ABDUL LATIF KHAN, J.- This civil revision has been filed against the consolidated judgment and decree dated 23-5-2013 passed by the learned Additional District Judge/ Izafi Zila Qazi, Camp Court Behrain, District Swat, whereby consolidated judgment and decree dated 8-8-2012, passed by the Civil Judge/Illaqa Qazi, Behrain was upheld.
2. I have heard the arguments of learned counsel for the parties and perused the record with their able assistance.
3. A perusal of record reveals that the petitioners instituted suits for declaration to the effect that they are entitled in the suit property details of which given in the heading of the plaint regarding "Dahakarak" kind of land and claimed ownership of the property. It was averred that the surrounding properties has been recorded in the name of petitioners as owners, whereas the disputed property situated in the middle of the properties,has been recorded in the name of respondents without any justification. The contention of plaintiffs was hotly contested by the respondents claiming as original owners of the property and the petitioners who belongs to"Gojars" tribe are not entitled to get ownership as original owners in the area and relied uponthe "Rawaj-NamaSwat" and averred that "Gojars" can only be owners on the basis of any document and they are shown as "Qabza Malikaan" only the extent of those properties regarding which the documents were shown by them, and cannot claimed ownership on the basis of those entries in the revenue record, regarding the disputed property, which is not included in the property regarding which they have shown the documents and their names are incorporated in the revenue record. All the suits were consolidated and proceedings were conducted in suit titled "Abdul Wahab VS Mumtaz". Parties were allowed to produce their respective evidence.
4. The plaintiffs have produced Javaid Iqbal, Reader,Tehsildar Behrain as PW-1, Patwari Halqa Revenue Estate Behrain was examined as PW-2, Hazrat Younas was also examined as PW-2, Sharifuddin, ADK appeared as PW-3 and Shahid Ali Khan was produced as PW-4, Record Clerk, Tehsil Behrain appeared as PW-5 and plaintiffs recorded their oral statements as PW-6 & PW-7.
5. On the other hand, ADK, Swat was examined as DW-1, Shahid Ali Khan, Patwari Halqa was examined as DW-2, Reader Tehsil Behrain appeared as DW-3 and attorney for the defendants Mumtaz Khan examined as DW-4.
6. The scanning of the evidence would reveal that the plaintiffs' claims that they are ancestral owners in possession of the property and in this respect they have produced pedigree table and relied upon that it is a document prepared in respect of "Malikaan"/owners of the property. The pedigree table produced by the plaintiffs in the statement of plaintiff and the pedigree table produced by the Patwari Halqa is altogether different. It was never prepared by the Patwari Halqa from the revenue record and has not been brought on file from proper custody. Regarding pedigree table witnesses were not produced from the elders of the area. Admittedly, the petitioners hails from "Gojars" tribe,the community of "Gojars" are never held to be originalowners .i.e. owners in "Shamilaf" kind of lands like Forest, Rivers and other kind of property, which is normally included in "Shamilaf" and are the properties of original owners. It is in the customary law, "Rawaj-Nama" that they become owners only to the extent of property purchased by them through sale deeds.
The property incorporated in the revenue record in the name of petitioners as "Malikaan Qabza" and not as "Asal Malikaan". These entries are made on the basis of documents, which were also reliedby the petitioners and the transactions took place inter se petitioners, which are referred to by the learned counsel for the petitioners and posted as EX-PW-5/1 to EX-PW-5/9, these transactions were taken place between the petitioners inter se and it is immaterial that if anyone has put his signature as marginal witness to those documents out of the respondents/ defendants for the reason that the deeds are not in dispute nor the properties mutated through these deeds are disputed in the instant matter. In fact the properties recorded in the names of petitioners/plaintiffs, as shown in the revenue record as "Malikaan Qabza" is not the disputed property in the instant matter rather they are claiming the property, kind of which is "Dahakarak" and recorded in the names of original owners and in fact this is the real dispute between the parties, whereas there exist no dispute about that entries which are made in the names of plaintiffs/petitioners in the revenue record.
It is not out of place to mention here that entries made in the revenue record as "Malikaan Qabza" in properties, which are not disputed in the names of plaintiffs, however the disputed property was recorded in the name of original owners/respondents/"dautaryans", which were objected by the petitioners at the relevant time, however their objection was turned down, as the settlement proceedings initiated in the area in the year 1980 and concluded in the year 1986. The order of the "Afsar Maal" was passed on 31-7-1986, which was challenged before the settlement officer, who decided the matter on 15-11-1986 and discarded the claim of the petitioners/plaintiffs regarding "Dahakarak charaga", whereas cultivable and contiguous un-cultivable lands and "abadies" situated in the limits of Forest have been entered in the names of "Gojars" occupants/petitioners.
The "Dahakarak charaga" has been entered in the name of "Khoistani", respondents of Behrain with the exception of "Shaldar Pani". Decision was also given regarding protected forest, cultivated land and "abadies" situated inside the forest have not been entered in the name of occupants, pending decision of the provincial government. All the forest land has also been entered as protected forest, of which the income Royalty will go the Khoistani Royalty Holders, the respondents. Detailed order was passed and entry made in the revenue record after due inquiry Under Sections 44 & 172 of Land Revenue Act, 1967. Though the inquiry is summary in nature, however the entries made in the Settlement Record after spot inspection are at higher pedestal then the entries later on made and the objection of the petitioners were dismissed as without force. The petitioners have not challenged the findings of the Settlement Collector dated 15-11-1986 before any forum in revenue hierarchy and kept mum for considerable long period and filed the instant suit for the first time in the year 1997, which is beyond the prescribed period of limitation under Article 120 of the Limitation Act, which is six (6) years and, as such, the same is hopelessly time barred. No explanation has been given as to why the suit was not filed within the prescribed period of limitation. Needless to mention that delay of each and every day has to be explained.
7. So far is the plea of the petitioners to the extent that every wrong entry in the "jamabandP" give fresh cause of action to file the suit within six (6) years from the date when right to sue had accrued is concerned, the same is misplaced for the reason that principles enunciated in this respect by the Hon'ble Supreme Court of Pakistanare applicable to those cases where the claimants/plaintiffs were unaware of the entries and wrong entries were repeated for more than once in the "jamabandies" and on acquisition of knowledge, the last "jamabani" can be taken as date of accrual of right to sue within period of six (6) years, but in the instant case, the parties were entangle in hotly contested litigation before "Afsar Maal" and Settlement Collector and the claim of the petitioners were turned down on 15-11-1986, so they were in knowledge of these wrong entries and the limitation would be reckoned from 15-11-1986 and not from the alleged wrong entries repeated in the subsequent "jamabandies" and, as such, the plaintiffs/petitioners would not take shelter under the legal proposition advanced by the learned counsel for the petitioners to reckon the limitation from the last "jamabandi" where the wrong entries were repeated. It is not disputed that "Rawaj-Nama", customary law having binding force in this area and only "dautari" owners are entitled to be recorded as original owners of the properties and "Gojars" by cast, is the community, who are never held to be owners in "Shamilat" nor they are the original owners and their ownership hinges upon the documents/sale deeds, if any, in their possession, through which they have purchased the property. The property recorded in the name of petitioners whether based on documents or not, is not the question in dispute in the instant suit and that property is not disputed, the dispute is regarding "Dahaka Darakhtan" regarding which no documents have been produced in the evidence by the petitioners/plaintiffs to prove their entitlement to the entries recorded in their names in the revenue record as owners. The claim of the petitioners that they are original owners of the area has not been supported by the evidence produced by them. They have badly failed to prove that they are original owners of the area. Their claim neither supported by documentary nor oral evidence,their own statements are deficient to the effect that they are owners in any capacity in the disputed property. They also failed to produce document/sale deed regarding the purchase of the disputed property. They cannot claim exception to the "Rawaj- Nania" and the grounds taken by them for exception in the "Rawaj-Nania" in their pleadings with special reference to the instant civil revision are not supported with cogent and confidence inspiring evidence. Mere mentioning in the pleadings would not suffice to prove the claim unless and until,it is supported by evidence and the evidence produced by the plaintiffs/petitioners are lacking to this effect that the "Gojars" are original owners or for that matter the "Gojars" can claim ownership of the property without the aid of any sale deed/document, as they are neither "dautari" owners nor original owners of the area and respondents being "dautari"owners are entitled to be entered as "Asal Malikaan" as well as "Malikaan Shamilati". The property wherein the petitioners are recorded as "Qabza Malikaan Bila Hisa Shamilat", without share of "Shamilat" and have no share in Royalty amount nor they have received the same at any stage because they are not entitled for the Royalty amount, as the original owners are entitled in "Shamilat" and Royalty amount from time to time, to distinguish the"Asal Malikaan" and "Malik Qabza". Reliance can be placed on PLD 1975 Supreme Court Page 375, wherein their Lordships of the apex Court held as under: "Tuning now to Douie's Settlement Manual, we find that the Adna and Aala Maliks are defined in Paragraph 143 and the underlying concept is stated to be the division of proprietary in the land. It is observed that "in cases of divided ownership the proprietary profits are shared between the two classes who have an interest in the soil". An essential condition, therefore, for qualifying as an Adna Malik is the possession of an interest in the soil, and not merely in irrigation facilities provided by the party concerned. Paragraph 144 then lays down that the usual policy of the Government has been to arrive at a settlement with the inferior proprietors, apparently with the intention of eliminating intermediate interests. We know, however, that in the present case the Government has at no stage entered into any settlement with the plaintiff or his predecessor-in-interest for the payment of land revenue.
8. Similarly Malikan-e-Qabza has been defined by their Lordships in PLD 1975 Supreme Court, 325 as under: "Malakan-e-Qabza are those owners who own the land actually in their possession, but have no share in the common property of the village community, nor in the joint rights, profits and responsibilities of the proprietary body of the village.
9. Article 650 of the "Rawaj-Nama-Swat" was challenged by the "Gojars" cast in the Federal Shariat Court, as against the injunction of Islam, which was turned down and the august Federal Shariat Court has affirmed the custom,for convenience sake relevant portion of PLD 1993 Federal Shariat Court Page No.39 are reproduced as under: "Rawajnama Swat on the touchstone of Islamic jurisprudence--- petitioner's right to ownership of property was subjected to the production of proof in the form of either any judicial document or evidence of local respectable, by the Ruler of Swat through his order dated 7- 2-1950. Rawaj-Nama Swat seems to be quite in consonance with injunction of Islam which require avoidance of illegitimate grabbing of properties belonging to others and restoration of same to their rightful owner in accordance with principles of justice.
10. Similarly Civil Appeal No. 153 & 153 of 2009, the august Supreme Court of Pakistan has observed regarding the share in "Shamilaf". This Court in Civil Revision 419 of 1990 decided on 29-04-1992 observed that "Gojars" did not held any proprietary right within the conquered area of the then Swat State and there was certain areas in the Swat in which tribe of "Gojars" etc and such like tribe .i.e. non-pakhtuns tribes, held land in their own right of ownership and possession, the said question has been referred in the Autobiography of Ex-Ruler of Swat namely the last Wali of Swat.
11. It is not disputed that settlement record carries presumption of truth Under Section 52 of the Land Revenue Act until contrary is proved or a new entry is lawfully substituted. The entries made in the revenue record are always based upon factual inquiry,though summary in nature but vital for the reason that the object of settlement is to inquire about the properties on the spot from the locals and that after proper inquiry,if objection raised, after deciding that objection, the entries are made in "khatonP"and then incorporated in the revenue record, which is always at higher pedestal then the subsequent entries in the revenue record are having the presumption of truth and, as such, the entries made in the name of respondents in the year 1986 and the objection discarded by theconcerned official and not questioned by the petitioners within time, leads one to the conclusion that the petitioners/plaintiffs failed to substantiate their claim regarding their ownership over the property. The scanning of the evidence would suggest that no cogent and confidence inspiring evidence is available to rebut these entries. Reliance can be placed on the case of Mazloom Hussain VS Abid Hussain & 4 others reported in PLD 2008 Supreme Court 571, wherein their Lordships of the apex Court observed as under: "long standing entries in record of rights not challenged earlier before Revenue functionaries or through a civil suit by party...Effect...Presumption of truth was attached to such entries, which could not be discarded unless proved otherwise by convincing and cogent evidence".
12. It is also pertinent to mention that the plaintiffs produced oral evidence to rebut the entries made in the settlement and subsequent revenue record produced by the revenue officials, which has precedent over the oral evidence, as per Article 102 & 103 of the Qanun-e-Shahadat Order, 1984 and the plaintiffs have to produce the evidence in this regard, which they failed to do and, as such, entries made in the name of respondents in the revenue record regarding the suit property are made in accordance with law and, as such, are not open to any exception.
The Courts below have decided the "lis" pending before them with conscious and application of independent mind, which are not open to any exception.
For the aforementioned reasons, the instant petition being devoid of merits is hereby dismissed.