' ABDUL LATIF KHAN, J.---This civil revision has been filed against the judgment and decree dated 19-5-2012 passed by learned Additional District Judge/Izafi Zilla Qazi, Swat, whereby appeal filed by the petitioners against the judgment and decree of Civil Judge/Illaqa Qazi, Swat, dated 27-7-2011 was dismissed.
2. Short facts of the case are that plaintiff-petitioner No. 1, Muhammad Khabir, filed a suit No. 30/1 of year 2011 and Hussain Ali, respondent No.1, filed a suit No. 29/1 of year, 2011, against Bahar Bostan and others for declaration and permanent injunction which were consolidated and learned trial court after framing consolidated issues and recording evidence of parties, decreed suit No. 29/1 while suit No. 30/1 was dismissed, vide consolidated judgment dated 27-7-2011. Muhammad Khabir and Muhammad Parvees filed an appeal which was also dismissed by learned Additional District Judge/Izafi Zila Qazi, Swat, vide judgment and decree dated 19-5-2012, hence, the present revision.
3. Arguments heard and record perused.
4. A perusal of record reveals that plaintiff/petitioner Muhammad Khabir filed a suit against Bahar Bostan, along with provincial Land Commissioner and Government functionaries at District and Tehsil level, defendants, for declaration to the effect that he is owner to the extent of 120 x 60 square feet by dint of registered deed No. 295 dated 3-6-1999 out of khasra No. 497 measuring 6 k-12 m purchased by him from defendant No. 1, Bahar Bostan. Similarly, one Hussain Ali also filed a Suit No. 29/1 for permanent injunction against Bahar Bostan and Muhammad Khabir, the plaintiff of other suit, referred above, along with others with the prayer to restrain the defendants from interfering in the property to the extent of 3 kl-15 mals out of khasra No.1497 and also sought directory injunction against the defendants with the prayer in relief 'C' for cancellation of registered deed No. 295 dated 3-6-1999 on behalf of defendant No.1 in favour of Muhammad Khabir and recovery of possession of suit property was also sought in relief 'D' of the plaint.
5. Both the suits were consolidated and learned trial court vide judgment dated 27-2-2011 decreed the suit No. 29/1 filed by Hussain Ali whereas suit No. 30/1 filed by Muhammad Khabir was dismissed. An appeal was preferred by Muhammad Khabir, plaintiff in suit No. 30/1, and Muhammad Parvees, defendant in suit No. 29/1, which was dismissed by dint of impugned judgment passed by learned Additional District Judge on 19-5-2012.
6. The scanning of evidence produced by the parties reveals that the property in dispute bearing Khasra No. 1497 has been recorded in the name of Provincial Land Commission in column of ownership whereas Bahar Bostan son of Sharif ud Din has been recorded to the extent of 36th share and Ghafoor Khan son of Ghulamn Nabi is shown recorded in possession to the extent of 39th share as tenant as well out of 132 shares. The property is shown in the revenue record as Ghair mumkin Abadi to the extent of 4 k 9 m while the remaining A property to the extent of 2 k 3 m recorded as Dhaka rak in Jamabandi for the year 2002-2003. The revenue record has been produced through PW-2, Daftar Qanango, and PW-4, Patwari Halqa, Saidu Sharif. Shoukat Ali, Registration Moharrir, Babozai, examined as PW-3, who bought on record registered deed No. 295 dated 3-6-1999 attested on behalf of Bahar Bostan in favour of Muhammad Khabir, plaintiff of suit No. 30/1. The claim of plaintiff Muhammad Khabir is that he has purchased the property by dint of deed No. 295 from Bahar Bostan, who has not been shown as owner in the suit property. It is claimed that being a private servant as Cook of Ex Ruler of Swat, Bahar Bostan was given the property in dispute by original owner but no evidence to this effect has been produced. The revenue record has been produced but his title has not been proved. It is pertinent to mention that a person having a defective title or no title at all cannot transfer better title in favour of vendee. The execution of deed, has not been B proved by' producing cogent evidence. The Scribe, marginal witnesses and the attesting Officer of the deed has not been produced and above all, the title of Bahar Bostan has not been proved through any convincing evidence enabling him to transfer the property in favour of plaintiff/petitioner, Muhammad Khabir. The plaintiff, himself has not bothered to enter into the witness box in support of his claim rather opted to be examined himself through his attorney, who was not acquainted with the facts of the case, as such, best evidence has been withheld by him. The plaintiff has applied to Federal Land Commission during the course of hearing of instant case, who allowed the disputed land to him and to this effect mutation No. 3494 was also attested on 30-10-1912 in his favour but later on the same was cancelled and revision petition against the order of cancellation is still pending before learned Additional Commissioner, which shows that plaintiff has apart from civil suit, also approached to Federal Land Commission and now revenue hierarchy which is not permissible under the law. This shows the conduct of the petitioner/plaintiff and is estopped to sue. On the other hand, the plaintiff in suit No.29/1 has also not appeared in person in support of his claim. He is unable to show his locus standi to challenge the registered deed No. 295 attested on behalf of Bahar Bostan in favour of Muhammad Khabir, plaintiff/petitioner of other suit, as he purchased the property from one Noor Jehan alias Riast Bibi daughter of Mian Abdul Haq Jehanzeb but to the extent of her title no evidence has been produced and the only allegation made in the plaint is that she is legal heir of Mian Abdul Haq. Jehanzeb and the property has been devolved upon her but to this effect no instrument has been brought on file, as such, her title has not been proved by the plaintiff of suit No.29/1. Out of the land measuring 6-k 12-m in khasra No.1497 he has allegedly purchased property measuring 3 k 15 m whereas plaintiff in suit No. 30/1 has purchased property measuring 60 x 120 square feet, as such, he has no locus standi to challenge the property purchased by the other plaintiff, therefore, his claim to cancel registered deed attested in favour of other plaintiff is without substance as he has no locus standi to challenge the same for the simple reason that his right has not been infringed. He has not proved his title nor produced Noor Jehan Begum, vendor, in support of his claim. The document relied upon by him regatding his purchase of the suit property along with other property has not been proved so far as disputed property is concerned, as neither marginal witnesses nor scribe nor attesting Officer has been examined in this behalf and only placed reliance upon the statement of his attorney, as such, both the plaintiffs have failed to prove their case through cogent and convincing evidence as required under the law.
7. The plea of learned counsel for the respondent/plaintiff in Suit No. 29/1 regarding choice given and claims the title on its behalf, is misplaced as the referred section 18 of Land Reforms Ordinance has been declared as against the injunctions of Islam by the apex court and in this regard cut date of 23-3-1990 given and, thereafter, no valid choice can be made whereas in the instant, it is made in the year, 1999. Honourable, the Supreme Court in a case Qazalbash Waal and others v. Chief Land Commissioner, Puniab, Lahore and others (PLD 1990 SC 99) has declared the following provisions of the Land Reforms Regulation, 1972 (MLR 115) Land Reforms Act, 1977 and the Punjab Tenancy Act, 1887 to the extent indicated against each, repugnant to the injections of Islam:--
(i) Para. 2, clause (7) of the Regulation in so far as it includes Islamic Wakf for the purposes of other paras of the Regulation which are being held wholly or partly repugnant to injunctions of Islam.
(ii) The whole of paragraphs 7,8,9,10,13 and 14 and consequentially paragraph 18 of the Land Reforms Regukattdn.
(iii) Paragraphs 15,16,19 and 20 of the Land Reforms Regulation, 1972 in so far as they ignore the rights and obligations, the terms and conditions of the grant, license or lease, as the case may be, in resuming the stud and livestock farms, Shikarghahs and Orchards and dealing further with them under paragraphs 19 and 20 thereof.
(iv) Paragraph 17 of the Land Reforms Regulation in so far as it relates to Wakf and all other institutions which can validly fall within the definition of Islamic Wakf and consequential to that extent paragraph 21 also.
(v) Paragraph 25(1) of the Land Reforms Regulation in so far as it does not give sanctity to the grounds of ejectment available in a valid contract between the landlord and the tenant, entered into in accordance with the injunctions of Islam.
(vi) Paragraph 25(3) (d) of the Land Reforms Regulation having already been declared to the repugnant to the injunctions of Islam in said Kamal Shah's case PLD 1986 SC 360.
(vii)The whole of sections 3, 4, 5, 6, 7 (5), 8, 9 and 10 of the Land Reforms Act, 1977 and consequentially the whole of sections 11 to 17 of the Act.
(viii) The whole of section 60-A of the Punjab Tenancy Act, 1887 in so far as it makes non- occupancy tenancy heritable irrespective of the terms of the contract.
(ix) The decision shall take effect on 23rd March, 1990 whereupon the provisions declared repugnant to the Injunctions of Islam will cease to have effect."
' The question of repugnancy or otherwise of paragraphs 22, 23, 24 of the Land Reforms Regulation was left undermined, proper and full assistance having not been received and another decision of the Federal Shariat Court having come into field during the interregnum.
' Provisions of paragraph 25(3), cls (a), (b) & (c) of the Regulation are not repugnant to the injunctions of Islam.
' Moreover, the plaintiff/respondent had no authority to make choice, no law empowers him to do so as he was neither owner nor legal heirs of the declarant and, as such, not competent to make choice and instead the declarant and his legal heirs had the powers to make choice. The plaintiff/ respondent being purchasers has kept mum for considerable long period and filed suit on 11-2- 2008.
For the aforesaid reasons, this civil revision is partially allowed, judgment and decree passed by courts below in Suit No. 29/1 of year 2008 in favour of Hussain Ali, plaintiff, is set aside and his suit is dismissed while judgment and decree passed by courts below regarding dismissal of Suit No. 30/1 filed by Muhammad Khabir is maintained, with no order as to costs.