MUHAMMAD IJAZ KHAN, J. Through the instant petition, the petitioners have challenged the judgment/decree of the learned Additional District Judge-I/Izafi Zilla Qazi, Swat dated 13.03.2007, whereby the appeal filed by the present petitioners was dismissed and the judgment/decree of the learned Civil Judge-VII/Illaqa Qazi, Swat dated 31.03.2005 was maintained, who vide the same had dismissed the suit of petitioners.
2. A suit was filed by the present petitioners, then plaintif fs, for a declaration to the effect that the suit property bearing Khasra Nos. 829 to 831 measuring 493 Kanal 16 Marlas situated in Moza Telegram is their ancestral Serai , whereas the suit property comprising of Khasra No. 570, 193, 194 and 1487 measuring 21 Kanal 7 Marlas is their ancestral dautar and that the respondents/defendants have no right to deny the ownership as well as possession of the petitioners/ plaintif fs over the suit property or to interfere in the same or to trans fer the suit property to any other person through any mode of transfer and thus the entries made in the revenue record in the names of respondents/defendants are factually incorrect and are liable to correction in the names of petitioners/ plaintif fs.
They have also prayed for issuance of permanent injunction.
3. The respondents/defendants were summoned, out of whom respondents No. 1 to 16, 16-A and 17 to 19 submitted their written statements, where respondents No. 1 to 16 have pleaded that they alongwith the petitioners/ plaintif fs are owners in possession to the extent of 07 Rupia in the form of Warsho (common property), in which every dautari owner is entitled in proportionate share and as such entries so made in the revenue record are correct. Whereas, respondents No. 17 to 19 have pleaded that the entries made in the revenue record in the names of respondents No. 1 to 16 are correct and that respondents No. 17 to 19 have purchased Dhaka Charahgah/banjar qadeem land from the legal heirs of defendant No. 7 namely Amir Rahman, which property is not included in the suit property . Similarly , they have also pleaded that they have purchased Dhaka Charahgah/banjar Qadeem land from Sabzi Aman, Subhan Aman and Saif-ur-Rahman sons of Amir Rahman, which is entered in their names in the revenue record. Defendant No. 16-A has also pleaded that neither the petitioners/plaintif fs are owners of the property in the village nor they are owners of the suit property . In view of divergent pleadings of the parties, the learned trial court framed as many as 11 issues and the parties were required to produce their respective evidence.
4. In support of the plaint, petitioners/plaintif fs produced five witnesses i.e. Fazal Javed Patwari Halqa as PW-1, who produced the extracts from register haqdaran-e-zamin for the year 1993-94, which was exhibited as Ex PW 1/1 and the pedigree-table was also exhibited from him as Ex PW 1/X-1. Attorney of the plaintif f namely Kishwar Khan appeared as PW-2, Anwar Shah as PW-3, Sahib Khan as PW-4 and Muhlat Khan as PW-5. In rebuttal, the respondents/defendants produced Seraj Ahmad Patwari Halqa Moza Telegram as DW-1, Afreen as DW-2, Muhammad Sahib as DW-3, Bawaray as DW-4, Faiz-ur-Rahman as DW-5, Sanaullah as DW-6, Umar Khan as DW-7 and Shah Jehan as DW-8. Thereafter , the learned trial Court vide one of the impugned judgment and decree dated 31.03.2005 dismissed the suit of petitioners/plaintif fs. Being aggrieved of the aforesaid judgment and decree, petitioners/ plaintif fs preferred an appeal to the Court of learned District Judge/ Zilla Qazi, Swat, however , their appeal was also dismissed vide the impugned judgment and decree dated 13.03.2007. Petitioners have now challenged the aforesaid two judgments and decree before this Court through the instant revision petition.
5. Arguments of learned counsel for the parties were heard in detail and the record perused with their able assistance.
6. It is the case of petitioners/plaintif fs that they are owners and possession of the suit property being their ancestral Serai , whereas the case of respondents/defendants is that the suit property is Warsho (common property) and the same has been partitioned as per their proportionate shares in the dautar land.
7. As the petitioners were plaintif fs before the trial Court and they have desired that the Court may grant a decree in their favour , therefore they were under legal and bounden duty to establish the existence of all those facts, which they have pleaded in their plaint as per Article 117 of The Qanun-e-Shahadat Order , 1984 which is reproduced below:- "117. Burden of roof.-- (1) Whoever desires any Court to give judgment as to any legal right of liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
The aforesaid Article of The Qanun-e-Sha hadat Order , 1984 declares that any person who desires a Court to issue a judgment in his favour has to prove all those facts which he has pleaded in his plaint, however , the evidence so recorded by the petitioners/plaintif fs are not sufficient to establish that they are owners of such a huge property of more than 400 Kanal being their ancestral Serai . Petitioners/plaintif fs have also not been able to prove that being dautari owners, out of other dautari owners, who has handed them over such a huge property .
8. It is a matter of record and as reflects from the revenue record produced by PW-1 i.e. Patwari Halqa of Moza Telegram, which was exhibited as Ex PW 1/1 that the suit property is Dhaka Charahgah and as such the same being not an agricultural property could in no way be said that it is in possession of the petitioners/plaintif fs. Being a Dhaka Charahgah , every dautari owner can enjoy the same to the extent of his dautari share.
9. It is also spelling out from the evidence produced by the parties that the Serai land being a common property of dautari owners is ordinarily handed over to those persons who are rendering their services for the concerned Moza like Imam who is performing his duty in Masjid, like a Manjwar who is performing his duty at a shrine and Miangan of the village who used to render religious services to the people of Moza and even to the carpenters but in the present case, the stance of petitioners is an exceptional to the aforesaid century long practice as admittedly the petitioners/plaintif fs are dautari pakhtoon but they alleged that they are enjoying the Semi, which is against the century long practice. It is also a matter of record that petitioners/plaintif fs have not produced any dautari pakhtoon in support of their plea that the suit property is their ancestral Serai.
10. In the case of Muhammad Saleem Shah and 88 others vs. Aziz-ur-Rehman Shah and 41 others reported as PLJ 2002 SC 641, the respondent namely Aziz-ur-Rehman Shah was handed over the Shamilat land for his services as Imam-e-Masjid without payment of any rent and on his getting old, he abandoned the Imamate in village mosque and the land was occupied by his son namely Muhammad Aziz, who instead of performing the duties of Imamate and enjoying the usufruct of the land relinquished his possessory rights by a deed but even then respondent Muhammad Aziz was interfering in the property by raising construction over it. The Hon'ble Apex Court accepted the appeal and set aside the order of this Court and decreed the suit of original owner of the Moza.
Similarly , in the case of Mst. Bibi Zohra vs. Abdur Rehman reported as 2003 MLD 918, this Court has held that respondents/defendants therein were Seraikhor and the Serai land was handed over to them for rendering their services to Ziart and graveyard and they were "Mujawar Takia" and as such it was held that as long as they are rendering their services, they shall enjoy the usufruct of the Serai land. In the case of Mst. Hussan Pari and others vs. Muqarrab Khan and others reported as 2004 CLC 211, this Court again held that since petitioners therein were rendering services on the shrine of Ziarat Mussa Baba and as such they were in possession of Serai land and thus they were Serikhors and in such position, the village common proprietary body remained notionally owners and the Serikhors will remain in possession till they are rendering their services as "Manjawars". In the case of Aziz-ur-Rahman and another vs. Atai Khan (represented by his heirs) and 6 others reported as PLD 1976 Peshawar 60, the history of Serai land was traced which is in line with the aforesaid ratio decidendi. In the case of Hakeem Shah vs Sawab Khan reported as PLD 2002 Supreme Court 200, the Hon'ble Apex Court has also held that the evidence brought on the record does not bring into force anythin g which prohibits that the land in the nature of "Serai" which was once granted could not be revoked on the ground that it was a grant and not tenancy .
11. Another aspect of this case which is spelling out from the evidence is that despite the fact that petitioners/plaintif fs have been recorded as owners of 1/3rd share whereas the respondents/ defendants as owners of 2/3rd share in the suit property , however , during the years long process of first ever settlement (1981-1986), when 1/3rd share was entered in their names, they did not bother to submit any application to the revenue authorities either for correction of the revenue record or for entering of the whole properties at their names, therefore it can safely be concluded that this belated plea of the petitioners/plaintif fs is an afterthought.
12. As against this, all the pleas taken by the respondents/defendants in their written statements find support from the documentary evidence. They have stated that the suit property is Warsho (common property of the Moza) and as Dhaka Charahgah is Warsho , which fact is duly reflected in the revenue record. All other dautari lands owners of the Moza Telegram are duly satisfied from the partition of the suit land as well as the entries made in the revenue record except all alone the present petitioners/plaintif fs and as such in the given facts and circumstances and keeping in view the rival claims of the parties and the evidence so produced by both of them, the present case turned out to be a case of oral evidence as against the documentary evidence and as such it is settled law that it is the documentary evidence which is to be regarded and respected. In the case of Shamshad vs. Arif Ashraf Khan and others reported as 2010 SCMR 473, the Hon'ble Apex Court has held that there is nothing to discuss that oral evidence could not be given preference over documentary evidence. Similar view was also reiterated by the Sindh High Court in its judgment reported as 2014 CLC 990, where it was held that it is settled law that documentary evidence prevails over the oral evidence and if documentary evidence is recorded by a public officer in discharge of official duty it would be preferable to an oral statement of a witness.
13. It is also settled law that it is the petitioners/plaintif fs who have to prove their case through cogent, convincing and independent evidence and they cann ot derive any benefit from lapses, if any, in the defence of the defendants.
In the case of Sultan Muhammad and another vs. Muhammad Qasim and others reported as 2010 SCMR 1630 , the Hon'ble Apex Court has held that the above observations against respondent No. 1 are in line with the well recognized legal principle about the discharge of burden of proof that a party approaching the Court of law for grant of relief has to discharge its own burden and has to stand on its own legs to succeed, and no benefit of any weaknesses in the case of opposite party can be availed by him. Similarly , this Court in the case of Fazal Hanan vs. Mukaram Jan and others reported as 2007 CLC 894 has also held that in order to succeed plaintif f has to stand on his own legs, it is for him to prove his case and he cannot be benefited by the weakness, if any, of his adversary .
14. As highlighted above that the entries so made in the revenue record in the names of both the parties, which are though objected by the present petitioners/plaintif fs and accepted by the respondents/defendants were made in the process of first ever settlement record prepared in this area in the year 1980-86 and thus, such entries being made in the first ever settlement are carrying strong presumption of correctness as such entries are being made after an exhaustive and comprehensive inquiry conducted by the revenues officials in presence of all the owners/claimants on the spot. In the case of Haji Allah Bakhsh vs. Abdullah Kahn etc, reported as NLR 2002 Revenue 113 (Supreme Court), the Hon'ble Apex Court has held that presumption of truth of the highest degree is attached to the entries of the first ever Settlement Record of a revenue estate. In order to dislodge such entry , extraordinary strong evidence is required which, in the instant case, is not at all available on the record. Similar view was also reiterated by the Hon'ble Apex Court in the case of Nawab Khan and others vs. Said Karim Khan and others reported as 1997 SCMR 1840 , where it was held that 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 , the Hon'ble Apex Court in the case titled Faqir Muhammad Khurshid and others vs. Chief Administrator of Auclaf reported as PLD 1987 Supreme Court 60, has also held that as regards the entries of the Revenue record and the presumption attaching to it under section 44, mention has already been made of the decision of the Privy Council in Mst. Wallan's case and the procedure for preparation of the record. In the case of Makhdum Hasan Baksh v. Ilahi Bakhsh and others ((1913) 48 P R 27) the Privy Council held that the entries of the Settlement Record showing "Ghair Mumkin Qabristan" in the possession of Mohammadans and owned by Makhdum Hasan Bakbsh must be presumed to be true under section 44 of the Punjab Land Revenue Act.
15. In this case, the two Courts below have concurrently recorded their findings of facts and law, which this Court found them as perfectly in accordance with the available evidence of the parties and thus the same neither suffer from any misreading or non-reading of evidence nor the same suffer from any illegalities or material irregularities, so as to warrant the interference of this Court in a revisional jurisdiction under section 115 CPC. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Hon'ble Apex Court in its recent judgment titled Mst. Zarsheda vs. Nobat Khan reported as PLD 2022 Supreme Court 21, where in para- 10 it was held that in the case of Shahbaz Gul and others v. Muhammad Younas Khan and others (2020 SCMR 867), this Court held that where two different interpretations were possible of the eviden ce brought on record, then appraisal of facts of lower Courts should not be overturned by the High Court in its revisional jurisdiction under section 115 C.P.C. Between two possible interpretations, the one adopted by the trial and appellate Courts should have been maintained, keeping in mind the limited scope of revisional jurisdiction. Whereas in the case of Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984), the Hon'ble Apex Court expressed that the High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the Courts below while exercising power under section 115, C.P.C. In the case of Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), the Hon'ble Supreme Court held that the provisions of section 115 C.P.C under which a High Court exercises its revisional jurisdiction, confer an exceptional and necessary power intended to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities. The revisional jurisdiction of the High Court cannot be invoked against conclusion of law or fact, which do not, in any way, affect the jurisdiction of the Court. In the case of Atiq-ur- Rehman v. Muhammad Amin (PLD 2006 SC 309), it was held that the scope of revisional jurisdiction is confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law but the interference for the mere fact that the appraisal of evidence may suggest another view of the matter , is not possible in revisional jurisdiction. There is a difference between the misreading, non-reading and mis-appreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. The Hon'ble Apex Court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630 ) held that the concurrent findings of three Courts below on a question of fact, if not base d on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.
14. Similar view was also reiterated by the Hon'ble Apex Court in the case titled Muhammad Sarwar and others vs. Hashmal Khan and others reported as PLD 2022 Supreme Court 13, where in para-6 it was held that it is well settled exposition of law, deducible from plethora of dictums laid down by superior Courts that section 115, C.P.C. empowers and meted out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below , it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law .
17. In light of what has been discussed above, the judgments and decree of both the Courts below respectively dated 31.03.2005 and 13.03.2007 are maintained and upheld and consequently the instant revision petition being bereft of any merit is hereby dismissed.