I propose to dispose of the instant C.R. as well as the connected C.R. No. 609/2012 through this single judgment as both the C.Rs. have arisen out of consolidated judgments and decrees dated 30.1.2008 and 31.3.2009 respectively passed by the Civil Judge Mardan and Addl. District Judge-III Mardan.
2. Brief, but relevant facts are that Amir Tawas and others petitioners in hand brought, Suit No. 60/1 of 2004, against both the parties of Suit No. 61/1 of 2004, in the Court of Civil Judge, Mardan, for declaration to the effect that being ancestral land owners of Patwar Circle Qasmi, they have been in possession of the suit property measuring 83 Kanals 4 Marlas bearing Khasra No. 181 of Mauza Qasmi, with which the respondents have got no concern whatsoever and they have been in possession, being co-owners in Shamilat and respondents in the instant C.R. have got no concern with "Hissadari" possession of the petitioners and the claim of ownership of the respondents over the suit property is wrong, illegal and based on mala fide, therefore, they have no justification to interfere with the possession of the petitioners. They also prayed for permanent injunction restraining the respondents to interfere in the suit property, changing its nature and getting it transferred to anyone, through any means. In the alternative, they also prayed for possession of the suit property.
3. Similarly, Iftikhar Ahmad Khan and others filed Suit No. 60/1 against Pasham Khan etc. (petitioners in the connected C.R. No. 609/2012) alleging that they are co-sharers in Khata No. 622/1459, 623/1463-1462 bearing Khasra Nos.506 & 181, to 184 measuring 240 Kanals in Mauza Qasmi Mardan. It was further alleged that the said property now entered in the revenue record as Shamilat Kandi Janga Mahal Qasmi, was previously a part and parcel of Mauza Mian Isa, which is the inherited property of Iftikhar Ahmad Khan and others respondents' (in the connected C.R. No. 609/2012), but during the settlement of 1925-26 this property was separated from Mauza Mian Isa and included in Mauza Qasmi, therefore, the original owners of Mauza Qasmi have got no concern with this property. The petitioners Pasham Khan and others have been cultivating the said property since long and have been paying the produce to Iftikhar Ahmad Khan and others (respondents in C.R. No. 609/2012), however, later on denied paying the same. On denial of Pasham Khan and others to pay produce, the land owners filed a suit for recovery of share of produce in the revenue hierarchy. The tenants denied the ownership of the owners over the suit property in the recovery of produce case, wherein the. landowners (respondents in C.R. No. 609/2012 were directed to approach the Civil Court for declaration of their title, therefore, the landowners filed suit No. 61/1.
1. Whether the plaintiffs have got cause of action? OPP.
2. Whether the disputed property entered in the revenue record as Shamilat Kandi Janga Mahal Qasmi, was a part of Mauza Mian Isa and in settlement of 1925-26 it was included in Mahal Mauza Qasmi? OPP.
3. Whether the Defendants 1 to 7 have been owners in possession of the disputed property through sale, since 1925-26? OPD 1 to 7.
4. Whether the disputed property is the Shamilat of Mauza Qasmi and it has never been a part of Mauza Mian Isa? OPD 8 to 12
5. Whether the defendants are tenants over the disputed property and they used to pay the produce to the plaintiffs? OPP
6. Whether the suit is within the statutory period of limitation? OPP.
7. Whether the suit is bad for non-joinder and mis-joinder of parties? OPD
8. Whether the suit is bad for non-joinder and mis-joinder of parties? OPD
9. Whether the plaintiffs are estopped to sue the defendants-due to their own conduct? OPD
10. Whether the defendants are not the bona fide residents either of village Mian Isa or village Qasmi, but are outsiders who settled down in this area; if so, its effect?
11. Whether the defendants are owners in possession of the disputed property? OPP.
12. Whether the plaintiffs are owners in possession of the disputed property? OPD.
13. Whether the plaintiffs are entitled to the decree as prayed for? OPP.
14. Relief.
5. In support of the above issues the parties produced pro and contra evidence and after hard contest between the parties Suit No. 60/1 was dismissed, whereas Suit No. 61/1 was decreed by the Civil Judge Mardan vide judgment and decree dated 30.1.2008. Feeling aggrieved Pasham Khan and others (petitioners in C.R. No. 609/2012) filed Appeal No. 69/13 of 2008 and Amir Tawas and others (petitioners in C.R. No. 1000/2010) filed Appeal No. 68/13. Both the Appeals were heard together and consequently Appeal No. 68/13 was dismissed and Appeal No. 69/13 was partially allowed to the extent that till the finalization of partition proceedings the "Hissadari" possession of Amir Tawas Khan and others shall remain intact. Similarly the other vendees, who are "Hissadars" shall remain in their respective possession till the final partition. As stated above both the parties have filed the above mentioned C.Rs.
6. I have heard the learned counsel, for the parties at great length and minutely gone through the record.
7. On close scrutiny of the record it was found that in C.R. No. 1000/2010 the Appeal was decided on 31.3.2009, the application for obtaining certified copies was moved on the same day i.e. 31.3.2009, which were prepared on 14.4.2009 and after 5 months and one. day it was delivered on 15.9.2009.
The revision petition was filed on 24.3.2010 with a delay of 6 months & 9 days, which can legally be filed within 90 days i.e. up to 15.11.2009, if reckoned from the delayed delivery of certified copies on 15.9.2009. Hence C.R. No. 1000/2010 is hopelessly barred by time and is dismissed in limine.
8. So far as C.R. No. 609/2012 is concerned, it is still in motion. In this case the Appeal was also decided on 31.3.2009, the application for obtaining certified copies was moved after one month and 18 days on nn 19.5.2010, which was prepared on 25.5.2010, and was delivered on the same day i.e. 25.5.2010. The revision petition was filed on 17.11.2011 with delay of 16 months & 11 days, which can legally be filed within 90 days i.e. up to 15.11.2009. Hence C.R. No. 609/2012 is also badly barred by time and is liable to be dismissed on this score alone.
9. So far as the merits of both the cases are concerned, I have gone through the record and found that the decision of the lower Appellate Court is neither perverse, nor wrong and based on proper appreciation of evidence on record and it has rightly modified the judgment and decree of the trial Court to the extent of "Hissari" ownership, holding that till the finalization of partition proceedings the "Hissadari" possession of Amir Tawas Khan and others shall remain intact and the other vendees who are "Hissadars" shall also remain in their respective possession till the final partition.
Otherwise also, I have not been able to find out any misreading/non-reading of evidence or any illegality or material irregularity or any jurisdictional error or defect warranting interference in the impugned findings of the lower Appellate Court, which are hereby maintained. This revision petition is dismissed on merits as well as on the point of limitation with no order as to costs.