' ABDUL WAHEED KHAN, J.---The brief facts as elucidated in the suit are that Mahji, the father of the plaintiffs Nos.1 to 4 and husband of plaintiff No,5 was owner of a piece of land measuring one kanal land, which he delivered possession to Nawab and others with the conditions that they would build house thereon to reside therein and that there would be no rights of their ejectment and in return they would give rubbish to the petitioners/plaintiffs. It was further agreed that if the respondents/defendants would not live in the house then after the expiry of six months, they would have no concern with the same. Out of the aforesaid one kanal land 8 marlas was in possession of the respondents/ defendants. It was alleged that the defendants/respondents violated the agreement dated 5-6-1934 for which punchayat ordered for payment of Rs,160 and a decree from a court was also issued. Since the defendants violated the agreement dated 5-6-1934 and relinquished the residence and did not give rubbish to the petitioners/plaintiffs, so the suit for possession was instituted for restoration of the land. A previous suit for injunction was filed, wherein Qari Imtiaz Ahmad, Advocate was appointed as Local Commissioner, who reported that the defendants were not residing in the suit land. On the other hand, the respondents/ defendants filed their written statement, wherein they pleaded that the agreement was false and fabricated; that the respondents/defendants have been owners in possession of the land in dispute which is part of Shamlat Deh and that the suit was liable to be dismissed. On the divergent pleadings of the pleading the following issues were framed:--
(1) Whether Mahji, predecessor in interest of the plaintiffs, gave the suit land to Nawab etc under an agreement dated 5-6-34? OPP
(2) Whether the defendants have given up their dwelling in the suit land for the last 3/4 years and as such they have violated the condition of agreement dated 5-6-34? OPP
(3) Whether the plaintiffs are entitled to a decree for'the possession of the suit land? OPP.
(4) Whether the plaintiff has got no cause of.Action? (5)OPP. Whether the suit is time-barred? OPD.
(6)Whether the suit is not maintainable in its present form? (7)OPD. Whether the suit is hit by section 11 of the (8)C.P.C.?OPD.
(9)Whether the suit has been valued insufficiently for the purpose of court fee and jurisdiction? OPD Whether the plaintiffs have waived their right? OPD. (10) Relief.
2. In order to substantiate their claims, the plaintiffs produced as many as three witnesses i.e, Muhammad Saeed Akhtar Record Keeper as P.W.1, Muhammad Sabir P.W.2 and Nazim as P.W.3 'vis- a-vis the petitioners/plaintiffs also produced documentary evidence i.e, agreement in dispute Exh.P-1, attested copies of record of rights for the year 1990-91, Exh.P.2 and Exh.P-3. In rebuttal, Muhammad Younas defendant No,1 appeared as DW-1. The defendants produced documentary evidence comprising copy of record of rights as Mark-A, copy of mutation (Parat Patwar) as Mark- B and copy of mutation as Mark-C. In rebuttal no evidence was produced by the petitioners/ plaintiffs. Consequently, the suit was dismissed with costs vide judgment and decree dated 28-9- 2001. An appeal preferred there-against met with the same fate and was dismissed vide judgment dated 5-11-2002. Hence this petition.
3. The contentions of the counsel for the petitioner are that the suit was dismissed mainly for the reasons that the petitioners-plaintiffs could not produce the marginal witnesses of the agreement dated 5-6-1934 Exh.P.1 and since the said document is an old document falling within the definition of Article 100 of the Qanun-e-Shahadat Order, 1984, therefore, presumption would be that it was a duly executed document; that the said document finds corroboration from the execution proceedings before the Civil Court whereby penalty of Rs,80 was imposed upon Muhammad Din predecessor in interest of the respondents, since the later proceedings are judicial in nature, therefore, presumption of truth is attached to the same and judicial notice about its correctness can be taken. Lastly submits that the petitioner has proved the fact that predecessor in interest of the respondents was a licensee of the predecessor in interest of the petitioners and they violated the terms and conditions of the agreement, therefore, the courts below have misconstrued the facts brought on record and that the civil court should have decreed the suit as prayed for..
4. Conversely, the contentions of the counsel for the respondents are that both the courts below have come to a conclusion that the petitioners-plaintiffs could not bring sufficient material on the file in support of the claim and that the suit and appeal have rightly been dismissed, that the agreement Ex.P.1 could not be proved through cogent and convincing evidence, that the suit is badly barred by time.
5. The points for determination are whether the petitioners are the owners of the suit land and they are entitled to recover the same from the respondents. The evidence on record pertains to the record of rights from both the sides i.e, Exh.P.1 to P.3 and marked as A, B, C. A minute A perusal of the same reveals that the ownership of the suit land was not proved in favour of the petitioners and the same also does not suggest as to what was the right with the predecessor of the petitioners to give the possession of the same temporarily to the respondents. The other two documents are the copies of Register Haqdaran Zamin, which shows Muhammad Yousaf to be the owner of 69 Kanals and 11 marlas of agricultural land, whereas the other 185 kanals and 16 marlas is the village population and in possession of the occupants, so there is no documentary evidence with the petitioners to prove their ownership over the suit land. While on the other hand, copies of Register Haqdaran Zamin and mutations respectively prove that the said 8 marlas of suit land fall in the ownership of the respondents Muhammad Aslam and Rashid by way of transfer from the village populated area, under the orders of the Revenue Authorities, therefore, the case of respondents is on better footing than that of the petitioners.
6. Resultantly for what has been discussed above, there is no illegality or infirmity in the judgments and concurrent findings recorded by the two courts below, therefore, this petition having no force is dismissed.