CONSOLIDA TED JUDGMENT SYED ARSHAD ALI, J.---This order shall dispose of this petition as well as the connected C.R. No. 129-P of 2009 titled as Shahab Khan and others v. Muhammad Saeed Khan and others as both these connected petitions are arising out of one and the same judgment.
2. Essential facts leading to the present petition are that the Khawaneen of Rabat as well as the Miangan of Rani felt aggrieved of an agreement dated 11-12-1989 executed between Khawaneen of Rani and their tenants regarding the suit property , had separately challenged the said, agreement before the learned Civil Court at Dir Lower . The first suit bearing No. 174/1 of the year 2004 was filed by the Khawaneen of Rabat wherein they claimed half share in the suit property which was subject matter of the agreement between the aforesaid two parties, whereas the other suit bearing No. 214/1 of the year 2004 was filed by the Miangan of Rani wherein they claimed half share in the suit property on the basis of decision of the then Tehsildar dated 10.12.1963 under the Ex. Ruler of Dir. Both the suits were consolidated. Evidence was led in the suit filed by the Khawaneen of Rabat . The respondents had contested the suit throu gh their written statements. The parties were provided opportunity to lead evidence. The learned Trial Court vide judgment/ decree dated 21.07.2005 dism issed the suit of Khawaneen of Rabat . However , the suit of Miangan of Rani was decreed. The Khawaneen of Rabat did not further pursue the proceedings, whereas the other parties i.e. Khawaneen of Rani and tenants had challenged the same before the learned appellate Court. The learned appellate Court vide impugned consolidated judgment/decree dated 29.11.2008 dismissed both the appeals. Hence, the present petition.
3. Learned counsel appearing on behalf of the Khawaneen of Rani have raised multiple objections on the concurrent findings of both the learned Courts below and have argued that the suit property was not the same which was the subject matter of the decision dated 10.12.1963 before the then Tehsildar . They further argued that the present suit filed by Miangan of Rani was only in respect of declaration and cancellation of deed/agreement and no relief was claimed for possession as a consequential relief, therefore any suit for declaration without consequential relief is not maintainable. He next argued that the then Tehsildar had no jurisdiction to have decided the issue in terms of enabling provision of Dastor-ul-Amal, the prevalent law of the time and lastly argued that the aforesaid decision of the then Tehsildar could not be established before the learned Trial Court and the learned Trial Court has illegally relied upon the said decision of the then Tehsildar dated 10.12.1963.
4. The learned counsel representing the tenants has also relied upon the said arguments and further stated that the rights of tenants to the extent of agricultural property/landed property were protected by the learned Trial Court arising out of the agreement dated 11.12.1989.. Therefore, their rights in the hill which is the disputed property should have also been protected. Conversely , learned counsel representing the plaintif fs Miangan of Rani has supported the judgment being based on correct appreciation of the law and evidence.
5. Arguments heard and the record was perused with the able assistance of the learned counsel representing the parties.
6. The contest relating to the disputed property before the learned lower fora was among the four parties.
1. Miangan of Rani : They claimed that the dispute between them and Khawaneen of Rani who were defendants Nos. 1 to 25 in their suit was earlier settled by the then Tehsildar who vide his decision dated 10.12.1963 acknowledged/settled their rights over the suit property under the earlier regime of the Nawab of Dir and thus they are entitled to half portion in the disputed property .
2. Khawaneen of village Rani : They in their pleadings had shown their ignorance from the decision of the then Tehsildar dated 10.12.1963 and have stated that the entire property belong to them being Khawaneen of Rani.
3. Khawaneen of Rabat : They are the Khawaneen of the adjacent village Rabat who have claimed that both Khawaneen of Rabat and Khawaneen of Rani belong to one and the same tribe, therefore both are entitled to half share in the suit property .
4. Tenants: Who were in possession of the agricultural property/ landed property in the village Rani and their claim was based on the agreement dated 1 1.12.1989.
7. The background of the case is that the tenants of village Rani at District Dir Lower had raised some disputes regarding their holdings/ landed property in their possession with the land owners of the property i.e. Khawaneen of Rani before the Court of learned Assistant Commissioner Timergara District Dir Lower . The said dispute calmly ended on a compromise dated 11.12.198 9 which was later exhibited as Ex. PW 5/11 in the, present proceedings.
The subject matter of the said proceedings were the landed property of the village Rani, which was purchased by them from Khawaneen of Rani, However , through the said agreemen t they had also agreed upon certain arrangements i.e. 1/3rd share was given to the tenants in lieu of their services to be rendered to the Khawaneen of Rani relating to the suit property comprised of hill situated at Sangar Bala Pain, Ghero Khwar and Kodago with the following boundaries:- {{URDU TEXT}} Needles to mention that this property was not the subject matter of the aforesaid proceedings before the Assistant Commissioner . Resultantly the said petition was withdrawn by the tenants from the Court of learned Assistant Commissioner Timergara on 1 1.12.1989.
8. The agreement of 1989 was challenged by Miangan of Rani as well as Khawaneen of Rabat . Since, the Khawaneen of Rabat after dismissal of their suit did not further pursue the case, therefore the fact relev ant to their claims are not necessary for adjudication of the present petition.
9. The claim of Miangan of Rani is based on the decision of the then Tehsildar dated 10.12.1963 which was exhibited as Ex PW 1/1, whereas the claim of Khawaneen of Rani is that the suit property was their ancestral property , therefore they had the every right to execute the disputed agreement with the tenants. The claim of the tenants is obviously arising out of the disputed agreement. In support of their claim (Miangan ), they had produced Ghulam Hussain Ex-Tehsildar under Nawab's regime before the learned Trial Court as PW-1 who had rendered the decision dated 10.12.1963 exhibited as Ex-PW -1/1. He in his statement has stated that from 1963 to 1967 he was the Tehsildar of Balambat during the Ex-Nawab period and has confirmed to have rendered the said decision in his official capacity which correctly bears his signature and stamp. Although the defendants in his cross examination has suggested to him that the said decisi on was not rendered by him, however the fact that he remained Tehsildar from 1963 to 1967 under the Ex-Ruler of Dir was not disputed by either of the defendants as evident from their cross examinations. To further substantiate the said document, the plaintif fs Miangan produced Muhammad Shah as PW-2 who was the Reader and record keeper of the said record, who produced the relevant register containing entries of the decisions/orders of the then Tehsildar pertaining to the relevant time and has produced the portion of the relevant register wherein the said decision is entered in the said registered at page 56, marked as Ex-PW -2/1.
Although there is some confusion regarding the relevant page of the register reflecting the aforesaid decision of the then Tehsildar , however the fact that he was the record keeper of the then Tehsild ar was not challenged in cross examination by the present Petitioners. Muhammad Haroon appeared as PW -3 on behalf of the Miangan .
10. On the other hand the respondents/tenants produced record of the various decisions of the learned Assistant Commissioner Timergara District Dir Lower including the disputed agreement and oral evidence in support of their claim that they had purchased the property from Khawaneen of Rani. The Khawaneen of Rani produced a single witness Muhammad Ghani as DW -2.
11. It is evident from the overall impression of the evidence produced by all the parties that the property in dispute Is a mountain and is being used as a pasture by the inhabitants of village Rani. As stated above, the claim of Miangan decree holders over the disputed property is supported by the documentary evidence in form of the decision of the Ex-Tehsildas dated 10.12.1963 Ex-PW -1/1. According to the said decision both the parties i.e. Miangan and Khawaneen of Rani are the joint owners of the suit property . In order to better understand their claim the said decision is reproduced as under:-- {{URDU TEXT}} In support of this decision its author Ghul am Hussain appeared as PW-1 and Muhammad Shah the record keeper of the relevant time appeared as laW-2 who have stated that at the relevant time, they were holding the posts of Tehsildar and Reader/Record keeper respectively and confirmed the authenticity of the said decision. Although in the written statement the Petitioners Khwaneen of Rani have disputed this decision however their only witness DW- 2 Muhammad Ghani while appearing in the witness box has admitted in his cross examination that the matter in respect of the suit property was decided by the then Tehsildar vide decision dated 10.12.1963 but at the relevant time, he was not present. The Khwaneen of Rani could not produce any other evidence to rebut the claim of Minagan of Rani .
12. It is settled law that the civil disputes are decided by the Court of law on the preponderance of the evidence.
The evidence produced by the Plaintif f Miangan of Rani have dominance over the sole oral evidence of the Defendants i.e. Khawaneen of Rani. Therefore, the concurrent findings of both the court below are based on correct appreciation of the evidence.
13. Moving on to the objections raised by learned counsel for the petitioners. His first objection is the identification of the property and has argued that that the property which was the subject matte r of a dispute in the decision of Tehsildar dated 10-12-1963 is not the same which is subject matter of the present lis. I have carefully perused the evidence led by the petitioners and their written statements. They have not raised this issue before any forum, therefore they cannot be allowed to raise this issue for the first time in their revision petition as obviously it amounts to allow them to prove their case beyond the scope of their pleadings. It is settled law that the person cannot be allowed to prove his case beyond his pleadings and similarly cannot raise a question before the revisioinal forum when the same was not raised before lower fora. Reliance can be placed on Government of West Pakistan (Now Punjab) through Collector Bahawalpur v. Haji Muhammad (PLD 1976 Supreme Court 469), Hakim Ali v.
Muhammad Salim and another (1992 SCMR 46), Mst. Salima Bibi v. Mst. Halima Bibi (1994 SCMR 1858 ), Binyameen and 3 others v. Chaudhary Hakim and another (1996 SCMR 336) and Muhammad Wali Khan and another v. Gul Sarwar Khan and another (PLD 2010 Supreme Court 965). Even otherwise the sole witness appearing on behalf of the Petitioners in their evidence has admitted the fact that the property in dispute remained the subject matter of the decision of the then Tehsildar dated 10-12-1963 .
14. The second objection was to the maintainability of the suit under section 42 of the Specific Relief Act, 1877 in absence of relief of the plaintif f in their suit for possession. True that suit for mere declaration without a consequential relief for possession is fatal to the proceedings. However , in the present case, as stated above, that nature/character of the property is a mountain which is not in the direct possession of any party and is being used only as a pasture and for collecting fuel wood by the inhabitants of the village and the plaintif fs claim half share in the suit property for the said purpose. Therefore, they had only asked for the cancellation of deed, declaration of their title on the basis of deed dated 10.12.1963 and injunction to restrain the respondents from interfering or obstructing the plaintif fs from utilizing the said mountain for the aforesaid purpose. Therefore, in the circumstances there was no need to ask for possession as obviously in joint property suit for possession is otherwise not maintainable unless the plaintif fs asked for partition. However , the partition proceedings in such a like matter is subject to Wajib-ul-Arz of the village. Hence, the said objection of learned counsel for the petitioners is also misconceived which is accordingly overruled.
15. The last argument of learned counsel for the petitioners was that according to Dastoor -ul-Amal , the then Tehsildar had no pecuniary jurisdiction. However , the said decision of the Tehsildar was never further challenged by the predecessor of the petitioners that the same was beyond pecuniary jurisdiction of Tehsildar and even otherwise, the pecuniary jurisdiction was not an issue before the then Tehsildar and there is no finding of the Tehsildar in his decision regarding the value of the property involved in the matter . This objection was also not raised by the Petitioners in their pleadings enabling the parties to lead their respective evidence on the issue, therefore the petitioners cannot be allowed to raise the new plea in their revision petition.
16. Moving further to the claim of the tenants, the learned Trial Court has maintained that their claim arising out of the agreement relating to agricultural property/landed property of the village was protected, whereas, grievances of the tenants are that rights in the disputed property should have also been protected by the learned Trial Court as they have also raised the same claim in their written statements. However , from perusal of the agreement, their claim appears to be conditional i.e. they will look after the interest of the Khwaneen of Rani in the suit property .
There is no evidence whether they have performed their obligation arising out of the agreement dated 10.12.1989, therefore this Court cannot give any finding on the same. The performance of agreement dated 10.12.1989 relating to the suit property by tenants or its violation appears to be a continued cause of action which can be raised by either party before the competent forum in case of its violation.
17. In view of the above, I find no merit in this petition to interfere in the concurrent findings of both the learned Courts below as the same are based on correct appreciation of evidence. Resultantly , the instant revision petition is hereby dismissed, whereas the connected C.R. bearing No. 129-P of 2009 titled Shahab Khan and others v.
Muhammad Saeed Khan and others is disposed of accordingly .