' MAZHAR ALAM KHAN MIANKHEL, J.- The defendants, petitioners herein, through the instant revision petition have impugned the judgment and decree dated 23-12-2010 of Additional District JudgeI/Izafi Zilla Qazi, Swat whereby the appeal of the L.Rs, of deceased plaintiff against dismissal of their suit for declaration by Civil JudgeVI/Illaqa Qazi, Swat vide his judgment and decree dated 30-10-2006 was allowed.
2. The learned counsel for the petitioners submitted that the findings of appellate Court are not only against the law but have also been based on misreading and non-reading of material evidence on the record. He further submitted that the petitioners were the original owners of the properties and were rightly declared by the Land Commission vide its decree dated 5-10-1972. So, the claim of the plaintiff/respondents by challenging the said decision of the Land Commission is not maintainable in the Civil Court. He next contended that the defendant/petitioners being owners of the property declared by the Land Commission were correctly recorded in the revenue record during the first ever settlement in the area whereas, the plaintiff and after his death his legal heirs are tenants-at-will of the property duly recorded as such in the revenue record; they have got no concern whatsoever with regard to the ownership of the property. The learned trial Court after considering the entire material available on the record has rightly dismissed the suit of the plaintiff/respondent. He lastly contended that the settlement in the area started from the year 1980 and was completed in the year 1986 whereas the plaintiff/respondent brought the present suit in the year 2002, so his suit was hopelessly time-barred. He placed reliance on Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840, Shafiq Ahmad v. Malik Wazir and others (PLD 1991 Peshawar 76) and Umar Hakim and others v. Deputy Commissioner Dir and others (PLD 1990 Peshawar 91).
3, As against that, the learned counsel appearing on behalf of the plaintiff/respondent submitted that the findings of the appellate Court are entirely in accordance with law and have been based on proper appraisal of the evidence as the plaintiff has not challenged the decree of Land Commission in favour of the defendant/petitioners so, it was the only civil Court which had the jurisdiction to grant the relief asked for by placing reliance on Hakim Khan and another v. N.-W.F.P.
Government through Deputy Commissioner, Bannu and 8 others (PLD 1983 Pesh. 44) and Amanat Khan and another v. Noor Rehman and another (2006 SCMR 1622). He next contended that the decree in favour of petitioners was accordingly satisfied through their execution petition by Tehsildar Babuzai vide his order dated 26-9-1975 and possession of their properties was accordingly given to them. So, the property claimed by the plaintiff is not the one which was given to them but it was the suit property wrongly incorporated in their name. He further submitted that according to law, it was the burden of the petitioner's to have proved that plaintiff/respondents are not the owners of the property and he in this regard placed reliance on Atta Muhammad v. Nasir- ud-Din (PLD 1993 Peshawar 127) and Syed Tawakal Hussain and others v. Mst. Shamim Fatima Rizvi and others (1999 MLD page-1). In reply to the argument of the learned counsel for the petitioners regarding entries in the revenue record in their names, he submitted that the entries in the revenue record per se are not the document of title unless title of the property is proved in accordance with law. Regarding the question of limitation, he submitted that his suit was rightly held by the appellate Court to be within the prescribed period of limitation on the ground that each and every wrong entry made in the revenue record would give him fresh cause of action and in this regard placed reliance on Atta Muhammad v. Nasir-ud-Din (PLD 1993 Peshawar 127) and Wali and 10 others v. Akbar and 5 others (1995 SCMR 284).
4. Learned counsel for the parties were heard and record of the case was perused. Record of the case would reveal that the plaintiff/respondents (plaintiff died during the pendency of the present litigation and then was represented through his legal heirs, the present respondents) had brought a suit for declaration regarding the property fully described in the head note of the plaint by claiming himself to be the owner of the property and thereby challenged the entries made in the revenue record in the name of defendant/petitioners in the column of ownership. He also challenged the decree of the Federal Land Commission dated 5-10-1972 in favour of defendant/petitioners and execution of the same dated 26-9-1975 to be ineffective against his rights. So, entries in this regard in the names of defendants/petitioners are liable to correction.
5. Suit of the plaintiff was dismissed by the trial Court vide its judgment and decree dated 30-10- 2006. His appeal also met the same fate vide judgment and decree dated 9-12-2009 The plaintiff feeling himself aggrieved impugned the concurrent findings of the two courts below through Civil Revision No,630 of 2010 in this Court. This Court vide its judgment dated 24-11-2010 sent back the case to the appellate Court with certain directions. The relevant portion of the judgment reads as under:--- "Consequently petition in hand is accepted, the judgment of the appellate Court is set aside and the matter is sent back to the learned District Judge/Zilla Qazi Swat with the directions to rewrite a judgment in accordance with law within a period of one month positively either himself or by entrusting it to any other ADJ/Izafi Zilla Qazi. A clear verdict regarding the question of jurisdiction shall also be given. Parties are left to bear their own costs. They are directed to appear before the said Court on 21-12-2010."
6. The appellate Court after hearing the parties decided the appeal in the light of directions given by this Court in its above remand order whereby the appellate Court held that the suit property was not the property decreed in favour of defendant/petitioners by the Land Commission and as such the Civil Court has got the jurisdiction to entertain the claim of the plaintiff/respondents and thereby passed a decree in his favour vide impugned judgment and decree dated 23-12-2010. The defendant/petitioners hence have filed present revision petition.
7. The perusal of the record would reveal that no doubt that the property in dispute is in possession of the plaintiff respondents since long. The first ever settlement in the area was completed in the year 1986 and as per record of rights, the names of defendants/petitioners were incorporated in the column of ownership whereas the name of predecessor of respondents was incorporated in the column of cultivation as tenant-at-will and then the respondents replaced the name of their predecessor as tenants-at-will. This very fact has clearly been revealed from the extract from revenue record Exh.DW 1/1. Similar is the position of Register Khasra Girdawari copy of which is Exh.DW 1/2. It has also been brought on the record that the defendant/petitioners were declared owners of the property by the Deputy Commissioner, Swat in Case No,7/Swat, claim for land called Balam Sat in Mangar Kot vide order dated 5-10-1972 in a dispute of petitioner with "Badshah" Sahib copy of which is available as Exh.DW 1/1. Said order/decree in favour of petitioner attained finality between the parties. The said decree of the Land Commission was duly executed in favour of present petitioner and they were put into symbolic possession of the property in question vide order dated 26-9-1975. The petitioners then filed suit in the revenue hierarchy for recovery of produce against the plaintiff/defendants but suit of the petitioners was dismissed by the Assistant Collector Grade-I, District Swat, Mingora vide his order dated 31-1-1979 wherein relationship of landlord and tenant was held not to be in existence between the parties. The settlement in the area completed in the year 1986 and the petitioners on the strength of the decree of the land Commission were duly incorporated in the revenue record as owneRs, The record of the. Case would further reflect that the plaintiff/respondents were incorporated as tenants-at-will in revenue record but since the finalization of the settlement proceedings, the plaintiffs failed to challenge the entries made in the revenue record. There is nothing else available on the record which could further suggest that plaintiff ever applied in this regard before any of the competent forum either before the Land Commission or before the settlement authorities. He for the first time came with the present claim which too was filed in the year 2002.
8. In the given circumstances, plaintiff has come with certain allegations challenging the entries made in the revenue record in the names of defendant/petitioners that too on the strength of a decree of Land Commission. So, he, according to law, was required to establish and prove his assertions made in his plaint through cogent, reliable and convincing evidence but he has bitterly failed to discharge his burden. The case-law relied upon by the learned counsel for the plaintiff/ respondents thus was not applicable in the circumstances of the case. His cross-examination in this regard would reveal that he was even not in the knowledge that how his predecessors became the owners of the property and similarly he was fully aware of the settlement proceedings in the area when he admitted that at the time of measurement of the properties, he was present in the village along revenue officials and he had also identified his properties to the revenue officials. Had he been the owner as "Douter" (;),){{URDU TEXT}} owner, he could have recorded his name in the revenue record as owner. Similarly he failed to bring on record any piece of evidence reflecting that his ancestors were "Douter" (,73)){{URDU TEXT}} owneRs, Similarly, it is not his case that they were owners as "Serai" ($x:){{URDU TEXT}} . Then the only aspect would be left that whether the plaintiff or his ancestors were owners through purchase but they also failed to bring any iota of evidence in this regard. No sale deed or oral evidence regarding their purchase was produced by them.
Instead he says that he has no proof of his ownership except the Exh.PW.1/2 which is the order of Assistant Collector Grade-I whereby the suit of petitioners against the plaintiff for produce was dismissed. Besides, his own statement, he produced one Said Jamal son of Gul Rehman as PW-2.
He too was unable to say that how the plaintiff became owner of the property. The said witness was also on inimical terms with the petitioneRs, The other witness PW-3 was the official witness who produced the record of Land Commission in favour of petitioneRs, So in this view of the matter, the plaintiff bitterly failed to prove his ownership of the property, on the one hand, he challenges the decree of the Land Commission in favour of the petitioners for which he cannot challenge the same in any forum as provided in clause 3(3) of MLR 123 and on the other hand, he says that the said decree would be ineffective against his rights as he was not party to that proceedings is yet another somersault and he cannot blow hot and cold in one breath. The petitioners are duly recorded owners of the suit property in the first ever settlement in the area which has a presumption of truth and correctness attached to it and strong evidence is required to rebut the same. Reliance in this regard could be placed on Nawab Khan and others vs. Said Karim Khan and others (1997 SCMR 1840). The argument of the learned counsel for the plaintiff/respondent that the entries in the revenue record per se are not the evidence of title cannot be brushed aside but the entries in the revenue record and specially the entries in the first ever settlement A record have got a presumption of truth attached to the same which can be used as a piece of evidence and the other party would be legally bound to rebut the said entries with a strong and cogent evidence. So, the judgment relied upon by the learned counsel for the respondents in the circumstances are distinguishable. Regarding the question of burden of proof, the submission of learned counsel for the plaintiffs was the result of misconception as in the circumstances of the case, the plaintiff himself had alleged to be the owner of the property. So under the law it was for the plaintiff to have proved as such. As far as the question of limitation is concerned, it has become settled by now that the question of limitation relates with the cause of action. Whenever an attempt on the rights of the B party is made, the aggrieved party gets a fresh cause of action. So on this principle, each and every wrong entry in the revenue record does provide fresh cause of action but that requires to be established on the record through evidence. Mere assertions in the plaint without B evidence would not be sufficient to clothe the plaintiff with decree in his favour.
9. Though the learned counsel for the plaintiff/respondents, at the very outset, had categorically submitted that through instant suit, plaintiff has not challenged the decree of Land Commission in favour of petitioneRs, So, the question of jurisdiction was rightly decided by the appellate Court in favour of plaintiff/respondents bin perusal of the plaint and evidence of the plaintiff/respondents would reveal that the plaintiff had challenged the decree of Land Commission in favour of defendant/petitioners and the execution proceedings. Perusal of his entire evidence would not establish his stance that he has not challenged the decree of Land Commission. He also failed to establish that the property incorporated in the name of petitioners was actually his property.
10. The defendant/petitioners have made out a case for interference. Hence this civil revision is allowed and impugned judgment and decree of the appellate court is hereby set aside and suit of the plaintiff/ respondent stands dismissed with no order as to costs.