' MALIK MANZOOR HUSSAIN, J.---This revision petition has been preferred against the judgment and decree dated 23-6-2010, passed by learned Addl: District Judge-I, Hangu, whereby the appeal filed by the petitioner was dismissed and consequently the judgment and decree dated 13-3-2010, passed by learned Trial Court was maintained.
2. Briefly, facts of the case are that the respondents/plaintiffs filed a suit for declaration with perpetual injunction and possession of suit land fully detailed in the heading of the plaint against the petitioner. The suit was resisted by the respondents and after recording pro and contra evidence, the learned Trial Court vide his judgment and decree dated 13-3-2010, decreed the suit of respondents. Being dissatisfied the petitioner preferred an appeal and the same was dismissed through judgment and decree dated 23-6-2010, hence the instant revision petition.
3. Learned counsel for petitioner contended that the judgments and decrees of both the learned Courts below are against the material available on record and both the Courts below failed to exercise their jurisdiction vested under the law, which resulted into gross illegality. He further drew attention of this court to the documents produced by the petitioner as Exh.DW.1/2 whereby the property was transferred in the name of his mother on 12-2-1980 and on the basis of same, the petitioner became owner of the property. He further submitted that the matter was decided way back on 5-1-1984 and referred the order passed in proceedings under section 145, Cr.P.C., which' were initiated on the complaint of one Muhammad Taufiq Khan against Syed Hidayat Ullah Shah, the father of petitioner and the same was dismissed.
4. Conversely, the learned counsel for respondents contended that the property was originally occupied by the respondents from their forefathers as occupancy tenant under section 5(1)(a) of Act, 1887, and the petitioner has got no right to interfere in the suit land as he was an alien, having no concern with the legacy of their forefathers. He further contended that the point raised today in the arguments were neither taken in written statement, in appeal or in the instant revision petition, hence the petitioner is estopped by his conduct to raise the issue, which has not been taken by him on the proper time.
' Arguments heard, record perused.
5. Perusal of the record reveals that from Jamabandi for the year, 1965-66 Exh.P.W.2/2. Muhammad Arshad Khan, Muhammad Rafique and Muhammad Shafique etc., L.Rs, of Muhammad Amir Khan, were shown recorded as occupancy tenants under section 5(1)(a) of Tenancy Act, 1887. In the year, 1971-72, it was 'converted into tenancy which entry remained till the year 2000-01. This contention is supported by Exh.P.W.1/1 to Exh.P.W.1/8 i.e,, Jamabandi for the year 1976-77 uptill 2000-01. The respondents/plaintiffs are the L.Rs, of Muhammad Rafique and Muhammad Arshad Khan. It is noticed that in the written statement the petitioner have not taken the plea that he became owner on the basis of Exh.DW.1/2, executed on 12-2-1980 and also failed to mention that what was the document/source on the basis of which the petitioner became owner of the suit land. For the first time during recording his evidence as DW.1, he built up a case that on the basis of un-registered deed dated 12-2-1980, he purchased the property from one Shah Alam Khan and became the owner of the same but in the cross-examination he introduced the fact that the property was ownership of respondents but after official partition this property was sold by the respondents to one Musafar Khan from whom the petitioner purchased the property and became owner of the same.
6. It is well settled that a party is not allowed under the law to improve his case from what was originally set up in the pleadings. Under the principle of "secundum allegata et probata", which means that a fact has to be alleged by a party before it is allowed to be proved, apply on all force to the facts of instant case. The factum of transfer of property in the name of petitioner through deed dated 12-2-1980 or through purchase from Musafar Khan was not taken either in the plaint and even in the instant revision petition. This fact cannot be taken at the revisional stage and that too during arguments. A party could not subsequently improve his case in evidence, as a litigant has to first plead facts and pleas in the pleadings and then to prove the same through evidence.
No party was allowed under the law to improve his case from what was originally set up from his pleadings. Reliance can safely be placed on "Messrs Choudhary Brothers Ltd, Sialkot v. The Jaranwala Central Cooperative Bank Ltd and others" (1968 SCMR 804), "Pakistan v. Abdul Ghani"
(PLD 1964 SC 68), "Qabil Shah and others v. Shaday" (PLD 1992 Pesh. 144), "Muslim Commercial Bank Ltd., v. Syed Ahmad . Saeed Kirmani" (1991 CLC 140).
7. Even otherwise, neither the scribe, executant, marginal witnesses of deed dated 12-2-1980, was produced nor the second deed referred today was proved through production of the same as per requirement of law. The petitioner was duty bound to prove the execution of agreement to sell, if any, which was his bounding duty. It was mandatory for him to produce all marginal witness along with scribe to remove all suspension about the genuineness of its execution. The petitioner himself admitted in his statement before the court that scribe, executants and marginal witnesses are alive at the time of recording his statement. So by not producing the best available evidence, inference goes against the petitioner.
8. It is by now well settled that the High Court while examining the findings on question of fact and law, recorded by the Court of competent jurisdiction, cannot interfere unless those findings suffer from jurisdictional defects, illegality or material irregularity. On the scope of interference in revision, reference can be made to the principle laid down in "Abdul Hakim v. Habib Ullah" (1997 SCMR 1139), which was later on endorsed by full bench of the Hon'ble apex Court in case of "Maj. Hussain v.
Abdul Hameed through L.Rs, and another" (2000 SCMR 314) and further endorsed in the case of "Muhammad Rashid Ahmad v. Muhammad Siddique" (PLD 2002 SC 293). In the case of "Shafi Muhammad and others v. Khanzad Gul and others" (2000 SCMR 368), the Hon'ble apex Court has gone to the extent that as a rule even Supreme Court should give due weight and consideration to the opinions of the Courts below and in particular to the opinion of the Court of first instance, which had the advantage of hearing the parties, witnesses and watching their demeanor. Reference was placed on Malik Muhammad Ishaq's case 1977 SC 109, Noor Khan case PLD 1973 SC 469 and Shah Nawaz's case PLD 1976 SC 767.
' In view of what has been discussed above, this revision petition being devoid of any merits is dismissed with costs.