' This revision petition has been preferred against the impugned judgment and decree dated 29.09.2012, passed, by learned District Judge, Hangu, whereby the appeal of petitioners against judgment and decree dated 25.04.2011 passed by trial Court, was dismissed.
' Arguments heard record perused.
2. A perusal of record reveals that the plaintiffs/petitioners filed a suit for declaration permanent injection, recovery of possession and specific performance of agreements dated 30.6.1980 and 22.6.1981 as in alternative claiming therein that they have purchased the rights of tenant at will by dint of deed and are entitled to be incorporated as tenant at will in the revenue record and defendants have got no right with the suit property. The suit was contested by defendants through filing separate written statements. The plaintiffs have also relied upon the judgment passed by District Judge/Tribunal Kohat which is posted as Ex.PW.3/3 and claimed his right which were declared by dint of referred judgment delivered on 10.1.1987.
3. It is pertinent to mention that the plaintiffs have sought declaration alongwith permanent injunction in the previous lis to the effect that they are tenant at will of the property bearing Khasra Nos. 7821 & 7622 measuring 2 Kanals, 7 Marlas purchased by them as occupancy rights from Wahiduddin & others by dint of deed dated 30.6.1980 and 11.3.1986. Learned Tribunal while relying on judgment of this Court in case of "Government of NWFP through Secretary Malyat (Revenue)
Peshawar Vs Shamsher Ali & others" reported in PLD 1973 Pesh 34 and a notification dated 18.10.1986 posted in those proceedings as Ex.PW.5/2 held that tenant at will in the Sub-division had got the status of occupancy tenants and declared the notice dated 4.3.1986 as illegal. The findings of learned Tribunal was not questioned in the instant matter as the subject matter before Tribunal was altogether different to the instant matter which pertains to Khasra No, 6879.Moreover, .The notice regarding encroachment was questioned before Tribunal who declared the same as illegal however the same has got no nexus with the rights of plaintiffs as claimed in the instant suit.
4. The plaintiffs have failed to substantiate the claim made in the instant suit with the aid of any provision of any enactment. Learned counsel for petitioners failed to assist the Court on the point that legally petitioners could claim incorporation of their names as tenant-at-will on the basis of unregistered deed executed on behalf of private persons. Admittedly the property in dispute is State land and tenants at will have got no right to sell the same to the petitioner. The vendors of the petitioners had got no right to transfer the property in favour of petitioners as they had no title at all and documents purportedly executed in favour of petitioners reveal that sale has been effected which is not lawful as rights of tenants-at-will cannot be sold under the law. Even otherwise unregistered documents creates no title. The plaintiffs have also failed to prove the documents as per requirement of law. One Naushad marginal witness of the deed dated 22.3. 1981 produced as PW.1 have deposed that he know nothing about the description and measurement of the property sold. The averment of the plaint has not been substantiated by the plaintiffs through cogent and confidence inspiring evidence rather their evidence is contrary to the averment made in the plaint.
Moreover the suit has been filed with a considerable delay of more than 25 years. Specific performance of agreement have been sought on the ground that they are tenants at will over the sit property since long and have also purchased the right as tenant at will from the private defendants/respondents. There is no agreement on behalf of the owner of land/ State who is not party to the agreement and legally is not. Bound by any agreement executed between the two persons and .That too, an unlawful agreement executed without the consent of owners. No doubt private defendants has recorded as tenant at will in different Jamabandis pertaining to the suit property however they are not empowered to sell the rights as tenant-at-will nor these are saleable rights and similarly no declaration could be sought from the Civil Court regarding rights as tenant at will and as such the transaction being unlawful, the agreements are not for a lawful purpose and as such are void.
5. Learned counsel for petitioners took the plea that petitioners had been occupancy tenants in government land have become full owner in terms of Section 4-B of the NWFP Tenancy ,Amendment Ordinance, 1986 which is misplaced, as they are claiming the status of a tenant at will through declaration in the instant suit and have not claimed the occupancy rights and if at all the status of petitioners as occupancy tenant is taken into consideration in terms of referred Section 3 r/w 4 of the NWFP Tenancy Act, 1950, which is ceased to have effect after 30th March 1990 and admittedly up to the target date the petitioners have not claimed ownership in terms of referred sections and instead through instant suit they claims to be incorporated as tenant at will in the revenue record and not as owner as such the evidence relied upon with special reference 'to the referred provision of NWFP Tenancy. Act, 1950, would not give come to rescue of the petitioners/plaintiffs. They could not claim ownership in terms of referred provisions of NWFP Tenancy Act, 1950, after cut date, needless to mention that right to become owner had been bestowed through operation of law only in favour of those who are shown as occupancy tenants whereas plaintiffs are not recorded as such and could not claim ownership on this ground.
6. The Courts below have passed the impugned orders with reasons. There is no jurisdictional or legal error in the impugned judgments and the Courts below have neither misdirected nor misled the evidence available on file and the findings arrived are entirely in consonance with law and facts of the case, warrants no interference. For the aforesaid reasons, this petition being devoid of merit is dismissed.
(R.A.) .