MUHAMMAD IJAZ KHAN, J. Through the instant revision petition, petitioners have challenged the judgment and decree of the learned Additional District Judge/Izafi Zila Qazi-III Swat dated 02.03.2010, whereby the appeal of the present petitioners was dismissed and that of judgment and decree of the learned Civil Judge/Illaqa Qazi-IV Swat dated 27.07.2007 was maintained who vide the same had dismissed the suit of petitioners/plaintiffs.
2. Precisely the facts of the case are that present petitioners then plaintiffs have filed a suit for declaration to the effect that they are owner-in-possession of the suit property fully mentioned in the heading of the plaint in terms of Khasra numbers and names i.e. Almusuma Tangi Ghara , Chawa , Jabagai and Asharay Chinar which Inch is their ancestral as well as purchased property and as such the respondents/defendants have no right to deny this right of the petitioners. They also prayed for the issuance of the permanent injunction to restrain respondents/defendants from interference in the same and over and above they have also prayed for the correction of the revenue record in respect of the suit property.
3. Respondents then defendants were summoned and out of them defendants Nos. 1 to 9, 11 to 35, 48,38, 49 to 51, 70 to 77, 79 to 87, 116 and 117 filed their respective written statements where they denied the claim of the petitioners/plaintiffs, whereas rest of the defendants were proceeded ex- parte. In view of the divergent pleadings of the parties the learned trial Court framed as many as 13 issues and the parties were required to produce their respective evidence. Both the parties led their evidence and as such after hearing the contesting parities the suit of petitioners/plaintiffs was dismissed vide one of the impugned judgment and decree dated 27.07.2007. The petitioners/plaintiffs felt themselves aggrieved of the aforesaid judgment and decree, preferred an appeal to the Court of learned Additional District Judge/Izafi Zilla Qazi-III Swat but the same was also dismissed vide the second impugned judgment and decree dated 02.03.2010. Petitioners have now challenged the aforesaid judgments and decree of the two Courts blow before this Court through the instant petition.
4. Arguments of both the 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 ancestral property as well as by purchase. It is also pleaded in the plaint that the suit property is their ownership as in the past they have mortgaged and then redeemed the same. They have also alleged an active connivance of the revenue officials and respondents/defendants at the time of preparation of the first ever settlement record, however, during the course of trial they could not produced any evidence to prove that the suit property is either their ancestral property or was purchased by their predecessor and they have not been able to prove either of the afore-stated facts as pleaded in the plaint, which are to be discussed as under.
6. The whole claim of the petitioners/plaintiffs qua the suit property being owners of the same are based on oral assertions and standing in total vacuum and do not find any support from the documentary evidence including revenue record. In this case the Patwari Halqa namely Fazal Javaid appeared as PW-1 and who produced the relevant revenue record pertaining to the suit property which was exhibited as Ex PW-1/1 to Ex PW-1/10. The said revenue record would show that the name of the predecessor-in-interest of present petitioners/plaintiffs is recorded in the column of cultivation as name of predecessor-in-interest of the respondents Nos. 26, 27 (who were defendants 116 and 117) has been recorded and shown in the column of ownership and thus the whole revenue record goes against the stance of the petitioners/plaintiffs qua claiming the suit property as their ownership as their predecessor-in-interest is recorded as in the column of cultivation.
7. Record also shows that in this case one of the petitioners/plaintiffs namely Khan Abbas appeared as PW-3 and who during the course of his cross-examination has admitted that during the days of preparation of first ever settlement record the officials of revenue department had come to their village and he had made pointation of his property. Similarly, he has also admitted that the other properties were entered in their names in the aforesaid first ever settlement process, therefore, when other properties have been entered in their names then why the present suit property was left out and if at all it was left out then why they waited for such a long time to bring the instant suit and as such all these admitted facts goes a long way against the plea of petitioners/plaintiffs.
8. During the course of arguments learned counsel for the petitioners/plaintiffs laid much stress that in the Kathoni book which was produced by PW-2 namely Hazrat Jamal ADK and was exhibited, as Ex PW-2/1 there is a tempering where the name of predecessor of the petitioners/plaintiffs namely Lataf Khan has been removed and that of Kund Khan, who is predecessor-in-interest of defendants Nos. 35 to 36 has been inserted, however, it may be clarified that the main claim of the petitioners/plaintiffs is that they are owners of the suit property on the basis of deed which was exhibited as Ex PW-3/2, however, the perusal of same would show that the property purchased through this deed is described by description whereas the instant suit has been filed on the basis of khasra numbers. Petitioners/ plaintiffs have not been able to establish on record that the suit property is the one which their predecessor-in-interest had purchased through the aforesaid deed (Ex PW-3/2), therefore, they have not been able to establish on record the aforesaid fact through positive and convincing evidence and as such the suit of the petitioners/plaintiffs is standing in vacuum and thus both the Courts below have rightly non-suited them for this uncertainty. It may be clarified that a Court of law cannot pass a judgment and decree in vacuum unless it has before it some positive evidence to reach a definite conclusion, therefore, the two Courts below have reached a correct conclusion by non-suiting the petitioners/plaintiffs. In the case of "Hyderabad Development Authority through M.D v. Abdul Majeed and others" reported as PLD 2002 SC 84, the Hon'ble Apex Court has held that there was no impediment for the learned Judge in discussing the evidence to formulate reasons for the purpose of drawing conclusion on basis of which appeals were allowed. It would be advantageous to note that judicial pronouncement (judgment) by a Judicial Officer should be based on the evidence/material available on record and reasons must be outcome of the evidence available on record and on the basis of such reasons conclusion should be drawn and if the order lacks of these ingredients it cannot be termed to be a judicial verdict (judgment) in stricto senso and at the best such pronouncement can be termed to be an administrative order incapable to settle controversy judicially between the parties.
9. It is also relevant to mention here that the petitioners/plaintiffs have mentioned the suit khasra number as well as the famous names of the suit property i.e. Almusuma Tangi Ohara, Chawa, Jabagai and Asharay Chinar, however, the mere perusal of the deed Ex. PW-3/2 on the basis of which the present petitioners have filed the instant suit does not show any name in line with the names of suit property as mentioned in the plaint, therefore, on this score too, the suit of the petitioners/plaintiffs is standing in vacuum.
10. It is also part of the record and as reflects from the contents of plaint that in the plaint no reference has been made to any of the deeds i.e. 6.04.1937, 16.08.1950, 17.02.1966, 09.05.1968 and 30.05.1943, however, it was during the course of statement of PW-3 who was plaintiff No. 4 and attorney of the other plaintiffs/petitioners when for the first time he produced the aforesaid deeds, however, then and there objections were Raised and recorded by the respondents/defendants, therefore, to this extent the evidence produced by the petitioners/plaintiffs is beyond pleadings. It is by now an established law that any evidence led beyond pleadings could neither be considered nor appreciated in favour of a party. It was also held by the Hon'ble Apex Court in the case of Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad reported as PLD 1976 SC 469 that it is a well-established rule that if a plea of fact is not pleaded, no case can be founded on it. Similarly, in the case of Messrs Choudhary Brothers Ltd. Sialkot v. The Jaranwala Central Co-Operative Bank Ltd., Jaranwala and others reported as 1968 SCMR 804, the Hon'ble Apex Court has also held that to base the suit in the alternative, on his alleged acknowledgment of liability, would be to allow the plaintiff-Bank to improve its case, without having specifically pleaded in that sense or to have got an issue framed on the point. No evidence should have been allowed to be adduced on facts, which had not been raised in the pleadings or incorporated in the issues framed. It was further held by the Hon'ble Apex Court in the case of Pakistan v. Abdul Ghani reported as PLD 1964 SC 68, that it was not part of the plaint and was never adopted by the plaintiff formally as a ground of attack upon the order of dismissal. The discussion of this point contained in the judgments of the Courts below, in so far as it favours the claim of the plaintiff, is therefore outside the case set up by the plaintiff himself, and cannot be allowed.
11. It may be noted that petitioners were plaintiffs before the trial Court and they have approached the Court for the desired decree, therefore, heavier burden lies on their shoulders to prove all those facts which they pleaded in their plaint. The aforesaid burden of proof on the part of the plaintiff is enrooted in Article 117 of The Qanun-e-Shahadat Order, 1984, which 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.
12. During the course of arguments, learned counsel for the petitioners/plaintiffs tried to pin-point the weakness, lapses and lacunas in the evidence of respondents/defendants, however, it may be clarified that a plaintiff cannot derive any benefit from the weaknesses of the defendant's case. It is bounden duty of a plaintiff to prove his claim through cogent and confidence inspiring evidence.
The plaintiff must prove his case on the strength of his own evidence. In the case of "Nisar Ali v.
Muhammad Asghar" reported as 2022 SCMR 1054 it was held by Hon'ble Apex Court that according to the Article 117 of the Qanun-e-Shahadat Order, 1984, if any person desires a court to give judgment as to any legal right or liability, depending on the existence of facts which he asserts, he must prove that those facts exist and burden of proof lies on him. The terminology and turn of phrase "burden of proof" entails the burden of substantiating a case. The meaning of "onus probandi" is that if no evidence is produced by the party on whom the burden is cast, then such issue must be found against him. The burden of proof for the deceitful transaction rests normally on the person who impeaches it. In a suit for declaration alleging that the sale was fictitious, the onus is on the plaintiff to prove the same. Where the evidence of plaintiff was self-contradictory and not confidence inspiring then he must fail and where the case is doubtful, the decision must be given in favour of defendant rather than the plaintiff. It is a well settled exposition of law that the plaintiff must succeed on the strength of his own case rather than the weakness of the defendant.
The lawsuits are determined on preponderance or weighing the scale of probabilities in which Court has to see which party has succeeded to prove his case and discharged the onus of proof which can be scrutinized as a whole together with the contradictions, discrepancies or dearth of proof. It is the burdensome duty of the Court to detach the truth from the falsehood and endeavor should be made in terms of the well-known metaphor, "separate the grain from the chaff" which connotes and obligates the Court to scrutinize and evaluate the evidence recorded in the lis judiciously and cautiously in order to stand apart the falsehood from the truth and judge the quality and not the quantity of evidence Similarly, in the case of Qahaim Khan and 4 others v.
Amar Khan and 2 others reported as 2022 CLC 335, it was held that it is the 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. Similarly, in the case of Muhammad Latif v. Bashir Ahmed and 7 others reported as 2004 CLC 1010, the Lahore High Court has 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.
13. It is also relevant to mention here that the impugned entries in the revenue record were made in the 1st ever settlement conducted in District Swat in the year 1981-86, whereas the same have been challenged through the instant declaratory suit filed on 13.01.1999 and the limitation period for a suit for declaration under Article 120 of Limitation Act is provided as six years, therefore, the suit of petitioners/plaintiffs is squarely time barred. 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 SC 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 superior 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--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.
It was further held that a claimant seeking condonation of delay must explain the delay of each and every day to the satisfaction of the Court, establish that the delay was caused by reasons beyond the person's (or counsel's) control and that he was not indolent, negligent or careless in initiating and pursuing the actionable right which had accrued in his favour. Similarly, it is also well established that without filing a condonation application, the delay in filing the appeal could not be condoned.
14. As against this, the stance of the respondents/defendants is fully supported by documentary evidence as in this case Patwari Halqa appeared as PW-1 and who produced revenue record comprising of Ex. PW-1/1 to Ex. PW-1/10 which are part of the evidence and the said revenue record manifestly shows that the suit property is entered in the names of respondents/defendants. It may also be clarified that such entries in the revenue record are not ordinary entries which are being made periodically as they are entries of the first ever settlement carried out in this area in the year 1981-86, therefore, under the law strong presumption of correctness and regularity are attached to such entries and in order to dislodge such entries, positive, convincing and confidence inspiring evidence is required, which is missing in the instant case. In the case of Nawab Khan and others v.
Said Karim Khan and others reported as 1997 SCMR 1840 the Hon'ble Apex Court has 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, in the case of Mazloom Hussain v. Abid Hussain and 4 others reported as PLD 2008 SC 571, the Hon'ble Apex Court has held that where a presumption of truth is attached to a document, it cannot be discarded unless proved otherwise by convincing and cogent evidence and the burden of proof that the entries in record of rights were wrong, is on the party who alleges it. The Hon'ble Supreme Court of Pakistan in the case of Haji Allah Bakhsh v. Abdullah Khan and 4 others reported as 2001 SCMR 363 has held that it is settled law 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 this entry extraordinary strong evidence is required which, in the instant case, is not at all available on the record.
15. Similarly, it has been established on the record that the suit property except Khasra Nos. 438 and 439 has been declared as ownership of Badshah Sahib now represented by defendants Nos. 10 to 35 vide notification dated 29.09.1972 which was exhibited as Ex DW1/1 whereas the stance of defendant Nos. 116 and 117 now respondents Nos. 120 and 121 with respect to Khasra Nos.438 and 439 is fully supported by the entries made in the 1st ever settlement record and which is exhibited as Ex PW1/2 and thus the case of all defendants are fully supported by the documentary evidence whereas petitioners/plaintiffs have just either asserted oral assertions or have relied upon inadmissible evidence and thus under the law whenever oral assertions are pitched against documentary evidence then later has to prevail. In the case of "Shamshad v. Arif Ashraf Khan and others" reported as 2010 SCMR 473 the Hon'ble Apex Court has held that we have heard the learned counsel for the parties and have gone through the pleadings, evidence particularly produced by the respondent himself. 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 rendered in the case of "Muhammad Rasheed v. Mst. Saeeda Bano and 04 others" reported as 2014 CLC 990 by holding 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 referable to an oral statement of a witness.
16. It is also settled law that civil cases are to be decided on the basis of preponderance of evidence. In the present case the same surely tilts in favour of respondents/defendants and as against this petitioners/plaintiffs could not succeeded to put in any legal weight in their scale to turn it in their favour and thus they have to face its consequences. 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.
17. In this case, the two Courts below have concurrently recorded their findings of facts and law as against the present petitioners/plaintiffs and in favour of the respondents/defendants, 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 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 SC 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 SC 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. Nobat Khan reported as PLD 2022 SC 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 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 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.
18. In view of the above discussion, the impugned judgments and decree respectively dated 27.07.2007 and 02.03.2010 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.