SYED ARSHAD ALI, J.---- Through the instant revision petition, the petitioners have challenged the judgment/decree dated 31.10.201 1 as well as the judgment/decree of the learned appellate Court dated 11.05.2012, whereby both the learned Courts below have concurrently dismissed the suit of the plaintif fs/petitioners.
2. Brief facts of the case are that Muhammad Zahir and others the plaintif fs (hereinafter called petitioners except Muhammad Zahir) on 11.10.2006 had filed a suit before the learned Civil Judge/Ilaqa Qazi Bahrain Swat for declaration, injunction and cancellation of certain documents. During the proceedings, Abdur Rahim and others and Faridoon and others had also filed their separate suits in respect of the same property . The respondents Nos. 1 to 6 who were defendants in the first suit filed by Muhammad Zahir and others, whereas the petitioners as well as the respondents Nos. 1 to 5 who were defendants in the second suit filed by Abdur Rahim and others and in the third suit filed by Fardoon and others, the petitioners as well as the respondents Nos. 1 to 5 and 11 to 16 were the defendants have contested the suits through their written statements. All the three suits were consolidated and the parties were provided opportunity to lead their evidence. The learned Trial Court vide its impugned judgment/decree dated 31.10.201 1 dismissed the suits. The plaintif fs of the first suit and the plaintif fs of third suit had challenged the said judgment/decree before the learned appellate Court, whereas the plaintif fs of the second suit i.e. Abdur Rahim and others did not challenge the same. The learned appellate Court through consolidated judgment and decree dated 11.05.2012 dismissed both the appeals. However , only the plaintif fs of the first suit i.e. Muhammad Zahir and others except Muhammad Zahir have challenged the impugned judgments and decrees of both the learned Courts below through this revision petition, whereas the plaintif fs of other suit namely Faridoon and others did not challenge the same. Hence, I will confine my findings only to the suit filed by Muhammad Tahir and others (the present petitioners).
3. Arguments heard and record of the case was perused with able assistance of learned counsel for the parties.
4. The plaintif fs/petitioners in their suit have claimed that the suit property comprised of Khasra No. 4236 measuring 39 Kanal 18 Marlas is their ownership and in their possession and as such entries to the extent of half share in the entire Khasra in the name of Mst. Satrina widow of Hujjat (late) and her subsequent inheritance mutation is illegal and without lawful authority . In the plaint, the plaintif fs have provided pedigree-table of the parties which is not disputed, therefore the same is reproduced in order to better understand the relations of the parties with each others as under:-. {{IMAGE ADD}}
5. According to the aforesaid pedigree-tab le, one Gareeb was the original owner of the suit property who had four
(4) sons i.e. Hazratullah, Qaisar , Hujjat and Askar . Hazratullah had two sons, Qaisar had one son i.e. Bakas, Hujjat had no sons and had two daughters and widows whereas Askar died issueless. The present issue is between the legal heirs of Bakas and the legal heirs of Hujjat. The father of Bakas and Hujjat were brothers. It is the claim of the plaintif fs in the plaint that the first son of Gareeb i.e. Hazratullah had become the owner of his property as well as the property of Hujjat (the predecessor of the present respondents Nos. 1 to 5). The said Hazratullah had sold the entire property which includes the suit property to the predecessor of the plaintif fs through deed dated 23.04.1951.
Later a dispute arose between the parties regarding the said property which was settled during the proceedings before the Ex-W ali of Swat State through compromise decision No. 578 dated 03.08 1959 but after the merger of the Swat State into the Islamic Republic of Pakistan, the same matter was re-agitated before the then Tehsildar Bahrain which was decided in favour of the predecessor of the plaintif fs.
6. In the settlement proceedings, the said property which is comprised of suit Khasra No. 4236 has been recorded half in the name of father of the plaintif fs/petitioners namely Bakas and half of the share was recorded in the name of Mst. Satrina widow of Hujjat (mother of the respondents Nos. 1 to 5). Against that the claim of the respondents Nos.1 to 5 was that the suit property was given to Mst. Satrina through gift who was the wife of Hujjat and the daughter-in-law of the Gareeb. During the settlement, Mst. Satrina widow of Hujjat raised a dispute regarding the said property against Bakas (the father of the plaintif fs) by filing a petition in the year 1982 which was ultimately decided by the Assistant Collector vide order dated 16.03.1986 and on the basis of the said decision, entries were made in the record of right and as such on the basis of the said entries, they are owners and in possession to the extent of half shares in the suit Khasra.
7. This controversy is reflected in Issue No.11 framed by the learned Trial Court. The plaintif fs in support of their claim had produced Javed Iqbal as DW-1 who produced the decision No. 578 dated 03.08.1959 and the decision No. 134 dated 26.05.1973 passed by the Revenue Officer. However , it is evident from their evidence that the decision dated 03.08.1959 relates to the legacy of Hazratullah (the 1st son of Gareeb) and does not refer to any property which belonged to Hujjat or for that matter Mst. Satrina his widow . Similarly , the decision of the Tehsildar/Assistant Collector dated 26.05.1973 also does not relate to the suit property .
8. However , the crucial document is the proceedings initiated by Mst. Satrina widow of Hujjat (mother of the respondents Nos. 1 to 5) before the Tehsildar Bahrain regarding the suit property . In the said proceedings, Bakas (father of the plaintif fs) was respondent. After a detailed inquiry from the local people and elders of the locality , the Tehsildar/Assistant Collector Khwaza Khela Circle vide its order dated 16.03.1986 has declared Bakas (father of the plaintif fs) and Mst. Satrina (mother of respondents Nos.1 to 5) as owners of the said property to the extent of half shares each. The said settlement proceedings ended in the year 1986 and on the basis of the said proceedings/record of rights was prepared. The said Bakas did not challenge the settlement proceedings during his lifetime who according to the petitioners had died in the year 1993. However , his legal heirs who are the present petitioners had challenged the said entries once again on 11.10.2006 after 23 years of the settlement which too they could not establish on merit as their claim was based on the deed dated 23.04.1951 and decisions No. 578 dated 03.08.1959 and 134 dated 26.05 .1973. The deed dated 23.04.1951 was never produced in evidence, whereas the subsequent deed does not relate to the property in question, therefore the concurrent findings of facts on these issues do not call for interference.
9. Even otherwise, when father of the plaintif fs despite the fact that he was alive for continuous six years of the settlement did not challenge the same, then indeed the plaintif fs had neither any locus standi or cause of action to challenge the same when their father by his conduct has shown to have agreed to the said entries. Reliance is placed on Abdul Mateen and others v . Mst. Mustakhia (2006 SCMR 50 ).
10. There is yet another issue which is fatal to the maintainability of the present revision petition. Muhammad Zahir who was the plaintif f No.1 in the first suit before the learned Trial Court neither had challenged the judgment and decree of the learned Trial Court nor was he made by the other plaintif fs as respondent and similarly the said Muhammad Zahir has not been made as respondent in the present proceedings. Non-joining of Muhammad Zahir in the memo of appeal as well as in the present petition is fatal to the proceedings. Reliance is placed on Murad Begum v. Muhammad Rafiq (PLD 1974 Supreme Court 322) and Muhammad Sher v. Muhammad Khan (PLD 1975 Lahore 1016).
11. In this view of the matter , the instant revision petition being devoid of merit is hereby dismissed.