1. ' MAZHAR ALAM KHAN MIANKHEL, J.---Impugned h rein is the judgment and decree dated 6-12 2001 of the Additional District Judge, Nowshera whereby appeal of defendant/respondents was allowed by setting aside the judgment and decree dated 26-2-2000 of Civil Judge, Nowshera in favour of plaintiff/ respondents.
2. ' The learned counsel for the petitioners contended that the rights of the plaintiff/petitioners are protected under section 53-A of the Transfer of Property Act, as they are in possession of the suit property as owner on the strength of an unregistered sale-deed dated 31- -1967 and the same was proved in accordance with provisions of Qanun-e-Shaha at Order, 1984. So, acceptance of appeal of respondents by dismissing the suit of petitioners is against the law and liable to be struck down.
3. He further submitted that now as per verdict of the Apex Court reported in Fazla v Mehr Din and 2 others (1997 SCM R 837), such a document can be used as a document of attack and a party-can claim his right of ownership on the basis of the same. His next contention was that the findings of the appellate Court are also against the mandate of Article 56 of Qanun-e-Shahadat Order, 1984 as the appellate Court while making its opinion placed reliance on judgments rendered in a civil case in which the petitioners were not party as said judgments were not the judgments of public nature. Forming an opinion on the basis of such judgments by the appellate Court is not warranted under the law and lastly, requested for setting aside of findings of the appellate Court by restoring the decision of learned trial Court.
4. ' As against that, learned counsel for the respondents contended that for such a claim, the plaintiff is not only required to prove the document on which he is relying and on the other hand he is also required to prove delivery of physical possession, under the sale, of the suit property at the spot.
5. The plaintiff failed to discharge his burden under the law and thus was rightly non-suited. He thus requested for dismissal of the revision petition.
6. ' Submissions made by the learned counsel for the parties were considered and record of the case was gone through with the valuable assistance of learned counsel for the parties.
7. Perusal of the record would reveal that the plaintiff/petitioners brought a suit for declaration by claiming themselves to be the owners of the suit property on the strength of an unregistered sale- deed dated 31-8-1967. It was also alleged that possession at the spot was also delivered to the petitioners by their vendor Paigham Shah, defendant No,
1. The evidence on the record though appears to be sufficient on the face of the record for the execution of sale-deed but the question of sale consideration has not been proved through reliable evidence. There are material contradictions in the statements of the P. Ws. In this regard. The appellate Court has very aptly discussed the entire evidence. But here in this case mere proof of execution of sale-deed would not absolve the petitioners from their burden, who were required to prove delivery of physical possession of the property purchased by them, which is no doubt a joint property and the suit property forms a very small portion of the same. So, this, aspect of the case would require thorough probe.
8. According to law the burden of receiving possession at the spot was on the petitioner. The evidence in this regard if seen, in no circumstances, can be held to be a sufficient evidence to prove physical possession of the property at the spot. There is not a single iota of evidence to reflect that any possession at the spot of the piece of land being part of joint property, was given to petitioner. Prior to his own possession, the petitioner was also required to prove that his vendor was in actual possession of the joint property and the same was delivered to him under the sale. But the entire evidence on the record would reveal that there is no such evidence. The only evidence of possession is that of the year 1997. Entry of possession is shown to have been made for the first time in Khasra Girdawari in Rabi 1997, copy of which is Exh.P.W.2/1. This entry itself cannot be considered as an entry of possession as an owner, which is reproduced below:- {{URDU TEXT}} ' Perusal of the above quoted entry would suggest that the same appears to be a manipulated one. If true, even then, it cannot be considered as an entry under sale of 1967. The entire oral as well as documentary evidence is completely silent with regard to possession from the date of sale till 1997. So, it is established on the record that the petitioners failed to discharge their burden and their suit was rightly dismissed. The record of the case would further reveal that the vendor of the petitioners namely Paigham Shah was booked in a murder case and was declared proclaimed offender. His property i.e, the suit property was attached vide proceedings under sections 87/88 of Cr.P.C. An attempt through a civil suit for declaration was made by "Nazik Bibi" being legally wedded wife of Paigham Shah, that she was an owner on the basis of Kabeen nama dated 10-4- 1969. This declaration was refused to the lady up to the apex Court. Certified copies of the judgments were made available on the record of the case. Being judicial record has got presumption of truth and correctness and can be considered by the Courts and such judgments can be looked into in relevancy of facts as provided in Article 55 of the Qanun-e-Shahadat Order, 1984.
9. As far as legal position of an unregistered deed coupled with possession is concerned that has a protection under section 53-A of Transfer of Property Act. Law of the land like Hikmat Khan v.
10. Shamsur Rehman 1993 SCMR 426. Is very much clear and settled. As per the above referred case- law, such a document can be used as a shield in defence. Yes, another development of the case- law has also been made that an unregistered deed coupled with the possession can be used as weapon of attack like in the present case an B in this regard can also be made to case of Fazila v.
11. Mehr Din and 2 others, (1997 SCM R 837). But such an edge cannot be claimed by the present petitioners as they failed to prove delivery of possession under the sale and the entire edifice appears to be tainted with mala fide.
12. ' So, findings of the appellate Court in this regard will allow no reason for interference specially when the findings of the Courts below are based on proper appraisal of evidence and the law on the subject and similarly any jurisdictional defect in the exercise of jurisdiction by the Courts below is not established. This discretionary jurisdiction can be exercised in aid of justice and not to defeat the ends of justice.
13. ' So, as a sequel to what has been discussed above, this revision petition being meritless is dismissed with no order as to costs: