SHAKEEL AHMAD, J. Through this single judgment, this Court shall also disposed of civil revision petition No.559 A/2019 titled 'Nisar Ahmad etc v. Muhammad Anwar etc' and Civil Revision Petition No.560-A/2019, titled 'Nisar Ahmad etc V. Muhammad Anwar etc', filed by the petitioners under section 115 CPC against the consolidated judgment and decree dated 06.11.2019 passed by learned Additional District Judge-V, Mansehra, whereby, three Civil Appeals No.20/13, 21/13 and 30/13 of 2018, filed by respondents, Muhammad Anwar etc against the consolidated judgment and decree dated 07.11.2018, passed by of learned Civil Judge-XIII, Mansehra, in Civil Suit No.72/1 of 2017, were accepted and two suits bearing No.72/1 of 2017 and 70/1 of 2013 filed by the respondents against Nisar Ahmad, petitioners, were decreed, while, suit No.71/1 of 2014 of Mst. Nazia Bibi, wife of Nisar Ahmad, petitioners against respondents, Muhammad Anwar etc, was dismissed.
2. The facts of the case, in brief, are that the respondents/plaintiffs filed a suit bearing No.70/1 of 2013 against the petitioners for declaration to the effect that registered gift deed No.527 dated 27.11.2012 on behalf of Fazal-ur-Rehman, predecessor of the parties in favour of petitioners No.1 to 3 pertaining to property bearing Khasra No.8819/1224/2/2/2 measuring 10 kanals 15 marlas and khasra No.10040/1226 measuring 14 marlas, total measuring 11 kanals 09 marlas, situated in Mauza Mansehra including constructed property measuring 2 kanals 9 marlas, namely, 'Hayat Market' was wrong, against law and being based on malafide was liable to be cancelled and ineffective upon the rights of the plaintiffs and as per inheritance law, all the legal heirs of deceased Fazal-ur-Rehman including both the parties are owners of their share. In prayer 'Bay' the plaintiffs sought permanent injunction restraining the defendants from alienating, changing its nature and raising further construction in any manner on the suit property, while, in prayer 'Jeem', the plaintiffs sought possession of their share as well as share of proforma defendants.
Similarly , Muhammad Anwar etc, respondents/plaintif fs also filed amended suit No.72/1 of 2013 against the petitioners for declaration to the effect that parties alongwith other legal heirs namely, Waqas, Altaf Hussain, Sadaf, Nabila, Sabeela of deceased Fazal-ur-Rehman are owners to the extent of their shari shares in suit property bearing khasra Nos. 1253, 1254, 1255 measuring 6 'Kanals' 12 marlas situated in Mauza Mansehra and gift mutation No.70903 attested on 23.06.2009, gift mutation No. 73499 attested on 27.05.2010 on behalf of Fazal-ur-Rehman in favour of defendants No.1 and 2 and mutation No.70904 attested on 23.06.2009 on behalf of defendant No.1 in favour of defendant No.3 the house and the open land, previous Abadi No.34, bounded by towards East, Street, towards South, Street, towards West, House of Master Javed, towards North, House of Mehboob, situated at Mauza Bagra, Tehsil and District Haripur, was in possession of Abdullah Khan and Asif Khan sons of Muddat Khan being owners thereof on the basis of registered sale deed No.261 dated 03.12.1894; that Muhammad Asif Khan died issueless and his legacy was devolved upon Abdullah Khan, who had two sons, namely, Sultan Muhammad Khan and Jabbar Khan, predecessors of petitioners No.1 to 12 and 13 to 19, respectively; that the property in dispute was given temporarily to the respondents for their use in lieu of their services; that the disputed property was required to the petitioners and respondents/defendants had also left the services and they were not entitled to make interference in the rights of the petitioners. They also prayed for permanent injunction as a consequential relief against the respondents restraining them from changing the nature of the property or alienating further. The respondents contested the suit by filing their written statement raising therein various legal and factual issues. The learned trial Court framed the following issues and additional issues out of the divergent pleadings of the parties.
ISSUES
1. Whether the plaintiffs have got cause of action?
2. Whether plaintiffs are estopped to sue?
3. Whether suit of plaintiffs is time barred?
4. Whether suit of the plaintiffs is liable to be rejected under Order 7 Rule 11 CPC?
5. Whether suit of the plaintiffs is not maintainable due to non-joinder and mis-joinder of necessary parties?
6. Whether suit property was previously ownership of predecessor-in-interest of the plaintiffs namely Abdullah Khan and is real brother Asif Khan vide registered sale deed No.261 dated 03.12.1894 and later on devolved upon the plaintiffs?
7. Whether plaintiffs are entitled to the decree as prayed for?
8. Relief.
ADDITIONAL ISSUES
9. Whether defendant No.5 and other legal heirs of Abbas Khan, deceased, are owners of the suit property?
10. Whether construction/improvements upon suit property was made by respondents No.1 to 4, if so, to what extent?
3. Pro and contra evidence was produced by both the parties in support of their respective contentions and finally the suit of the petitioners was dismissed by the learned Civil Judge-VIII, Haripur vide judgment and decree dated 27.02.2014. Not contented with the findings of the learned trial Court, the petitioners went in appeal before learned Additional District Judge-I, Haripur, which too was dismissed vide judgment and decree dated 05.09.2019; hence, the instant revision.
4. Arguments of learned counsel for the petitioners heard and record perused.
5. The claim of the petitioners was that they were owners in possession of the disputed property i.e. House No.34 and open land, situate in Abadi of Mauza Bagra, Tehsil & District Haripur, which was devolved upon them through their predecessors, namely, Sultan Muhammad Khan and Jabbar Khan, who were sons of Abdullah Khan. Abullah Khan besides his own share had also inherited the share of his real brother Asif Khan, who died issueless, in the property in question, which was purchased by them through registered sale deed No.261 dated 03.12.1894. Admittedly, the petitioners are not in possession of the disputed property.
No doubt, the registered sale deed No.261, on the basis of which the petitioners claim their ownership over the house and open land in question, is more than a century old document, but the presumption attached to such document under Article 100 of the Qanoon-e-Shahadat Order, 1984, is always rebuttable. The respondents have denied the registered deed, therefore, the petitioners were required to have proved the execution of the document. The record of the said deed was not found with the Sub-Registrar Office, therefore, its execution, as per law, could not be proved through cogent, reliable and confidence inspiring evidence. In the absence of legal evidence in proof of the execution of the said deed, no reliance could be placed on such document, as no descendant of marginal witnesses or record of the stamp vendor was produced. The contents of the said deed reveal that besides the disputed property, some other properties are mentioned in the deed. The petitioners also could not produce any oral or documentary evidence that they were owners in possession of other properties as well. Similarly, the assertion of the petitioners that the property in dispute was given to the predecessor-in-interest of the respondents for their use in lieu of their services also could not prove, as the record of Abadi Deh produced in shape of Ex.PW 1/1, would show that the same was given to Abbas Khan son of Sedo and the predecessor of the petitioners purchased the disputed property from said Abbas Khan vide the deed in question. They also admitted relationship of respondent No.5, Sher Azam with Abbas Khan, who was impleaded as defendant by the Court in the suit on his application. The appeal Court has also thread-barely discussed the evidence in its true perspective and rendered its findings in accordance with law. Thus, the concurrent findings of both the Courts below are based on valid reasons and no legal justification or ground, or illegality or irregularity could be pointed out by the learned counsel for the petitioners calling for interference by this Court in its revisional jurisdiction.
6. For the reasons stated above, the present revision petition being without substance is dismissed in limine.