MUHAMMAD IJAZ KHAN, J. Through the instant revision petition, petitioners have challenged the judgments and decree of the two Courts below dated 26.11.2016 whereby the suit filed by the petitioners/plaintiffs was dismissed and that of judgment and decree of the learned appellate Court dated 11.02.2019 whereby the appeal filed by the petitioners was also dismissed.
2. Precisely the facts of the case are that the present petitioners then plaintiffs filed a suit for declaration to the effect that they are owners-in-possession of the suit property measuring 02 kanals 07 marlas fully described in the heading of the plaint and that the respondents/defendants have no right to deny ownership of the petitioners /plaintiffs. They have also challenged the entries made in favour of respondents/defendants Nos. 1 and 2 to the extent of 07 marlas in an excess in their favour and as such they have prayed for the cancellation of the aforesaid entries to the extent of 07 marlas in favour of the respondents/ defendants Nos. 1 and 2 and have prayed for the necessary correction in the revenue record. They have also prayed for issuance of perpetual injunction against the respondents/defendants in respect of the suit property.
3. Respondents then defendants were summoned, out of whom respondents/defendants Nos. 4, 13, 20 and 21 submitted their cognovits in favour of the petitioners/plaintiffs, whereas defendants Nos. 1 and 2/1 to 2/4 submitted their written statement and rest of the defendants were placed ex-parte.
In view of the divergent pleadings of the parties, the learned trial Court framed as many as eight issues and both the parties were directed to produce their respective evidence which they have accordingly produced and hereafter the learned trial Court vide one of the impugned judgment and decree dated 26.11.2016 dismissed the suit of the petitioners/plaintiffs. Feeling aggrieved of the aforesaid judgment and decree, the petitioners preferred an appeal to the Court of learned Additional District Judge/Izafi Zila Qazi Swat, however, the same was also dismissed vide the second impugned judgment and decree dated 11.02.2019. Petitioners have now challenged the aforesaid judgments and decree of the two Courts below before this Court through the instant petition.
4. Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.
5. It is the case of petitioners/plaintiffs that the suit property is their ownership-in-possession being their ancestral property and that the entries made in the revenue record in favour of the respondents/defendants to the extent of 07 marlas is incorrect and thus ineffective upon the rights of the petitioners/plaintiffs. As the petitioners plaintiffs before the learned trial Court and as they have prayed for the issuance of the desired decree, therefore, they were under statutory obligation to prove all those facts which they have pleaded in their plaint, however, the record would show that they have not been able to prove the existence of those facts which they have pleaded in their plaint. It may be noted that it was the case of petitioners/ plaintiffs that the suit property was their ownership-in-possession being their ancestral property and that the entries made in the revenue record in the name of respondents/defendants arc incorrect, however, they have produced four witnesses as PW-1 to PW-4 and all the witnesses of petitioners/plaintiffs have categorically admitted in their statements that the father of the petitioners remained alive till 1995 and it has also been admitted by these PWs that other properties have been entered in the name of their father at the time of preparation of the first ever settlement record.
6. It is also part of the record that initially the entries were made in the name of predecessor-in- interest of the petitioners/plaintiffs then an application was submitted by the respondents/defendants to the Tehsildar Bandoobast which is available on file where he has categorically stated that the suit property had purchased by him vide registered sale deeds Nos.
213 and 214 attested on 01.08.1973 which is measuring 166 x 180 feet and in support of this application the predecessor-in-interest of the petitioners Nos. 1 to 10 namely Sher Azam had recorded his statement whereby he has stated that the predecessor-in-interest of the respondents/ defendants have purchased the said property in khasra number 3089 and thereafter on the basis of the aforesaid material the Tehsildar Bandoohast had passed an order dated 19.06.1986 and interestingly in the said order the shares of all the owners have been recorded where the name of predecessor-in-interest of the present petitioners namely Sher Azam has also been found mentioned having 24 shares in Khata No. 617 whereas the shares of predecessor-in- interest of respondents/defendants namely Kohistanay has been recorded in Mad No. 04 as 49 shares and as such the incorrect entries in the revenue record had been corrected then and there by the revenue hierarchy, however, the petitioners/plaintiffs after 26 years of the aforesaid decision of the Tehsildar Bandoobast have filed the instant suit for the redressal of the same grievances which have already been redressed and corrected by the revenue hierarchy.
7. It may also be noted that right from day first it is the case of respondents/defendants that they have purchased the suit property vide registered deeds Nos. 213 and 214 executed on 01.08.1973, however, till date the same registered deeds have not been challenged by the petitioners/plaintiffs.
During the course of arguments, the learned counsel for the petitioners/plaintiffs made reference to the extracts from the register which was exhibited as Ex. DW-4/1 where the deeds Nos. 213 and 214 have been shown as attested on 01.08.1971 and as such his objection was that when they have purchased the suit property through registered deeds dated 01.08.1973 then how it could be entered on 01.08.1971, however, this objection of the petitioners/plaintiffs have already been explained by DW-4 namely Alam Khan, Computer Operator Deputy Commissioner Office Swat who has categorically stated that it is a clerical mistake and who also produced the extracts of the proceeding as well as of the subsequent relevant pages of the register which shows a consistent sequence amongst all, therefore, this objection of the petitioners/plaintiffs too is misplaced. In view of the above the petitioners/plaintiffs have not been able to prove all those facts which they have pleaded in their plaint, therefore, the desired decree could not be granted in their favour. Under Article 117 of The Qanun-e-Shahadat Order, 1984, it was for the petitioners/plaintiffs to establish all the stances/facts taken in their plaint. The aforesaid Article being relevant is reproduced below:- "117. Burden of proof.---(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-Shahadat 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 record would reveal that petitioners/plaintiffs could not prove the existence of all those facts on which they have based their plaint. Needless to mention here that the plaintiffs have to prove their case on the basis of their own evidence and they cannot be allowed to draw any benefit from the weakness or lapses of the defendant's evidence. In the case of Qahaim Khan and 4 others v. Amar Khan and 2 others reported as 2022 CLC 335 it was held that admittedly it is responsibility and duty of claimant to prove his case on his own strength. Under Article 117 of Qanun-e-Shahadat Order, 1984 (Order, 1984), the burden of proof lies on person who desire the court to give decision in his/their favour. It is bounden duty of a party to prove the claim through cogent and confidence inspiring evidence. The plaintiff must prove his case on the strength of his own evidence. He cannot take benefit from the weaknesses of the defendant's case. Similarly, in the case of Muhammad Latif v. Bashir Ahmed and 7 others reported as 2004 CLC 1010, the Lahore High Court has also held that it is settled proposition of law that a party has to succeed on the basis of his own evidence and not on account of lapses in the case of his adversary. This Court in the case of Abdul Waheed v. Muhammad Bilal reported as PLD 2005 Peshawar 19, has also held that needless to emphasize that burden of proof always lies, upon the plaintiff and plaintiff cannot be benefited from short comings of defendant's case, where the case of plaintiff was doubtful and the entire evidence of plaintiff was self-contradictory and highly discrepant.
8. As against this, the case of respondents/defendants is duly supported by the registered deeds Nos. 213 and 214 which were duly produced by its custodian i.e. DW-4. The clerical mistake which was agitated by the learned counsel for the petitioners was duly answered and clarified by DW-4.
Similarly, the petitioners/plaintiffs have challenged the entries in the revenue record in the name of respondents/defendants, however, it may be clarified that the entries are not ordinarily entries made by the Patwari Halqa periodically but these are the entries of the first ever settlement which were entered after exhaustive and comprehensive inquiry conducted by the revenue officials on the spot, therefore, under the law strong presumption of correctness and authenticity is attached to the entries made during the course of first ever settlement. In the Case of Haji Allah Bakhsh v.
Abdullah Khan and others reported as 2001 SCMR 363, the Hon'ble Apex court has declared 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 v. Said Karim Khan and others reported as 1997 SCMR 1840, where it was observed 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 Supreme Court in the case titled Faqir Muhammad Khurshid and others v. Chief Administrator Auqaf 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 Bakhsh must be presumed to be true under section 44 of the Punjab Land Revenue Act.
9. It may also be noted and as discussed hereinabove that initially when the entries were made in the name of the present petitioners/plaintiffs, the respondents/defendants there and then submitted an application in the year 1986 which was duly inquired and thereafter a speaking order has been passed by the Tehsildar Bandoobast whereby the shares of both the contesting parties have duly been corrected and correction order has been made, therefore, the entries made in the name of respondents/defendants were in the knowledge of petitioners as the same were made after due process of law in which the predecessor-in-interest of the petitioners was on board, therefore, their present suit filed by them in the year 2012 on the face of record is time barred as the same has been filed after 26 years of the entries made in the revenue record. It is by now settled law that it is the duty of the Court to adhere to the question of limitation as Section 3 of The Act of 1908 do require from a Court of law to address the question of limitation even if the same has not been taken as a defence by a party. Recently a larger Bench of the Hon'ble apex Court in the case titled Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others reported as PLD 2016 Supreme Court 872 has held that the purpose of the laws of limitation is to establish certainty in the affairs of men, to bring repose and to bring an end to litigation after a certain time period has expired from accrual of an actionable right. It was also held that before considering the propositions above, it is expedient to mention certain salient features which have been settled over a period of time by the Supreme Courts for the purposes of interpretation of the law of limitation.
These are:- i. The law of limitation is a statute of repose, designed to quieten title and to bar stale and water- logged disputes and is to be strictly complied with. Statutes of limitation by their very nature are strict and inflexible. The Act does not confer a right; it only regulates the rights of the parties.
Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are fully complied with in letter and spirit. There is no scope in limitation law for any equitable or ethical construction to get over them. Justice, equity and good conscience do not override the law of limitation. Their object is to prevent stale demands and so they Ought to be construed strictly; ii. The hurdles of limitation cannot be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the Court. Ignorance, negligence, mistake or hardship does not save limitation, nor does poverty of the parties; iii. It is salutary to construe exceptions or exemptions to a provision in a statute of limitation rather liberally while a strict construction is enjoined as regards the main provision. For when such a provision is set up as a defence to an action, it has to be clearly seen if the case comes strictly within the ambit of the provision; iv. There is absolutely no room for the exercise of any imagined judicial discretion vis-a-vis interpretation of a provision, whatever hardship may result from following strictly the statutory provision. There is no scope for any equity. The Court cannot claim any special inherent equity jurisdiction; v. A statute of limitation instead of being viewed in an unfavourable light, as an unjust and discreditable defence, should have received such support from Courts of justice as would have made it what it was intended emphatically to be, a statute of repose. It can be rightly stated that the plea of limitation cannot be: deemed as an unjust or discreditable defence. There is nothing morally wrong and there is no disparagement to the party pleading it. It is not a mere technical plea as it is based on sound public policy and no one should be deprived of the right he has gained by the law. It is indeed often a righteous defence. The Court has to only see if the defence is good in law and not if it is moral or conscientious; vi. The intention of the Law of Limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right; vii. The Law of Limitation is an artificial mode conceived to terminate justiciable disputes. It has therefore to be construed strictly with a leaning to benefit the suitor; viii. Construing the Preamble and Section 5 of the Act it will be seen that the fundamental principle is to induce the claimants to be prompt in claiming rights. Unexplained delay or laches on the part of those who are expected to be aware and conscious of the legal position and who have facilities for proper legal assistance can hardly be encouraged or countenanced.
10. 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, C.P.C. 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 Nasir Ali v. Muhammad Asghar reported as 2022 SCMR 1054, it was also held that section 115, C.P.C empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is within 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. The scope of revisional jurisdiction is limited 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 if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, 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. Similarly, in the case of Salamat Ali and others v.
Muhammad Din and others reported as PLD 2022 Supreme Court 353, it was also held that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below. Similar view also reiterated by the Hon'ble apex Court in case titled Muhammad Sarwar and others v. Hashmal Khan and others reported as PLD 2022 Supreme Court 13, where in para-6 it was held that 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 it 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. It was also held by the Hon'ble apex Court in para-10 of the judgment rendered in the case of Mst. Zarsheda v. Nobat Khan reported as PLD 2022 Supreme Court 21, that in the case of Shahbaz Gul and others v.
Muhammad Younas Khan and others (2020 SCMR 867), this Court declared that where two different interpretations were possible of the evidence 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. In the case of Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others reported as 2022 SCMR 933, it was also held by the Hon'ble apex Court that the High Court has a narrow and limited jurisdiction to interfere in thy concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court but 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 interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered.
11. In view of the above discussion, the impugned judgments and decree respectively dated 26.11.2016 and 11.02.2019 are neither the result of misreading and non-reading of evidence nor petitioners could pointed out any jurisdictional defect in the same, therefore, the same are upheld and maintained and accordingly the instant revision is dismissed.