Through the instant revision petition, Mst. Bakht Sawai and others petitioners have called in question the judgment and decree dated 13.7.2009 passed by learned Additional District Judge-I, D.I Khan, whereby the appeal filed by the petitioners against the judgment and decree dated 17.11.2007 of learned Civil Judge-VIII, D.I.Khan was dismissed.
2. The facts, in brief, are that Respondent No. 1-Plaintiff filed a suit against the petitioners- defendants for declaration to the effect that he is owner of the suit property fully detailed in the heading of the plaint whereas the petitioners-defendants are entered as tenants in the revenue record, thus, have no right to claim ownership of the suit land. He also prayed for permanent injunction.
3. The suit was contested by the petitioners-defendants by filing their written statement. The learned trial Court framed issues arising out of divergent pleas of the parties. The parties were afforded opportunity to produce pro and contra evidence. After hearing the arguments, the learned trial Court decreed the suit in favour of Respondent No. 1 plaintiff.
4. Feeling aggrieved, the petitioners-defendants filed appeal which was dismissed by learned Additional District Judge-I, D.I.Khan vide impugned judgment and decree. Hence, the instant revision petition by the petitioners-defendants.
5. I have considered the submissions of learned counsel for the parties and carefully perused the available record.
6. The claim of the petitioners-defendants is based on two-fold grounds. In their written statement, they claimed the ownership of the suit property as per entries in the revenue record, however, they have not, expressly based their claim on the rights flowing from occupancy tenancy. Patwari was examined as PW-1. who produced the revenue record, wherein the petitioners-defendants are shown as `Dakhilkar' in extract of Jamabandi against Khasra Nos. 2952 and 2953 whereas the suit property was allotted to Respondent No. 1-Plaintiff vide Mutation No. 1203 dated 20.9.1981 by the Provincial Government through Land Commission. The same status of the petitioners defendants has been repeated in the Jamabandi for the years 1989-90. Ghulam Hussain petitioner-defendant was examined as DW-1 who categorically denied that the property in respect of which Respondent No. 1-Plaintiff has filed his suit is not in their possession and the property which is in their ownership and possession was acquired from Kiramatullah and others since the time of their forefathers and since then till today they are owners in possession of their ancestral property which is measuring 15 kanal and the Provincial Government has no concern with it. He referred the ownership of Kiramatullah and others as recorded in Ex.P.W. 1/3 In cross-examination, the said petitioner- defendant admitted that, the property which they purchased from Kiramatullah and others was transferred in their names through the attestation of mutation but he failed to point out Khasra number of the said property. He, however, deposed that it is not in his knowledge that Yaseen Respondent No. 1-Plaintiff got the ownership in the suit property vide mutations No. 1203 and 1234.
The petitioner-defendant did not deny the correctness and genuineness of the entries in the name of Respondent No. 1-Plaintiff and in reply, he stated that it is the job of the Court to determine about the genuineness of entries. Rahim Bakhsh (DW-3) testified that the petitioners-defendants are owners of the suit property from the very beginning which is being cultivated by Azizullah, the attorney of petitioners-defendants. In cross-examination, the witness admitted that the suit property was transferred by the Provincial Government in favour of the Respondent No. 1-Plaintiff whereas the property _which is in the ownership of the petitioners-defendants is ancestral and it was acquired by some other person. The sole witness of the petitioners-defendants and defendant No. 8 (DW-1) have admitted the ownership of Respondent No. 1-Plaintiff and testified that the petitioners-defendants are the owners of some other property which was acquired from the time of their forefathers and the Respondent No. 1-Plaintiff has acquired the suit property from Provincial Government. On behalf of rest of the petitioners-defendants, Azizullah (DW-3) was examined but his statement is of no use to them, as he is having no knowledge of the facts of the case.
7. From the evidence of the petitioners-defendants, the other plea regarding purchase and acquisition of the property since the time of their forefathers is also not supported, rather they have admitted the ownership of the Respondent No. 1-Plaintiff. The entries of revenue record pertaining to their title of occupancy tenancy are not relied upon by the petitioners-defendants for the obvious reason that on the basis of rights of occupancy tenancy, the petitioners-defendants have not claimed the ownership as provided under the law. On the other hand, the suit property is transferred by the Provincial Government vide mutations No. 1203 and 1234 which have not been challenged by the petitioners-defendants. Even after filing of the instant suit by Respondent No. 1- Plaintiff, they have not disputed the mutations, which shows that they have acquiesced with the ownership as claimed by Respondent No. 1-Plaintiff. Even otherwise, the petitioners-defendants have not challenged the ownership rights of the Respondent No. 1-Plaintiff in the suit property. It is by now settled principle that entries made in periodical record in accordance with law shall be presumed to be proved. In this respect, reliance placed on the case titled Muhammad Ayub Khan and another. Vs. Maulana Riaz-ul-Hassan (1985 CLC 619 Peshawar) wherein it was held that: "Under Section 52 of the Land Revenue Act, an entry made in the record of rights in accordance with law for the time being in force or in a periodical record shall be presumed to be proved until the contrary is proved or a new entry is lawfully attributed therefor."
8. The claim of the petitioners-defendants respecting the ownership of the suit property is not supported by documentary or oral evidence. The mere allegation is not sufficient to believe that the claim of the petitioners-defendants is based on truth. The claim of ownership of Respondent No. 1-Plaintiff regarding the suit property is supported by the revenue record and by the evidence of petitioners-defendants. The revenue record enjoys statutory presumption in terms of Section 52 of the Land Revenue Act. Moreover, two mutations referred to above attested in favour of the Respondent No. 1-Plaintiff, those' mutations have got incorporated in periodical record which enjoys the presumption of truth unless rebutted by cogent evidence. In this respect, reference can be made to case titled Abdul Ahad and others. Vs. Roshan Din and 36 others (PLD 1979 SC 890) wherein it was held that: "When a mutation gets incorporated in Jamabandi (i.e. annual record) then as held in Bhagwan Das. Vs. Mangal Said (1), 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."
Similar view has been taken in the case titled Hakim Khan. Vs. Aurangzeb and another (1979 SCM R 625) wherein it was held that: "The entries in Jamabandis, as is obvious, carried a statutory presumption of truth under Section 44 of the Punjab Land Revenue Act, XV of 1887 and Section 52, West Pakistan Land Revenue Act, XVII of 1967. As against the aforesaid bald statement of the kind mentioned above can hardly cut any rice.
In this state of affairs the objection of invalidity of mushaa gift on ground of non-delivery of possession factually goes away as was held in Sanaullah Fakir Vs. Alam Fakir and others (1) and Sahib Dad Vs. Muhammad Ajab and another (2) approving Sheikh Muhammad Mumtaz Ahmad and others. Vs. Zubaida Jan and others (3)."
9. By preponderance of entire material available on record, the ownership of the Respondent No. 1- Plaintiff is fully established. No other view can be formed so as to set-aside the judgments and decrees passed by the learned Courts below in favour of Respondent No. 1-Plaintiff.
10.For the reasons mentioned above, there is no illegality or material irregularity much less jurisdictional error in the judgments of the Courts below which are maintained and the instant revision petition being devoid of substance is hereby dismissed.