' MUHAMMAD DAUD KHAN, J.---This revision is directed against the judgment and decree 8-5-2004 of the Additional District Judge/Izafi Zilla Qazi-IX, Swat vide which he dismissed the appeal of the petitioner/plaintiff and maintained the judgment and decree of the Civil Judge-IV/Illaqa Qazi, Swat dated 6-1-2003, whereby the suit of petitioner/plaintiff was dismissed.
2. Brief and necessary facts arising out of the instant revision petition are that petitioner Musafir and predecessor-in-interest of respondents Nos.1 to 12, namely Sultan Muhammad Khan, respondent No,13 Muhammad Ali Khan and predecessor-in-interest of respondents Nos.14 to 22, namely Zia-ud-Din Khan are brothers inter se, however, present petitioner Musafir was born from the womb of first wife and rest of other three brothers were born from the second wife of their father Babhoo, who was owner of landed property in Mauza Chinkolai, Tehsil Khwazakhela, District Swat.
3. The petitioner allegedly remained out of his native village during first settlement of lands and the respondents took advantage of his absence and entered the entire ancestral land in their name to the exclusion of petitioner, which promoted him to file a declaratory suit under paragraph 4 of Regulation II of 1975, in the Court of Deputy Commissioner, Swat, constituted under PATA Civil Procedure (Special Provisions) Regulation, 1977 (hereinafter called PATA Regulation).
4. There was proviso in Section 4 of the PATA Regulation when any party to a case required to adjudicate upon any dispute, he had to file an application in writing to the Deputy Commissioner, for adjudication or settlement of such case and the Deputy Commissioner have to constitute a Jirga in accordance with the provision of Section 5 by order in writing and had to refer the dispute to the Jirga for giving its opinion on such matter on issues as may be specified in the order after recording of evidence of both the parties.
5. There was another proviso in Section 4 of the PATA Regulation, under which if a case was barred by time under any Riwaj, custom or usage notwithstanding anything contained in the Limitation Act, 1908 shall not have been referred to the Jirga '
6. The respondents submitted their written statement in the above case and took a plea that their father in his lifetime had effected partition among the four sons on 22-7-1939 and subsequently, on 17-9-1945 against which the plaintiff had once approached the Martial Law Authorities who referred the matter to Mohkama Qaza and wherefrom the petitioner withdrew his application with the assurance that in future he will not re-agitate the matter further.
7. The suit filed by petitioner was dismissed by the Deputy Commissioner vide order dated 14-9- 1985, declared it barred by time and appeal of the petitioner was also dismissed by Commissioner, Malakand Division vide order dated 4-6-1987 and by Additional Secretary Home, vide order dated 20-11-1990.
8. All the Courts under PATA Regulation dismissed the suit of petitioner on accepting the plea of defendants/respondents which they had taken in their written statement that their father in his lifetime had effected partition among the four sons.
9. All the aforementioned orders were Assailed before this Court through Writ Petition No,573 of 1990, which was accepted on 5-5-1991 by declaring all the orders of the forums constituted under PATA Regulation as illegal, without lawful authority and of no legal effect and the case was remanded back to the Deputy Commissioner, Swat for referring the dispute to Jirga under the provision of Section 4 of the Regulation, ibid.
10. As the case was sent back to the Deputy Commissioner for adjudication but during that period on the death of one defendant, namely Zaidullah Khan, his legal heirs were impleaded in the panel of defendants, wherein some of the defendants were minors. Under Paragraph No,3 of the PATA Regulation, cases in which the interested of minors or a person of unsound mind was involved, could not be adjudicated under that regulation, therefore, the suit was returned and petitioner instituted another suit in continuation of his earlier round of litigation and similarly defendants also took the same defence which was taken in the earlier written statement and upon which this Court had given its observation. On divergence of pleadings, the learned trial Court framed following issues:--
(1) Whether the plaintiff has got cause of action?
(2) Whether the suit is incompetent in its present form?
(3) Whether the plaintiff is estopped?
(4) Whether the Court has got jurisdiction?
(5) Whether the suit is res judicata?
(6) Whether the Nun is bad for non-joinder/mis-joinder of necessary/ unnecessary parties?
(7) Whether the suit has been properly valued for the purposes of Court fee?
(8) Whether the defendants have matured their title to the suit land through adverse possession?
(9) Whether the suit is mala fide?
(10) Whether the defendants have made improvement over the suit land if so up to what extent and its effects?
(11) Whether the plaintiff is entitled to the decree as prayed for?
(12) Relief?
11. The parties submitted their lists of witnesses and produced their evidence as they wished. After hearing the arguments of the counsel for parties, the learned trial Court dismissed the suit of the plaintiff vide judgment and decree dated 6-1-2003. The present petitioner preferred an appeal before District Judge, who entrusted the same to Additional District Judge/Izafi Zilla Qazi-IV, Swat, who dismissed the appeal on 8- 5-2004. Hence, the instant revision petition.
12. Mr. Sher Muhammad Khan, the learned counsel for the petitioner contended that the learned trial Court did not follow the findings of Peshawar High Court with regard to alleged partition deeds dated 22-7-1939 and 7-9-1945, which was declared as forged one. He also contended that since the respondents are beneficiaries of partition deeds, therefore, legally burden lies on them to have proved the veracity of same.
13. Messrs (sic) Muhammad Arshad Yousafzai, learned counsel for the respondents contended that the suit is badly time-barred as the partition between the parties had taken place in 1939 and 1945, whereas the suit was instituted after more than four decades. He also contended that the defendants have exclusive possession over the suit property, which manifests reasons of the plaintiff. Moreover, the defendants are owners on the basis of adverse possession. He contended that plaintiff/petitioner had submitted an application before Martial Law, who sent the case to Qaza Department, Saidu Sharif, which the plaintiff voluntarily withdrawn and the suit was dismissed on 21-11-1981, therefore, the plaintiff had no right to institute the latter suit under the law. The counsel for the respondent supported both the concurrent judgment and decree.
14. In support of petitioner's contention, Abdul Majid son and attorney of the petitioner recorded his statement as P.W.1 and also examined Amir Sawab in his support. Respondents produced Muhammad Zubair Patwari Halqa as DW-1. Muhammad Sherin, Reader Tehsildar Khwaza Khela as DW-2, Akbar All I/C District Record Room as DW-3, Muhammad Ali Khan respondent recorded his statement as DW-4, Abdul Haleem as DW-5, Shah Jehan DW-6 and Syed Sarwar Ali Patwari Halqa as DW-7.
15.. Perusal of impugned judgments would reveal that both the Courts below have not followed the observations of this Court with regard to deeds dated 22-7-1939, 17-9-1945 and the verdict of Mohkama Qaza' which was declared by this Court contradictory and forged one, therefore, all the orders of the PATH Courts were set aside and directions were given to refer the matter to the Jirga.
Had this Court relied upon the documents produced by respondents then there was no reason to refer the matter to Jirga, because on the basis of these documents the suit of petitioner would have been declared as barred by time.
16. In such like cases, the burden always lies on the beneficiaries of the deeds because there is no dispute that parties are the legal heirs of one Bahoo and the property in dispute was his legacy.The stance of the A respondents that it was gifted in lifetime by their father to them was to be proved by them, but both the learned Courts below placed burden of proof on the shoulders of petitioner and committed gross illegality. Reliance can be placed on 2005 SCM R 135, 2000 SCM R 346 and 2011 YLR 2726. Both the Courts also illegally appreciated the plea of respondents wherein it was pleaded that their father was under debt of some persons and that amount was paid by respondents. In the entire evidence, there is no mention of the fact that how much, amount was owed by their father and to whom and when it was paid. By not proving the said fact, the entire defence plea becomes baseless. Moreover, there are numerous corrections, cuttings and alterations in the deeds exhibited by respondents which has not been explained by them. The revenue record by itself is not conclusive proof of title, the petitioner has challenged the same at the earliest time, therefore, no authenticity could be attached to the wrong entries of the settlement.
17. The record further transpired that admittedly, parties have derived their rights from the common ancestor, namely Bahoo, therefore, the petitioner being common ancestor is entitled to 1/4th share in the legacy of Bahoo, but the Courts below have not attended to this aspect of the case and illegally decided issue No,
1. Moreover, the conclusion of Courts below to declare the suit time- barred is not legally tenable for the reason that being a co-sharer and heir of common predecessor, the time will not run against plaintiff for the purpose of limitation. Reliance can be placed on 2007 SCM R 635 "Mst. Suban v. Allah Dina and others" Furthermore, the documents Exh.DW 3/1, 4/1 and 4/2 have not been proved in accordance with law, as there are many corrections, cuttings and alterations in the deeds exhibited by respondents which has not been explained by respondents, but the Courts below have wrongly relied on the aforesaid documents, so the impugned findings are not legally tenable in the eyes of law because the Courts below have committed misreading and-non-reading of material evidence resulting in erroneous conclusions.
Thus, both the Courts below have failed to exercise their jurisdiction vested in them by law.
' For the foregoing reasons, this revision petition is allowed, impugned judgments/orders and decrees are hereby set aside and resultantly, suit of petitioner/plaintiff is hereby decreed as prayed for. No order as to costs.