ABDUL LATIF KHAN, J-This civil revision has been filed against the judgment and decree dated 20-6- 2012 passed by the learned Additional District Judge/ Izafi Zilla Qazi, Matta, Swat, whereby judgment and decree dated 29-11-2011 passed by the learned Civil Judge/Illaqa Qazi-IV, Matta, Swat was upheld.
2. Arguments heard and record perused.
3. A perusal of the record reveals that a suit for declaration was filed by the petitioner against the respondents to the effect that property measuring 27 kanals 14 marlas owned by predecessor-in- interest of the parties namely Dalil Khan was devolved upon the parties, out of which the petitioner is entitled to the extent of 1/4th share being one of the four (4) sons of said Dalil Khan and also sought reversal of decision made by the Tehsildar Settlement dated 4-11-1986 in File No. 7624/ST.
Similarly, an agreement/unregistered document bearing No. 66 attested on 9-4-1973 was also questioned on the ground that the same was based on fraud, misrepresentation, illegal, without lawful authority and ineffective upon his right. The claim of the petitioner hotly contested by the respondents by filing written statement, wherein the document/agreement bearing No. 66 dated 9-4-1973 was relied upon with the plea that predecessor-in-interest of the parties had partitioned the property in his lifetime and the petitioner has got no nexus with the property in dispute.
4. The petitioner produced evidence in support of his claim made in the plaint, Shahid Ali, PW-1 son and attorney of the petitioner appeared as PW-1, who reiterated the stance taken in the plaint. Who relied upon "khatooni", EX-PW-1/2 consisting upon two pages, wherein the property was recorded in the name of petitioner alongwith respondents/other three (3) brothers by the settlement authorities and the first ever "jamabandi"/"Misli Haqiyat" for the year 1985-86 prepared by the settlement authorities contained the name of the petitioner alongwith other three (3) brothers/respondents in accordance with law. He also deposed that funeral expenses of the Dalil Khan were borne by them as he died in his house. He was subjected to taxing and searching cross- examination but nothing adverse to the stance of plaintiff was taken out from his mouth. He deposed that after the incorporation of entries in the "khatooni", EX PW-1/2 and the first ever "jamabandi"/"Misli Haqiyat", the settlement authorities have got no power to cancel the entries made on the application made by the respondents, on the basis of alleged agreement of the year 1973. Haeen Khan, PW-2 was examined by the plaintiff and Zorast Khan son of Khair Noor, aged about 80 years also examined as PW-3, who deposed in favour of the plaintiff. Muhammad Saleem, Halqa Patwari was produced as PW-4, who has produced the revenue record and Muhammad Zubair, ADK Swat was examined as PW-5.
5. On the other hand, Muhammad Zubair, ADK, Swat was examined as DW-1. Aurangzeb, Clerk "Muhafiz Khana" was examined as DW-2, who produced a copy of deed dated 9-4-1973 as EX- DW2/1. In cross-examination he also admitted that the deed EX-DW-2/1 does not contain the name and signature of the plaintiff/petitioner. Muhammad Saleem, Patwari Halqa appeared as DW-3 and Mahmood Khan was examined as DW-4, who cited as marginal witness of the deed EX- DW-2/1. Hussain Ali Khan, attorney of the defendants appeared as DW-5, who reiterated the stance taken in the written statement.
6. The scanning of the evidence produced by the parties reveals that admittedly the property was owned by the predecessor-in-interest of the parties namely Dalil Khan, who had four (4) sons namely Zor Dast Khan, plaintiff/petitioner, Maseen Khan, Khan Toti and Gul Shehzada. The claim of the petitioner regarding 1/4th share out of the property, which were incorporated in the first ever "jamabandi"/"Misli Haqiyat" for the year 1985-86, EXPW-4/1 alongwith "khatooni", EX-PW-1/2, wherein all the four (4) sons of Dalil Khan recorded as owners of the property. Dalil Khan died prior to settlement proceedings, which were started in the year 1982 and completed in December 1986. It is pertinent to mention that after incorporation of entries in the name petitioner alongwith other legal heirs i.e. three (3) sons of Dalil Khan in the revenue record after proper inquiry conducted during the settlement proceedings. An application was moved on 3-9-1986 by the present respondent No. 1, who happens to be son of Maseen Khan/nephew of the petitioner wherein he taken the plea that the property was given by the said Dalil Khan vide deed No. 66 dated 9-4-1973, EX-DW-2/1 in favour of the respondents excluding the petitioner and settlement authorities without affording an opportunity to the petitioner passed an order on 4-11-1986 in absence of the petitioner in File No. 7624/ST and entry to this effect was made in the remarks column of "Misli Haqiyat", which was beyond the powers of Settlement Officer for the reason that once entries made in the first ever "jamabandi"/"Misli Haqiyat", prepared during the course of settlement proceedings after proper spot inspection and inquiry then settlement authorities have got no jurisdiction to annul any entry on the application of any party in the absence of other/aggrieved party without affording him an opportunity of being heard, as it is exclusive job of the Civil Court to record evidence in this respect and decide the matter in accordance with law. No evidence could be recorded by the settlement authorities after entries are made in the first ever"jamabandi"T"Misli Haqiyae" nor any action can be taken by them thereafter. It is pertinent to mention that the settlement proceedings were completed on 31-12-1986 and impugned order was passed on 4-11-1986 just one month and 26- days prior to proceedings and being prior to proceedings which was beyond power, bestow upon by the law on the settlement authorities. The pedigree table prepared by the settlement authorities, EX-PW-5/5 is available on file to this effect.
7. The order passed by the Settlement Tehsildar dated 4-11-1986, EX-PW-5/XI is reproduced for convenience sake as under:
8. A bare look of the above order reveals that the petitioner was not present before Tehsildar and only respondent No. 1, Zabar Dast Khan/applicant was present, who produced the deed dated 9-4- 1973 and was taken as gospel truth therein and on the basis of which an order was passed, which was against the norms of justice, law besides. Mutation No. 226 dated 8-12-1993, EX-DW-1/1 was also attested on the basis of said order, EX-PW-5/XI, but the same has not been proved by producing marginal witnesses .i.e. Patwari Halqa, Tehsildar/Revenue Officer Circle being important entities are to be produced by the beneficiaries/respondents in order to prove its valid attestation.
In this regard reliance can be place on the case of Muhammad Akram & another VS Altaf Ahmad" reported in PLD 2003 Supreme Court 688, wherein it was observed by the Hon'ble apex Court as under: " In connection with the attestation of a mutation, most important entities are the Patwari Halqa who happens to enter the - 10 - mutation and the Revenue Officer who happens to attest the same. Both of them were not produced and examined in Court. In the absence of these two officials, the mutation cannot be said to have been proved."
9. The entry recorded on the basis of order passed by the Settlement Tehsildar was without any legal authority and is hereby annulled and the entries made in the "Misli Haqiyat", EX-PW-5/1 in the name of petitioner alongwith other three (3) sons are restored. Needless to mention that the entries in `jamabandies" with special reference to the entries made after spot inspection by the settlement authorities during the course of settlement has got presumption of truth and the entries made in the settlement by the settlement authorities are to be considered at higher pedestal then the ordinary entries made in the jamabandies" and the presumption attached has to be rebutted through cogent and convincing evidence, which has not been produced before the settlement officer by the respondents.
10. The petitioner has filed the instant suit on 19-2-1998 claiming that the order passed by Tehsildar Settlement on 4-11-1986 in his absence and was kept unaware of the same till 1993, as the same was not incorporated in the revenue record and for the first time disclosed on 8-12-1993 after seven
(7) years of its insertion and thereafter the plaintiff acquired the knowledge and filed the instant suit within 6 years, as the period of 6 years has been prescribed under Article 126 of the Limitation Act for filing of suit. The limitation would not be reckoned from 1973, as no notice was served upon the petitioner nor he was present before the settlement authorities and to this effect the findings of Courts below are not in line with law and, as such, the suit is within time.
11. The local commissioner/mediator was appointed in the matter, who submitted that the order passed by the Tehsildar Settlement was not correct as it was passed ex-parte without affording an opportunity to the petitioner. Objections were also filed against the report of commission by the respondents; however, the Courts below have not taken it into consideration without any jurisdiction.
12. So far is the agreement No. 66 dated 9-4-1973 is concerned, the petitioner was not party to the agreement in question neither his name has been mentioned in it nor he has put his signature as party to the agreement rather shown that he was not present at the relevant time. Dalil Khan, predecessor-in-interest of the parties, Zabar Dast Khan, defendant/respondent and his father Maseen Khan alongwith Khan Toti and Gul Shehzada were party to the agreement, who put their signatures over the deed and apart from them, Akbar Khan, Mahmood and Khaista Faqir were shown as marginal witnesses, out of whom Mahmood was produced as DW-4 while the rest of the witnesses have not been produced. Scribe of the document has not been produced. The deed also bears the signature & seal of Extra Assistant Commissioner, but he too was not produced being an important entity. Needless to mention that agreement deed has no binding effect upon the plaintiff, as he was not party to the agreement and, as such, ineffective upon his right. Moreover, the plea of the respondents to the effect that the petitioner was given Rs. 8,000/- in lieu of property at the time of partition; is misplaced for the simple reason that no evidence to this effect has been produced. Similarly, the plea that the property of the plaintiff/petitioner has been sold by him is also misconceived for the reason that no evidence has been brought on file by the respondents in this regard. Moreover, the written statement is totally silent regarding these two pleas, even the evidence produced by the respondents is not in line with their pleadings and departure from pleadings is not permissible under the law.
13. So far is the possession of the land in dispute is concerned, it is shown in the name of the four
(4) sons of Dalil Khan in the revenue record prepared during the settlement proceedings and the parties were in possession even after the order passed by the settlement authorities, whereby the name of the petitioner was deleted from the column of ownership. If the defendants are in possession of the property, it would not bestow any right/title upon them. On the other hand, the defendants failed to prove that they were inducted into possession by Dalil Khan, predecessor-in- interest of the parties in the year 1973 for the reason that the document relied upon by the defendants does not speak about their induction into possession by their predecessor-in-interest and, as such, the findings arrived by the Courts below are not based upon reason.
14. The Courts below have passed the impugned orders in slipshod manner without proper appreciation of evidence available on record. The Court of appeal has given no reasons on its own and has chosen easy path to agree with the Trial Court without taking pain to evaluate the evidence, and, as such, failed to perform the duties entrusted to it by the legislature in accordance with law.
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15. The Courts below have not decided the "lis" pending before them with conscious and application of independent mind and, as such, the impugned judgments and decrees are not sustainable in the eye of law.
For the aforementioned reasons, I allow the instant petition set aside the impugned judgments and decrees and passed a decree in favour of the petitioner to the extent of 1/4`k' share out of the legacy of 27 kanals 14 marlas and entries made in the revenue record in the first ever "jamabandi"/"Misli Haqiyat" are restored.