MUHAMMAD IJAZ KHAN, J. Through this single judgment, I intend to decide the instant civil revision petition as well as connected C.R No. 406-P/2008 titled "Ambaras v. Ali Sher and others" as both these revision petitions have arisen out from a common judgment and decree of the Court of learned Additional District Judge/Izafi Zila Qazi-II, Buner, dated 30.01.2008, whereby he dismissed the appeal of petitioners Muhammad Anwar etc. and partially allowed the appeal of co-petitioner Ambaras Khan against the judgment and decree of the learned Civil Judge/Illaqa Qazi-I, Buner, dated 27.09.2006 who vide the same had decreed the suit of respondents/plaintiffs.
2. Precisely the facts necessary for the disposal of these civil revision petitions are that the respondents/plaintiffs being the legal heirs of Mehmood Shah brought a suit for declaration to the effect that they are owners of the suit property fully mentioned in the heading of the plaint, however, in 1977-78, during the first ever settlement process the same has wrongly been entered in the revenue record in the names of the defendants and thus these entries are liable to correction.
They have also prayed for issuance of permanent injunction to restrain the defendants not to interfere in the suit property. They have also prayed for the dispossession of the defendants if the plaintiffs could not prove their possession over the suit property or a portion of the suit property.
3. The petitioners then defendants were summoned and they submitted their written statement in two sets where the stance of defendants Nos.1 and 2 was that the entries in the revenue record has rightly been made in their names, whereas the stance of defendant No.3 (Ambaras) was that he has purchased the suit property from the owners whose names were duly recorded in the revenue record. In view of the pleadings of the parties, the learned trial Court framed as many as 07 issues and the parties were required to produce their respective evidence, which they have accordingly led and thereafter the learned trial Court vide impugned judgment and decree dated 27.09.2006 decreed the suit of respondents/plaintiffs.
4. Felling aggrieved of the aforesaid judgment and decree of the learned civil judge, the defendants Nos.1 and 2 (petitioners of C.R. No.254-P of 2008) filed Civil Appeal No.16/13 whereas the defendant No.3 (petitioner of C.R. No.406-P of 2008) filed Civil Appeal No.61/13 before the Court of learned Additional District Judge-II/Izafi Zila Qazi, Buner. Both these appeals were consolidated and thereafter the appeal filed by the defendants Nos.1 and 2 was dismissed whereas the appeal filed by defendant No.3 was accepted in the terms as mentioned in the impugned order.
5. The defendants Nos. 1 and 2 have now filed Civil Revision Petition No. 254-P of 2018, whereas the defendant No.3 filed C.R No.406-P of 2018 and have challenged the judgments and decrees of the two Courts below.
6. Arguments of the learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.
7. The main arguments of both set of the learned counsel for the petitioners was that the suit of respondents/plaintiffs was badly time barred and that the Revenue Authorities were not impleaded in the suit though there were allegations of fraud against them. They further submitted that the revenue record is in their favour, therefore, the two courts below have wrongly decreed the suit of respondents/plaintiffs. The learned counsel representing Amabaras/petitioner submitted that the respondents/plaintiffs have not challenged the mutation in his favour. He also submitted that no proper issues were framed. Lastly, he submitted that since he has purchased the suit property from ostensible owner, therefore, the learned appellate Court should have directed defendants No 2. I and 2 to pay the current market value of the suit property to the respondents/ plaintiffs instead of defendant No.3.
8. It is the case of respondents/plaintiffs that the suit property was their ancestral property and that the defendants were their tenants who used to pay them "Qalang", however, as their father/husband had died in the year 1977 during a course of protest against the Martial Law Administrator and as they were minors or pardanashin lady therefore, the defendants took advantage of the same and entered the suit property in their names though neither their predecessor nor they have sold the suit property to them.
9. It merits to mention here that all the facts pleaded by the respondents/plaintiffs in their plaint have either been proved or admitted by the present petitioners then defendants. It has been admitted by the petitioner Muhammad Anwar who appeared as DW-3 that the predecessor-in- interest of the respondents/plaintiffs had died due to a fire shot in the year 1977. He has also admitted that the respondents/plaintiffs are the legal heirs of Mehmood Shah. The respondents/plaintiffs have also been able to prove that they have never sold the suit property to the defendants Nos.1 and 2 and as such the entries made in the revenue record are factually incorrect, therefore, respondents/plaintiffs have reasonably discharged the required burden of proof in the required manner.
10. It is the case of respondents/plaintiffs that neither their predecessor namely Mehmood Shah nor they have sold the suit property to any person including petitioners/defendants or their predecessor-in-interest and such fact find support from the statement of Patwari Halqa who appeared as PW-1 and produced the revenue record including the Misle-haqiat of 1977-78, which was exhibited as Ex: PW-1/1. The said revenue record though reflects the names of petitioners Muhammad Anwar etc in the Column of ownership, however, its Khana-Kaifiyat is totally blank qua any reference regarding the origin of ownership of the petitioners/defendants. The DW-1 namely Muprab Khan, ADK has further clarified that at the time of entries which are made in the first ever settlement in a particular area the reference to the mode of transaction in the form of deed(s) or oral transaction has to be entered in the Khana-Kaifiyat, but in the case of petitioners, there is no such reference of any transaction/deed in Khana-Kaifiyat, which obviously means that at the time of process of first ever settlement they have neither alleged any oral transaction nor produced any deed to the settlement officials. Had they been produced any deed or alleged any oral transaction the same would have been reflected in the Khana Kaifiyat of Misle-Haqiat.
11. In view of the above, respondents/plaintiffs have been able to prove all those facts which they have pleaded in their plaint as it was specifically pleaded that their father/husband had died in the year 1977 and that petitioners/defendants had remained their tenants but since they were either Pardanasheed lady or minors, therefore, petitioners/defendants have taken advantage of their this vulnerable position and have thus entered the suit property in the revenue record in their names despite the fact that neither their predecessor nor they have sold the suit property to the petitioners/defendants which they have successfully established through a positive evidence. The aforesaid burden of proof on the part of respondents/plaintiffs, 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 be 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/they has/have pleaded in his/their pleadings and accordingly the respondents/plaintiffs have proved the existence of all those facts on which they have based their claim/defence. According to 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 term 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.
12. As against this, the petitioners then defendants have miserably failed to justify the entries made in the revenue record in their names. It may be noted that even in the written statements filed by the petitioners then defendants, they have never made any reference of any oral or written deed(s) on the basis of which they have become owners of the suit property. The contents of the written statements filed by the petitioners/defendants Nos.1 and 2 would show that they have merely pleaded that the entries so made in the revenue record are correct without making a reference to any oral transaction or written deed and have also not brought on record an iota of evidence to justify the impugned entries in the revenue record.
13. It is also an admitted position that petitioners Muhammad Anwar, Shabir etc are Gujar by caste.
It is also admitted fact that in this area (Malakand Division) Gujar people have no ancestral property but they could become owners of land by purchase only. In this regard, the pedigree table which was exhibited as Ex. PW-1/3 would show that the petitioners Muhammad Anwar etc. are Gujar by caste and they are owners on the basis of Malikana Qabza. The aforesaid pedigree-table also reflects that the petitioners then defendants have purchased their interests from one Khan Sher etc without disclosing his parentage. It may be also noted that Khan Sher is one of the respondents/plaintiffs, however, he was surely a minor in the year 1977-78 at the time when the revenue record was prepared and the names of petitioners/defendants were entered therein, therefore, such transaction could not be made/executed from the respondent/plaintiff namely Khan Sher, firstly on the ground that his parentage has not been disclosed and secondly, even if it was the same Khan Sher who is respondent/plaintiff then undisputedly he was minor by then and thus no lawful transaction could be executed by him.
14. It is also relevant to mention here that the petitioners/defendants who appeared as DW3 has stated in his Court statement that the suit property was purchased by their father from the predecessor-in-interest of the respondents/ plaintiffs, however, such statement of the petitioner/defendant is of no avail for them, firstly, for the reason that in their written statement they have not made any reference to any oral or written deed on the basis of which they have purchased the suit property and secondly, such statement/evidence being beyond the contents of pleadings could not be considered. It is settled law that first, a party has to alleged a fact and then he is to be allowed to prove the same. Any attempt to prove a fact which has not been pleaded in the pleadings could not be appreciated in favour of such a party, therefore, the petitioners/ defendants could, not bring on record any legally admissible evidence on the basis of which they could prove their ownership qua the suit property. Under the law such evidence could not be considered at all. The principle of Securidum allegata et probate is enrooted in Order VI Rule 2 and Order. VIII Rule 2, C.P.C, which stipulate that first a party has to allege a fact and then he would be allowed to prove the same. In the case of Rana Abdul Rasheed v. Iqbal Hussain reported as 2008 CLC 1, the Lahore High Court has held that it is settled law that a litigant has to first plead facts and pleas in the pleadings and then to prove those facts/ pleas through evidence. A party is not allowed under the law to improve his case from what was originally set up in the pleadings. The principle of secundum allegata et probata on all Tours is applicable to the facts of the case, which means that a fact has to be alleged by a party before it is allowed to be proved. Order VI rule 2 and Order VIII rule 2, C.P.C. enunciates the said principle. It is settled laws that a party is not allowed to lead evidence in respect of a plea which was not taken in the pleadings and even if the evidence was led, the same could not be considered as evidence in the case. 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 Horrible 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.
15. It is also relevant to mention here that it was for the first time that DW2 in Court statement stated that he has lost the deeds on the basis of which their father has purchased the suit property.
He has simply stated that their father has purchased the property commonly known as "Sar Patay" and "Toor Gat" from the father of respondents/plaintiffs without any further specification or naming the witnesses in whose presence such transaction was carried out, therefore, such statement, if any, is on one hand standing in vacuum and on the other the same is at the belated stage of the proceedings and thus this stance too could not help the petitioners/defendants to claim the ownership of the suit property.
16. After discussing the factual aspect of the petitioners/defendants case, it would be relevant to now discuss the legal aspect of their case. As stated above, the petitioners/defendants Nos.1 and 2 are Gujar by caste and who claim the suit property as their purchased ownership and who are also beneficiaries of the revenue record, therefore, heavy burden lies on their shoulders to prove all these facts which they have pleaded in their written statement. It may be noted that any person who wishes the Court to believe existence of a particular fact then such person is bound to prove the same. The aforesaid burden on such person is enrooted in Article 119 of The Qanun-e-Shahadat Order, 1984, which is reproduced below:-
119. Burden of proof as to particular fact: The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustrations
(a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft, to C. A must prove the admission.
(b) B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it.
The aforesaid provision unmistakably cast duty on the petitioners/defendants to prove all those facts which they have taken/agitated in their written statement qua the purchase of the suit property from the predecessor of respondents/plaintiffs, but they could not prove the same through any positive and legally admissible evidence. Even otherwise, petitioners/defendants were beneficiaries of the entries in the revenue record and as such they were bound to prove the same as correct but they could not. In the case of "Messrs Noorani Travels Karachi v. Muhammad Hanif & others" reported as 2008 SCMR 1395 it was held by the Apex Court that as per Article 119 of the Qanun-e-Shahadat Order, burden of proof as to any particular fact lies on that person who wishes to believe the Court in its existence unless it is provided by law that proof of that fact lies on another person. In the case of "Atta Muhammad v. Nasir-ud-Din" reported as PLD 1993 Peshawar 127, it was held by this Court has held that burden of proof that such entries were correct was on the party in whose favour such entries existed and not on the party challenging correctness of such entry.
17. It is also settled that 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 and as such if the aforesaid yardstick applied to the present case then the petitioners/defendants have to fail because they have not been able to prove that as to how the suit property was entered in the revenue record in their names.
18. As far as the objection of the learned counsel for the petitioners with respect to the suit being time barred is concerned, it is relevant to mention here that it is case of respondents/plaintiffs that the petitioners/defendants remained their tenants and they used to pay Qalang initially to their predecessor and thereafter to them and as in the year 1977-78 respondents/plaintiffs were either minors or were Pardanasheed lady, therefore, the law of limitation could not be applied so strictly against such sections of the society being in vulnerable position. Furthermore, since petitioners/ defendants were having the possession of the suit property being tenants of respondents/plaintiffs, therefore, such possession coupled with the impugned entries are not sufficient to declare them as owners of the suit property and to declare the suit of respondents/plaintiffs as time barred.
19. As far as the case of co-petitioner namely Ambaras Khan is concerned, as stated hereinabove that petitioners Muhammad Anwar etc could not prove that they were/are lawful owners of the suit property, therefore, they were not entitled to sell the suit property to a third person i.e. petitioner.
Namely Ambaras Khan. It is settled law since long that a vendee has to step into the shoes of vendor, so, if the vendor has a defective title then he could not pass on a defectless title to the third person. The appellate Court has cared the interest of Ambaras Khan as petitioners Muhammad Anwar etc have been directed to pay the current market value of the suit property to the said Ambaras Khan, therefore, to his extent too, he could not make out a case for our interference.
20. In this case, the two Courts below have concurrently recorded their findings of facts and law as against the present petitioners/ defendants and in favour of the respondents/plaintiffs, 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.0 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.
21. In view of the above discussion, the impugned judgments and decrees of the two Courts below 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 both the civil revision petition bearing Nos. 254-P of 2008 and 406-P of 2008 being bereft of any merits, are hereby dismissed.