' SYED SAJJAD HASSAN SHAH, .J.--- This revision petition is directed against the judgment and decree dated 31-10-2007 of learned District Judge/Zilla Qazi Swat, whereby appeal preferred by the plaintiffs-petitioners against the judgment and decree dated 30-4-2005 passed by learned Civil Judge-VII/Illaqa Qazi Swat was dismissed.
2. Precisely stated facts leading to the instant petition are that the plaintiffs-petitioners (hereinafter called, the petitioners) instituted a suit seeking the declaration to the effect that, they being successor-in-interest of late Chandan are the owners in possession since the time of their predecessor in interest regarding the property detailed in the heading of the plaint vide Deed No,3321 dated 10-10-1960, 12-1-1960 and vide A order dated 11:8-1962 the defendants-respondents (hereinafter called respondents) have no right to claim the ownership in the suit property. The entries made in revenue record in the name of the respondents are illegal, fraudulent and collusive, same are ineffective against the rights of the petitioneRs, Therefore, inheritance Mutation No,725 dated 23-7-2003 in respect of the suit property is also unlawful and ineffective on the rights of the petitioneRs, They further prayed for correction of the location of the suit property as its location/identification, incorrectly recorded in revenue record as Peeriano Jai whereas the same is known as Wharra Cheena Qunj, therefore, may be corrected by substituting the true location/identification as stated above. They have further sought the perpetual injunction. As an alternate relief sought the recovery of possession, in case, failed to prove their possession over the suit property.
' The averments made by the petitioners are that they are hailing from village Amman Kot belongs to the caste Usman Khail. Besides, the suit property the predecessor in interest of the petitioners had purchased many other properties vide deeds mentioned above. The suit property was alienated by Qalindar their uncle through sale transaction vide deed No, 232 dated 10-10-1960. The predecessor in interest of the petitioners preempted the same and vide deed dated 12-10-1960 purchased the same since then the predecessor in interest of the petitioners was the owner in possession of the suit property, now the petitioners being his successor are the owners in possession of the same. The petitioners given the detail of those Tamasqs No,195 dated 10-8-1959, 196 dated 10-8-1959, 206 dated 21-8-1959 and 207 dated 22-8-1959. Further stated that any transaction respecting the suit property might be the result of collusion of the respondents with the settlement staff. They further stated that they have acquired the knowledge of said incorrect entries a month prior to the institution of the suit. The respondents contested the suit by filing their written statements and controverted the claim of the petitioners and asserted that vide Deed No,232 dated 10-10-1960, the predecessor in interest of the respondents had purchased from Qalandar another property known as Sakha Cheena Aman Kot, however, the suit property purchased by the predecessor-in-interest of the respondents vide Deeds Nos.130, 131 dated 3-7- 1960.
The learned Trial Court framed the issues, recorded the evidence of the parties as they wish to produce. After hearing the learned Counsel for the parties dismissed the suit filed by the petitioneRs, Feeling aggrieved assailed the judgment and decree by filing an appeal. The learned appellate Court dismissed the same.
3 The learned counsel appearing on behalf of the petitioners contended that learned trial court while deciding the suit did not take into consideration the material available on record and the learned Appellate Court also failed to appraise evidence produced by the parties during the course of trial of the suit. He further contended that the suit property was the ownership of one Qalandar alienated through sale transaction in favour of Ajar (the predecessor in interest of the respondents) vide deed dated 3-7-1960, the predecessor of the petitioners sought the preemption of the said sale transaction thus purchased by him vide deed dated 12-10-1960. He further contended that the petitioners are lawful owners of the suit property; therefore, they are entitled to the decree as prayed for.
4. The learned counsel appearing on behalf of the respondents vehemently contended that the suit property is the ownership of the respondents as such duly recorded in the revenue record in the name of predecessor of the respondents and thereafter in the name of the respondents. He further contended that the petitioners miserably failed to prove their ownership regarding the suit property. The suit property never remained in possession of the petitioneRs, He further contended that the entries made in the settlement record enjoying much more presumption of truth as attached to the record of rights, prepared by Patwari Halqa in his office. He further argued that the pleadings of the petitioners are inconsistent and derogatory to their evidence available on the record. He further argued that both the learned Courts below recorded the findings in favour of respondents; same cannot be substituted by any other findings in favour of the petitioners, thus, sought the dismissal of the petition.
5. The arguments of learned counsel for the parties considered and record carefully perused.
6. After perusal of the record, hearing of the arguments of learned counsel and going through the impugned judgments it transpired that the petitioners in their plaint claimed the ownership and possession of the suit property, contending that their predecessor-in-interest namely Chandan acquired the suit land by claiming his right of preemption as the same was purchased by one Qalandar their uncle and in this regard also made the reference of order dated 11-8-1962. Raheem Khan the petitioner examined as PW-3, deposed that "the suit property was in the ownership of the people belonging to the caste known as Aman Kot, his father (Chandan) purchased through sale and he further sold through sale vide sale transaction in the name of Qalandar and he further alleged that his father preempted the property purchased by Ajar vide Deed No,232 dated 10-10- 1960 and got transferred in his favour vide deed dated 12-10-1960. Further deposed that the land, the subject matter of preemption was the ownership of Khwas and others Doolat Khail, residents of Aman Kot. In his cross examination he further stated that he was not in the knowledge that in how much sale consideration his predecessor in interest sold the suit property. He further categorically stated that his uncle namely late Qalandar had sold the property in favour of the predecessor-in- interest of the respondents for a sum of Rs,120. He further disclosed that his father died 12/13 years ago. He further admitted as correct that Haji Ajar constructed the houses (Kothas) over the suit property and one of the kothas was alienated through sale in favour of person (named not known).
Admittedly, that the settlement operation was conducted in the area in the year 1985-86.
7. One Muhammad Ishaq P.W.4 deposed that the suit property was purchased by Chandan from Pakhtoons of Aman Kot and he also disclosed that the suit property remained as subject matter of the litigation with Pakhtoons and same was transferred to Pakhtoons. The witness candidly admitted that the suit property sold by Haji Chandan in favour of late Ajar in sale consideration of Rs,2500 however this witness was unable to give the detail relating to the subject matter of the suit.
8. Bahadar P.W.5 was examined, deposed that the suit property was the ownership of the predecessor in interest of the petitioners and he had transferred through sale in favour of late Haji Ajar and the same property was transferred back by Haji Ajar the predecessor in interest of the petitioners to Chandan. He has also admitted that there are five/six Kothas over the suit property, owned by Haji Ajar.
9. P.W.1 Patwari Halqa was examined, produced Exh..P.W.1/1 the extract from Jumabandi of the year 1999/2000, Ajar recorded as owner in the suit property. P.W.2 Said Kamal reader to Tehsildar Babu Zai appeared and produced the record of the decisions pertaining to the year 1961-1962 and also the documents bearing No,758 dated 11-8-1962 as Exh.P.W.2/1 but the witness could not testify about the details of the case.
10. The respondents have also examined the Patwari Halqa as D.W.1. The record produced by Patwari revealed that in the extract from Jumabandi for the year 1985-86 Exh.D.W.1/1 and that of pertaining to the year 1999-2000, produced as Exh.D.W.l/2, Khasra Girdawari Exh.D.W.1/3 and Exh.D.W.1/4 indicated that Ajar the predecessor of the respondents recorded as owner in possession of the suit property. D.W.2 the special attorney of respondents examined, testified that the predecessor of the respondents purchased the suit property from Haji Ajar vide deed Exh.D.W.2/3 and made improvement in the suit property by plantation, construction of houses and also alienated some portion of the land to Jumma Khan, Salikh Muhammad and Muhammad Nazir and they have constructed the houses over the suit property. Further stated that litigation remained pending for , several years and, thereafter, on 12-11-1981 the suit was decided. Further deposed that suit property recorded in the name of their predecessor in interest during the settlement operation and Chandan never disputed the ownership of respondents and never applied to the settlement authorities or appealed against the entries made during the settlement operation in favour of the predecessor of respondents. D.W.4 Dost Muhammad Khan deposed that suit property was the ownership of Haji Ajar and this witness resided in one of the houses on behalf of Haji Ajar and the suit property was cultivated by this witness for 8110 yeaRs, This witness in his cross-examination stated that the suit property known as Warha Cheena Qunch and Peer Piano Gaie. D.W.5 Haji Sanobar Khan made similar statement as he resided for some time in one of the houses and also cultivating the suit land. The other witnesses 6 to 8 have been examined and they have also supported the contention of the respondents.
11. In view of the objection of the learned counsel for the petitioners that the learned Trial Court committed misreading and non reading, while appraising the evidence produced by the parties and arrived to a conclusion that the petitioner has failed to prove his case by the valid and plausible evidence. In the light of the objection of the learned counsel, scanned the entire evidence to find out the misreading and non reading or any wrong appraisal of evidence by both the Courts below. In the instant case, the burden of proof rested on the shoulders of the petitioners to prove that the suit property was purchased by Haji Ajar and thereafter, from their uncle, Qalandar. After two days of sale transaction their predecessor in interest namely Chandan preempted the suit land, where after Ajar the predecessor of the respondents, handed over the suit property as was purchased by Chandan. Moreso, in the plaint the petitioners averred that the property was acquired through a decision dated 11-8-1962. Both the afore stated facts have not been proved on the record. The evidence produced by the petitioners contradictory to the plea raised in the plaint as all the witnesses made inconsistent statements and they have not supported the stance taken in the plaint as referred to above in the statements of the witnesses and that of the plaintiff- petitioner No,2.
12. The Patwari Halqa was examined by the petitioners as their witness, revenue record produced as Exh.P.W.1/1 and Exh.P.W.1/2 regarding the suit property, showing the ownership and possession of said Ajar. In this respect the Patwari Halqa was examined as D.W.-1, who produced the record of rights pertaining to the years 1985-86 Exh.D.W.1/1, 1999-2000 Exh.D.W.1/2 and - Khasra Girdawari commencing, from 1986 till 2004 as Exh.D.W.1/3 and Exh.D.W.1/4 showing the ownership and possession of the said Ajar regarding the suit property.
13. The above referred revenue record is enjoying the presumption of truth, under section 52 of the Land Revenue Act, 1967, which reads as under:--- "S.52 ... Presumption in favour of entries in record of rights and periodical records.--- An entry made in a record of rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted thereof".
14. The petitioners failed to furnish any cogent, convincing and plausible evidence to rebut the entries so made in the Revenue Record, nonetheless, the petitioners examined Patwari Halqa and relied upon the entries of the record of rights for the year 1999-2000. Moreso, the respondents summoned the Patwari Halqa, produced rest of the Revenue Record regarding the proof of their ownership in the revenue record. The presumption attached under section ibid to the aforestated entries not dispelled by the petitioners by any documentary or oral account of evidence.
15. Since, the settlement operation conducted in the area for the preparation of the revenue record as per the direction of Settlement Officer, the entire proprietary body of the village directed to have present on the spot so that the record be made in their presence. Such entries are blessed with presumption of truth as prepared on spot, supported by the concerned owners, therefore, to be considered at higher pedestal as compared to entries made by Patwari in periodical record in his office, in the light of the last entry made in Khasra Girdawari and the mutation as well. In this regard reliance placed upon a case titled Allah Dad v. Government of Pakistan and 53 others reported as 1989 CLC 1571, the relevant para 6 (at page 1574), reproduced as under:--- "The authorities cited by the learned counsel for the petitioner, I am afraid, are not strictly applicable to the facts of the present case. In both the cited cases there were variations between the entries of Jamabandis and the entries of the subsequent Jamabandi having been proved wrong, the entries of the Jamabandi prior thereto, were held to be holding the field. There is much difference between the entries of Jamabandis prepared by the Patwari and the record of rights prepared on the conclusion of the settlement operation. The Jamabandi is prepared by the Patwari Halqa, taking assistance from the mutations attested during the intervening 4 years and the entry of the Khasra Girdawari immediately preceding the preparation of the Jamabandi in question. No independent inquiry is made by the Patwari regarding the title or possession of the parties concerned whereas the record of rights is finalized after physical measurement is made by the Settlement Officer on the spot, proper inquiry is conducted regarding the ownership and possession of the respective field on the spot and the entire populace of the estate have knowledge and are supposed to associate themselves with the Settlement operation.
' Consequently much stronger presumption is attached to the entries of Settlement record than the entries of the Jamabandi. In this respect I am fortified by the judgment of Peshawar High Court in case Muhammad Shah and others v. Mir Zaman and others reported as AIR 1943 Peshawar 83. In the instant case two settlement operations have been carried out, one in the year 1905-06 and the other in the year 1948-49 and in the record of rights prepared at the conclusion of both the aforesaid settlements the suit land was recorded as the ownership of the Government and in the possession of the Military. The aggrieved persons, including the plaintiff-petitioner and the defendants Nos.1 to 22 and 26 to 49, could file a suit for declaration to challenge entries within six years from the time of first entry, which they have not availed of and the instant suit is patently time-barred".
15.(sic) Besides, the plaintiffs/petitioners in support of their stance examined two other witnesses namely P.W.5 and P.W.6, however, their statements are contradictory and inconsistent, hardly to be sufficient to disbelieve the long standing entries made in the settlement record and in the record of rights. Muchless, the oral evidence to rebut the entries made in the record of rights and settlement record, hardly accepted as to rebut the impact of revenue record. Reliance was placed upon a case titled Anayat Ali v. Muhammad alias Tota and others, reported as 1993 MLD 2367, the relevant pars 9, reproduced as under:- "The plaintiffs-appellants produced oral evidence to falsify these entries. This evidence was as such not sufficient to rebut the impact of the revenue documents. The witnesses are one way or the other either related to the plaintiff or interested for or against the parties. At times, they are self- contradictory also. For instance, if Allah Ditta P.W.1, at one occasion says that the land is in self- cultivation of the plaintiff, in the same breath he would mention Azmat Hussain as tenant under the plaintiff. In judicial scrutiny such an evidence would no sustain effect against the Jamabandi and the Khasra Girdawari continuously maintained since 1960-61. The position remained the same even at the time of the institution of the suit".
16. Petitioner No,2 examined as P.W.3 not uttered a single word, regarding the fact that the suit property was the same property which was sold by Qalandar in the name of late Ajar rather it was admitted that Ajar had purchased the property but no proof brought on the record by P.W.3 in his statement that it was the same property involved in the instant litigation, rather a different stance taken by the petitioner No,2. It is not out of place to say that P.W.4 in his cross-examination admitted that "suit property sold by Chandan Haji to late Ajar in sale consideration of Rs,2500." The statement made by this witness completely destroyed the edifice built upon the story pleaded in plaint by the petitioneRs,
17. There is yet another important aspect of the case, which further weakened the case of the petitioners as the entries made in the revenue record had not been challenged in the life time of father of the petitioneRs, The petitioners challenged such entry, after the death of their father, they are unaware of the facts of the case however, their father namely Chandan was in the knowledge of full detail of the facts of the G case. He remained silent as was not feeling aggrieved of those entries. The petitioners have no locus standi to challenge the entries of revenue record, supporting the ownership of the predecessor of the respondents and after demise of their father, the respondents are recorded as owner of the property. Reliance placed to a case titled Ghulam Hassan v. Soharu and 131 others, reported as PLD 1984 Pesh. 278, wherein, it was held that:--- "In this case nowhere it has been proved that Bakhsha the real owner of the suit property ever objected the transfer of the suit land by his action expressed or implied. On the other hand the fact that the said Bakhsha during his entire life time made no efforts whatsoever to annul the acts performed by his brother Tagga would clearly indicate that he had accepted the position".
18. The presumption of truth attached to the record of rights, the strong evidence required to rebut the same. In support, thereof, reliance placed upon a case titled Walayat and others Allah Ditta and others reported as PLD 1982 Azad J&K 54, wherein, it was held that:--- "Record-of-rights is not an instrument of title yet it is reliable presumptive piece of evidence to prove title, particularly when it is continuous and consistent for more than 40 yeaRs, A presumption of truth is attached to the record of rights. This presumption though rebuttable could not be ignored in absence of cogent, positive and confidence inspiring evidence".
19. The petitioner No,2 when appearing as witness not deposed a single word about the order of the Court as referred in the plaint or produced any proof regarding the preemption of the suit property.
This aspect of the case also makes the stance of the petitioner as not true and not believed for want of evidence. Thus, it is not out of place to say that the petitioners took summersault while making departure from the averments made in the plaint. The conduct of the petitioner is sufficient to hold that their suit based upon no evidence, moreover, the departure from the averments made in the pleading not permissible under the law. Reference made to a case titled Binyameen and 3 others v. Chaudhry Hakim and another, reported as 1996 SCMR 336, wherein, it was held that:--- "It is a well-settled principle of law that a party can prove a case which has been pleaded by it. In support of his contention, the learned counsel for the appellants referred to Government of Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469. It is also a well-settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading. A party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove those pleas. Variation in pleading and proof is not permissible in law."
20. In view of the forgoing discussion, the concurrent findings of both the Courts below being not suffering from any material illegality or irregularity, muchless jurisdictional error, thus, maintained.
21. This petition being without any substance is dismissed, with no order as to costs.