The instant dispute has a chequered history. Allah Dad plaintiff --petitioner herein sued the defendants-respondents for declaration that he and the proforma defendants Nos.26 to 49 were mortgagees of the suit land measuring 149 Kanals and 12 Marlas comprised in Khasra No.27, on behalf of defendants Nos.l to 22 and that the latter having not redeemed the mortgage with the statutory period of 60 years, have ceased, to be the owners of the suit land and the plaintiff and defendants Nos.26 to 49 have acquired prescriptive title, on account of time-barred mortgage. A further declaration was also sought whereby the entries of the record of rights, right from the Settlement record of 1904-5 till the current `Jamabandi', were challenged as wrong, illegal and ineffective on their rights. In the alternative, prayer for possession of the suit land was also solicited.
Defendants Nos.l to 5 and 7 to 22 confessed judgment while the other defendants were proceeded against ex parte. The learned Additional Civil Judge, Abbottabad who was then seized of the case, vide his judgment and decree dated 12-9-1978 decreed the suit of the plaintiff-petitioner. However, on the application of Government of Pakistan through Secretary, Ministry of Defence and Military Estate Officer, Abbottabad, defendants Nos.23 and 24, respondents Nos.l and 2 herein, the ex parte decree was set aside and the defendants-respondents were allowed to contest the suit. Only defendant-respondents Nos.l to 2 contested the suit and in their written statement denied all the allegations contained in the plaint and also raised certain legal objections including limitation as well. Issues were framed, evidence pro and contra the said issue, was recorded and the learned Civil Judge Ist Class, Abbottabad, vide his judgment and decree dated 19--11-1979 decreed the suit of the plaintiff-petitioner, but on appeal the case was remanded by the learned Additional District Judge, Abbottabad at Haripur vide his judgment and decree dated 8-11-1980. It was again dismissed by the trial Judge on 31-1-1982 and remanded for second time by the District Judge, Abbottabad vide his order dated 20-3-1984 with a direction that, a commission, well versed in the measurement and demarcation, be appointed for the inspection of the spot and the elucidation of certain material points in, issues between the parties. Consequently Allah Dad District Qanoongo, District Abbottabad was entrusted with the task and he after visiting the spot and complying with the directions issued to him, submitted his detailed report which is Exh.C.W.l/1 on the file. He was also examined as CW to explain the salient feature of his conclusion arrived at by him and a result of his inspection of the spot. The learned Senior Civil Judge, Abbottbad vide his judgment and decree dated 31-7-1985 passed by the declaratory decree prayed for in the plaint in favour of the plaintiff-petitioner against the defendants-respondents. The defendants -respondents Nos.l and 2 and herein, dissatisfied with the same preferred an appeal before the learned District Judge, Abbottabad who vide his judgment and decree dated 18-12-1986 accepted the same and by setting aside the judgment and decree of the learned Senior Civil Judge dated 13-7-1985, dismissed the suit of the plaintiff-petitioner. Hence the instant revision petition by Allah Dad plaintiff.
2.I have heard the learned counsel for the parties for sufficient length of time and have perused the record of the case with their valuable assistance.
3. The gravamen of the learned counsel for the plaintiff-petitioner is that during the initial settlement operation carried out in this District in the year 1872 the suit land bearing Khasra No.27 was included in the `Khewat' owned by Madad Shah and Nadar Shah and under mortgage with Munir, predecessor-in-interest of the plaintiff-petitioner and pro forma defendants Nos.26 to 49, as is evident by the entries of the Settlement record of 1872 Exh.PW 3/2 on the file. According to him, this entry continued in the subsequent `Jamabandi' for the year 1891-1892 Exh.PW-3/1, 1899-1900 Exh.PW-3/3 wherein Sher Zaman son of Munir was shown as the mortgagee of the suit land, but curiously enough, without any mutation the said number Khasra was shown as forming part of the estate of Rakh Civil/Military in the subsequent Settlement operation carried out in the year 1904-5 and was recorded as the ownership of `Sarkar' and in possession of Military which entry is continued upto date. Relying on the judgments of the Lahore High Court in cases Allah Dad v.
Muhammad Ali and others PLD 1956 Lahore 245, Azam Khan v. Azad Khan and others PLD 1986 Lahore 275, the learned counsel for the petitioner argued with vehemence that the subsequent entries right from the Settlement record of 1904-5, being without basis and illegal, the previous entries in the name of plaintiff-petitioner as mortgagee would be deemed to subsist and the possession having remained with him intact, he was within his rights to claim declaration of title on account of time-barred mortgage and to challenge the subsequent entries referred to above as wrong, illegal and ineffective on his rights. The learned counsel for, defendant-respondents Nos.l and 2 herein, on the contrary, submitted that the entries of the first Settlement of 1872, allegedly in the name of predecessor of petitioner and defendants Nos.26--49, were finally found incorrect and that, at that time too, the suit land was in the ownership of the Government and was in the possession of the Military.
4.I have given my anxious consideration to the arguments of the learned counsel for the parties.
5. The first settlement in this area was carried out in the year 1872. It is not denied that two distinct estates known as the estate of `Jhangi' and the estate of Rakh Civil/Military were carved out at that time. As is clear from the `Musavi' pertaining to the estate of Rakh Civil/Military, copies available on the record, a compact block bearing several Khasra numbers starting from one and inclusive of number Khasra 27 was earmarked as forming estate of Rakh Civil/Military and shown as the ownership of the Government, some of which were shown in possession of the civil and the rest in the possession of the Military. Number Khasra 27 is shown in the middle of the said compact block.
However, the perusal of entries of the Settlement record of 1872 pertaining to the estate of `Jhangi' copy Exh.PW-3/2, reveal that the certain Khasra numbers, namely, 588 to 591, 595 and 596 were entered in `Khewat' No.21 of the said estate and recorded as the ownership of Madad Shah and Nadar Shah while Teer and Faqir sons of Sher were shown as mortgagees for a sum of Rs.25 over an area of about 37 Kanals. In the `Jamabandi' of 1899-1900 suit Khasra number is independently entered in the ownership column as the mortgagee of Sher Zaman son of Sher without any entry in the name of any one as mortgagor. There is reference, purportedly to redemption and mortgage mutation in the said `Jamabandi' but they are not placed on file to clarify as to whether they related to the suit land or not. The reference made in the remarks column reveal that they do not bear the order of any Revenue Officer. There is a mortgage mutation No.28 Exh.PW-3/6 on the file attested on the basis of registered deed dated 9-2-1989 but the said document has not been produced and the entries of the mutation are ambiguous. However, this much is clear that right from the Settlement record of 1904-5 the suit land is consistently recorded as forming part of the estate of Rakh Civil/Military, in the ownership of Government and in the possession of Military.
Needless to stress that each estate has its independent boundaries and the fields carved therein bear distinct Khasra numbers commencing from one and ending on the total number of fields situated therein. Each estate has separate record of rights showing respective owners. And persons in possession of each Khasra number comprising in the said estate. It is admitted that the suit land was situated in the midst of the area earmarked as the estate of Rakh Civil/Military, and I fail to understand how, this distinct field No.27 was taken out of this estate and included in the estate of `Jhangi' so far as the preparation of record of rights of the two estates was concerned. If it had been found that the said area was the ownership of other persons than the Government, then in that event, it should have been entered in a separate `Khewat' of the estate of Rakh Civil/Military. It is not understandable how a Khasra number admittedly situated in one estate was included in the record of-rights of another estate. The only conclusion that can be drawn is that the initial entry of the Settlement record 1872 pertaining to the estate of `Jhangi' whereby Khasra number 27 Rakh Civil/Military was entered, is wrong and without any basis. It was the ownership of the Government and under the possession of the Military and its incision in the estate of `Jhangi' could not deprive the Government of its ownership. Nevertheless the error was corrected in the subsequent settlement of 1904-5 wherein the suit land was recorded as the ownership of the Government and in the possession of Military which was not only repeated in the subsequent `Jamabandi' but was also incorporated in the subsequent settlement record of 1948-49 after physical measurement on the spot by the Settlement Officers and necessary inquiries on the spot regarding its ownership were made.
6.The authorities cited by the learned counsel for the petitioner, I am afraid, are not strictly applicable to the facts of the present case. In both the cited cases there were variations between the entries of `Jamabandis' and the entries of the subsequent `Jamabandi' having been proved wrong, the entries of the `Jamabandi' prior thereto, were held to be holding the field. There is much difference between the entries of `Jamabandis' prepared by the Patwari and the record-of-rights prepared on the conclusion of the settlement operation. The `Jamabandi' is prepared by the Patwari Halqa, taking assistance from the mutations attested during the intervening 4 years and the entry of the Khasra Girdawari immediately preceding the preparation of the `Jamabandi' in question. A No independent inquiry is made by the Patwari regarding the title or possession of the parties concerned whereas the record of rights is finalized after physical measurement is made by the Settlement Officer on the spot, proper inquiry is l conducted regarding the ownership and possession of the respective field on the spot and the entire populace of the estate have knowledge and are supposed to associate themselves with the Settlement operation.
Consequently much stronger presumption is attached to the entries of Settlement record than the entries of the `Jamabandi'. In this respect I am fortified by the judgment of Peshawar High Court in case Muhammad Shah and others v. Mir Zaman and others reported as AIR 1943 Peshawar 83. In the instant case two settlement operations have been carried out, one in the year 1905-6 and the other in the year 1943-49 and in the record of rights prepared at the conclusion of .Both the aforesaid settlements the suit land was recorded as the ownership of the Government and in the possession of the Military. The aggrieved persons, including the plaintiff-petitioner and the defendants Nos.l to 22 and 26 to 49, could file a suit for declaration to challenge entries within six years from the time of first entry, which they have not availed of and the instant suit is patently time-barred.
7. Nonetheless, the learned counsel for the petitioner, submitted that the plaintiff-petitioner remained in possession of the property and consequently he was not bound to feel aggrieved so long as his possession was not disturbed or there was no attempt at ousting him from possession.
There is no force in this contention either. The land is undisputedly grassy and as per the statement of his own witness, namely, Mir Abdullah PW.6 the suit land is in the possession of the defendants respondents herein and that he had been purchasing the grass in open auction from them. By now it is an established law that the party producing a witness is bound by whatever deposition is made by him and he cannot turn round and say that the adverse statement given by his witness may be excluded from consideration. The witness had not been declared hostile and the plaintiff -- petitioner was rightly held bound by it by the learned appellate Court.
8. In view of what has been discussed above, there is no merit in the instant revision petition and the same is accordingly dismissed. However, complicated points being involved in the case, the parties are left to bear their own costs.