the village and the list of proprietary body of the owners of village common land wherein the name of respondents including the name of respondent No,1 appears and thus entitled to the proportionate share of common land as per their admitted proprietary holding in the village.
7. As per evidence of the Patwari Halqa, it is established on the record that there is sufficient common (Shamilat Deh) of the village which is joint and yet has not been partitioned where in the petitioners including the respondents being recorded in the proprietary body of the village are entitled to the extent of their respective proprietary holding in the village and that too after partition of the same. The petitioners through instant suit cannot claim possession of the property as they have claimed in Part-III of their plaint. While considering the area of the suit property which is 1 Kanal, 12 Marlas and so many petitioners in the shape of representative suit, it appears that the suit property has changed its character and has become a residential or commercial property which would be more valuable as certain glimpses in the cross-examination of the attorney of petitioners appear in this regard showing the location of the property. The petitioners have attempted to seek the possession of the property in this way which is against law. They can claim possession only through partition of the entire village common land. Their present suit in this regard is not maintainable.
8. The perusal of earlier judgment given in C.R. No, 908 of 2007 is almost on similar questions of law and facts but parties i.e, the respondent in that Civil Revision were different. So, the same has no direct legal impact on the present Revision Petition and can only be cited as a precedent law.
9. The findings of the two courts below are based on proper appraisal of evidence. The petitioners failed to establish their case within the jurisdiction entrusted to this Court under section 115, C.P.C.
No illegality or irregularity in the exercise of the jurisdiction by the courts below was pointed out. So, while exercising jurisdiction under section 115 of the C.P.C. This Court cannot interfere just to substitute its own findings on question of facts as the Court of appeal is the last and final Court of facts. Hence this Revision Petition is dismissed with no order as to costs.