MUHAMMAD NAEEM ANWAR, J. This single judgment in the instant petition shall also decide C.R No.1349-P/2007 titled "Muhammad Ghori Bacha and others Vs. Shahzada Aman-i-Room through legal heirs and others" as both the petitions are in respect of same subject matter, which are the outcome of consolidated judgment and decree of the learned trial Court in Civil Suit No254/1 of 1991 instituted on 23.02.1991 titled "Nasaray Mian (late) through legal heirs Vs. Government etc" and Civil Suit No.255/1 of 2001 titled "Syed Pekhawray Mian etc. Vs. Government etc".
2. Facts lying in the background of these petitions are that Nasaray Mian through his suit has sought a declaration for property bearing Khasra No.160 Khata No.3 Kahtoni No.119 vide Jamabandi for the years 1985-86 of the revenue estate of Malam Jaba, Tehsil Charbagh, District Swat to the effect that he owners in possession of it, with which, the defendants have got no concern whatsoever, thus, entries in the revenue papers, being based upon the order of the Collector dated 20.12.1986 and Additional Deputy Commissioner dated 22.01.1991 are wrong, against facts, result of fraud and collusion, hence, same are ineffective upon his rights and are liable to be corrected, with an additional prayer of perpetual injunction restraining the defendants from denying his right of ownership by directing the official respondents/ defendants to correct the entries of the revenue papers, with an embedded prayer for recovery of Rs.24,000/- as compensation. Contents of the plaint manifest that he alleged to be a "Syed" by caste and the disputed property is "Serai", which belongs allegedly only to Syed tribe and that the land or any part of it is not a dawtar; that it is his ancestral property, which has never been sold/transferred/ alienated by him through any mean to anyone and that when a dispute pertaining to its boundaries arose, his property was properly demarcated and was decided/declared as serai to be owned by him through a decision dated 25.04.1953. It was further averred that through a mortgage deed dated 05.05.1954 some portion of the property was transferred in favour of his second wife. Lastly, it was contended that the disputed property has got no relevancy/ connection with Regulations No.122 & 123 of 1972 and that the official of the first ever settlement, with collusion of private respondents, have prepared forged papers, which resulted into preparation of wrong record of rights/Misle Haqiat. During pendency of this suit, another suit No.255/1 was also instituted by Syed Pekhawray Mian and others against Provincial Government etc. on 21.10.1997, alleging therein themselves to be exclusive owners of the property. and that the entries in the revenue papers in favour of defendants are inoperative upon their rights. They also alleged that the disputed property i.e., Khasra No.160 measuring 174-kanal 17- marla of the kind of `Sadin Dhaka Rakh' was the ownership of Syed Painda Gui Mian, from whom, it was devolved upon them but the entries in the revenue papers were wrongly made, which require correction. On 18.03.2002, both the suits were consolidation by the learned Civil Judge/Illaqa Qazi- III, Swat and proceedings were conducted in Suit No.254/1. Consolidated issues were framed and then the parties were directed to produce their respective evidence. After completion of evidence, learned trial Court vide its consolidated judgment and decree dated 31.10.2005 decreed suit No.254/1 to the extent of relief under headnotes No. & whereas, it was dismissed to the extent of rest of reliefs. Likewise, the connected suit of Syed Pekhawray Mian etc. was also dismissed. It is pertinent to mention here that no appeal was filed against dismissal of suit No.255/1 titled "Syed Pekhawray Mian etc Vs. Government etc", however, being aggrieved from the judgment and decree in suit No.254/1 dated 31.10.2005, defendants No.39-A to 48 filed Civil Appeal No.78/13 whereas Muhammad Anwar, Muhammad Idrees and Muhammad Shoaib, defendants No.20 to 22 alongwith some other defendants filed Civil Appeal No.46/13. Both the appeals were entrusted to the Court of Syed Muambar Jan, the learned Additional District Judge/Izafi Zila Qazi-I, Swat, however, both the appeals were heard and decided on different dates. It is reflected from the record that Additional District Judge/Izafi Zila Qazi-I, Swat allowed Civil Appeal No.46/13 titled "Muhammad Anwar and others Vs. Government of Khyber Pakhtunkhwa and others" on 16.04.2007 and judgment and decree of the learned trial Court was set aside, consequently suit of Nasaray Mian was dismissed, nevertheless, either the Court was not informed about the connected Civil Appeal No.78/13, which was later on allowed on 10.09.2007, wherein once again suit of Nasaray Mian etc. was dismissed. The instant petition has been filed against judgment and decree of the learned Appellate Court dated 16.04.2007 whereas, connected CR No.1349/2007 has been filed against the judgment and decree of the learned Appellate Court dated 10.09.2007.
3. Arguments of learned counsel for petitioners were heard on 27.07.2022, whereas respondents who are being represented by special attorney namely Muzaffar Khan have submitted their written arguments. Learned A.A.G for official respondents No.40 to 44, Mr. Hameed Ullah Khan and Ms. Mehnaz, Advocates for respondents No.1 to 15 in connected petition and for respondents No.5, 7 & 8 in instant petition supported the impugned judgment and decrees, who were heard today i.e., 28/11/2022. Record perused.
4. Both these petitions have been preferred by legal heirs of Nasaray Mian whose suit was dismissed through the impugned judgments and decrees by the learned Appellate Court. It is significant to mention that the prayer of appellants/ respondents of the instant petition (Muhammad Anwar and others) was for setting aside of the judgment and decree of the learned trial Court, however, they have prayed that the disputed property may be declared as ownership of respondents No.1 to 18, 28 to 41 as reflected from the memorandum of appeal whereas, in connected CR No.1349-P of 2007 the then appellants have prayed that on acceptance of appeal suit be decreed. In view of the prayer of respective appellants qua contention of the plaintiffs of suit No.254/1 evidence of the parties is required to be reappraised in order to reach to a just conclusion of the matter.
5. Revenue record was placed on file as Ex.PW1/1, which is an extract from Jamabandi for the year 1989-90 of property bearing Khasra No.160 locally known as khambay Patay measuring 174-kanal and 17-marla, kind of land as Sadin Dhaka rakh and status of Nasaray Mian was that of Ghair Dakhalkar , whereas the defendants [appellants of both the appeals and official respondents (Provincial Government)] have been recorded as owners of the property. Khasra Girdawari from Harif 1984 to Rabi 1988 with similar entries of the column of cultivation was also placed on record as Ex.PW1/4. Statement of Reader to Tehsildar Charbagh was recorded as PW-2, who placed on file deed bearing No.3898 as Ex.PW2/1. Nasaray Mian appeared in the witness-box as PW-3. His statement is of worth perusal. In his examination in chief, he reiterated his stance as alleged in the plaint however, in his cross examination by defendant No.49, he could not remain consistent. He deposed that a decision was made against him by Collector , against which, his appeal is still pending adjudication but thereafter, at spur of moment, deposed that no such appeal was filed. It was also recorded in his cross examination that at the time of settlement, he was in village and has challenged the record of rights/Misle Haqiat, just after completion of record but in self-statement, he adduced that some 20 years ago he has filed a suit. It was also admitted by him that he is not in possession of the property, rather the possession has been decided in favour of Syed Pekhawray Mian in view of the oath taken by him before the Deputy Commissioner, as such, the possession of Syed Pekhawary Mian was admitted by him. He also admitted that he has got no documentary proof rather alleged that it is his ancestral property. In his cross examination by defendants No.9, 18 to 21, 22-A to 22-J, 29, 30 to 36-A to 37, he admitted that he had submitted an application before the Settlement Officer, where one Lakhtay Khan was also party, but he has not arrayed him in his suit. In his cross examination by defendants No.39-A to 48, he admitted that the disputed property is known as Khambay Patay and situates within the territory of Malam Jaba whereas, he is resident of Kishora. He deposed that he has got no claim against the legal heirs of ex-ruler of Swat. He produced Bakht Ambar and Karim Baksh as his witnesses, but no one could place on file any convincing evidence, which could lead the Court to declare the disputed property was, in fact, the ownership of Nasaray Mian, the then plaintiff. Of course, the entries of the revenue papers i.e., first settlement could be challenged before the Civil Court, which has got ultimate jurisdiction to decide the case but when the entries of the first ever settlement were challenged then the petitioners/ plaintiff was required to bring on record direct, cogent and positive evidence to upset the entries of the revenue papers. Revenue record shows the status of Nasaray Mian as that of Ghair Dakhilkar but he admits that possession was of one Syed Pekhawray Mian, in such circumstances, his possession, at the spot, has not been proved. Insofar as their contention to be the ancestral owners is concerned, not even a single iota of evidence is available on record to support their stance.
Significant aspect of the instant matter was that earlier he (Nasaray Mian) assailed the entries before the Revenue Officer at the time of settlement, where his claim was turned down but he has not assailed said order before the appropriate forum.
6. Turning to the evidentiary value of the report of local commission. Record reflects that the local commission was directed to submit his report in terms of reference, which he submitted and was objected to by the respondents and as such statement of local commission was recorded before the Court as CW-1. His statement is not only inconsistent but he remained confused during entire process of the commission proceedings, as such, his report could not be relied upon for the purpose of determination of the controversy. Though in consonance with order XXVI rule 10 of C.P.C when reporte-commission is rejected, a fresh commission is appointed but it is of equal significance that the commission report is always corroborative piece of evidence and in the circumstances, when the plaintiffs (Nasaray Mian, the predecessor in interest of petitioners) could not prove themselves to be the owners of the disputed property there is no need of appointment of a fresh commission.
7. More-so, the plaintiff has not produced even a single witness to get it declare that entries in the revenue papers made by settlement officials are the result of collusion, fraud and connivance of private respondents with the officials of revenue hierarchy.
8. As against that, the respondents/ defendants have placed on file Ex.DW1/8, Ex.DW1/9 & Ex.DW1/10, which indicate that the disputed property through notification dated 29.09.1972 had been declared the ownership of ex-ruler of Swat, with specification of the property. Syed Jehanzeb appeared as DW-4 whose statement has not been controverted on material points by petitioners/plaintiff.
Record also reflects that an application was submitted by Nasaray Mian before Collector/Deputy Commissioner, Swat and an order was passed by the Revenue Officer regarding the possession of Syed Pekhawray Mian. This statement was thumb impressed by Nasaray Mian by admitting that he never remained in possession of the disputed property. For convenience, the order of revenue officer reads as under: In view of the above, neither the plaintiff (predecessor of petitioners) could prove his possession in capacity of Ghair Dakhilkar (tenant) nor could he prove the disputed property as his ancestral property. His witnesses could not contribute much for plaintiff i.e., Nasaray Mian and he also remained perplexed during his evidence. It was the bounden duty of the plaintiff to prove his case through positive, convincing and cogent evidence but same is lacking on his part. The plaintiff could not prove that the disputed property was a serai and not dawtari property as no evidence is available on record. Even his witnesses could not depose a single sentence regarding the nature and status of the property. The most important aspect of the cross examination made by plaintiff Nasaray Mian is that when Nisar Ahmad s/o Mal Mand entered into witness-box as DW-3, who was cross examined by the plaintiff/ petitioner, wherein he placed on record that: The question put to DW-3 was in clear negation against his own stance then what to say about the unrebutted portion of statement of other witnesses produced by the respondents/ defendants.
Thus, while going through from the statement of witnesses of both the parties, I have come to the firm conclusion that: i. the disputed property is daivtari property and not a serai one; ii. the entries of the revenue papers for plaintiff as that of ghair dakhilkar were also incorrect; iii. plaintiff Nasaray Mian has never remained in possession of the property; iv. during settlement, plaintiff Nasary Mian approached to the Settlement Officer for correction of the entries of revenue papers but when the decision was made against him, he has not assailed the order before the appropriate forum; v. the disputed property never remained ancestral property of the plaintiff; vi. it could not be declared as the ownership of Syed tribe/caste; and vii. a particular decision was made by the Land Commission particularizing the disputed property alongwith others in favour of ex-ruler of Swat.
9. Thus, for the foregoing reasons, this as well as connected CR No.1349-P/2007 having got no merits are hereby dismissed, but with no order as to cost.