ABDUL RAHMAN AURANGZEB, J.--The facts necessary for the disposal of this revision petition are that the respondents/ plaintiffs (hereinafter to be referred as "the respondents") filed a declaratory suit on 31.10.1985 against the petitioners/ defendants (hereinafter to be referred as "the petitioners") on the ground that the respondents Nos,1 to 3 are owner in possession of suit land measuring 14- marlas, situated at Khasra Nos,51-52, was owned by their predecessor Diwan Haider Bakhsh, who sold 6-marlas of land to respondent No,4/Rafiq Ahmad, through registered sale deed dated 19.01.1966 (Exh.P.1), who had also constructed a shop over-there. The remaining 8-marlas land is still in the possession of the respondents. As against it, the name of Noor Muhammad/ predecessor of the petitioners cited in the revenue record is an act of fraud with the connivance of revenue staff, hence, the name of Noor Muhammad against specific Khasra Nos,51-52, in place of Diwan Haider Baldish, is liable to be rectified.
2. The suit was contested by the petitioners on the ground that Noor Mohammad was the original allottee of the land, disputed against his abandoned claim of India, and the respondents have malafidely instituted the suit.
3. On divergent pleadings of the parties, the learned trial court framed the following issues:-- ISSUES.
1. Whether the suit has been improperly valued? OPD.
2 Whether this court lacks jurisdiction to entertain the suit? OPD.
3. Whether the suit is barred by time? OPD.
4. Whether the suit for possession filed by the defendants his any effect over the suit in hand? OPD.
5. Whether the disputed property was owned by Diwan Haider Bakhsh, the predecessor in interest of the plaintiffs Nos,1 to 3 who sold away 6 marlas of the suit property to plaintiff No,4 Muhammad Rafiq through registered sale deed dated 19.1.1966 for Rs,1000/- and the remaining 8 marlas of the suit property is in possession of plaintiffs Nos,1 to 3 as legal heirs of Diwan Haider Bakhsh? OPP.
6. Whether Noor Muhammad deceased got entered his name in the revenue record at the place of Diwan Haider Bakhsh, the predecessor in interest of plaintiffs Nos,1 to 3 collusively? if so, its effect ? OPD.
7. Whether the disputed property was allotted to Noor Muhammad the predecessor in interest of the defendants, in lieu f his unit and as such the defendants are owner in possession of the suit property as legal heir of Noor Muhammad deceased? OPD.
8. Relief.
In reply thereto, the petitioners produced Muhammad Yousaf as DW.1, Muhammad Iqbal as DW.2, Syed Nasir Abbas as CW.1. In documentary evidence, they produced evidence from Exh.D.1 to Exh.
D.6.
4. The learned trial court, dismissed the suit of the respondents, vide judgment and decree dated 08.01.1996, whereas, the learned appellate court, reversed the findings of the learned trial court on Issue No,7. Resultantly, the appeal, filed by the respondents, succeeded and the suit was decreed vide judgment and decree dated 06.07.1999, passed by the learned first appellate court. Hence, this civil revision.
5. The learned counsel for the petitioners contends that the learned appellate court, while reversing the findings of trial court, has fell in error to omit the fact that the entries of ownership, after long period, were substituted on the basis of Fard Badar, whereas, the rectification through Fard Badar can only be made for the correction of clerical mistakes. Adds that the learned appellate court cannot ignore the important aspect and hence the judgment and decree of the learned appellate court dated 06.07.1999, is liable to be set-aside.
6. It is contended by the learned counsel for respondent No,4, who is the purchaser of the suit property, measuring 6-marlas from the predecessor of respondents Nos,1 to 3 that the property was purchased through registered sale deed (Exh.P. 1), which carries the presumption of truth. In addition thereto, respondents Nos,1 to 3 also supported the judgment and decree of the learned first appellate court.
7. The arguments of the learned counsel for the parties have been heard and the record of the case has been perused carefully, with their valuable assistance.
8. From perusal of the record of the case, the judgment and decree passed by both the courts below and the arguments advanced by the learned counsel for the parties, it appears that the controversy is based upon Fard Badar dated 17.06.1991, through which the rectification sought by the respondents to strengthen their suit for declaration. Before commenting upon the decision on merits, it is appropriate to examine the law relates to Fard Badar, which is a document provided in Form XV under Rule 30 of the West Pakistan Land Revenue Rules, 1968. The description of this document is mentioned as under:- FORM XV (See Rule 30) FARD BADAR (STATEMENT OF CORRECTION OF CLERICAL MISTAKES)
A statement for the correction of clerical mistakes which has been made in copying the entries of the Register Ilagdaran Zamin into another or in incorporating a mutation in a Register Ilagdaran Zamin and the correction of which does not involve the alteration of any mutation order shall be recorded in the form set forth below, to be known as Fard Badar:- Fard Badar.Estate TehsilDistrict Serial No,No, of Khewat Patwari's reportField Kanun- go's reportOrder of the Revenue Officer In last register Haqd-aran ZaminIn new register Haq-daran Zamin 1 2 3 4 5 6 The above extract of Form XV commonly known as Fard Badar gives the elaborated procedure of correction of clerical mistakes, occurs during transfer of record from one document to another.
Columns Nos,2 and 3 of Fard Badar, having a significant aspect for the purpose of correction of entries. It is evident from the prescribed procedure that it is meant only for correction of clerical mistakes occurred, while copying the same from last Register Haqdaran Zamin.
9. In this backdrop, the document Fard Badar (Fxh.P.11), produced by the respondents, has been examined. The report of Patwari dated 17.06.1991, shows that Diwan Haider Bakhsh is the owner of Khewat No,3, for land measuring 14-marlas, according to Jamabandi 19, 63-64, and 1966-67, situated at Khasra No,51-52. But in the year 1970-71, the ownership of Noor Muhammad for above' cited Khasra Number in Khewat No,85 was wrongly incorporated and this wrong entry continued in the subsequent Jamabandis. The report of Patwari is based on the version that Diwan Raider Bakhsh is the owner of suit property measuring 14- marlas, since 1963-64, in Khewat No,3, situated in Khasra No,51-52, whereas, the document (Exh.P.11), mutation No,1054, sanctioned on 31.01.1965 shows that Diwan Haider Bakhsh, purchased 12-marlas of land from Murad Khan in Khasra Nos,48/4/2/2/4. Here is the relevant distinction of Khasra, which could not be analyzed correctly by the learned appellate court. As it is the claim of the respondents that their entries of ownership remained correct up-to 1966-67 and there-after in the year 1970-71, the mistake occurred, whereas, the predecessor of respondents Nos,1 to 3 had already alienated through register sale deed 6- marlas land to respondent No,4. The subtraction of ownership of Diwan Haider Bakhsh, predecessor of respondents Nos,1 to 3, was shown to have been reduced to 6-marlas, but he remained owner of 14-marlas in the Jamabandi 1966-67, as it is evident from the report of Patwari in Fard Badar. The respondents have even not produced the Jamabandi of 1966-67. If respondent No,4 has got the property on the basis of registered sale deed (Exh.P.l), on 19.01.1966, then this entry would have been made part of Jamabandi of years 1966-67. The fact is that respondent No,4 got entered mutation No,2279 (Fxh.P.12) on 29.08.1995 for incorporation of registered sale deed dated 19.01.1966. The Khasra Numbers of ownership of Diwan Haider Bakhsh, are explicitly mentioned as 48/2/4.min/3/3/1, which is entirely different from his purchased property from Murad Khan, on the basis of mutation No,1054, dated 31.01.1965.
10. The above status of holding as owner and change of ownership does not fall in the ambit of 'correction of clerical mistake'. It is also evident from the record that the respondents filed the suit on 31.10.1985, where no such correction of entry on record is available. The petitioners, when brought on record their stance of ownership through their written statement, then the respondents in the year 1991, with the connivance of revenue field staff, produced Fard Badar to save their skin as the predecessor of respondents Nos,1 to 3, malafidely sold the property measuring 6-marlas to respondent No,4, which was not owned and possessed by him. Hence, the preparation of Fard Badar is not based on wrong entries of clerical mistake.
11. The learned appellate court has completely misread the record, while holding that the name of Noor Muhammad/predecessor, was inserted in lawful manner in Jamabandi 1970-71, on the basis of RL-II (Exh.D.4): The learned appellate court also over-sighted the Jamabandi 1954-55 (Exh.D.5) and Jamabandi 1958-59 (Exh.D6), where the name of Noor Muhammad/predecessor of the petitioners, is visible in the relevant Khasra No,48. which was admittedly subsequently changed with Khasra No,51-52. As such, the previous record of right was neither assailed by the respondents, nor it is found from any report of revenue staff that the previous record of ownership of Noor Muhammad is forged and fictitious.
12. The act of revenue authorities has no valid sanctity for entertaining the application during the pendency of the suit and change of longstanding entries of ownership in revenue record by way of Fard Badar. It is held in Allah Bakhsh and others v. M.B.R. and others (1997 M LD 1779), where no evidence of clerical mistake is found, then the revenue authorities should not accept the application for correction. As such, the purpose is to create the evidence for one party to disadvantage of the other party to affect the result of a pending suit. In another judgment of this Court reported as Mst. Shireen Khanum v. Member Revenue), Board of Revenue. Punjab; Lahore and others (2001 YLR 2387), the parameters of correction through Fard Badar have been further elaborated as under:-- "8. As per para No,7.30 of Chapter 7 of the Land Records Manual when an entry has been incorporated in the (Jamabandi) a mutation should not be entered up or sanctioned for the purpose of correcting it, except to correct a clerical error (where this cannot be done by a Fard Badar) or in consequence of a patent fact. The party aggrieved by such an entry must seek his remedy by suit. It is now settled law that no disputed entry in a (Jamabandi) should be altered whether on the ground of mistake or of fraud except on the basis of an obvious clerical error of a patent fact. A fact that needs an elaborate enquiry to establish, is not a 'patent fact'. When a mutation entry has been incorporated in a (Jamabandi) it should not be altered except on the basis of an obvious clerical error effected several years ago and was incorporated in subsequent (Jamabandi) it would not be reversed or reviewed on the ground that it was effected as a result of fraud in collusion with the subordinate revenue staff".
13.No doubt, the respondents filed the suit for correction of the alleged wrong entries, of 1966-67 but the same was filed in the year, 1985, and particularly during the pendency of suit in the year 1991, the entries were tried to be made in consonance with the revenue record malafidely by creating evidence in favour of the respondents. This change of ownership without any corroborating evidence mere on the basis of Fard Badar, cannot be allowed to be substituted as held in Allah Bakhsh's case (supra). Therefore, the observation rendered by the Assistant Collector on the basis of Fard Badar is liable to be revised.
14. Admittedly, the onus of Issue No,5 lies on the respondents to prove the ownership of Diwan Haider Bakhsh and on the basis of valid ownership, he transferred his title to respondent No,4. But the respondent was unable to prove this aspect with regard to specific Khasra Number. The principle about the discharge his own burden and has to stand on its own legs to succeed and no benefit of any weakness in the case of opposite party is applicable on the petitioners as laid down by the Hon'ble Supreme Court of Pakistan in case titled as Sultan Muhammad and another v.
Muhammad Qasim and others (2010 SCM R 1630).
15. The learned Additional District Judge, while deciding the appeal, has failed to consider the above-mentioned pivotal aspects of the case, which is of great significance and value. The learned appellate court, while accepting the appeal, set-aside the judgment and decree dated 08.01.1996, passed by the learned trial court, without referring any solid and reliable material, which shows that the findings are outcome of the material showing the hyper-technicalities and are based on surmises and conjectures', which is not permissible under the law. Even on the preponderance of the findings of the learned appellate court, cannot be survived by any stretch of imagination. The learned appellate court has committed grave miscarriage of justice.
16. For the foregoing reasons, this civil revision is accepted with the result that the impugned judgment and decree dated 06.07.1999, passed by the learned Additional District Judge, Multan, is set-aside and that of the judgment and decree dated 08.01.1996, passed by the learned trial court is restored. There is no orders as to costs.