' MOHAMMAD DAUD KHAN, J. This single judgment proposes to dispose of two Regular First Appeals # 01-B/2006 and 03-B/2007. The appellants in both appeals have challenged the judgment and decree passed by learned Civil Judge-Bannu on 30.06.2006. Vide the impugned judgment, the claim of appellant # 1 was decreed to the tune of Rs.4,00,000/-, and that of the appellant # 2, to the extent of Rs . 50 ,000/- .
2. In a declaratory suit, appellants (Haji Shewa Jan and Haji Mir Draz Khan) contended that since the year 1955-56, they and proforma respondents # 4 to 37 are owners of Shops, Market, Garage and Halls, situated at Bakka Khel Mandi, Bannu. In the said property, they were running their business since long. On 17.10.1995, respondent # 1-3, who are government functionaries, issued a certain notice to the appellants, directing them demolition of Mandi Bakka Khel, operation cleanup and within a few hours of the issuance of the notice, respondents 1-3 ordered to demolish the buildings of the appellants and proforma respondents-4 to 37. The appellants contended that the allegations leveled in the notice were wrong and baseless. They also argued that the respondents did not afford them an opportunity of hearing. As a result of the demolition of the building, the appellants claimed to have incurred huge financial loss to the tune of Rs.1,65, 89,000/- worth of the construction and Rs.1,00,000/- as value of destroyed goods.
2. Respondents/defendants 1 to 3 appeared; others did not turn up before the Court. Respondents 1 to 3 submitted their written statement, raising many legal and factual defences. The learned trial court framed as many as ten issues.
3. Both the contesting parties adduced their respective evidence as they wished. On conclusion of trial, after hearing the arguments of the learned counsel of the parties, the suit of the appellant was dismissed by the learned trial Court vide its judgment and decree dated 25.06.1999. The learned trial Court, while declaring that the respondents 1-3 are entitled to the claim prayed for reasoned, that respondents 1 to 3 have no control over the area and appellants and proforma respondents are taking the benefits and advantages available to the people of tribal area. On appeal, hon'ble the High Court set aside the judgment of trial court, holding that the suit property is situated in the settled area and that the civil court has got the jurisdiction over the suit matter. The High Court remanded the case to the trial Court for decision afresh.
4. After remand, in the second round of litigation, the learned trial Court again dismissed the suit of the appellants vide its judgment and decree dated 24.04.2003. The decision was again appealed against in which the High Court held that trial Court failed to render its findings on issue-7. Thus, on 11.10.2005, the High Court remanded the case to the trial Court.
5. In the third round of litigation, the trial Court partially accepted the claim of the appellants on 30.06.2006, decreeing the claim partially to tune of Rs.4,00,000/- in favour of appellant # 1 and Rs.50,000/- in favour of appellant # 2.
6. The appeal in hand (# 01-B/2006) was preferred against the trial Court's latest judgment and decree dated 30.06.2006. Appeal # 3-B/2007 was preferred by respondents initially before Additional District Judge-IV, Bannu, who returned it for presentation before this Court, obviously for want of pecuniary jurisdiction.
7. During the course of arguments, at the very outset Mr. Anwarul-Haq learned counsel for the appellants objected that RFA # 3-B is hopelessly time barred, having been instituted, in this Court on 20.01.2007. Replying to the objection, the learned DAG contended that filing of appeal in the wrong forum is bona fide mistake which can be condoned in special circumstances.
8. In our view the objection raised by Mr. Anwar-ul-Haq is not sustainable in law. According to rule 22 of Order XLI, C.P.C., a respondent may file cross objections to a decree within one month from the date of service on him or his pleader or within such further time as the appellate Court may deem fit to allow, despite the fact that such a respondent has not appealed from any part of the decree.
' Rule 33 of Order XLI, C.P.C. Confers on the appellate Court wide powers to pass any decree and make any order, as is clear from its original wordings reproduce below: "33. Power of Court of appeal.--- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or, parties may not have filed any appeal or objection.
[Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
9. This statutory law has been reiterated by the hon'ble Supreme Court of Pakistan in case titled "Shahro and others v. Mst. Fatima and others" reported in (PLD 1998 SC 1512) holding that: "[Elven in the absence of cross objection where it was necessary to file such objection under Order XLI, Rule 22, C.P.C. The appellate court, therefore; is ,always vested with power to pass any decree and make any order which ought to have been passed etc.".
' So the objection of learned counsel for respondent was repelled.
11. Mr. Anwar ul Haq, learned counsel for the appellants and Mr. Qudratullah Khan Gandapur learned D.A.G advanced their respective arguments, which this Court has considered in light of the material available on the record.
12. The issue pertaining to the geographical location of the suit land has already been decided by the D.I. Khan bench of this Court while disposing of the previous RFA # 10/1999. Suffice it to reiterate here that the record reflects that suit property is though close to the adjacent Frontier Region (FR) of Bannu district, it is in fact situated within the jurisdiction of the settled district. The suit property, i.e., Mandi Bakka Khel, is reflected in the revenue record as Khata # 597 & 427, Khasra # 112 & 3695/113 (copies Ex PAN 5/2 & 5/3, respectively).
Though the respondents (who are Government Functionaries of Khyber Pakhtunkhwa) alleged that the suit property was used for harboring criminals and other criminal activities, but that does not, in any manner, mean that the Frontier Crimes Regulations 1901 is applicable there. As the site situated in settled area where regular law extended in shape of P.P.C., Cr.P.C. Is applicable. The trial Court has rightly decided this issue in favour of appellants.
13. In the above scenario the question that needs to be dealt with by this court is that what would be the appropriate remedy has to be thrashed out according to law. Respondents who are two in numbers among the other persons placed respondents-4 to 37 in the instant case did neither claim any benefit for their sons, nor appeared in the court from the beginning and opted to stay away the court proceedings. The respondents in the plaint made Government of Khyber Pakhtunkhwa, Deputy Commissioner, and Political Agent as respondents for their claim of, damages but that detrimental act of any was personal capacity of the official acting at the relevant time was not arrayed a party by name in personal capacity. The respondents/plaintiffs produced their evidence as they wished in support of disputed site lying in the settled area but they miserably to fail to produce any Civil Engineer, photographs or any other documentary evidence regarding the quantum of damages incurred upon them.
14. The general rule is that unless proved on the strength of cogent and reliable evidence, the mere averments made in the plaint are not sufficient for the entitlement of a decree. The Honourable Supreme Court of Pakistan in a case titled Faqir Muhammad and 8 others v. Abdul Momin and 2 others reported in (PLD 2003 SC 594), wherein it has been held:- "that the general Rule is that the pleadings of parties are not substitute of evidence and it being not a substantive evidence, the averments made in the pleadings would carry no weight unless proved through the evidence in Court."
' The above dictum of law is also taken from the case of "Muhammad Bashir and others v. Lftikhar Ali and others" reported in (PLD 2004 SC 465).
15. The learned trial court after proper appraisal of statement of local commission and available evidence determined the damages and rightly decreed the suit to the extent of Rs.4,00,000/- in favour of appellant-1 and Rs.50,000/- in favour of appellant-2.
16. In the light of above observations, both the appeal are meritless, without substance and not sustainable, hence the same stands dismissed as no order as to cost.