This Civil Revision u/S. 115, C.P.C. is, directed against the judgment and decree dated 13.12.2004 of the learned Additional District Judge-III, Charsadda whereby the petitioners' appeal, against the judgment and decree dated 30.9.2003 of the learned Civil Judge, Shabqadar, has been dismissed.
2. Brief facts of the case are that the respondents/plaintiffs had filed a suit against the petitioners/defendants for the following reliefs:-- (a)Declaration to the effect that the case property had been reserved by their predecessors for graveyard prior to the settlement of 1926-27.
(b)That the petitioners defendants be permanently restrained from interfering in the case property.
(c)That through mandatory injunction the petitioners defendants be directed to remove from the case property whatever superstructure they have raised on it and; (d)Possession of the case property be also given to them by demolishing the superstructure raised thereon by the petitioners/defendants.
3. Petitioners/defendants contested the suit by filing their written statements, wherein, they raised legal as well as factual objections to the suit. On the case issues, parties led pro and contra evidence in respect of their pleas, hereafter the learned trial Court vide judgment and decree dated 29.4.2000 partially decreed the respondents' suit where-against they went in appeal and the learned appellate Court vide judgment and decree dated 15.5.2001 accepted the appeal and remanded the case to the learned trial Court for its decision afresh. After remand, the learned trial Court vide judgment and decree dated 30.9.2004 decreed the suit as prayed for, which decree was impugned by the petitioners/defendants in appeal but their appeal was dismissed by the learned appellate Court on 13.12.2004, hence the instant revision petition.
4. Learned counsel for the petitioners contended that the respondents' suit was not maintainable as they had not complied with the mandatory provisions of Order I Rule 8 C.P.C; contended that no sanction as envisaged under Section 92, C.P.C. was obtained by the respondents to file their suit; that there were no continuous entries in the revenue record showing the case property as graveyard; that no evidence has been produced by the respondents in support of their claim that the case property was reserved for graveyard by their predecessors; that the respondents' suit was hit by the provisions of N.W.F.P. Waqf Properties Ordinance, 1979. Lastly argued that several transactions have taken place qua the case property through various mutations, which aspect of the case has negated the respondents' claim as put forward by them.
5.As against the above, learned counsel for the respondents while defending the impugned judgments and decrees, contended that through documentary and oral evidence the respondents have proved their case to which no exception could be taken by this Court while exercising its revisional jurisdiction u/S. 115, C.P.C., which has a very limited scope; that Section 92 of, C.P.C. cannot be read in isolation from Section 91 of, C.P.C. and the combined reading of both the Sections of law would show that the sanction accorded to the respondents by the worthy Advocate General of the Province to file their suit was legal. It was argued that since long in the revenue record the case property has been recorded as graveyard to which presumption of truth and correctness is attached, which presumption has not been rebutted by the petitioners through any plausible evidence. It was further argued that there were admissions on the part of petitioners/defendants to the effect that in case any encroachment was found on their part qua the case property that would not be opposed by them. The learned counsel. also invited attention of this Court to the report of local commission, which has substantiated the respondents' claim against the petitioners.
6.Valuable arguments heard and case record gone through.
7.First of all, it would be proper if the technical objections raised by learned counsel for the petitioners vis--vis Order I Rule 8, C.P.C. and Section 92, C.P.C. are decided. In the considered opinion of this Court, ibid objections of learned counsel for the petitioners are not of such a nature, which could be made a base to non-suit the respondents for the reasons that same are purely technical in nature, which should not stand in the way of dispensation of substantial justice, particularly when strict non-observance of the ibid legal provisions, if any, has not prejudiced the petitioners' interests. Notwithstanding the above, record reveals that the respondents had 'annexed with their plaint a list of persons having common interest in the case property so as to protect their rights as it was not possible for the respondents to make them plaintiffs in the suit and the learned trial Court vide Order Sheet No, 26 dated 18.6.1996 had treated the suit in representative capacity, which exercise is sufficient compliance of Order I Rule 8, C.P.C. So far as validity of sanction u/S. 92, C.P.C. is concerned, suffice it to say that vide order dated 19.3.1995, the Advocate General of the Province had accorded sanction to the respondents to proceed with their case. Learned counsel for the petitioners objected that ibid sanction was not legal as it was beyond the mandate given in Section 92, C.P.C. Objection of the learned counsel is not correct because by illegal occupation and construction in the graveyard i,e, the case property, the petitioners had created a nuisance for the entire community for which they were liable to be proceeded with u/S. 91 read with Section 92, C.P.C.
8.Coming to merit of the case, record would indicate that respondents had examined. Patwari Halqa as PW-1, who produced revenue record relating to the case property as Ex.PW-171 to Ex.PW1/20. According to Ex.PW-1/1, which is Misle Haqiat of 1926-27, in the column of ownership the case property has been recorded as Shamilate-Deh while in the column of cultivation it has been recorded as Maqbooza-Ahle-Islam. Same entry is repeated in jamabandi for the year 1931-32, which is Ex.PW-1/2. No doubt, in the subsequent jamabandi for the year 1935-36, which is Ex.PW-1/3, in the column of cultivation petitioners' names have been recorded but there is no material on record to show that on what ground their names were entered in the column of cultivation of the case property. In order to claim benefit of some entries in the record of rights of landed properties, the beneficiary must prove the very transaction on the basis of which earlier entries in the record were substituted by the new one. It has been held by the Hon'ble Supreme Court in a judgment reported in 2014 SCM R 914 that where entries in the revenue record have not been substituted lawfully, the original would hold the field. Since the petitioners have produced no evidence that how their names figured in the column of cultivation in respect of the case property in the jamabandi for the year 1935-36 and in-the subsequent jamabandi therefore, such entries along with the subsequent entries, particularly in Khasra No, 182 showing their names in the column of cultivation, would not confer upon them any title.
9.Learned counsel for the petitioners had also argued that a meager portion of Khasra No, 182 shows graveyard therein, which. aspect of the case is indicative of the fact that same was not used as "Waqf'. This contention of the learned counsel is of no help to the petitioners for the reason that non-using a waqf property for some period would -not deprive it of its character as a Waqf.
Wisdom is derived from a judgment reported in AIR 1940 Lahore 119.
10.Argument of learned counsel for the petitioners that the respondents had not proved their case qua creation of waqf of the case property too is of no help to the petitioners as continuous use of some property as graveyard by itself is a proof that same has lost its earlier character and is reserved for a particular purpose irrespective of the fact that there is no formal deed or dedication of Waqf. Existence of common graveyard in some property for long time is more than a written deed required for a Waqf. 11.Another important aspect of the case is that the learned trial Court had appointed a local commission to inspect the spot and prepare a report after conducting demarcation of the case property. The local commissioner after visiting the spot appeared before the Court as CW-1 and produced his report as Ex.CW-1/1, which indicates that the case property has illegally been occupied by various persons. The local commissioner has espoused the respondents' claim that entire area of Khasra No, 182 was graveyard as per revenue record of 1926-27 and 1931-32. The local commissioner has also highlighted his report that taking advantage of the entries appearing in the record of the case property for the year 1935-36 in the column of cultivation, numerous sales and mortgage transactions/mutations have been attested by various persons, which aspect of the case compelled the respondents to file their suit so as to protect the graveyard from illegal occupation from the intruders.
12. Thorough and careful examination of the case record would show that the respondents/plaintiffs had proved their case through worth reliable documentary and oral evidence and that both the Courts below have committed no illegality or irregularity, which could attract the provisions of Section 115, C.P.C. for annulment of the impugned concurrent findings.
13.For what has been discussed above, the instant revision petition, being bereft of any merit, is hereby dismissed with no order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.