HAIDER ALI KHAN, J.--- Impugned herein is the judgment and decree dated 29.11.2008 of the learned Additional District Judge/Izafi Zilla Qazi, Swat, whereby appeal of the Respondents Nos.1 to 11 was accepted and judgment and decree dated 28.7.2007 of the learned Civil Judge/Illaqa Qazi, Swat was set aside and consequently suit of the Respondents Nos.1 to 11 was decreed.
2. Precise and relevant facts of the case are that initially the Respondents Nos.1 to 8 filed a suit for declaration against the petitioners in respect of the suit property, detail given in heading of the plaint, claiming ownership thereof as legal heirs of late Asif Khan. As alternative prayer, the Respondents Nos.1 to 8 sought possession of the suit property.
' The suit was contested by the petitioners by filing their written statement and apart from raising various legal as well factual objections they pleaded that the suit property is the self acquired property of their predecessor Aman Ullah Khan.
' The pleadings of the parties, being divergent, were reduced into 11 issues where on the parties produced their respective oral as well as documentary evidence. The learned trial Court, after hearing the arguments, dismissed the suit of the Respondents Nos.1 to 8 vide judgment and decree dated 11.2.1986. The Respondents Nos. 1 to 11 filed appeal which was dismissed on 06.5.1986 and revision petition there against before this Court was also dismissed on 18.10.1992. Being still discontent, the Respondents Nos. I to 11 filed Special Leave to Appeal Petition before the august Supreme Court of Pakistan and on their request Respondents Nos. 1 to 11 were permitted to withdraw the suit and file a fresh one. Thereafter the Respondents Nos.1 to 11 filed fresh suit on 06.9.1994 in response whereof the petitioners filed their written statements. Similarly, the defendants Nos. 17/1 and 17/2 as well as the defendants Nos.22 submitted their separate written statements. The parties produced their respective evidence on the issues framed on the basis of divergent pleadings, whereafter, the learned trial Court dismissed the suit vide judgment and decree dated 19.4.2003. Being aggrieved, the Respondents Nos. 1 to 11 preferred appeal which was accepted, however, revision petition filed by the petitioners against the judgment and decree of the learned appellate Court was decided on 02.10.2006, resultant, judgment and decree of the trial Court was modified. The Respondents Nos.1 to 11 filed amended plaint as per directions of the appellate Court against which the petitioners filed their written statement, however, once again the Respondents Nos.1 to 11 filed amended plaint with permission of the Court in response whereof the petitioners filed amended written statement. After recording evidence of the parties on the issues and hearing the arguments, the learned trial Court once again dismissed suit of the Respondents Nos.1 to 11 vide judgment and decree dated 28.7.2007. Being aggrieved, the Respondents filed appeal whereas the petitioners, being aggrieved of the findings on issues Nos.8, 18 and 20 filed Cross-objection. The learned appellate Court, vide judgment and decree dated 29.11.2008, accepted the appeal of the Respondents Nos.1 to 11 and rejected the Cross-objection of the petitioners, Hence, the instant revision petition.
3. Arguments heard and record perused.
4. In light of pleadings and facts on the record, stance of the Respondents Nos.1 to 11/plaintiffs is that their predecessor namely Asif Khan and his brother Amanullah Khan, predecessor of the petitioners, were joint owners of ancestral property to the extent of 4-1/2 Paisa whereas they were joint owners of purchased property containing 7-1/2 Paisa wherein they are entitled to their half share. Their further stance is that apart from the above 12 Paisa ancestral property, both the predecessors of the parties were also owners of Serai land falling in Khasra Nos. 1681 and 1682 in equal shares and as such they are entitled to their half share in the same Serai land as well. They mainly relied on deed dated 23.1.1932 whereby both the predecessors jointly purchased 7-1/2 Paisa of land, per their stance.
' On the contrary, stance of the petitioners is that their predecessor Amanullah Khan had solely purchased 10 paisa land in Aligrama out of which he sold out some property to Biland Khan vide deed dated 14.1.1952 whereas he sold out more property to other people as well. They have further averred that late Asif Khan had brought a suit in respect of the entire disputed property against their predecessor Amanullah Khan which was decided by the then Qazi Amir Hajian on 17th Rajab 1356 according to Hijri calendar on the basis of compromise and predecessor of Respondents Nos.1 to 11 waived off his right in the disputed property.
' Record shows that relation between predecessors of the parties namely Asif Khan and Amanullah Khan, being brothers inter se, is admitted on the record as is evident from the Statement of Petitioner No,1 (DW-4). In his cross-examination, DW-4 admitted that:- {{URDU TEXT}} ' Onward the said witness also admitted in his cross-examination that father of predecessors of the respondents namely Rehmatulla Khan was Pakhtoon of the locality and belonged to Rama Khel Tal.
The relevant portion of the cross-examination carried out on DW-4 is reproduced as under for convenience sake.
' At this point, it would be appropriate to highlight the meaning of term 'Pakhtoon'. In Malakand Division generally Pakhtoon is that person who is the owner of Dafteri land and gets his share in the respective Tal (entity) during partition. No doubt, late Rehmatullah Khan was called Pakhtoon of the locality because he was owner of Daftari land and not in the sense that he was a Pashto speaking person. In other words ownership of Daftari land is/was the hallmark of Pakhtoon, therefore, late Rehmatullah Khan was called Pakhtoon as he owned Daftari land but strange enough that the petitioners have repeatedly adopted the stance that late Rehmatullah Khan had left no legacy despite the fact he was a Pakhtoon. They have also failed to provide any proof to the effect that late Rehmatullah Khan had disposed of his property through sale or any other mode. He stated in his cross-examination that:- Thus, this fact is established on the record that late Rehmatullah Khan, common predecessor of the parties, being a Pakhtoon owned landed property but there is no convincing evidence on the record to prove that he had disposed of his property, hence, it is held that late Rehmatullah Khan had left over 4 1/2 Paisa land as legacy. The burden was on the petitioners to have proved that late Rehmatullah Khan was not owner of any property and in this regard they have relied on Ex.DW-2/1 which bears a note against the name of Respondent No, 1, Shtamand (son of Asif Khan), to the effect that he has sold out the entire ownership of his brothers, but how did he do this, the petitioners have failed to discharge their onus in this regard. Therefore, in absence of any cogent evidence contrary to the above stance of the Respondents Nos.1 to 11, it can safely be concluded that they are entitled to their share in the property left by late Rehmatullah Khan as legacy containing 4-1/2 Paisa.
5. So far contention of the Respondents Nos.1 to 11 is concerned that predecessors of the parties namely Asif Khan and Amanullah Khan had jointly purchased the remaining disputed property containing 7-1/2 Paisa, in this regard they have produced and exhibited the deed dated 23.1.1932 as Ex.PW-2/1. This document is in Persian language wherein predecessor of the petitioner namely Amanullah Khan as well as predecessor of the Respondents Nos.1 to 11 namely Asif Khan have been shown as purchaseRs, Contention of the petitioners is that the original sale/purchase deed dated 23.1.1932 is in possession of the petitioners, The same document has also been produced by APW-1 and APW-6 as Ex.PW-1/1 and Ex.PW-6/1, respectively. The respective witnesses have produced the same document from proper custody which bears official seal as well and the witnesses also recorded their statements in support thereof. Although the above documentary evidence carries no description of the property in question, however, the same documents lends ample support to the contention of the Respondents Nos. 1 to 11 that predecessors of the parties had jointly purchased the disputed property.
6. Stance of the Respondents Nos.1 to 11 gets further support from the two-fold contention of the petitioners as well. The petitioners have averred that the property was solely purchased by their predecessor Amanullah Khan and there is no concern of Asif Khan or his heirs with the said property but on the other hand they have averred that Asif Khan had waived off his right in the disputed property in favour of their predecessor Amanullah Khan. This contention adopted by the petitioners clearly shows that they have admitted that late Asif Khan was co-sharer in/copurchaser of the disputed property. So far question of waiving off of his share by late Asif Khan is concerned, in this regard the petitioners have produced and exhibited two documents as Ex.DW4/6 and Ex.DW-4/8. Both the documents carry no description of the property, therefore, it could not be ascertained that in respect of which property the predecessor of Respondents Nos.1 to 11 Asif Khan waived off his right.
7. The petitioners have also produced and exhibited a document as Ex.DW-4/3 and contended that 7 Paisa land was entered in the name of their predecessor Amanullah Khan during the partition of land in Aligrama carried out in 1961. Admittedly, relations between predecessors of the parties were strained and it is also on the record that Respondents Nos.1 to 11 after the death of their father had migrated from Aligrama in 1942 and as per their stance late Amanullah Khan had expelled them from there, therefore, it is held that during the partition of land in 1961 and entry of 7 paisa disputed land in the name Amanullah Khan, the Respondents Nos.1 to 11 were not present in Aligrama and as such the land was entered in the name of Amanullah Khan in 1961 which is not a conclusive proof of his ownership. Moreso, it is evident from the record that late Amanullah Khan was a powerful person of the locality and his such status gets further support from the document Ex.DW4/9 vide which the ruler of Swat State had appointed him as Malak of the locality. The dominant position of Amanullah Khan and forced migration of the Respondents Nos.1 to 11 from their village after the death of their father prima facie suggest that the petitioners and their predecessor have tried to deprive the Respondents Nos.1 to 11 from their share in the joint property. This fact is further strengthened by the observations of Musheer on the application dated 27.1.1952 (Ex.PW-2/2) forwarded to him by brother of Respondent No,1 namely Mir Alam and as such left the same application undecided keeping in view the high status of Malak Amanullah Khan (Manjay Malak).
Yet another application which was moved by widow and daughters of late Asif Khan on 21.10.1970 (Ex.PW-2/4) against Amanullah Khan wherein it has been decried that Amanullah Khan had expelled them from the village and illegally occupied their property but the same application was also left undecided by Musheer-e-Swat. The above facts apparent on the face of the record refer to the high handedness and approach of late Amanullah Khan to the then authorities of Swat State. This aspect of the case is not ignorable at all as aim of the law is to help the helpless and safeguard the rights of the poor against the tyrant and powerful. Reliance in this regard is placed on the case reported as "Maqbool Ahmad v. Government of Pakistan (1991 SCM R 2063).
8. So far as contention of the petitioners that the disputed property is entered in their names in Revenue Record, is concerned in this regard too the Respondents Nos.1 to 11 have produced and exhibited an application as Ex.PW-2/6 which they had moved to Revenue Officer on 01.31981 for entering the disputed property in the Revenue Record on their behalf but later on they gave the statement to the effect that a civil suit is pending regarding the disputed property and the decision on the application be deferred till decision of the civil case. Hence, a report dated 26.11.1983 (Ex.Pw- 2/8) was endorsed on the application that entries will be carried out in accordance with decision of the civil suit, however, the land was entered in the names of the petitioners as well as in the names of those to whom late Amanullah (father of the petitioners) had sold out the land. Hence, mere entries in respect of the disputed property in the names of the petitioners in the Revenue Record cannot be held as conclusive proof of their sole ownership especially when there is sufficient material available on the record in rebuttal thereof. In this respect reliance is placed on the judgment reported as #"Misri v. Muhammad Sharif' (1997 SCM R 338).#TE##
9. The petitioners have also contended that suit of the Respondents Nos.1 to 11 is time barred.
Record shows that the Respondents Nos.1 to 11 have moved several applications in respect of their rights to Musheer-e-Swat and Revenue Officer as is evident from Ex.PW-2/2, Ex.PW-2/4 and Ex.PW- 2/6, hence, they actively tried from time to time to resolve the matter through the intervention of the respective authorities but one way or the other their efforts could bear no fruits. Therefore, it cannot be held that the Respondents Nos.1 to 11 slept over their rights or waived off the smile in favour of the petitioners for their own fault. It is true that law of limitation cannot be brushed aside at all in inheritance cases but on the other hand peculiar facts and circumstances, as in the present case, cannot be ignored while dilating upon the question of limitation. Therefore, dismissal of the suit of Respondents Nos.1 to 11 on the point of limitation does not seem to be a fair decision keeping in view circumstances of the case.
10. Judgment of the learned appellate Court is based on sound reasons wherein no illegality or regularity could be pointed out. Even otherwise, findings of the appellate Court will prevail if the same are at variance with the trial Court. Therefore, findings arrived at by the learned appellate Court, being based on proper appraisal of evidence, cannot be interfered with by this Court while exercising it revision jurisdiction. Reliance in this regard can be placed on the judgments of the august Supreme Court of Pakistan reported as Madan Gopal and others v. Maran Bepari and others (PLD 1969 SC 617) and "Muhammad Shafi and others v. Sultan Mahmood and others (2010 SCM R 827).
11. In view of what has been discussed above, the impugned judgment of the learned appellate Court dated 29.11.2008 is maintained and the instant revision petition, being devoid of merits,