ABDUL HAMEED BALOCH, J. Through this common judgment intend to dispose of Civil Revision Petitions No. 45 of 2014, Na. 47 of 2014 and No. 66 of 2014, as all the three petitions are out come of same judgments of learned Additional Qazi Kharan and Majlis-e-Shoora Kharan. Further, the subject Matter is also the same.
Civil Revision No. 47 of 2014:
2. Concise facts of the case are that the predecessor of respondents Nos. 1(i) to 1(ix) Ghulam Haider and respondents Nos. 2 to 5 filed a suit for declaration and permanent injunction in the court of Additional Qazi Kharan (trial. court) stating therein that the Deputy Commissioner Kharan allotted 700 acres of land to plaintiffs' father vide order bearing No. 1037 dated 11th November, 1973. The father of the plaintiffs constructed embankment, over the suit land and cultivated the same since then. The defendants Nos. 9 to 12 started bulldozing the embankment levelling the suit land for the purpose of construction of airport.
3. The defendants Nos. 9 to 12 filed written statement contending that the suit land belongs to provincial government which had been sanctioned to Pakistan Civil Aviation for construction of airport and prayed for dismissal of the suit. The legal heirs of defendant No. 7 and defendant No: 6 filed their respective amended written statement.
4. The trial court framed issues. The parties led pro and contra evidence. On culmination of trial the learned trial court vide judgment and decree dated 30th May, 2013 dismissed, the suit. The predecessor of respondents Nos. 1(i) to 1(ix) filed civil appeal No. 25 of 2013, while the predecessor of petitioners filed Civil Appeal No. 21 of 2013, whereas the legal heirs of defendant Mst. Amir Bibi filed Civil Appeal No. 26 of 2013 before Majlis-e-Shoora, Kharan (appellate court). The appellate court vide judgment and decree dated 22nd November, 2013 dismissed all the three appeals.
5. The petitioners of Civil Revision Petition No. 47 of 2014 assailed the judgments of both the courts below to the extent of issues Nos. 6 and 7.
6. The counsel for the petitioners in Civil Revision Petitions No. 47 of 2014, No. 66 of 2014, and learned Additional Advocate General appeared and argued the matter, whereas the counsel for the petitioners in Civil Revision Petition No. 45 of 2014 despite service of notice did not appear. Since the matter pertains to year 2014, therefore, I have left with no other option but to hear the learned counsel for the petitioners of Civil Revision Petitions Nos. 47 of 2014, 66 of 2014 and learned Additional Advocate General and to decide all the civil revision petitions on merit.
7. Heard and perused the record. Under Article 117 of the Qanun-e-Shahadat Order, 1984 (Order 1984) burden lies upon the party who seek the court to give judgment as to any legal right must prove his right through evidence. The referred to Article reads as under: Article-117: Burden of proof. (1) Whoever desires any court to give judgment as to any legal right or 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."
8. Under the above referred Article any person who seek judgment upon existence of fact then he has to prove the same through cogent, reliable, consistent, oral or documentary evidence, meaning thereby that the plaintiffs have to prove their case on the strength of their own evidence.
The party seeking relief would have to discharge his burden. In Habib Khan's case (PLD 2012 Peshawar 80), it was held: "Party seeking relief would have to discharge his burden by proving his case on basis of its own evidence--Such party would have to stand on his own legs to succeed and would not be entitled to get benefit of any weakness in case of opposite party."
9. Under Article 118 of the Order, 1984 where the party failed to discharge the burden of proof in a suit he/they must fail. The word onus of proof means that they party on whose onus lies must discharge the same through reliable, cogent, consistent evidence. Where the evidence is inconsisten then he must fail.
10. Now on above analogy examined the statements of the witnesses of plaintiffs. The plaintiffs claimed that the suit land was allotted by the then Deputy Commissioner to their father. The burden was on the shoulder of plaintiffs to prove that the allotment order is official document. It can be produced through representative of concerned department. Mere assertion or placing the document with plaint cannot amount to admissibility of document. The plaintiffs have not filed application before the court for calling the record from the office of Deputy Commissioner. The plaintiffs claimed ownership through allotment but failed to prove the same. When the party without reason withheld the best evidence the presumption under Article 129(g) of Order, 1984 can be drawn against him/them. The testimonies of the plaintiffs' witnesses are contradictory with each other. None of the witnesses stated year and month of alleged allotment in favour of the plaintiffs.
Further, the statements of the witnesses are vague, inconsistent. On the basis of such statements the suit cannot be decreed. In case Asif Mowjee v. Zaheer Abbas 2005 CLC 877, it was held: "52. The stand taken by learned counsel for the Applicant is not only self-destructive but also self- clashing. Not only this the applicant is also guilty of approbation and reprobation by taking in- consistent pleas. Of course, which leads to the conclusion that the applicant [defendant No. 1- judgment debtor] does not have any genuine case. In this regard reliance can be placed' on the case of Dr. Aftab Shah v. Pakistan Employees Cooperative . Housing Society Ltd. and 5 others [2006 CLC 342] wherein it was held as under: "15. .... When one stand is taken at one point of rime and a different stand at another, and both stands do not reconcile with each other, then this act by itself lead to the presumption that such person does not have a genuine cause of action. The conflicting stands amount to destroying ones own cause of action and, therefore, the entire foundation of plaintiff s claim is to be treated as false."
11. So far the witnesses of defendants are concerned. They are too inconsistent and contradictory.
The defendant (predecessor of petitioners in Civil Revision Petition No. 47/2014) has neither pleaded that the suit land is settled one, while subsequently filed an application under Order XIII, Rule 2, C.P.C. for permission to put on record the mutation entries without pleading the same in written statement. It is settled principle where the document has not been pleaded in the pleading the evidence beyond the pleading cannot be considered. Plea not taken in pleading cannot be allowed to be proved and no evidence can be led or looked into to support such plea. Reliance is placed on case Firdos Khan v. Zain Muhammad 2011 MLD 521.
12. The scope of revisional jurisdiction is limited. The court while exercising revisional jurisdiction is not permitted to re-open the case, rather the court confine itself only to law point involved in the matter or any specific portion of evidence if ommited by the courts below. The concurrent findings of fact could not be interfered with by this court until and unless grave injustice or material irregularity was proved. Reliance is placed on Mst. Safia v. Mst. Bibi 2005 MLD 646, wherein it was held: "It is well-settled principle of law that in case the trial Court has exercised its discretion which is upheld by the First Appellate Court then this Court seldom interferes unless and until the discretion is exercised arbitrarily. It is also settled principle of the law that the petitioner/plaintiff has to prove her case on the basis of her own evidence and she cannot get benefit of weaknesses of evidence of the respondents/defendants. It is also settled principle of law that this Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under section 115, C. P. C. unless and until the judgments of the Courts below are result of misreading or non-reading of record or decided the case in violation of parameters prescribed by the superior Courts. Learned counsel of the petitioner failed to point out any irregularity or illegality committed by the Courts below or misreading or non-reading any piece of evidence. As mentioned above, petitioner/plaintiff failed to prove Issue No.6. Therefore, petitioner/plaintiff is not entitled to get I/8th share in the land in dispute. Findings of the Courts below on Issue No.6 are upheld. The remaining issues are dependent upon Issue No.6. Therefore, the remaining issues have become redundant."
Further it was held in reported case Gul Baz Khan v. Muhammad Kamran 2021 CLC 538, wherein it was held: "8. This Court while exercising revisional powers has to keep in mind the mandate of section 115 of "C.P.C". Powers of revision is neither unbridled nor unlimited. Before invoking such power it should be seen as to whether order or judgment under scrutiny is illegal, unlawful or suffers with material irregularities contemplated under section 115 of "C.P. C". The petitioner has failed to bring his case within the four corners of pre-conditions hedged in section 115 of "C.P.C.", so exercise of revisional jurisdiction in absence of any material illegality or irregularity would not be safe for the purposes of administration of justice. Guidance in this respect can be sought from "Bashir Ahmed v. Mst.
Taja Begum and others" (PLD 2010 Supreme Court 906) wherein the august Supreme Court of Pakistan held as under:- "7. At this point, we may note that first and second appeals are available (wherever provided by law) as of right. In the present case, a second appeal was not available to the petitioner. He, therefore, invoked the revisional jurisdiction of the High Court under section 115, C.P.C. This jurisdiction is, in material respects, even more restricted than the appellate jurisdiction under section 100, C.P.C., because a judgment can be assailed through a revision petition only where it suffers from a jurisdictiOnal error of the nature set out in clauses (a), (b) and (c) of section 115, C.P.C.
8. As opposed to first and second appeals, provided for in sections 96 and 100, respectively of the C.P.C., the provisions of Article 185(3) of the Constitution do not confer any right on an unsuccessful litigant, to prefer an appeal to this Court. He must seek .leave to appeal, and in order to be granted such leave, a petitioner under Article 185(3) ibid, is obliged to show something at least equivalent to if not more stringent than what is required by section 100 or 11,5, C.P.C. It is this requirement which lays down the minimum standard and sets the bar for granting leave to appeal under Article 185(3) ibid. In the context of the present case, we would like to examine the criteria for determining whether leave to appeal should or shoidd not be granted. This necessarily will have to be determined in the light of the facts and circumstances of this petition and, therefore, exhaustive rules of universal application may neither be appropriate nor possible."
The petitioners failed to point out any misreading, non-reading of evidence or any illegality or irregularity in the judgments of the courts below, as such the judgmelts and decrees dated 30th May, 2013 and 22nd November, 2013 passed by learned Additional Qazi Kharan and learned Majlis- e-Shoora Kharan are upheld and Civil Revision Petitions No. 45 of 2014, No. 47 of 2014 and No. 66 of 2014 being devoid of any merit are hereby dismissed. No orders as to costs.