AHMAD ALI, J. The instant revision petition under section 115 CPC has been filed by the petitio ners against the judgment and decree dated 18.02.2013 passed by the learned Additional District Judge-III, Abbottabad, whereby , Civil Appeal No.115/13 of 2011 filed by the petitioners against the judgment and decree dated 27.09.201 1 of learned Civil Judge-IV , Abbottabad in Civil Suit No.415/1 of 2005, was dismissed.
2. Brief and relevant facts leading to filing of the present revision petition are that the petitioners filed a suit for declaration to the effect that petitioners/plaintif fs were owners in 'Khasra' No.3485 measuring 3 'Marlas' situated in Mauza Sheikh-ul-Bandi, Tehsil & District Abbottabad and respondents/defendants have no concern with the same and similarly 'Khasra' No.3487 measuring 12 'Marlas' in the said 'Mauza ' being 'Ghair Mumkin Raasta' was jointly owned and possessed by the parties and the respondents/defendants have no right whatsoever to claim ownership thereof, or to raise construction thereupon or to change nature of the disputed property or to make encroachment in any manner whatsoever . The petitioners also prayed for permanent injunction restraining the respondents from raising construction over the disputed property or taking its possession, or alienating and changing its nature or interfering in the disputed path and further prayed for possession through demolition by removing debris thereof.
The respondents appeared before the Court and contested the suit by filing their written statement raising multiple factual and legal objections and the divergent pleadings of the parties were reduced to the following issues.
"ISSUES
1. Whether plaintiff has got any cause of action?
2. Whether plaintiffs are stopped to sue?
3. Whether the suit is incompetent in its present form?
4. Whether the suit is bad for mis-joinder and non-joinder?
S. Whether the suit is time barred?
6. Whether the suit is properly valued with court fee?
7. Whether the plaintiff 's suit is based on malafide intention?
8. Whether the plaintiffs are sole owners of Khasra No.3485?
9. Whether any encroachment has been made by the defendants on Khasra No.3485 and 3487 if yes to what extent?
10. Whether Khasra No.3485 is the outcome of Khasra No.1608?
11. Whether defendants have purchased the property from Khasra No.1613 or 1608?
12. Whether the plaintiffs are entitled to the decree as prayed for?
13. Relief?"
3. Both the parties produced evidence in support of their respective claims. After hearing learned counsel for the parties, the learned trial Court dismissed the suit of the petitioner vide judgment and decree dated 27.09.201 1.
Feeling aggrieved, the petitioner preferred Appeal No.115/13 of 2011 before the Court of learned Additional District Judge-III, Abbottabad, which too was dismissed vide judgment and decree dated 18.02.2013. Hence, the present revision petition.
4. Arguments of learned counsel for the parties heard and record of the case perused.
5. Perusal of the record reveals that entire controversy between the parties revolves around disputed 'Khasra'
No.3485 measuring 3 'Marlas ' and 'Khasra' No.3487 'Ghair -mumkin-Raasta' situated in 'Mauza ' Sheikh-ul-Bandi. In their suit, the petitioners/ plaintif fs claimed sole ownership of disputed 'Khasra' No.3485 on the basis of partition mutation No.13643 attested on 23.01.2001 (Ex.PW 2/1) and respondents/ defendants have no concern with the same, whereas, in respect of 'Khasra ' No.3487, they asserted that it is a path 12 feet wide, which is jointly owned by the parties but the respondents/defendants have not only encroached upon 1/3 of the path but also upon 'Khasra' No.3485. On the other hand, the respondents/defendants in their written statemen t admitted the nature of 'Khasra' No.3487 as path, while they denied the sole ownership of the petitioners/plaintif fs qua 'Khasra' No.3485 and they claimed that their predecessor had purchased land from Lal Khan in 'Khasra' No.1613 on the basis of 'Iqrar Nama' dated 15.09.1981 to the extent of 10 'Marlas' and subsequently pursuant to the same agreement mutation No.11090 dated 31.10.1981 (Ex.DW 4/2) was attested in favour of their predecessor and soon after the purchase he constructed a house over there on the basis of approved site plan and after settlement in the year 1981-82, the property of respondents/defendants bifurcated into two 'Khasras ' i.e. 'Khasra ' No.3485 measuring 3 'Marlas' and 'Khasra ' No.3486 measuring 8 'Marlas' and they averred that petitioners/plaintif fs have no concern with the disputed 'Khasra' No.3485. In this back ground, the petitioners/plaintif fs produced 'Patwari Halqa' as (PW- 1), 'Saddar Office Kanoongo' as (PW-2), who produced revenue record pertaining to 'Khasra' Nos.3485, 3486 and 3487 and Rashad Iqbal, attorney of petitioners/plaintif fs as (PW-3), who supported the averments of the petitioners in the plaint. On the other hand, the respondents/defendants produced Muhammad Riaz (DW-1), Sheikh Farid (DW-2), Ghulam Nabi (DW-3) and Fayyaz Muhammad, respondent No.3 as (DW-4) in support of their case.
Obviously , the principle about the discharge of burden and 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 'Sultan Muhammad and another v. Muhammad Qasim and others' (2010 SCMR 1630 ) because they have failed to prove that the respondents/ defendants have encroached upon Khasra No.3485 or 3487 in any manner and they also failed to substantiate through cogent and reliable evidence that in which 'khasra' number , the disputed house of the respondents/ defendants was constructed. Similarly , the petitioners have also failed to discharge their burden to prove that the respondents have constructed the house during pendency of the present suit, while the respondents have proved through reliable evidence that the house in question was constructed much prior to the institution of present suit in the year, 1981-82 and 1984, while the present suit was instituted in the year 2005. The respondents also produced copy of mutation No.11090 dated 31.10.1981 attested in favour of their predecessor Khair Muhammad as Ex.DW 4/2, according to which 10 'Marlas' land was transferred through said mutation. It cannot be ascertained from 'Aks Shajra' whether the house in question was constructed in 'Khasra ' No.3485 or otherwise. Moreover , as per stance of petitioners that predecessor of respondents purchased property from Lal Khan in 'Khasra ' No.1613, to the extent of 10 'Marlas' which was subsequently during settlement of 1981-82 converted into 'Khasra ' No.3486, then the question arise as to how the area purchased by predecessor of respondents reduced from 10 'Marlas' to 8 'Marlas' . Similarly , the claim of sole ownership of the petitioners qua disputed 'Khasra' No.3485 also could not be established, when admittedly , mutation No.13643 on the basis of which they are claiming ownership stood cancelled vide order dated 16.08.2002 passed by Tehsildar , Abbottabad, against which appeal before DOR, Abbottabad on 12.12.2006 and revision before Revenue Appellate Court No.4 on 13.08.2008 were also dismissed. Though petitioners claimed that said mutation was restored in the year, 2019 but no evidence whatsoever is forthcoming on record in support of this assertion.
Thus, the petitioners in view of peculiar facts and circumstances of the case could not establish any sort of encroachment by the respondents over the disputed property rather they absolutely failed to prove the exact 'Khasra' number where the house of respondents exists. It was vehemently contended by the learned counsel for the petitioners that the petitioners are trespassers in the disputed property and trespassers have no right to seek legal cover from the Court but this conten tion of the petitioners has no force becau se they have miserably failed to prove the respondents as trespassers through any tangible evidence. Thus, in such circumstances, there was no need at all to appoint any local commission, thus,