WIQAR AHMAD, J. Facts leading to filing of the instant case are respondent No. 1 namely Fazle Rahman (late) had initially instituted a suit for declaration to the effect that he had been owner and in possession of the property in dispute (described fully in heading of the plaint) and that defendants had got no such right to deny his ownership. He had also prayed for permanent injunction as well as possession of the property in dispute, in the alternative. Similarly, Mst.
Maheena (predecessor of respondents Nos. 2/1 to 2/7) had also filed a suit for declaration to the effect that agreement dated 06.07.1992 vide which she had sold her property (described fully in head-note of her plaint) to petitioners Nos. 1 to 3, be declared null and void, ineffective upon her rights and that she be declared owner of the property. She had also prayed for permanent injunction and a prayer for possession had also been sought by her, in the plaint. Likewise, petitioners Nos. 1 to 3 had filed a suit for specific performance of the agreement dated 06.07.1992 to the effect that they had purchased suit property (described fully in head-note of the plaint) from defendant Mst. Maheena (predecessor of respondents Nos, 2/1 to 2/7) and that she had got no right to refuse the transfer. They had also prayed for recovery of an amount of Rs. 20,000/-. They had further prayed for possession of the property in dispute in the alternative. All the three suits had been consolidated by the learned civil Court, consolidated issues framed, evidence of the parties recorded and on conclusion of proceedings, Suit No. 165/1 filed by Fazle Rahman (respondent No. 1) had been decreed while other two suits dismissed vide consolidated judgment dated 30.11.2004 of Civil Judge-IV, Swat. Two appeals were filed there-against (one by petitioners Nos. 1 to 3 against dismissal of their suit while another by petitioners Nos. 1 to 4 against decree passed in favour of respondent No.1) before the learned appellate Court. The learned appellate Court vide the impugned judgment dated 04.02.2005 maintained judgment and decree of the learned civil Court with the only modification that recovery of a sum of Rs. 100,000/- was decreed in favour of the plaintiffs of Suit No. 166/1 of 1999 by modifying findings of civil Court to said effect.
Feeling aggrieved there-from, petitioners had approached this Court through the instant civil revision. This Court had earlier dismissed their revision petition vide its judgment dated 15.02.2008.
Petitioners filed Civil Petition No. 823 of 2008 there-against before Hon'ble Supreme Court of Pakistan, which was accepted vide order dated 29.04.2011 and the case was remanded back to this Court with direction to rehear it with the legal assistance of learned counsel for the parties and decide it afresh. During pendency of the revision petition, petitioners Nos. 5 to 7 have also been impleaded vide order of this Court dated 01.10.2007.
2. I have heard arguments of learned counsel for both the parties and perused the record. While learned counsel for petitioner No. 7 did not appear before the Court despite date given by Court, therefore this being an old case of the year 2005 was taken up for hearing on merits with the assistance of learned counsel available in Court.
3. This Court is seized with the instant revision petition where judgments and decrees of the two Courts below have been unanimous but it would not be possible for this Court to agree with such findings of the Courts below. The findings and resultant conclusions have been arrived as a result of non-reading and misreading of evidence. Neither of the two Courts below have dived deep into facts and evidence of the case and have dealt with the matters before the respective Courts (whether it was the original Court or appellate Court), in a slipshod and cursory manner. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Muhammad Akhtar v. Mst.
Manna and 3 others reported as 2001 SCMR 1700, has held that concurrent findings of facts which are the result of non-reading and misreading of evidence could not be treated as sacrosanct for the revisional Court and that a revisional Court may well reverse such findings. Relevant part of observations of the august Court is reproduced hereunder for ready reference; "We are of the considered opinion that if the concurrent findings are perverse, arbitrary or fanciful the same cannot be termed as 'sacrosanct' and can be interfered with."
In the case of Samar Gul and others v. Mohabat Khan and others reported as 2000 SCMR 974, the Hon'ble Supreme Court of Pakistan had also held; "It is trite law that if the concurrent findings of the Courts below are the result, of misreading of evidence on the record, it becomes the duty of the High Court/ revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C."
The view has also been reiterated by the Hon'ble Supreme Court of Pakistan in the case of Ghulam Muhammad and 3 others v. Ghulam Ali reported as 2004 SCMR 1001, wherein it has been held; "It is settled principle of law that no sanctity can be attached with the concurrent finding of fact if it is found suffering from the defect of misreading and non-reading of evidence and there is no impediment for the High Court to, correct such an error and illegality in the revisional jurisdiction."
Further reliance in this respect may also be placed on the judgments reported as 2006 SCM R 50 and 2008 SCM R 428.
4. This case had also been remanded by the Hon'ble Supreme Court of Pakistan while hearing a Civil Petition for leave to appeal against judgment dated 15.02.2008 of this Court, whereby revision petition of the petitioners had been dismissed. The Hon'ble Supreme Court of Pakistan while remanding the case to this Court has also directed rehearing of the case with legal assistance of learned counsel for the parties. In such circumstances, reappraisal of the evidence recorded in the case has become inevitable.
5. Petitioners are the sons of Khizar (late) while respondent No. 1 (late) was also son of Khizar and respondent No. 2 namely Mst. Maheena (late) was widow of Mehtar Khizar (late). Mehtar Khizar
(late) was brother of Khizar (late) but died issueless. The property in dispute had originally been owned by Mehtar Khizar (late). The instant revision petition has arisen out of consolidated judgments and decrees of the two Courts below passed in three consolidated suits. Suit No. 165/1 of 1-992 had been filed by respondent No. 1 namely Fazle Rahman (late), seeking declaration of his rights to the extent of half share in the entire property of Mehtar Khizar '(late), title of which had statedly been acquired by him through a gift deed dated 02.03.1967 executed by donee Mehtar Khizar (late). He had also sought correction of the revenue record in his suit. This deed of 02.03.1967 and the rights acquired thereby is of pivotal importance in this case. Existence of this deed is almost admitted by the other parties, which included the petitioners but according to petitioners, this deed had subsequently been cancelled. by Mehtar Khizar (late) in his lifetime and the gift revoked through deed dated 22.01.1982 in respect of which original respondent No. 1 namely Fazle Rahman (late) had also scribed an acknowledgement deed dated 15.12.1982. Through the subsequent transaction taking place in the year 1982, Mehtar Khizar (late) had given late Fazle Rahman 1/4th share in his property while the latter had relinquished 114th share out of the earlier gifted 1/2 share of his property. Documentary evidence in the case had been sufficient to have resolved this controversy, (besides the oral evidence) but the two Courts below have not bothered to go through bulky evidence available in the case. Mehtar Khizar (late) had himself instituted a suit, in his lifetime on 20.07.1986, for declaration to the effect that gift deed dated 02.03.1967 had stood cancelled vide subsequent agreement deed No. 2109 dated 15.12.1982 and that earlier deed dated 02.03.1967 should be declared as cancelled. In this respect, contents of paras-5 and 6 of his plaints are reproduced hereunder for ready reference;
6. It is very important to be noted here that during the time, the abovementioned transactions had been executed, settlement in District Swat had been in progress. These transactions have also been given effect in the revenue record. This suit was pending along with two other suits instituted by respondent No. 1 namely Fazle Rahman (one for preempting certain transactions of sale, which deceased Mehtar Khizar had effected in his property while another for declaration, permanent injunction and possession of the suit property. The suit filed by Mehtar Khizar in his lifetime has been referred to Jirga under the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (hereinafter referred to as "the Regulation"). The Jirga gave its decision but before an order for its confirmation was to be passed by competent adjudicating officer under the Regulation, Mehtar Khizar died. A compromise was effected between the parties on 24.12.1990 after death of Mehtar Khizar. This compromise which has been running admitted between the parties during evidence has also got very substantial bearing on the outcome of this case. This compromise as a whole but paras-IlI & V of this compromise deed admittedly thumb impressed by all the parties living at that time, are very important for adjudicating the present controversy and same are therefore reproduced hereunder for ready reference; All the three suits, as agreed in the compromise deed had been terminated one way or the other while the compromise had itself been produced in Suit No. 158/86 brought by respondent No. 1 for preemption. Said suit was disposed of vide order dated 24.12.1990 of the then competent forum i.e. EAC-II/DC (DATA) Swat. In para-3, the ownership that Mst. Maheena had admittedly acquired from her deceased husband, had been recognized by all the parties. It is also important that entries in the revenue record had also been made and running in the name of Mst. Maheena widow of Mehtar Khizar (late) to the extent of her ownership (i.e. the property she had acquired from her husband Mehtar Khizar in his lifetime).
7. The abovementioned important and material documentary evidence which has also run admitted in the instant proceedings, has not been given due weight by the two Courts below.
Regarding all these proceedings, statement of the original plaintiff namely Fazle Rahman (respondent No. 1) and the admissions made in his statement are very important to be referred to.
He was examined in trie civil Court as PW-3. It is important to be noted that the original gift deed dated 02.03.1967 on the basis of which he had brought the instant suit, has not at all been exhibited in his examination-in-chief. In the very examination-in-chief, he had mentioned about the suit which Mehtar Khizar (late) had instituted against him in his lifetime. He has also owned the factum of compromise mentioned above in his examination-in-chief, relevant part of which is reproduced hereunder for ready eference; Similarly, in his cross-examination, he was asked about possession of the original gift deed and was then confronted with endorsement given overleap the original gift deed in his favour, which part of his statement is also very important and is reproduced hereunder for ready reference; Termination of the earlier suits through the compromise deed referred above, has again been admitted at page 6 of his statement. Regarding wrong entries in the revenue record, he slated that after the death of his uncle, he had become aware of the wrong entries in the revenue record at page 7 of his statement. Again at page 11 of his statement, he stated that he had been owning the execution of compromise deed dated 24.12.1990. He sought his ignorance regarding the question that in pursuance to the acknowledgment of revocation of gift dated 15.12.1982, property to said extent had been entered in his name in the revenue record. On page 13 of his statement, he has also stated that on the instigation of Mst. Maheena (late), his uncle namely Mehtar Khizar (late) had taken back the original gift deed dated 02.03.1967. All the documents admitted correct by the plaintiff himself have not been considered by the two Courts below and by ignoring all these evidence, entries of record of rights recorded in the course of first settlement of the area have been declared wrong and illegal and that also in a situation, where basis of recording the entries had also been brought on record in the evidence. There had been preponderance of evidence all going in favour of correctness of entries in the revenue record. Besides, revenue record prepared in the course of first settlement carries a strong presumption of correctness, as held by the Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Nawab Khan and others v. Said Karim Khan and others reported as 1997 SCMR 1840. Relevant part of observation of the august Court is reproduced hereunder for ready reference; "The presumption of truth is attached to the record of rights generally but to the first ever settlement record in particular. Very strong evidence is required to rebut the presumption of correctness attached to the first settlement record of an area."
Similarly, Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Mazloom Hussain v. Abid Hussain and 4 others reported as PLD 2008 SC 571, has held, "where a presumption of truth is attached to a document, it cannot be discarded unless proved otherwise by convincing and cogent evidence and the burden of proof that the entries in record of rights were wrong, is on the party who alleges it." Further reliance in this respect may also be made on judgment of the Hon'ble Supreme Court of Pakistan given in the case of Haji Allah Bakhsh v.
Abdullah Khan and 4 others reported as 2001 SCMR 363.
8. The two Courts below have, inter-alia held that the entries in favour of Mst. Maheena (late) have wrongly been recorded in the revenue record. In this respect, evidence could not be read by the learned Civil Court whose judgment is flawed for non-reading of evidence while the appellate Court beside non-reading of admissible evidence has relied upon an affidavit submitted by Mst.
Maheena' (late) on 23.10.2004, wherein she had extended certain concessions in favour of the plaintiff respondent No. 1 herein. While relying upon said affidavit, the learned appellate Court could not realize that just five (5) months before submission of this affidavit, her attorney had testified in the Court as DW-1, wherein he had fully stood by the stance taken by said lady in her written statement and had fully contested claim of respondent No. 1. During his statement, he had also reiterated the earlier litigation as well as story of compromise and termination of the proceedings thereupon, beside his oral assertions of the history of revocation of gift etc. The collusive affidavit submitted for giving an edge to the unjust case of respondent No. 1 and defeating the lawful rights of the petitioners have been considered as a gospel truth by the learned appellate Court, despite the fact that the lady had neither chosen to appear as witness nor faced cross-examination. She had sold her property and was also left with no stakes in the property at the time of submission of her affidavit.
9. It is also very interesting to note that her attorney while deposing as DW-1 beside reiterating the earlier stance regarding the mode and manner in which the vendee i.e. Mst. Maheena (late) had acquired title from Mehtar Khizar (late)-had also admitted the subsequent sale in favour of the petitioners. Receipt of full consideration has also been admitted by this witness in the beginning of his cross-examination, which part of his statement is reproduced hereunder for ready reference; Even in written statement, filed on behalf of Mst. Maheena (respondent No. 2), execution of the contract dated 06.07.1992 (Ex DW 2/3) has categorically been admitted. The above reproduced part of statement of attorney for the vendee namely Mst. Maheena (late) was so categorical in admitting claim of the petitioners that no further evidence was required. But all this evidence has also been ignored by the two Courts below while dismissing suit of the petitioners. Judgments and decrees of the two Courts below have totally been based upon non-reading and misreading of evidence. This is not possible for this Court to agree with such findings of facts arrived by the two Courts below even if unanimous and concurrent.
10. The learned civil Court has also held suit filed by the petitioners for specific performance against Mst. Maheena (Respondent No. 2) to have been barred by law of limitation but while giving such findings, it could not realize the effect of agreement dated 31.03.1998, vis-a-vis determination of the question of limitation. In paras-3 and 4 of the plaints, petitioners have mentioned about the subsequent contract executed between the parties in the following words; Replies to said paras given in the written statement of respondent No. 2 namely Mst. Maheena are also important, which are reproduced hereunder for ready reference; Reply of Mst. Maheena (respondent No. 2) given in the written statement also shows that she had not been denying execution and factum of, agreement deed dated 31.03.1998. In such circumstances, the agreement dated 31.03.1998 has renewed a cause of action for the petitioners and period of limitation should have been counted by the civil Court below from date of execution of last agreement i.e. 31.03.1998 but same has wrongly been counted from the original agreement to sell dated 06.07.1992. The subsequent contract was having the effect of novation of contract and therefore renewing cause of action of the purchaser. Findings of the civil Court regarding counting of limitation were also the result of misreading of evidence and wrong appreciation of law on the subject.
11. Certain civil miscellaneous applications filed during pendency of this case also merit consideration. Through C.M Nos. 1242-P/2005 and 523-P/2006, impleadment of Mst. Rawasia, Mst.
Mazoba and Mst. Jehan Sultana has been sought. Mst. Rawasia and Mst. Mazoba have been daughters of Khizar while Mst. Jehan Sultana has been niece of Khizar and Mehtar Khizar (late).
They had been distant kindred of Mehtar Khizar in presence of Fazle Rahman (son of Khizail, who had been his nephew. They would be ousted of the legacy of Mehtar Khizar. They have not been entitled to any part in legacy of Mehtar Khizar, therefore the applications for their impleadment had been totally ill conceived and same are accordingly dismissed.
12. C.M. No. 1126-P/2006 has been filed by petitioners for producing additional 'evidence in respect of documents dated 22.01.1982 as well as deeds dated 07.09.1972, 28.01.1985, 29.09.1985, whereby Mehtar Khizar (late) had statedly disposed of certain properties from the property recorded in his name in the revenue record. Such a request has neither been made before the civil Court nor before the appellate Court. Besides, the revision petition is going to be allowed on the basis of already existing preponderant evidence, the instant application need not be considered because for such a purpose, the suit would have to be remanded to the learned civil Court, which would not be appropriate in circumstances of the case as litigation in the case in hand has been running since 02.05.1992, in various Courts. Said C.M. is also dismissed.
13. In light of what has been discussed above, the revision petition filed by petitioners is allowed.
Judgment and decree dated 30.11.2004 of the learned civil Court passed in all the consolidated suits as well as judgment and decree of the learned appellate Court dated 04.02.2005 passed in consolidated appeals are set aside as a result thereof, suit filed by petitioners for the grant of specific performance of agreement dated 06.07.1992 stands decreed as prayed for, while the suits filed by late Fazle Rahman (respondent No. 1) as well as late Mst. Maheena (respondent No. 2) stand dismissed.