' MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner herein, being plaintiff of a suit for declaration, through instant revision petition has questioned the judgment and decree of learned Additional District Judge-I Swat dated 10-12-2002, whereby judgment and decree passed in favour of present petitioner by Civil Judge-VII/Illaqa Qazi, District Swat vide judgment and decree dated 2-7-2002 was set aside and appeal of the respondents was allowed. Hence present Revision Petition.
2. The brief but the material facts leading to the present litigation between the parties are that the suit property has been claimed by the petitioner to be his ownership but was recorded in the names of respondents as owners by the settlement authorities in the year 1986. The petitioner, by claiming himself to be owner in possession of the property approached Tehsildar Settlement vide his application dated 30-3-1986 for resolution of dispute under section 44 of the Land Revenue Act, but Tehsildar after inquiry opined that the petitioner should approach the Civil Court for determination and resolution of his dispute/right, but the Tehsildar Settlement on subsequent date instead of passing any order in the light of report of commission dismissed the application of the petitioner for non-prosecution vide his order dated 20-9-1986. Hence, in the light of opinion of settlement officer during inquiry, petitioner filed instant suit on 8-11-1986, wherein his claim was denied by the respondents. After conclusion of the trial, suit of the petitioner was decreed, by Senior Civil Judge vide his judgment and decree dated 19-9-1989 and appeal there-against of the respondents was also dismissed by District Judge, Swat vide his judgment and decree dated 12-7- 1990, but the Revision Petition of the respondents before this Court was allowed and the judgments and decrees of the two Courts below were set aside and the case was remitted back to the trial Court to determine the dispute between the parties, but after getting report of spot inspection by local commissioner.
3. In compliance of the direction of this Court, the trial Court appointed local commission, but first two reports of the commissioners were discarded by the trial Court and lastly with the consent of both the parties, Tehsildar Matta Mr. Rasool Khan was appointed as local commissioner, who submitted his report dated 5-9-1997 in favour of plaintiff/petitioner by holding that the suit Khasra number bearing 239 measuring 10-marlas is situated outside the boundaries of State property. The trial Court of Civil Judge-VII, Swat placing reliance on the evidence of the parties as well as the report of the commission, granted a decree in favour of petitioner vide his judgment and decree dated 2-7-2002, but the appellate court presided by Additional District Judge-I, Swat allowed the appeal by setting aside the judgment and decree of the trial Court vide his judgment and decree dated 10-12-2002. Hence present revision petition.
4. Learned counsel for the petitioner at the very outset submitted that the Revenue Officer/Settlement Officer itself should have decided the dispute between the parties under section 44 of the Land Revenue Act, 1967, instead of referring the petitioner to approach the civil Court. He then submitted that as per entries made in the revenue record, placed on file as Exh. DW-1/3 would reveal that the petitioner has been shown in possession of the suit property, but as tenant so it was for the respondents to have proved that petitioner is not the owner and in possession of the property as tenant but they failed to discharge their burden. He by referring to the copies of the site plans Exh. DW-2/2 and Exh. DW-1/X-1, which are the copies of same original sketch, but placed on file at different times, would reveal that the suit property is outside the boundary line of the State property and thus it has nothing' to do with the State property and the entries made in the revenue record are wrong and against the spot and cannot be left to remain in field; that except the entries in the revenue record in the name of respondents there is nothing else on the record to prove that the respondents are the owners of the suit property and the entries made in their favour are correct. The learned counsel then relied upon "Syed Tawakal Hussain and others v. Mst. Shamim Fatima Rizwi and others" 1999 MLD (Karachi) Page-1, "Aksar Ali and 2 others v. Fazal Karim and 11 others" 1982 CLC (Supreme Court (AJ&K) Page 1309 and "Sardar Muhammad and 2 others v. Haider Zaman and 3 others" (PLD 1993 Peshawar Page-81).
5. As against that the learned A.A.G. For the respondents by producing the Photostat copy of notification dated 15-9-1972 submitted that it is not the ownership of petitioner but the State property as per notification and similarly the A.A.-G. Also produced a copy of site plan prepared recently in the year 2012 in this regard. He next contended that mere in possession of the property would not be sufficient to declare the petitioner to be the owner of the property as he is neither a 'Dautari' owner nor he has produced any evidence reflecting origin of hii ownership either through purchase or gift. He next contended the petitioner himself had admitted that he belongs to Malang cast and he is 'Manjawar' "the persons who resides on Toms" and submitted that the findings of the appellate Court are quite in accordance with law and cannot he interfered with in exercise of revisional jurisdiction, as no misreading or non-reading of the evidence has been pointed out by the petitioner and similarly no illegality and irregularity in exercise of jurisdiction by the Courts was referred to. Placed reliance on "Mst. Sanawar Jan v. Temash Khan" PLD 1991 Peshawar Page-101(d). .
6. Learned counsel for the petitioner and learned A.A.-G. For the State were heard and record of the case was perused.
7. Perusal of the record would reveal that it has been established on the record that the petitioner is in possession of the suit property since long rather initially his father was in possession of the suit property since the time of Exh-Ruler of the State of Swat. It is again an admitted position on the record that adjacent to the suit property, there is a police station and it so appears that at the time of preparation of the Record of Rights during the settlement, besides the other properties, the suit property was also incorporated in the revenue record as State property in the name of respondents. The petitioner being more vigilant regarding his rights, filed his application before the settlement officer in this regard, who according to law i.e, under section 44 of the West Pakistan Land Revenue Act, 1967 inquired into the matter by appointing an inquiry officer, who opined that the petitioner should approach the competent civil court to get his dispute resolved and the petitioner then filed instant suit. In earlier round of litigation in the present suit the petitioner was successful in getting decree in his favour by the two Courts below, but in Revision before this Court it was directed that resolution of such like dispute would require spot inspection through a competent revenue officer and lastly Rasool Khan Tehsildar, Matta was appointed as local commissioner by the trial Court, who submitted his detailed report by examining both the parties and by placing on record the relevant documents especially the site plan Exh.DW-2/2 which was prepared during the era of Ex-Ruler of Swat and concluded his report by submitting that it is the property owned by the petitioner and the same is not a State property as it is situated outside the boundaries of State property
8. During trial of the case, site plan was produced twice once in the cross-examination of DW-1 and again in the statement of DW-2, as Exh.DW-2/2. This piece of evidence would reveal that the suit property bearing khasra No, 239 measuring 0-kanal 10-marlas is outside the boundaries of State property. DW-2, Muhammad Rahim, A.S.-I., has admitted in clear words that the property within the red line is the State property whereas the property outside the red line is the private property of the people. DW-3, Mian Rahim Shah, by claiming himself to be the serai' owner, submitted that petitioner is not a 'serai' owner and the suit property is State property since the Ex-Ruler of Swat, but his statement is belied by the very site plans of the era of Ex-Ruler, which clearly reflect that the suit property is outside the boundary line of State property. No doubt the petitioner is neither a 'serai' owner nor he has alleged so but the fact remains that this property was in possession of petitioner's father and after his death the property was devolved upon his sons and then fell into the lot of the petitioner on account of partition between the brothers. Earlier it was shown as (J/4. )
((urdu Text}} Umer Gul was the brother of petitioner.
9. The petitioner though has not shown origin of his ownership but it is an admitted position that the properties were originally owned by Ex-Ruler. He used to donate his properties by way of gift to his people who were in possession of the properties and normally this used to happen 'through verbal and oral means. Many people in the area have nothing with them to show the origin of their ownership, except the longstanding possession. The case of petitioner, too could be of the same nature as it is in their possession as per record of the case, since the era of 'Pukhto' which is stated to be of 1917. As far as the entries made in the Record of Rights during the settlement are concerned, would reveal these were, made on presumption as the respondents had nothing in their possession to show that this property was their ownership in possession of petitioner as their tenant. This entry of Record of Rights is not in consonance with the authentic record like the above referred site plans. DW-1, Patwari Halqa has admitted entries in the name of respondents were made on the basis of a site plan produced by the then S.H.O.
10. Perusal of the earlier record would establish the fact that there is no other record with the respondents except the settlement record but that has been belied by the record produced by the respondents as discussed above. The legal position in this regard would be that the respondents should have proved that the petitioner though in possession of the suit property, but was not its owner as required under Article 126 of the Qanun-e-Shahadat, 1984. The documents submitted by the learned A.A.G. Cannot be relied upon because of the discussion made above.
11. Therefore, in view of the discussion made above, there is no hesitation in my mind to hold that the petitioner is the owner of the suit property and the entries made in the Record of Rights are against the situation at the spot which cannot be left to remain in field. Hence, this Civil Revision is allowed and the judgment and decree dated 10-12-2002 of the appellate Court is set aside and that of trial court is restored with no orders as to costs. The petitioner if ousted from possession, can ask for restoration of the same being owner of the property.