MUHAMMAD IJAZ KHAN, J. Through the instant revision petition, petitioners, then defendants, have challenged the judgment/decree of the learned Civil Judge-IV, Timergara District Dir Lower dated 09.07.2020, whereby the suit filed by the respondents/ plaintiffs was decreed and that of the learned Additional District Judge/Izafi Zilla Qazi, Timergara District Dir Lower dated 15.10.2020, whereby the appeal filed by the present petitioners was also dismissed.
2. Precisely the facts relevant for the present controversy are that one Jehanzeb Khan (now represented by his legal heirs) filed a suit against the present petitioners for a declaration to the effect that the property shown as Qita-C in the site plan appended with the plaint had not been acquired under The Land Acquisition Act, 1894, whereas the property mentioned in the site plain as Qitas-A and B had been acquired by the present petitioners/defendants, however, his grievance was that under the garb of acquisition of Qitas-A and B, the petitioners, then defendants, had encroached upon his property i.e. Qita-C, therefore he has sought necessary declaration to that effect as well as for the dispossession of the acquiring department. He has also prayed for the demolition of building, if any, constructed over the encroached property. He has also claimed damages of Rs. 600,000/- on account of cutting of standing trees over the encroached property and Rs. 200,000/-for causing damages to the two pipelines by the petitioners/acquiring department, which were installed for the supply of water to the house of plaintiff.
3. The present petitioners, then defendants, were summoned who submitted their written statement, where their stance was that in the award dated 27.03.2013, only the land of respondents/ plaintiffs has been acquired with specific description and measurement of 200 Kanal. In -view of the controversies between the parties, the learned trial Court reduced the controversies between the parties into as many as 09 issues and the parties were required to produce their respective evidence. In support of their suit, the respondents/plaintiffs examined Muhammad Zakir, Junior Clerk Department of Agriculture, Dir Lower as PW-1, whereas Shaukat Ali, Revenue Assistant at the office of Deputy Commissioner Dir Lower was examined as PW-2, who in his examination-in-chief has exhibited all the documents pertaining to the acquisition process of the present controversy. Son of the plaintiff (now dead) namely Ahmad Zeb Khan appeared as PW-3, Muhammad Ayub as PW-4 and Nisar Muhammad Khan as PW-5. In rebuttal, the petitioners, then defendants, produced Shaukat Ali, Revenue Assistant at the office of Deputy Commissioner Dir Lower at Timergara as DW-1, Habib-ur-Rahman Naib Tehsildar Drosh, Chitral as DW-2, Naeem Khan, Inspector (retired) as DW-3 and Rashid Ahmad, DSP (Legal) District Dir Lower at Timergara as DW-4. Whereafter, the learned trial Court vide one of the impugned judgment and decree dated 09.07.2020 decreed the suit of respondents/plaintiffs. The present petitioners, then defendants, felt Themselves aggrieved of the aforesaid judgment and decree, preferred an appeal to the Court of learned District Judge/Zilla Qazi, Dir Lower at Timergara, however, the same was also dismissed vide the impugned judgment and decree dated 15.10.2020. Petitioners have now challenged the aforesaid concurrent judgments. and decree of the two Courts below respectively dated 09.07.2020 and 15.10.2020 before this Court through the instant revision petition.
4. The main argument of learned Asst: A.G. representing the petitioners was that petitioners have acquired a specific land measuring 200 Kanal and the descriptions of which are find mentioned along with its measurement in yards and this fact has been reflected in all the official documents/notifications issued under The Land Acquisition Act, 1894 i.e. in the site plan which was exhibited as Ex PW-2/D-3, in the field book which was exhibited as Ex PW 2/D-4, in the notification issued under section 4 of The Act of 1894 which was exhibited as Ex PW-2/D-6 as well as in the notifications issued under sections 6, 7 and 17 of The Act of 1894, which were exhibited as Ex PW- 2/D-7 and Ex PW-2/D-8 respectively, therefore his main emphasize was that they have not encroached upon the property of respondents/plaintiffs.
5. As against this, the argument of learned counsel representing the respondents was that initially the petitioners, then defendants, initiated their process as per the law, however, at the end they dropped the same and brought amendments in the administratively approved land without following any procedure, therefore the amendments so brought in the award without the administrative approval of the competent authority are illegal. Their stance was that in-fact the petitioners/defendants have discriminated the respondents/plaintiffs as the properties of other land owners, which were initially approved by the competent authority were excluded and extra land of the respondents/plaintiffs was included.
6. Arguments of the learned Asst: A.G. representing the petitioners as well as learned counsel representing the respondents/plaintiffs were heard in considerable detail and the record perused with their able assistance.
7. The main controversy between the parties is that the petitioner, then defendants', case is that they have taken possession of the land which was properly acquired, however, as against this the case of respondents/plaintiffs is that the petitioners/ defendants have encroached upon their. property under the garb of acquired piece of land.
8. To thrash out this controversy between the parties, it would be relevant to refer to the Award No. 4002/REV/ LA/103 dated 27.03.2013 which was issued in this case for the purpose of acquisition of a portion of the subject property. It is manifestly mentioned in the said award under the head of "Land Assessm ent" that due to the absence of settlement operation in District Dir Lower, where the land was acquired so as to apply the criteria of Yaksala, therefore in order to assess the land, a committee, as per the Notification of the Government of Khyber Pakhtunkhwa dated 17,08.2006, was notified and that committee had held a meeting on 10.12.2011 for determination of the ownership and price evaluation in the office of the then DOR&E/Collector Dir Lower. It would be relevant to have a glance over the decision of the committee in the aforesaid meeting dated 10.12.2011, minutes of the said meeting were exhibited as Ex PW 2/6. The extracts of the decision so taken in the said committee meeting, which are relevant for the present controversy are reproduced below:- "The Tehsildar Munda apprised the participants that the land/ site duly selected .by the Police Department is situated at village Walai Kandow. He submitted that on re-measurement/ re- verification of the actual quantity of land has been found as 70 Kanal 13 Marlas and 04 sersai is of Banjar Dahlwan, 124 Kanal 18 Marlas and 06 Sersai is of Barani and 04 Kanal 07 Marlas and 08 Sersai is of Ghair Momkin in nature. He further explained that besides graveyard measuring 16 Manias which has been excluded from the acquisition process of the land to be acquired, houses of Said Rahim son of Abdul Azim, Malang, Zamin Khan son of Mozamin Khan and Mashawor son of Zegar Khan are available in the site under acquisition."
The aforesaid minutes manifestly show that the land so selected and later on approved, was found as 70 Kanal 13 Marjas and 04 sersai as Banjar Dahlwan, 124 Kanal 18 Marlas and 06 Sersai as Barani and 04 Kanal 07 Marlas and 08 Sersai as Ghair Momkin in nature. The said minutes also reflect that there are houses of Said Rahim, Malang, Zamin Khan and Mashawor and as such this fact by itself (which is duly reflected in the official record) do support the case of respondents/plaintiffs as their stance right from day first was that in-fact the properties of other land owners were also acquired and approved by the competent authority but at the end, the properties owned by other persons were dropped and extra land of the respondents/plaintiffs was included beyond the approved area. Similarly, there is a letter dated 13.02.2012 available on file, which is addressed from the office of District Officer Revenue and Estate, Dir Lower to the Assistant to Commissioner (Revenue)
Malakand Division Saidu Sharif, Swat and which was also exhibited as Ex. PW 2/7. The same reflects that in the acquired land, some Abadi Deh measuring 04' Kanal 07 Marlas and 08 Sersai was also acquired, however, the impugned award which they have now issued, this Abadi Deh has totally been excluded, which fact again supports the stance of respondents/ plaintiffs. It is also part of the record that through a letter which was exhibited as Ex: PW 2/9, the District Officer Revenue and Estate, Dir Lower had asked the Executive Engineer, C&W Department to determine the cost of houses shown in the site to 'be acquired for construction of the Police Line and submit his report to his office so that the pending award may be issued. The Deputy Commissioner again reminded the said issue through another letter dated 19.02.2013 to the District Police Officer and the Executive Engineer C&W Department, Dir Lower, to determine the cost of houses and submit their reports, however, without waiting for the aforesaid exercise of determination of cost of the houses, the impugned award dated' 27.03.2013 was issued in blatant violation of the official record.
9. The epitome of the controversy between the parties as highlighted above to the effect that the land of other landowners was excluded and that of the respondents/plaintiffs was included, which the present petitioners have out-rightly denied, however, a complete detail in this regard would also find mentioned in a letter dated 03.09.2012 which was exhibited as Ex PW 2/8, which manifestly reflects that in-fact the properties of 14 number of landowners was acquired. Their names, nature of their land and the measurement of the acquired land of these landowners are find mentioned in the said letter. There is yet another document available on file, which was prepared by the two Patwari Halqas and the Head Clerk Revenue, which also shows the names of different landowners and the area which is to be acquired from them and the same is exactly of 200 Kanal. The said letter also reflects the names of those persons whose houses were included in the acquired land and as such this official document again supports the stance of respondents/plaintiffs.'
10. The record further shows and as stated hereinabove that in this case, Shaukat Ali, Revenue Assistant at the office of Deputy Commissioner Dir Lower has produced all the relevant and important documents, which sufficiently explain the real facts on the ground. He has produced the field book, report of the Head Clerk Revenue and list of the owners which were exhibited as Ex PW- 2/ D-1 to Ex PW-2/DI-4. The record so prepared and produced would show that the land measuring 128 Kanal of the respondents/plaintiffs was acquired, whereas 72 Kanal of land of many other landowners has though mentioned in all these documents which were prepared by the petitioners/ defendants themselves, (which were essential for the determination of the market value), however, at the end the properties of the remaining landowners measuring 72 Kanal were dropped without following the prescribed procedure and approval of the competent authority and extra land of 72 Kanal of the respondents/plaintiffs was included. This 72 Kanal of land is shown as Qita-C in the site plan appended with the plaint, whereas 128 Kanal of land is shown as Qitas-A & B. The record also reflects that son of the plaintiff namely Ahmad Zeb Khan has agitated this injustice and anomaly in the acquisition process time and again which has also been admitted by DW-1 in his cross-examination to the effect that the son of plaintiff had approached him for the exclusion of extra land, however, no one paid any heed to his request. Different letters appended by the said Ahmad Zeb Khan with his application have been admitted by DW-1 that they are correct. DW-2 has also admitted that he has visited the spot along with Naeem Khan S.H.O. and had measured the acquired land, prepared the site plan, field book etc, in the presence of respondents/plaintiffs and then Tehsildar Munda had prepared another site plan which he had signed it, though he has shown complete ignorance that as to who directed the Tehsildar Munda to conduct re-measurement of the property. DW-4 has also admitted that the subsequent site plan which was exhibited as Ex PW 2/5 as incorrect, whereas the earlier site plan which was exhibited as Ex PW 2/D-3 was stated to be correct. Such exercise of re-measurement, re-verification and re-inclusion has not been either initiated or approved by the competent authority but the impugned award was passed on the basis of this subsequent exercise, which was rightly found by the two Courts below as an illegal exercise of the powers vested in the petitioners/departments.
11. The record also transpires that the other land owners whose land was initially shown to be acquired namely GuI Zamin Khan, Zamin Khan, Rahman-ud-Din Khan, Hamid Khan, Usman Khan, Asad Khan, Said Rahim, Bakht Badshah and Wasif had submitted a review petition, which was exhibited as Ex DW-1/ P-7 and they had made a request to the Deputy Commissioner Dir Lower at Timergara to exclude their landed properties from the acquisition process. This application was then sent to the DPO, Dir Lower for comments, however, he did not bother to reply the same. Had the properties of other landowners not been included, then why they felt the need to submit this application. It means that stance of respondents/ plaintiffs is correct to the extent that in-fact the land of other landowners was excluded and that of his land was included which was shown as Qita-C in the site plan. It is settled law that presumption of correctness, sanctity and regularity is attached to the official record under Article 129(e) of The Qanun-e-Shahadat Order, 1984, which is reproduced below:-- "129. Court may presume existence of certain facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume- a).......................................... b) .......................................... c) .......................................... d) .......................................... e) that judicial and official acts have been regularly performed; therefore, in view of the above mandate of law, all these official documents are to be respected and regarded in their true letter and spirit.
12. Apart from the above, if the evidence produced by both the parties is analyzed and evaluated on the touchstone of its relevancy, authenticity and admissibility, then the scale of preponderance tilts in favour of the respondents/ plaintiffs and thus, the same has rightly been appreciated by the two Courts below. It is settled since long that civil cases are to be decided on the basis of preponderance of evidence. In the case of Abdul Rehman and others v. Mst. Allah Wasai and others reported as 2022 SCMR 399, the Hon'ble Apex Court has held that in civil dispensation of justice, Courts are to adjudge the lis on the standard of preponderance of probability of evidence produced by the parties. And the decision of the Court would tilt in favour of the party having preponderance of evidence. As for the burden of proving a fact is concerned, it gains importance and relevance, only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the other, on the basis of evidence available on record of the case. Similarly, in the case of Muhammad Sabil Khan and others v. Saima Inshad and others reported as 2017 CLC 1184, it was also held that in civil matters, unlike criminal cases, standard of proof is quite different and the Court can record findings on the basis of preponderance of probability drawn from appreciation of whole evidence.
13. 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, where it was 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 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. 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 Suprem e 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 was also reiterated by the Hon'ble Apex Court in the 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 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.
It was also held by the Hon'ble Apex Court in para-10 of the judgment rendered in the case of Mst.
Zarsheda v. Nobar 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 2002 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 the 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 visitorlal 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.
14. For what has been discussed above, the impugned judgments and decree of the two Courts below respectively dated 09.07.2020 and 15.10.2020 are maintained and upheld and consequently the instant revision petition being bereft of any merit is hereby dismissed.