' ABDUL QADIR MENGAL, J.--- This civil revision petition under section 115, C.P.C. Has been filed against the judgment and decree dated 31-3-2005 passed by Majlis-e-Sh9ora at Uthal, whereby the judgment and decree dated 29-6-2002 passed by Qazi Lasbela at Uthal, was set aside and suit of the plaintiffs was dismissed.
2. Brief facts of the revision petition are that the petitioners/plaintiffs on 2-12-2001 ods 25 poles, situated at Mouza Kandala Gharbi is bounded as bellow: East: General thoroughfare and land of Waloo.
West: Land of Hashim.
North: Property of respondents/defendants South: Property of petitioners/plaintiffs.
3. The petitioners/plaintiffs stated that property in dispute is of their ancestral property and the same is in their .Possession from the time of their forefathers and they also have raised Bandats over the same, however, the petitioners/plaintiffs residing at Tehsil Lakra, therefore, the property was managed and developed through their tenants. The petitioners/plaintiffs further stated that in the year 2001 the property in question wrongly was entered on the name of respondents/defendants. When new settlement was started in their area, the settlement staff came over the land in dispute he was asked that their land was recorded to the names of respondents/defendants, as such, the petitioners/plaintiffs after coming to know the position approached the respondents/defendants and asked them to make the record correct. Initially they agreed to rectify the record, later on, they went back from their commitment, and therefore, the petitioners/plaintiffs have come with the present suit.
4. The respondents/defendants contested the suit by filing their written statement stating that the property in question had been recorded to their names about 35 years back and further the boundaries of the property have not been correctly mentioned. The respondents/defendants again mentioned that the petitioners/plaintiffs have nothing to do with the property in question as the same belongs to them and they are in possession of the same.
5. After filing of written statement; the trial court framed the following issues on 28-1-2002 for disposal of the matter.{{URDU TEXT}}
6. The both parties were directed to produce their witnesses. In this regard the petitioners/plaintiffs produced four (4) witnesses (P.W,1) Saleh son of Hashim, (P.W.2) Sadiq son of Lakho, (P.W.3) Waloo son of Ibrahim, (P.W.4) Duroo son of Mulla Tajo and then the attorney recorded his own statement in support of the claim or suit.
7. The respondents/defendants produced seven (7) witnesses in support of their version. They were, the (DW-1) Eassa son of Muhammad Umar, (DW-2) Muhammad Hassan son of Muhammad Umar, (DW-3) Sozo son of Ayub, (DW-4) Raza Muhammad son of Guloo (DW-5) Abdul Khan, son of Haji Abdul Ghani, (DW-6) Mulla Bakhsh son of Jango, (D.W.-7) Muhammad Sadiq son of Murad Ali and then the attorney Muhammad Qasim son of Muhammad Sadiq recorded his own statement in support of his version.
8. The learned Qazi after recording the statements of the witnesses of both parties dismissed the suit on the ground that the petitioners/plaintiffs have failed to prove their case and the witnesses of the petitioners/plaintiffs have deposed contradictory to each other and further they had failed to describe the boundaries of the disputed property and learned Qazi further held that as according to Sharia for a witness it is compulsory that he should properly give the boundaries of the suited land and if any witnesses gave wrong description of any side of the property, then according to Sharia his statement or evidence is not acceptable. Learned Qazi further has held in his judgment dated 29-6-2002 that he himself visited the site and made inspection report of the disputed property, however, he found that Bandats Shave been raised just to show their possession over the property, so being, it means that the P. Ws. Have gave a false statement as such their evidence is treated not acceptable, thus, the suit of the petitioners/plaintiffs was. Dismissed.
9. The petitioners/plaintiffs then challenged the impugned judgment of the Qazi before Majlis-e- Shoora. The Majlis-e-Shoora vide his judgment and decree dated 30-12-2002 upheld the judgment of Qazi, whereafter the petitioners/plaintiffs approached this court through a revision, whereupon this court vide order dated 7-12-2004 remanded the matter back to Majlis-e-Shoora for disposal with the following observations:--- "(5) It is to note that the learned Majlis-e-Shoora has failed to attend the controversy between the parties and has not decided the same in accordance with, the provisions contained in Order XLI, Rule 31. C.P.C.. It was incumbent to have passed a detailed speaking judgment on the issues after taking into consideration the entire documentary as well as oral evidence.
(6) The above position was confronted to the learned counsel for the respondents Mr. Shams-ud- Din Achakzai, Advocate who very frankly conceded that it is a case of remand and the learned Majlis-e-Shoora has to decide the same on the basis of material available on record.
(7) With the consent of learned counsel for the parties the matter is remanded to the learned Majlis-e-Shoora Lasbella with the directions to decide the same expeditiously on the touchstone of Order XLI, Rule 31, C.P.C. Within a period of 30 days."
10. Mr. Muhammad Wasay Tareen, learned counsel for the petitioners/plaintiffs contended that the Qazi and Majlis-e-Shoora both failed to consider the evidence of the petitioners/plaintiffs and they had not touched the evidence of the petitioners/plaintiffs and both courts on the basis of wrong assumptions and discussions passed the impugned judgments and decrees which have no any relevancy with the record or evidence of the case and by this way they had committed injustice with the petitioners/plaintiffs. Learned counsel further argued that actually the. Evidence of the case shows that witnesses of the petitioners/plaintiffs fully proved the case and the respondents/defendants have almost failed to contradict or rebut their evidence. In presence of the valid and lawful evidence, the Qazi on his own, contrary to the facts has passed his decision on the basis of his inspection report and rejected the evidence of the witnesses of the petitioners/plaintiffs. He further argued that the respondents/defendants have accepted the evidence of the witnesses of the petitioners/plaintiffs and not crossed them, which impliedly show that testimony of the witnesses stood admitted. In this respect learned counsel relied on the case of Abdul Sattar v. Mrs. Sardar Begum, 2003 CLC 1294 Lahore, which reads as under:- "Art. 132--- Examination-in-chief--- Cross-examination---Witnesses not cross-examined at all, implies that his testimony stood admitted."
' In this respect learned counsel also relied upon the case of Muhammad Hassan v. Liaqat Ali Khan 2001 CLC 1743 Lahore, which reads as under:-- "Arts. 132 & 133---Cross-examination-Where a portion of statement of a witness was not challenged in cross- examination then it would be presumed that the party against whom the evidence was being given had accepted the same."
11. Learned counsel further argued that as from the evidence of the witnesses and the judgment of Majlis-e-Shoora it appears that there was another piece of land of the petitioners/plaintiffs situated adjacent to the land in question and same also has not been recorded on the name of petitioners/plaintiffs. Meaning thereby, the past Settlement operation has been conducted in the absence of the petitioners/plaintiffs, as such they had no knowledge about the same that the entries gone to the wrong persons.
12. Learned counsel again argued that the mutation entries including the Jamabandi not confer proprietary rights except raising rebuttal presumption in their favour. In case there was no rebuttal of such entries but the same were on the other hand supported by the other evidence then the persons could relief upon them. Here in the present matter the respondents/defendants have fully failed to establish or support the mutation entries, as such no any reliance could be made upon the same. In this respect learned counsel relied upon the case of Abdul Rahim v. Muhammad Hayat 2004 SCM R 1723.
13. Mr. Ali Ahmed Kurd, learned counsel for the respondents/ defendants vehemently opposed the contention of learned counsel of the petitioners/plaintiffs. Learned counsel argued that the concurrent findings of both courts cannot be interfered in a revision petition, despite of any error, it is trial court who decide it on one way or the other. Learned counsel in this regard relied upon the case of Habibullah v. Abdul Hakim 1997 SCM R 1139 which reads as follow:- "----S. 115----Revisional jurisdiction of High Court-Scope-- Limitation-Essential-Principles for exercise of revisional power---Scope of interference with concurrent finding of fact by High Court in exercise of its revisional jurisdiction is very limited---High Court while examining legality of judgment and decree in exercise of its power under 5.1 15, C.P.C. Cannot upset finding of fact, however, erroneous such finding is, on reappraisal of evidence and taking different view of evidence---Such findings of fact can only be interfered with by High Court under S.115, C.P.C, if Courts below had either misread evidence on record or while assessing or evaluating evidence had omitted from consideration some important piece of evidence which had direct bearing on issues involved in the case--- Findings of fact would also be open to interference under 5.115, C.P.C, where approach of Courts below to evidence was perverse--Where High Court re-assessed entire evidence on record and then discarded conclusions of Courts below on account of being inconsistent with its own assessme nt of evidence such process of examination for upsetting concurrent findings of fact in exercise of revisional jurisdiction was not permissible by law--- Wrong or erroneous conclusion on question of fact by Courts below was not open to disagreeing with conclusion of Courts below did not take into consideration reasons given by First Appellate Court for concurring with conclusions of Trial. Court to determine whether any misreading was committed by Courts below in assessment of evidence on record---High Court, itself undertook re-assessment and re-appraisal of evidence and conclusions drawn by it were made basis for discarding finding of fact recorded by two Courts below---Fact that view taken by High Court of evidence was more persuasive, reasonable or convincing could not be valid ground for interference with concurrent finding of fact recorded by Courts below---Possibility of another view of evidence would not be a ground for interfering with concurrent finding of fact by High Court in exercise of its revisional jurisdiction.",
14. Learned counsel further argued that this matter has only been remanded for rewriting of the judgment, as this court already has upheld the judgment of the trial court, therefore, there , is no need to interfere in the impugned judgments, which are valid and based on sound reasoning:
15. After hearing both sides, I have perused the record of the case, at the very outset I may mention that both the trial and as well as appellate courts have failed to consider the evidence which has come on record from the side of petitioners/plaintiffs. The trial and the appellate courts on account of wrong assumptions have discussed extraneous legal and factual positions contrary to the evidence or statements which have come on record from the side of petitioners/plaintiffs. So this is one of the clear cut cases in which the order of both courts not based on any evidence due to that both judgments and decrees seems are passed arbitrarily due to that injustice has creped out in result of these judgments and decrees. No doubt, that concurrent .Findings normally cannot be disturbed in a revisional jurisdiction, however, it is settled principle of law that when any court acted illegally or with material irregularity and his judgment based on no evidence or based on inadmissible evidence, which resulted injustice, then justice demands that such judgment to be corrected. Here both trial court i,e, Qazi and Majlis-e-Shoora have failed to read the evidence, as such, when any decision/findings based on no evidence then such finding not to be immune from interference, in this respect I have fortified my view from 1989 SCM R 34 which areas as under:-- "(b) Civil Procedure Code (V of 1908). ---S. 115---Revisional jurisdiction---Finding of fact when not to be immune from interference--- Where decision on facts was based on no evidence or inadmissible evidence or was so perverse that grave injustice would result therefrom, such finding would not be immune from interference in revisional jurisdiction."
16. Thus, in the light of the above legal position, now I am adverting to the judgments of the trial court in the light of the evidence to show that learned Qazi has not taken into consideration the evidence of witnesses which are fully proved the case of the petitioners/plaintiffs and learned Qazi legally on the basis of his own inspection report cannot reject the evidence of the witnesses. In this connection I have benefited my view from the case of Muhammad Nawaz v. Jiand Rai 1981 CLC 867, which reads as under:--- "(c) Civil Procedure Code (V of 1908).
0. XVIII, R. 18 read with Evidence Act (I of 1872), S.3---Site inspection note-Evidentiary value of--- Held, statement recorded by Judge during course of inspection---Of no evidentiary value unless person whose statement recorded subject to cross--examination or opposite-party given opportunity to do so."
17. As learned Qazi has pointed out Issue No,1 court-fee and then Issue No,3 in respect of limitation and decided both the issues in favour of the petitioners/plaintiffs, thus, the only Issue No, 2 whether suited property is ancestral property of petitioners/plaintiffs and they are in possession of the same and cultivating the same through tenant at Will, this issue has been decided against the petitioners/plaintiffs. Anyhow, adverting to the evidence of the petitioners/plaintiffs to consider the same whether Issue No,2 has been proved from the evidence or otherwise, it would be appropriate for the sake of present case to give their evidence in toto and then to see as to whether the petitioners/plaintiffs had succeeded to proved the Issue No,2 or otherwise.{{URDU TEXT}}
18. Except the evidence of P.W.2 Sadiq son of Lakho who had only given the northern direction of the suited property wrong description, while the rest of the all witnesses properly and correctly have described the boundaries of the disputed land and had also successfully established this fact that petitioners/plaintiffs are in possession over the suited property from the time of their predecessor- in-interest. There is no any cross to give any dent to the evidence of these witnesses and learned counsel for the petitioners/plaintiffs rightly has mentioned that due to non-cross of the statement of P.Ws. Same is amounting to accept their evidence. Again it may pointed out that at best we can say that the evidence of P.W.2 Sadiq son of Lakho is not admissible according to Sharia and he is not properly described the suited property, whereas the rest of the P.Ws. Have properly pointed out or correctly mentioned the boundaries of the suited property and they subsequently have mentioned that the ownership and possession of the same belongs to the petitioners/plaintiffs and this version has not been denied or controverted by the respondents/defendants.
19. Amazingly, the P.W.4 Duroo son of Mulla Tajo brother of the respondents/defendants has also stated that actually the said property is not ancestral property of respondents/defendants as his brother only claiming over the disputed property, because same has wrongly been recorded on his name in the Revenue Record and this statement also has not been denied or rebutted by the respondents/defendants and admitted as correct.
20. Anyhow, the judgment of the learned Qazi shows that he has altogether excluded the evidence and decided the issue on his own observations or inspection report. Learned Qazi has decided the rest of the two issue i,e, Issue Nos.4 and 5 with the following findings:-{{URDU TEXT}}
21. Admittedly, the learned Qazi has decided Issue No,4 in favour of the petitioners/plaintiffs, whereas, while deciding Issue No,5 Qazi has not discussed the evidence of respondents/defendants. However, the seven witnesses whose evidence has not been mentioned hereinabove, were produced by the respondents/defendants, but on my examination the evidence of all seven witnesses including the evidence of attorney are inadmissible according to Sharia as none of them has properly described the boundaries of the suited land nor any such material has come to support the contention of the respondents/defendants.
22. The finding of learned Qazi over the Issue No,5 shows that he has only decided the matter against the petitioners/plaintiffs that entries are recorded to the name of respondents/defendants, so being, version of learned Qazi is absolutely wrong and he has failed to exercise his powers properly and failed to read the evidence of petitioners/plaintiffs which fully proves their case. No doubt in civil matters it is the responsibility of petitioners/plaintiffs to prove their case and no any benefit could be taken from the weaknesses of the respondents/defendants, therefore, in view of the above, I have not discussed the evidence of the witnesses of respondents/defendants. Suffice to say that their evidence is in admissible according to Sharia and law and they have also failed to prove the version of the respondents/defendants. While on contrary the petitioners/plaintiffs have proved their case. Beyond any reasonable doubt. In this regard the learned Majlis-e-Shoora has also failed to give any proper finding and the Majlis-e-Shoora unnecessary has confined him on the point of court-fee and so wrongly has mentioned that the witnesses of the petitioners/plaintiffs have not properly described the boundaries of the suited land which is contrary to the facts of the case. So as, Majlis- e-Shoora also has failed to properly evaluate this fact that the petitioners/plaintiffs also having land adjacent to the disputed property which is also not recorded in the Settlement, though same was also belonged to them. On this point, the Majlis-e-Shoora has wrongly expressed his view as petitioners/plaintiffs have not entered or recorded their adjacent lands in Settlement. So being, their version in respect of the present disputed land cannot be accepted, as how he/they remained silent about his/their own properties. Learned Majlis-e-Shoora also without considering the evidence wrongly has held that the P.Ws. Have wrongly described the boundaries of the plaint or there is a contradiction in the evidence on the point of boundaries.
23. Anyhow, the statement of P.W.1 Saleh son of Hashim shows correct description of property and he without any defect has mentioned the boundaries which are in consonance with the boundaries given into the plaint. So as evidence of P.W.3 Waloo son of Ibrahim also on this point is consonance with the boundaries/description given in the plaint. The DW-4 Duroo son of Mulla Tajo brother of the respondents/ defendants has also correctly mentioned the boundaries, which are consonance with the boundaries of the plaint. The attorney Ghulam Qadir also has properly mentioned the directions of the suited property. However, it is not understood that the Qazi and Majlis-e-Shoora how took this view that there are contradictions in the statement of P.Ws. On the point of boundaries.
24. Anyhow, the last objections of the learned counsel for the respondents/defendants that as this court has remanded the matter only to the Majlis-e-Shoora to rewrite the judgment as such this court has no power to revisit his own judgment and then evaluate or discuss the evidence which is on record. On this point I am not in agreement with the view of the learned counsel, as the judgment of this court fully shows that Majlis-e-Shoora was directed to take into consideration documentary as well as oral evidence and also discuss the same on the basis of available record and then decide the matter, therefore, this objection of learned counsel for respondents/defendants also having no any substance, as such, same is repelled. In result this revision petition is allowed and the both judgments and decrees dated 29-6-2002 passed by Qazi Lasbela and the judgment and decree dated 31-3-2005 passed by Majlis-e-Shoora Lasbela at Uthal are set aside and the suit of the petitioners/plaintiffs is B decreed as same is established and proved, as such, entries of Khasra No,79 measuring 29 acri . 3 rods 25 polts situated at Mouza Kandala Gharbi be mutated and transferred from the name of respondents/ defendants to the names of the petitioners/plaintiffs.