QAISER RASHID KHAN, J.---The petitioners/plaintiffs, Naseebullah Khan etc.; have through this revision petition challenged the concurrent judgments and decrees of the learned two Courts below dated 29-11-2005 and 17-6-2011 respectively whereby declaratory suit of the respondent No,2 was decreed.
2. Briefly stated facts of the case are that Muhammad Sher Khan sued the petitioners through Suit No,I70/1 of 2005 in respect of a house detailed in the plaint claiming its ownership on the basis of a sale-deed dated 4-4-2005 executed by Mst. Zainuh. Likewise, the petitioners also claimed ownership of the said house on the basis of sale-deed dated 12-6-1995 executed by Naik Nawaz Khan who had allegedly purchased the same from its original owner Mst. Zainuh and thus claimed declaration for their title land permanent injunction against the defendants in Suit No,165/1.
3. The defendants in both the aforesaid suits were summoned who filed their respective written statements. Both the suits were consolidated vide order dated 27-6-2006 and pleadings of the parties gave rise to the framing of as many as seventeen issues including relief.
4. After recording pro and contra evidence and hearing arguments of the learned counsel for the parties, the learned trial Judge dismissed Suit No,165/1 of the petitioners, while decreed Suit No,170/1 of the respondent No,2 herein which was maintained in appeal as well, hence this revision petition.
5. The learned counsel for the petitioners contended that the suit house belonged to Mst. Zainuh who sold the same to Nek Nawaz through sale-deed dated 12-6-1995 and through the efforts of the arbitrators, the same was in turn sold to the petitioner and latter through credible evidence had proved their ownership but the same was overlooked and kept out of consideration by both the courts below in the impugned judgments and decrees.
6. 1 have carefully gone through the record and considered the arguments of the learned counsel for the petitioners.
7. Admittedly the suit house was initially owned by Abdul Sattar and after his death was gifted to Mst. Zainuh by her brothers including Muhammad Sher respondent No,2. Muhammad Sher claimed the ownership of the house on the basis of a sale-deed dated 4-5-2005 in his favour by his sister Mst. Zainuh and that the petitioners were in possession of the house as `hamsaya' (a term used for 'tenant' in the local jargon) and were thus liable to vacate the house after its purchase by the respondent No,2. During evidence, the respondent No, 2/plaintiff produced Taj Muhammad Khan, deed writer, who certified the scribing of the deed dated 4-5-2005 and the affixation of the thumb impression on the same by Mst. Zainuh. P.W.5 as marginal witness confirmed the execution of the deed as well as verified his signature thereon. P.W:5 further confirmed that the other marginal witness Hazrat Bilal had died but simultaneously verified his.
8. B presence and attestation of the deed as a witness. P.W.4, special attorney of Muhammad Sher too, stood his ground despite being subjected to lengthy cross-examination.
9. Conversely, from the petitioners side, another person also by the name of Taj Muhammad appeared as DW-21 and stated that he along with Umer Ayaz Khan, Mir Baz Khan and Khan GuI were appointed as arbitrators in the arbitration proceedings to resolve the matter regarding Nek Nawaz Khan and Sharifullah Khan and in the same breath stated that he did not remember if the arbitration proceedings/ verdict were reduced into writing and that too, when he is allegedly signatory to the arbitration verdict dated 22-5-1995. He did not mention the name of Haji Misal Khan who was a member of the arbitration team and also signatory to the arbitration decision.
Similarly, Umer Ayaz Khan though mentioned by DW-2 but was not included in the four arbitrators.
The said DW-2 spilled the beans during cross-examination when he frankly admitted that Nek Nawaz Khan did not present any document before the arbitrators which showed him to be the owner of the disputed house. Same Taj Muhammad who has allegedly been shown to be one of the witness of the alleged sale-deed dated 12-6-1995 in his entire statement did not utter a word either about the execution of the sale-deed or he being signatory to the same, or that in the follow up to the arbitration proceedings, anything was ever written when his examination-in-chief was partly recorded on 24-7-2010.
9. However, when he appeared before the trial court after about two months, i,e, on 22-9-2010 to complete his examinationin-chief, he took a total about turn and admitted his signature on the arbitration verdict. Same was the case with the statements of the other P.Ws. As well who gave different turns and twists so as to be of some help to the petitioners but to no avail. Even Nek Nawaz around whom the entire controversy revolves and from whom the petitioners claim to have purchased the house through sale-deed dated 12-6-1995 maintained a discreet silence all through the trial and did not turn up in the witness box to offer some degree of support to the petitioners.
10. Thus the petitioners failed to discharge the onus probandi to substantiate that they are owners of the suit house on the basis of sale-deed dated 12-6-1995 which was neither proved nor exhibited in evidence.
11. The fate of a document which is neither proved nor exhibited in evidence has been sealed in case titled Muhammad Younas and others v. Essa Jan and others reported in 2009 SCM R 1169, wherein their lordships have held that:-- "A document which was not placed on record and exhibited in evidence was not part of judicial record and thus, its judicial notice could not be taken".
11A. The learned counsel for the, petitioners failed to paint out any illegality, irregularity, misreading, non-reading of evidence or jurisdictional defect in the ,impugned concurrent findings of the courts below which being based on facts and correct legal footings need no interference and are accordingly maintained.
12. Even otherwise, the concurrent judgments and decrees of the courts below being based on facts cannot be set at naught by this court in exercise of its revisional jurisdiction unless it is established through cogent and tangible evidence available on record that the same are fanciful, erroneous or are based on mis reading/non-reading of evidence in view of the dicta handed down by the apex court in the judgments reported in 2000 SCM R 346, PLD 1994 Supreme Court 291 and PLD 2002 Supreme Court 293.
13. Being devoid of merits, the revision petition is, therefore, dismissed in limine.