SYED MUHAMMAD ATTIQUE SHAH, J.-The instant revision petition has been filed by the petitioners against the judgment and decree dated 21.07.2008 passed by learned Additional District Judge-I, Abbottabad, vide which Civil Appeal No.76/13 field by the respondents against the judgment and decree dated 27.05.2006 of learned Civil Judge-II, Abbottabad, was accepted and the suit No.379/1 filed by the petitioners was dismissed.
2. Brief facts of the present case are that the petitioners instituted suit No.379/1 of 1 993 for declaration to the effect that they were owners in possession of land Khasra' No.130 measuring 5 Marlas ', situated in Marlas'
Nawanshehr, Tehsil & District Abbottabad, thereby seeking correction of entries in the revenue record, besides, prayers for possession of disputed property and permanent injunction, against the respondents before the Court of learned Civil Judge-II, Abbottabad. The learned trial Court summoned the respondents, who appeared and submitted their written statement. The learned trial Court, after recording evidence of both the parties, decreed the said suit, vide its judgment and decree dated 27.05.2006. The respondents impugned the said findings/decree of learned trial Court before the learned Appellate Court in Appeal No,76/l3 of 2006. The learned Appeal Court, after hearing both the parties accepted the said appeal, set aside the judgment and decree of the learned trial Court and dismissed the suit of the petitioners vide its judgment and decree dated 21.07.2008.
3. Now, the petitioner , being aggrieved of the impugned findings/decree of' the learned Appeal Court dated 21.07.2008 have assailed the same before this Court, through instant revision petition.
4. Arguments of the learned counsel for the parties heard and record perused with their valuable assistance.
5. The case of the petitioners was that they were owners in possession of `Khasra' No.130, measuring 5 'Marlas' since their forefathers and entries in the revenue record in respect of the disputed property in the name of respondents/ defendants 'llyasi Masjid was the result of fraud, forgery and misrepresentation. however, on the other hand, the respondents have taken the stance in their written statement that disputed `Khasra' number being part of old `Khasra' No.87,88, was not the ownership of petitioners rather it was ownership of `Ilyasi Masjid' and has been recorded in the revenue papers as `Ghair Mumkin Qabristan'. They further stated that disputed `Khasra' number was leased out to Abdul Latif Khan, father of present petitioners through lease deed dated 09.02.1981, who had been paying rent to the `Masjid' for the said property and they have been entered as `chair Dakheelkar' in the revenue record.
The learned trial Court recorded the statement of S. as PW-1, who brought on record, the record of rights etc in respect of disputed property as Ex.PW 1/1 to Ex,PW 1/13. He stated that Khasra' No.87 has been divided into different parts and as per `Misl-i-haqiat' for the year, 1948- 49, 'Khasra' No.87 measuring 15 `Kanals' 9 14:arias' is recorded as `Shamilai Deh Qabristan', whereas, `Khasra' No.88 (old 2391) is recorded as Mumkin Bun' in possession of' ilyasi Masjid'. PW-2, patwari IIlaqi also brought revenue record pertaining to the year 1982-83, 1986 87 and 1990-91 as Ex.PW 2/1 to Ex.PW 2/4. Petitioner/plaintiff Sarfaraz Khan was examined as PW-5, who stated that `Khasra' No.1.30 has been in their possession since their forefathers, however, the `Masjid Committee got recorded the disputed property in the name of `Masjid Ilyasi' and the petitioners were shown as `chair Dakheelkar'. He further stated that both the properties are in different Mauzas' i.e. Nawanshehr Junubi' and Nawanshehr `Shumali' and there is distance of about two furlongs between disputed property and `Masjid' Ilyasi.
6. Perusal of `Fard Jamabandi' pertaining to the year 1948-49 (Ex.PW 1/10) would show that Khasra No.87 (old Khasara No.2390) has been recorded as `Shamilat Deh', whereas, in the column of cultivation, the possession was shown with Magbooza Ahel-e-Islam' being `Ghair Mumkin Qabristan' and the same entries are also repeated in Fard Jamabandis' for the years, 1952-53, 1957-58, 1961,62, 1962-63 and 1964-65.
However, subsequently, vide Ex.PW 1/5( Vamabandi' for the year 1982-83), the predecessor of petitioners, Abdul Latif has been shown in possession of 5 Marlas' as `Ghair Dakheelkar', which was further modified in subsequent Jamabandi' for the year 1986-87, as `Ilyasi Masjid' through Abdul Latif `Ghair Dakheelkar'.However, the petitioners/plaintiffs failed to substantiate their claim as asserted by them in the plaint.
Similarly, the respondents also not established their claim that the disputed property bearing Khasra' No.130 old 87 measuring 5 Marlas "Ghair Mumkin Qabristan' is the ownership of Ilyasi Masjid'. It is worth to mention that the property of 'llyasi Masjid'/respondent comprising in old `Khasra' No.88, present Khasra' Nos.126, 127, 128 and 129, measuring 2 `Kanals' 1 `Marla' is available on the spot and a plaza has been constructed thereon.
Thus, both the parties failed to brought on record any evidence in support of the said entries as well as their respective claims, therefore, this Court has no other option but to declare the said entries illegal, hence, the same arc declared as such and thus the original entries regarding Maqbooza Ahel-e-Islam' are restored. As it is well settled that once `Shamilat Deh' is reserved for common graveyard, then subsequently neither its status could be changed, nor could it be utilized for any other purpose and object, as the same has assumed the character of a 'Wag/ property and thus no one could claim its ownership. Hence, the Secretary, Wqaf, Minority and Religious Affairs, Government of KYK is directed to take possession of the same and maintain the same for the purpose mentioned therein in accordance with law.
7. Therefore, keeping in view the above stated facts, circumstances and discussion made thereupon, the impugned findings of both the Courts are set aside and the present revision petition is disposed of in the above terms. Office is directed to send copy of this judgment to the Secretary, Augaf, Minority and Religious Affairs, Government of KPK., Peshawar for compliance. The Secretary shall submit his report to the Additional Registrar of this Court.