ABDUL HAMEED BALOCH, J. The petitioners/plaintiffs assailed judgments and decrees dated 14th May, 2015 and 08th December, 2015 (impugned judgments and decrees) passed by learned Qazi Sarawan at Mastung and learned Majlis-e-Shoora Mastung, (trial and appellate court), respectively, whereby the suit of the petitioners/plaintiffs was dismissed and appeal filed against the same' was also met with the same fate.
2. Concise facts of the case are that the petitioners/plaintiffs filed a suit for declaration and permanent injunction against the respondents/ defendants before the court of Qazi Sarawan at Mastung with the following prayer:
3. The respondents/ defendants contested the suit on legal as well as factual grounds by filing written statement and prayed for dismissal of the suit. On 17th November, 2014 the trial court framed six issues, on which both the parties led their respective evidence and on conclusion the learned trial court dismissed the suit of the petitioners/ plaintiffs vide impugned judgment and decree dated 14th May, 2015. Being aggrieved the petitioners/plaintiffs filed appeal before Majlis-e- Shoora Mastung, but the same also met with the same fate vide impugned judgment and decree dated 8th December, 2015, hence the petitioners/ plaintiffs are before this court.
4. Heard and perused the record. Before dilating upon merit of the case it would be appropriate to decide the application under Order XXIII, Rule 1 Sub-rule (2) Civil Procedure Code (C.P.C.) filed by the petitioners/ plaintiffs before this court contending that all necessary documents was not available to them at the time of filing of the suit which was necessary for just decision of the case.
The referred document is as under: "From: Deputy Commissioner District Kalat To: Nazim Government Sarawan Kalat.
Memorandum No. 18/16-541 dated 22.01.1957.
Subject: PROTECTION OF LANDS FROM DAMAGE OF SAND.
"In response to your letter No. 181 dated 08.01.1957 on the above subject. To ensure the concerned farmers of the area that the Department of Protection of Lands and Forest intends to make arrangements to grown forests, plants and grass in the area so that land be saved from sand and the land would be the property of farmers, the act of government is only to make green the area, the government will only look after the same so that same not be again made barren.
Sd/ xxxx "
5. The provisions of Rule 1 sub-rule (2) of Order XXIII, C.P.C. reads as under: "(2) Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute afresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it, thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute afresh suit in respect of the subject matter of such suit or such part of a claim."
6. Under the above referred rule if the court is satisfied that the suit is most likely fail by some formal defect. The phrase "formal defect" is not defined in the Code. Word "formal" relates to the matter of form. The word "Form" is defined in Black's Law Dictionary as under: "A model or skeleton of an instrument to be used in a judicial proceeding or legal transaction, containing the principal necessary matters, the proper technical terms or phrases end whatever else is necessary to make it formally correct, arranged in proper and mechanical order, and capable of being adopted to the circumstances of the specific case.
7. From the above referred definition dictionary meaning of the term "formal defect" that a frame of pleadings including an irregularity, meaning thereby that any defect in the pleading does not permit to proceed further in the suit or any absence of a particular formality the suit will ultimately fail. In Muktanath Tewari's case AIR 1934 All. 67 it was observed: "The expression "formal defect" must be given a wide and liberal meaning and must be deemed to connote every kind of defect which does not affect the merits of the case. The merits of the case are affected where the plaintiffs say that it would be necessary to have a stranger to the suit in the array of parties in order to obtain a correct adjudication of the controversy between the parties. Hence, the defect that certain necessary parties were not included is not a formal defect within Order XXIII, rule I. "
8. The record reveals that the petitioners/plaintiffs have sought withdrawal of suit with permission to file a fresh suit on the basis of a letter/ document mentioned in the application. The alleged letter/ document has already been on record but the petitioners/ plaintiffs have neither agitated before the trial or appellate courts and filed the instant application after five years of filing instant revision petition. The above referred provision does not mean to allow the parties to fill in the lacunas subsequently. Even this cannot be treated as formal defect. Reliance is placed on the case Rustam v. Sikandar Khan 2016 YLR 1936. It was held: "5. Apart from the fact that application was moved at belated stage when suit of the appellants had already been dismissed by the learned Civil Judge-V, Abbottabad, vide his order dated 11.11.2010, the applicants also failed to disclose the formal defect, as declaration was sought on the basis of mutations Nos.14205, 13191 and unattested mutation No. 14202, while prayer for specific performance was made only on the basis of mutation No. 14202. It may be noted here that prayer for specific performance was made in the alternative. It is, therefore, something beyond comprehension as to how the appellants detected formal defect in their suit so late in the day when their suit had already been dismissed on merits on the ground of their failure to prove the said two mutations, rather any transaction in their favour. The learned Appellate Court altogether overlooked this aspect while allowing application of the appellants. It may also be pointed out here that the matter of ownership of the suit land on the basis of the said two mutations and so- called obligation on the part of the defendants to get the unattested mutation No. 14202 attested were directly and substantially issue in the suit, and in such a situation, when the defect pointed out was substantial and latent in nature, touching merits of the case, the same could not be considered as formal defect in the plaint to make out a ground for the withdrawal of the suit in view of 2001 SCMR 148 and PLD 1981 Peshawar 72. "
For the above reason the application in hand being bereft of merit is dismissed accordingly.
9. The petitioners/plaintiffs filed C.M.A. No. 1005 of 2017 seeking permission to place documents on record consisting upon Fard-e-integal of Atta Muhammad and Umed. Khan, Ali Bakhsh and Hazoor Bakhsh, copy of map of Mouza Rasoolabad Tehsil and District Mastung and copy of Sanad dated 12th Rajab 1338 Hijri. The Fard-e-inteqal has no relevancy with the case in hand. Under Order XIII, Rule 1, C.P.C. the parties shall produce all the documents in their possession or rely upon on the first date of hearing of the suit. The Order XIII, Rule 1, C.P.C. reads as under: Order XIII Rule 1. Documentary evidence to be produced at first hearing. - (1) The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced."
10. Though under Rule 2 of the above referred Order the court has power to receive the documents subsequently where the parties satisfied the court at the first hearing of the suit that such document is not in their possession. The parties are bound to show good cause for non production of such document at relevant stage. The suit filed by the- petitioners/plaintiffs in the year 2014, remained silent and after dismissal of their suit and appeal filed the instant application for placement of revenue extract. Even the application is silent why the referred to document was not produced earlier having relevancy with the case; hence in such circumstances the application for placing of document on record is rejected.
11. Now adverting to the merit of the case. The petitioners/ plaintiffs challenged the mutation entries in the record of rights after more than fifty (50) years. The petitioners/ plaintiffs have not put forward any reason why at such belated stage filed the suit. Though the mutation entries cannot create title/ ownership right. Under Section 52 of the West Pakistan. Land Revenue Act, 1967 (Act 1967) the record of right and periodical record carry weight, shall be presumed to be true until the contrary is proved. Where the land is mutated in the name of the party incorporated in the revenue record as owner there is presumption in favour of the party. The party challenging the entries in the record of right must prove that the entries are false or not according to the law. Reliance is placed on the case of Muhammad Nazeef v Mst. Mumtaz Begum 2002 CLC 1517, wherein it was held: "----.Entries in Record of Rights are strong pieces of evidence in support of a person's title to immovable property and ought to be relied upon in absence of satisfactory evidence in rebuttal produced by opposite party. In this regard reliance can be placed on Manzoor Hussain and 3 others v. Muhammad Siddique 2000 CLC 623, in which it was held: -- "Presumption of correctness is attached to the entries of the Jamabandi wherein the donees were recorded as owners. A Jamabandi is a title document and very strong evidence was required to displace the title of the donees. "
Likewise inNooruddin and others v. Pakistan and others 1997 CLC 1971 it was held that: "Nevertheless it is settled law that entries in Record of Rights are strong pieces of evidence in support of a person's title to immovable property and ought to be relied upon in the absence of satisfactory evidence in rebuttal produced by the opposite party."
12. Both the courts below concurrently dismissed the suit as well as appeal of the petitioners/plaintiffs holding that the petitioners/ plaintiffs have failed to prove their case. Legally the petitioners/ plaintiffs are/were bound to prove their case by trustworthy and consistent evidence. Where the plaintiff failed to prove his case then he must fail. The record transpires that the evidence produced by the petitioners/plaintiffs is not consistent rather contradictory to each other. The petitioners/plaintiffs have not produced any evidence whether the suit land was cultivable by Karez. Even no report was produced when the permission was obtained for Karez. The court in revisional power only has to examine the record whether the courts below exercised the jurisdiction not vested in it by law, have failed to exercise a jurisdiction so vested or to have exercised its jurisdiction illegally or with material irregularity. The scope of revision is restricted only to the extent of correcting error of law and fact, if found to be committed by the courts below. The object of revision is to rectify the error committed by the courts below in exercise of jurisdiction. The concurrent findings recorded by the subordinate courts could not be called in question unless shown that the judgments are contrary to law, mis-appreciation of evidence and committed gross illegality. Mere possibilities of different view of evidence could not be a ground for setting aside the concurrent findings. Reliance is placed on Abdul Mateen v. Mst. Mustakhia 2006 SCMR 50. It was held therein: ".......There is no cavil to the proposition that the concurrent finding on a question of fact or mixed question of law and facts, if is found suffering from misreading or non-reading of evidence or based on no evidence or inadmissible evidence, the High Court in exercise of the revisional jurisdiction should correct the error committed by the subordinate Courts but in absence of any defect of misreading or non-reading of evidence in the concurrent finding of two Courts on such question, the interference of the High Court in the civil revision would amount to improper exercise of revisional jurisdiction. This is settled law that re-examination and reappraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by the subordinate Courts on a question of fact was erroneous. The revisional power of High Court is exercised for correcting an error committed by the subordinate Courts in exercise of their jurisdiction and mere erroneous decision would not call for interference unless it is established that the decision was based on no evidence or the evidence relied upon was inadmissible or the decision was perverse so as to cause grave injustice. This is settled law that the High Court in revisional I jurisdiction cannot upset the concurrent findings of fact by means of re-examination of evidence and in the present case, the perusal of record would not show any misreading or non-reading of evidence brought on the record by the parties or suggest that the Court of first instance and the Appellate Court had drawn wrong conclusion from the evidence calling for interference of the High Court in its revisional jurisdiction."
In view of the above discussion I have not found any illegality, irregularity, misreading, non-reading of evidence or any jurisdictional error in the concurrent findings of the courts below vide impugned judgments and decrees. Consequently, the judgments and decrees dated 14th May, 2015 and 08th December, 2015 passed by learned Qazi Sarawan at Mastung and learned Majlis-e-Shoora Mastung, respectively are upheld and instant revision petition being bereft of any merit is hereby dismissed with no orders as to costs.