' ABDUL LATIF KHAN, J.---This civil revision has been filed against the judgment and decree dated 28.03.2012 passed by the learned Additional District Judge/Izafi Zilla Qazi Matta, Swat, whereby he dismissed the appeal of petitioners and maintained the judgment and decree dated 31.05.2011, passed by learned Civil Judge/Illaqa Qazi, Matta, Swat.
2. Mr. Zia-ur-Rahman Khan, ASC, learned counsel for petitioners contended that the petitioners filed suit bearing No. 229/1 on 10.09.2004 for declaration and rectification of revenue record regarding "Serai" kind land of "Sayyedans/ Miangans" of the village Baidara, Tehsil Matta. Another suit bearing No. 19/1 was filed on 22.12.2003 by the respondents claiming themselves as "Dautari Pakhtoons" along with permanent injunction restraining the defendants from interference in their possession of the property. The proceedings were carried out in suit No. 19/1 being prior in time. It was contended that during the settlement proceedings the property has wrongly been shown as "Shamilat", in fact the property was under the water due to erosion by the river and was not available at the time of settlement and for this reason could not be recorded in the name of petitioners and when the river changed its course, the petitioners occupied the same again, but at the time of preparation of revenue record it was wrongly recorded as "Shamilat" of village. It is added that the petitioners remained -owners of the lost land to the river and on its emergence, they remained so and, as such, this vital aspect of the case escaped the notice of Courts below and, as such, committed illegality in passing the impugned judgment. It is contended that both the suits were filed in representative capacity and were dismissed by the learned trial Court. The respondents have not challenged the findings in suit No. 19/1 and, as such, the same has attained finality, whereas the petitioners questioned the findings of learned trial Court before the District Judge, which met the same fate. He added that in fact both the Courts below badly failed to understand the controversy between the parties. It is added that admittedly "Kaar" kind of land in river Swat, which is "Serai" of the petitioners since forefathers and the respondents/ "Pakhtoons" have got no concern with the same and it could not be recorded in the, name of respondents simply for the reason that it was not available at the time of settlement because it is situated on the bank of river and had gone under the water and remained so far considerable time. It was contended that the entries were made in the year 1986, and suit has been filed in the year 2004, but the mischief of limitation would not come in the way of petitioners as being in possession of the suit land. It was argued that if the Courts were of the opinion that the evidence was deficient, then opportunity should have been provided to the parties to produce further evidence instead of deciding the same on the basis of deficient evidence. He added that all the grounds were taken in the memorandum of appeal but the Court of appeal, passed the judgment in slipshod manner. He added that the suit of respondents No. 194 was not maintainable for the reason that the petitioners had denied, their title over the suit property and simple suit for permanent injunction cannot be filed unless and until declaration has been sought.
3. As against that Mr. Muhammad Iqbal Khan, Advocate, learned counsel for respondents contended that the property measuring 635 Kanals 14 Marlas was recorded as "Shamilat Deh" in the plaint filed by the petitioners, but with no details as to how much of the property had gone under the water in river and remained so, for how many period. He added that DW-4 had admitted in his cross-examination that property has been recorded in the name of " Pakhtoons" /respondents, and added that facts admitted needs not to be proved. He argued that settlement proceedings not conducted within small period of time rather spread more than six (6) years i.e. 1981 to December 1986, and during this period plaintiffs have not made any efforts to inform the settlement authorities about erosion of the property nor raised any objection regarding entries made in the name of respondents in revenue record to this effect. It is also added that plaintiffs failed to prove their contention through cogent evidence and has rightly been non-suited by the Courts below.
4. I have heard learned counsel for the parties and perused the record with their able assistance.
5. The perusal of record reveals that representative suit was filed by the petitioners against the respondents for declaration to the effect that property measuring 635-Kanals 14-Marlas situated in Muza Baidara Tehsil Matta was ownership in possession of the plaintiffs/petitioners as " Sereijat" and defendants have no rights whatsoever to interfere in possession of their property or to consider the same as their ownership and mutations attested in respect of the suit property in favour of defendants are also ineffective upon their rights. Perpetual injunction and recovery of possession was also sought.
6. It is averred in the plaint that the petitioners hails from "Sayyed"/"Miangan" cast whereas defendants/respondents are "Pakhtoons" and petitioners/plaintiffs are owners of "Serei" kind of land whereas defendants are owners/"Malikaans" I Dautaryan" . It is further averred that the disputed property being "Serei" kind of land has been in peaceful possession of petitioners since forefathers without any claim or objection by the other side and during the course of settlement proceedings the property was not in existence due erosion by the river; as the same situated on the bank of river and due to nonexistence at the time of settlement, it could not be entered in the name of petitioners, as the same was under the water in river Swat.
7. The respondents contested the suit and refuted the stance of petitioners vehemently, raised various legal and factual objections including limitation and conduct of the petitioners and non- compliance of. Order I Rule-8, C.P.C. To file suit in representative capacity. It is further added that suit property remained in ownership of the respondents since time immemorial and the respondents inducted into possession by way of partition way-back in the year 1925 and for this reason, the same has been recorded in the name of respondents during the settlement proceedings.
8. The Contents of plaint and record available before the Court are silent about any application moved by the plaintiffs under Order I, Rule-8, C.P.C. With representative suit. It is pertinent to note that the plaintiffs have not applied to the Court for passing an order regarding permission to sue on behalf of the persons, so interested. No public advertisement or personal service has been effected of all the persons through notice shown in the list annexed with the plaint in respect of plaintiffs as well as defendants/respondents. It is mandatory to issue notice and serve the persons mentioned in the list through public advertisement and without specific order to this effect by the Court in a suit filed in the representative capacity, the person would not be considered as party to suit. The persons mentioned in the list, interested in the suit are presumed have not been served, which is fatal to the case, permission of Court has to be obtained in representative suit, in case of failure, the same cannot be termed as representative suit. The permission has to be applied by the plaintiffs suing on behalf of the others and in the instant case neither any application has been moved nor permission granted by the Court and, as such, format of the suit being not in line with law is fatal to the case. In case of representative suit essential conditions mentioned therein are to be fulfilled, which are persons in the suit must be numerous, they must be interested in the suit, permission of Court under Order I, Rule 8, C.P.C. Shall be obtained, and notice must be given to persons whom it is sought to represent and, as such the suit of plaintiffs could not be termed as representative suit. Wisdom has been drawn from the case of "Raja Ali Shan v. Messrs Essem Hotels Limited and others" (2007 SCM R 741). The other suit filed by the respondents bearing No. 19/1 also suffered with this infirmity but the same stand dismissed in the trial Court and has attained finality.
None questioned the findings of the trial Court, however, this Court deem it not necessary to comment in this regard, as the same is not in field.
9. As far as the case of plaintiffs/petitioners is concerned the claim of the petitioners hinges upon their ancestral title with regard to "Serai" kind of land, which is in their possession since time immemorial. It is vehemently stated that the petitioners hails from "Sayyed" cast and are in possession of "Serei" kind of land, need not to prove their entitlement with the aid of any documentary evidence. Reliance also made on judgment of this Court in case of "Shad Muhammad Khan and others v. Government of N.W.F.P. And others" (PLD 2011 Peshawar 172), wherein it was held:-- "That "Daftari" or "Serai" ownership in the area of Swat owners are never in possession of documentary evidence, rather the said ownership is based upon their customs and conventions."
10. The "ratio decidendi" enunciated in the referred judgment has been based upon customs and conventions but the initial burden of proof still remained on the shoulder of the plaintiffs, who desire the Court as to any legal right or liability dependent upon existence of facts, which is asserted must be proved that those facts existed as ordained in Article 77 of the Qanun-e- Shahadat Order, 1984. The entire record is silent about existence of customs and conventions of the nature exonerate owners/"Dautaries" or "Serai" owners from discharging their burden to prove the facts with regard to existence of customs and conventions. Even otherwise to prove the burden of proof lies on that person I a suit who would fail if no evidence has been produced as ordained under Article 118 of the Qanun-e-Shahadat Order, 1984 and facts has to be proved and wished the Court to believe the existence of facts necessary to be proved in order to get relief in this regard.
The basic law of evidence cannot be bypassed by simple version of existence of any conventions or customs. No doubt these are sources of law but could not be placed at higher pedestal to law and if run counter could not prevail, with special reference to failure of plaintiffs/petitioners in peculiar circumstances of instant case, with the aid of tangible and confidence inspiring evidence.
11. The petitioners/plaintiffs in suit No. 229/1 produced their evidence as DWs for the reason that proceedings were conducted in connected suit filed by the respondents bearing No. 19/1, since dismissed. One Zahid Mian appeared DW-1, who claimed to be representative of "Sayyeddan/Miangans", deposed that the property situated in village Baidara, on the bank of river was "Serai" kind of land, which was in possession of the "Miangans". He added that when over the river change its course, the property comes in the ownership of the person from whose possession, it was erosioned by the river, earlier. Admittedly no documentary evidence is available on file but at the same time the plaintiffs/petitioners were under obligation to prove this fact through oral, cogent and confidence inspiring evidence. None from the village or even area has been produced to fortify the claim of petitioners apart from DW-1 Madad Khan aged about 65-years has deposed in favour of the petitioners. It is astonishing to note that settlement proceedings conducted for long 6 years, w .e.f. 1981 to December 1986, when the suit property remained under the flow of river and when the river changed its course, the petitioners reoccupied the same. No serious effort has been by the plaintiffs to mention the date, time or at least year in the plaint nor fortified in the evidence. It is pertinent to mention that the' petitioners are resident of village Baidara and claimed to be owners in possession of the property as "Serai" have not approach the settlement authority during the settlement proceedings; which remained continued for more than 6-years. If it is presumed that the property was under the water of river of Swat and for this reason it was not entered in the revenue record in the name of petitioners then how the same got entered in the name of respondents, so, it is immaterial that the property was not existed temporarily, therefore, it could not be recorded in the name of petitioners, if this being the situation, it would have not been recorded in the name of respondents too keeping in view the previous status and when the river changed its course it was reoccupied, on its emergence, by the respondents.
12. The vital question that whether the plaintiffs/petitioners have produced any tangible evidence in support of their claim as being owners in possession of the disputed "Serai" kind of land, have justified their silence at the time of settlement proceedings despite of their presence in the village.
The solitary statement of DW-1, Zahir Mian, who deposed, that plaintiffs and all those mentioned in the list of owners annexed with the plaint is not sufficient to substantiate their claim or make out a case for grant of decree in their favour, who also during the cross-examination admitted that the petitioners have no claim on the title of "Pakhtoons" /respondents with regard to 1831 "Paisa Dautar" and added that suit lands are "Serai" kind of land. DW-2 has no status of elder/"Mashar" or member of the area and simply fortified the claim of the petitioners. The boundaries of the property has not been mentioned nor quantum of property erosioned by the river or leftover, has not been mentioned in the plaint, nor fortified in the evidence. The appellate Court focused the main issues involved in the matter and upheld the findings of trial Court with its own observation that the property has been recorded -in the name of respondents and are shown in possession of the same, that the property situated on the bank of river, which is uncultivable, locally knows as "Kaar" wherefrom minor mineral sand, gravel and Bajrai are extracted.
13. The entries of "Wajibul-Arz" speaks about the fact that property lost due to river flow and thereafter when changed its course, on its emergence, the land become the ownership of those persons from whose possession, it is eroded and shall remained their ownership, as the same was occupied by them prior to its erosion. The petitioners could not take benefit of the provisions of "Wajibul-Arz" as they failed to prove their possession over the property prior to its erosion: No evidence has been produced by the plaintiffs/petitioners that they have extracted the minor mineral i.e. Gravel, sand and Bajrai from the disputed land and for how much time and through whom, the record is also silent to this effect and, as such, the Court of appeal has rightly concurred with the findings of trial Court. The Courts below have arrived at to the conclusion on the "lis" before them in accordance with law with conscious and independent application of mind The petitioners remained unable to point out any infirmity in the impugned judgments or to make out a case that the impugned judgments and decrees are the result of whim and caprice.
' Having thus considered, the matter from all the angles, I am of the opinion that the judgments and decrees passed by -the Courts below are based upon sound reasons, warrants no inference and the instant petition being devoid of merit is dismissed with no order as to costs.