' MUHAMMAD YOUNIS THAHEEM, J.---Petitioners through this revision petition under section 115 of C.P.C. Have assailed the judgment and decree dated 05.07.2011 passed by learned Additional District Judge, Lakki Marwat vide which judgment and decree of learned trial Court was set aside and the suit of plaintiffs/petitioners was dismissed.
2. Concise facts narrated in the plaint are that the petitioners/plaintiffs Dilawar Khan and others filed a civil suit for declaration along with possession regarding suit property, fully detailed in the plaint against the respondents/defendants to the effect that petitioners/plaintiffs along with proforma defendants are the successors and legal shari heirs of one Umer Khan son of Hayat Khan and Meera Khel son of Mamak and inheritance mutation of Umer Khan bearing No,2610 attested on 26.02.1917 as well as mutation No,6645 attested on 19.05.1926 vide same the respondents/ defendants were entered as owners in the revenue record, are illegal, against facts, fraudulent and are ineffective upon the rights of the petitioners/plaintiffs and proforma defendants who be entered in the revenue record as owners being legal heirs of Umer Khan and Mera Khel and the subsequent mutations whatsoever they are also ineffective upon the rights of petitioners/plaintiffs and proforma defendants.
3. It is also averred in the plaint that petitioners/plaintiffs and proforma defendants are the legal heirs of above said Umer Khan son of Hayat Khan and Meera Khel son of Mamak, who were owners of landed property measuring 296 Kanal and 18 Marla in Khata Nos.370, 371 373 and 374, according to Fard Jamabandi for the year 1914-15 of Mauza Daraka. That the petitioners/plaintiffs and proforma defendants have been residing at Mouza Zindi Falak Sher since long and by taking wrong advantage of their absence, the contesting defendants Nos.1 to 38 maneuvered attestation of inheritance mutation No,2610 dated 26.02.1917 in the name of Mst. Guiana as widow, Mst. Raz Bibi and Mst. Khawjara bibi as daughters of Umer Khan though they were not legal heirs of Umer Khan.
The petitioners/ plaintiffs and proforma defendants Nos.39 to 45 are real legal heirs of late Umer Khan and proforma defendants Nos.46 to 59 are legal heirs of Mera Khel, however, the defendants Nos.1 and 2 entered themselves in the revenue record as the legal heirs of late Mera Khel.
4. It is further alleged in the plaint that in the disputed inheritance mutation No,2610 there is not any entry of Badshah Khan as his son or legal heir and this entry was later on fraudulently entered in the revenue record and afterward said Badshah Khan sold out the suit land through mutation bearing No .6645 dated 29.05.1936 to one Mukarab Khar.
5. Initially defendants after putting on notice did not appear before the trial Court thus were placed ex-parte and consequently after recording of ex-parte evidence, the suit was ex parte decreed in favour of petitioners/plaintiffs and proforma defendants on 28.05.2004, thereafter the contesting respondents/defendants filed application on 03.10.2006 for setting aside the ex-parte decree which was accepted on 06.06.2007 and respondents/defendants Nos.1 and 2 were allowed to submit their written statement and the learned trial Court framed issues in the light of divergent pleadings of the parties.
6. After conclusion of trial and hearing arguments, learned trial Court decreed the suit of plaintiffs vide judgment dated 31.10.2009. Feeling dissatisfied, Mir Qadam Khan and 18 others filed regular civil appeal before appellate Court of learned District Judge Lakki Marwat, which was entrusted to learned appellate Court of Additional District Judge Lakki Marwat for disposal who after hearing and reappraisal of evidence while accepting the civil appeal of respondents set aside the judgment and decree, passed by learned trial Court and dismissed the suit, the respondents/plaintiffs feeling aggrieved from the judgment and decree of appellate Court, filed the instant revision petition.
7. Arguments heard, considered and record with the valuable assistance of learned counsel perused.
8. From perusal of record it reveals that the original dispute among the parties is about hereditary rights on the one hand from Umer Khan son of Hayat Khan and Mera Khel son of Mamak, claiming themselves as the predecessors of plaintiffs and proforma defendants while on the other hand denied the heirship of Mst. Raz Bibi, Mst. Khawjara and Badshah Khan being legal heirs of Umer Khan, Muhammad Jan and others as legal heirs of Mera Khel son of Mamak pertaining to the suit land.
9. Here it is pertinent to clear this aspect of the case that Umer Khan son of Hayat Khan and Mera Khel son of Mamak were having mortgagee rights who were not the owners of suit land and one Nagaro was owner/mortgagor. This very important fact either was willfully concealed by both parties or being rustic villagers were not aware about the above said important fact, however, this important legal as well as factual aspect also remained unnoticed by both the fora below as according to PW2 Noor Muhammad ADK Mutation No,4513 attested on 28.09.1922 is regarding change of mortgagee rights. From the perusal of said mutation No, 4513 the name of Nagro is entered as owner and mortgagor (URDU TEXT) while name of Mst. Gulana etc are entered as Mortgagees. Besides, the names of Raz bibi and Khajara bibi daughters of Umer Khan are entered while in the same mutation in column No,9 it appears the names of Nagaro etc appears .To be owners/mortgagors and Badshah Khan etc as mortgagees. This fact is further clarified from the entry in the last column of report and order of the revenue officer who attested the same mutation where Mst. Gulana etc. Are entered as Mortgagees in the mutation No,2610 EXPW2/4, proving the same fact wherein Nagaro etc. Are entered as owner/mortgagor while Mera Khel son of Mamak is entered as mortgagee and so on. Therefore, dispute among the parties is about the inheritance of mortgagee rights, hence any subsequent mutation whatsoever it has been shown or even transferred through Court decree, would be considered as transfer of mortgagee rights only and not ownership rights. So it is held that predecessors of respondents were having mortgagee rights only and whatsoever devolved upon their legal heirs were also mortgagee rights as according to law any person who has mortgagee rights can only transfer to others no better title than he has so in this regard in the relevant revenue record where any entry other than mortgagee rights appears in subsequent revenue record onward from 1903-04, it would be deemed to be a transfer of mortgagee rights only. In this respect reliance is placed on the judgment of Hon'ble Supreme Court in case titled "Rashida Begum v. Sadi Begum" (2003 SCM R 1456)" wherein. It is held that:-- "when ownership of the vendors of the defendants was not established, then how defendants would get benefits of the entry in the revenue record in their names. Government stepped into the shoes of evacuee mortgagee and only assumed mortgagee rights available to the evacuee under the law Central Government was only able to transfer what it received i,e, mortgagee rights alone."
10.. The other question for determination is as to whether present petitioners/plaintiffs and proforma defendants are real/actual legal heirs of Umer Khan son of Hayat Khan, Mera Khel son of Mamak besides Mst. Raz Bibi, Khawjara and Badshah Khan are not legal heirs of Umer Khan whereas Muhammad Jan etc are not legal heirs of Mera Khel. So to resolve the above discussed controversy, the learned trial Court specifically framed issue No,3 which reads as: Issue No,3: ' Whether the late Umar Khan son of Hayat Khan and Mira Khel son of Mamak are the predecessor in interest of the plaintiff and proforma defendants, if so its effect?
11. The burden of proof was upon plaintiffs, specifically alleged a particular fact so in order to prove their case after setting aside of ex-parte decree, the plaintiffs examined Yousaf Khan Patwari Halqa as PW2 who produced Jamabandi pertaining to year 1914-15 which was already marked EXPW1/1during ex-parte proceeding and index of mutations from 1908 to 1992 as EXPW2/1, impugned mutation No,2610 attested on 26.02.1917 as EXPW2/2 and mutation No,2641 attested on 29.05.1926 as EXPW2/5. Mutation No,2610 is inheritance mutation of Urner Khan son of Hayat Khan in favour of Mst. Guiana widow of Umer Khan, Mst. Raz Bibi and Mst. Khwajara Bibi as daughters.
According to this mutation inheritance had not been shown devolved upon Muhammad Jan son of Umer Khan. Similarly mutation No,2641 (EXPW2/3) is inheritance mutation of Mera Khel son of Mamak Khan in favour of his sons Saleh Khan, Bangee Khan, Sher Dast and Karim Khan, according to which Hussain and Hayat Khan, sons of Mera Khel were not shown to inherit their respective shares in the suit land. The ladies Mst. Raz Bibi and Mst. Khwajara who inherited share of their rights vide mutation No,2610 had further transferred their shares to one Badshah Khan (their brother) son of Umer Khan vide mutation No,4513 attested on 20.02.1923.
12. Plaintiff produced Patwari Halqa Dharka Suleman Khel as PW1 after setting aside ex-parte decree, who produced copy of pedigree table relating to family No,350 about "Qaum Jandar" URDU TEXT" placed on record as EXPW1/7, according to which EXPW1/7 Badshah Khan has been shown as son of Umer Khan. Caste is shown as Nusrat Khel while family number is same as 350.
13. Noor Muhammad ADK appeared as PW2 who produced index of mutation from 1907-08 to 1991- 92 as EXPW2/1 according to which there are total 4 number of share holders in Khata No,369 measuring total area 529 Kanal 18 Marla in which Mera Khel held 1/8 shares while Umer Khan son of Hayat Khan held 1/16 shares. He also produced pedigree table of family No,350 placed on record as EXPW2/3 inheritance mutation No,2641 of Mera Khel son of Mamak attested on 26.02.1917 and further stated that inheritance mutation No,2610 was attested in the name of Mst. Guiana widow, Mst. Raz Bibi and Khawajara Bibi marked as EXPW2/4, mutation No,4513 attested on 28.09.1922 is about entry of mortgagee rights upon Mst. Gulana, Mst. Raz Bibi and Khawajara Bibi. He stated that in pedigree table of family No,350 no name of caste had been entered. It is settled law that old revenue record cannot be set aside only on the oral assertion after a period of more than one hundred years. In this respect reliance is placed on the judgment of this Court in case title as Mst.
Rooh Afza and others v. Ayub and others (2015 YLR 2199), wherein it is held that:- "presumption of truth of the highest degree was attached to the entries of the first ever settlement record of revenue state. The plaintiffs remained unsuccessful to prove the pedigree table relied upon and entries in the pedigree table prepared during the settlement record were correct as presumption of truth attached it under section 52 of Pakistan Land Revenue Act, 1967 and could not be disbelieved. As being documentary evidence or at higher pedestal than the oral evidence produced."
14. Similarly in another judgment of this Court in case titled "Sardar Khan v. Shah Nawaz and others (2009 YLR 1606). It had been held as below:-- "This is the cardinal principle of law that the revenue record and Jamabandi have got presumption of correctness unless rebutted. Burden heavily lies on the petitioner to dislodge this presumption which he failed to discharge, about a century old revenue record cannot be set aside on surmises and conjuncture as held in the dicta handed down in the case of Muhammad Hussain and others v. Khuda Bakhsh, 1989 SCM R 1563 and Ghulam Hassan v. Soharu and 131 others PLD 1984 Peshawar 278."
15. Qamar Zaman son of Muhammad Khan appeared as PW3 as special attorney (EXPW3/1) for plaintiffs. He narrated the same facts as alleged in their plaint that Umer Khan son of Hayat Khan was resident of Zindi Akbar Khan while Mera Khel son of Mamak was resident of Suleman Khel who due to economic constraints changed their residence. He further stated that Umer Khan had three sons namely Nawaz Khan, Mir Azam and Muhammad Jan and plaintiff Dilawar Khan is his son.
16. Defendants produced one Ali Raza as DWI vide special attorney EXPW1/1 for defendants Nos.7, 8, 11, 12, 15, 16, 18 to 20, 23, 24, 28, 34 to 39 who stated that they purchased said land from one Saadullah and Sher Dast etc. And suit of plaintiffs is baseless, as plaintiffs and proforma defendants are not legal heirs of Mera Khel son of Mamak or Umer Khan son of Hayat Khan and Sher Dast Khan, Karim Khan, Saleh Khan, Bangi Khan are the Legal heirs of Mera Khel son of Mamak.
Similarly Badshah Khan, two daughters and one widow are legal heirs of Umer Khan whose names are correctly entered in Pedigree table and defendants Nos.17 to 38 had purchased suit land from Saadullah Khan and Mir Abbas. They have also purchased land from Mir Abbas and Mir Qadam. Eid Muhammad, Amin Khan had purchased land from Zoor Dast son of Sher Dast and Saadullah Khan and suit land is in their possession. He added that he belongs to Betanai caste while Sher Dast, Karim Khan, Saleh Khan and Bangi Khan belong to Marwat caste. During cross-examination by plaintiffs his statement remained unimpeached.
17. The learned appellate Court below after reappraisal of evidence had set aside the findings of learned trial Court on the reasons discussed above that learned trial Court has taken a wrong view of mutation No,10104 dated 15.09.1981. As the plaintiffs and proforma defendants i,e, present petitioners produced pedigree table EXPW1/7 themselves wherein the names of their predecessors are not entered. The plaintiffs failed to produce some documentary proof in rebuttal against old entries in revenue record or through any other believable evidence in support of their stance. So the learned appellate Court has rightly held that plaintiffs failed to prove their genealogical relationship with Umer Khan and Mera Khel. The judgment and decree passed by learned appellate Court is well reasoned, based on proper appreciation of evidence and law so needs no interference under section 15 of C.P.C. For what has been discussed above and in the light of above observations, this petition being bereft of merits is dismissed.