Aggrieved by the gift of land by Abdul Khaliq through mutation No. 3938 attested on 21-12-1976 in favour of Abdul Malik and others, the plaintiffs respondents instituted the present suit in the Court of Senior Civil Judge, Mardan, on 17-12-1980. It was alleged in the plaint that the property in dispute originally belonged to Multan Khan on whose death it devolved on Sarwar Khan and Yaqoob Khan (plaintiffs) and Aslam Khan, their brother, in equal shares under custom. As such Aslam Khan inherited 1/3 share in the entire suit land Aslam Khan sold his share in favour of Abdul Khaliq through a registered sale deed dated 18-5-1926 which was given effect to in the revenue record through mutation No.48 attested on 25-6-1927. The total area sold was worked out to be 61 Kanals 3 Marlas. That subsequently Abdul Khalid through the connivance of the revenue staff tampered with the shares of the parties and gift was made of an area measuring 84 kanals 12 marlas through the impugned mutation No.393R. The plaintiffs, therefore, asked for a declaration that they were the owners in possession of 2/3 share of the entire suit Khasra number and that the sale in excess of 1/3 share was collusive and fraudulent, hence ineffective on their rights. The defendants in their written statement in resisting the plaintiffs' suit denied the plaintiffs' allegation and further stated that Muhammad Aslam Khan was the step-brother of the plaintiffs and was the owner of 1/2 in the inheritance of his father- The learned trial Judge framed as many as thirteen issues arising out all the pleadings of the parties which include some objections raised to the maintainability of the suit.
Niamat Khan Patwari Halqa appeared as P.W.1 and placed on file correct copies from the revenue record from 1925/26 up-to-date.Rest of the witnesses are formal and are with regard to the registered sale deed and the mutation referred to above. Abdul Malik D.W.1 appeared as his own witness and deposed that apart from the sale made by Aslam Khan of 1/3 share of the suit land, Abdul Khaliq, his vendor lead obtained some land in the suit Khatas through a decree for possession by pre-emption and had also purchased some land from the allottees of the evacuees' interest in the land comprising the suit Khatas. He also placed on file certified copy of the judgment and decree passed in his favour in suit No. 581/1 decided on 11-11-1946 in respect of the land measuring 9 kanals out of the suit Khasra number. There is also made reference in the column of `Kafiat' to the allotment of evacuees' interest in the land and its sale with a reference to a partition mutation No.2705 in the Jamabandi of the year 1954-55.
2. The learned Trial Judge did not consider the statement of the defendant in the light of the revenue record and other documents placed on file but relied upon the plaintiffs' allegation regarding the area originally sold to defendant No.1 and the gift in question ignoring the subsequent events while decreeing the plaintiffs' suit on 22-6-1981. Feeling aggrieved the defendants went in appeal against the judgment and decree in the Court of Additional District Judge but with no succeess and the appeal was dismissed on 26-7-1983.
3. The learned counsel for the petitioners contended that though there was evidence in the shape of the decree of the Civil Court and entries in the revenue record, to which presumption of correctness is attached, in which the defendants are recorded to be the owners of the land transferred through the gift mutation but both the Courts below misread the evidence rather ignored the same while giving their findings on the issues pertaining to the plaintiffs' entitlement to the suit land. It was further contended that it was for the plaintiffs to have proved that they were the owners of 2/3 share in the entire suit land and that the entries in the revenue record contrary to it were incorrect but the Courts below totally ignored the facts and placed the burden of proof on the defendants. The material evidence pertaining to the Evacuees' interest in the suit land, its partition, allotment and sale has been totally ignored. The Civil Court decree duly incorporated in the revenue record has not been considered at all. To meet these points the learned counsel for the respondents argued that the defendants in their written statement did not allege that they had acquired any other interest in the land in suit excepting that which they had acquired through the registered sale deed from Aslam Khan, hence both the Courts below were justified in ignoring all other evidence which was contrary to the pleadings of the parties.
4.After hearing the learned counsel for the parties and going through the record of the case, no doubt, the defendants in their written statement did not state that subsequent to the purchase from Aslam Khan the vendee had acquired some more land in the suit Khata either from Aslam Khan or from some other co-sharer or through a decree of the Civil Court or otherwise. However, non mentioning of the fact in the written statement by itself would not entitle the plaintiffs/respondents to the decree prayed for in the suit. The case of the plaintiffs was that they were the owners in possession of 2/3 share in the suit land and thatdefendant No.4 was incompetent to make a gift of land measuring 84 kanals 12 Marals in favour of his sons through mutation No.3938 which was in excess of the share of Aslam Khan purchased by him. It is an admitted principle of law that the plaintiff has to succeed on the strength of his own case and not on the weaknesses in the case of the defendant. It is not denied by the learned counsel for the petitioners that presumption of correctness is attached to the entries in the revenue record and that any change brought about in the subsequent revenue record would be deemed to have been brought about in accordance with the law and the procedure laid down therein. Such being the case, the plaintiffs who claimed to be the owners in possession of 2/3 share in the land in suit and who challenged the entries existing in the revenue record to be wrong were to prove their entitlement of 2/3 share in the land. They were further to prove that the change, if any, brought about in the revenue record from time to time i.e. In other words, the substitution of new entries for the old ones was without any basis and legal justification. Keeping in view the above principle of law reference is to be made to the copies of the revenue record, which are placed on file, as well as to the decree of the Civil Court which have got material bearing in resolving the controversy between the parties. On the death of Multan in the year 1_92_5/26, 1/3 of his inheritance devolved on Aslam Khan while the remaining 2/3 was inherited by both the plaintiffs. Aslam Khan sold his 1/3 share in the inheritance of his father through a registered sale deed dated 18-5-1926 in favour of Abdul Khaliq. It maybe pointed out that Multan was not the sole owner of the entire suit Khatas No.114/163/164 rather predecessor-in-interest of one Andar San son of Sukkamal was the owner of 1/4 share while the plaintiffs and Mohammad Aslam were recorded to be the owners of the other 1/4 share jointly. The remaining 1 /2 share was owned by Muhammad Zarin, it, therefore, cannot be said, as is presumed by the Courts below, that the plaintiffs were entitled to 2/3 share in the land comprising in Khata No.114, referred to above. Furthermore, vide mutation No.1722 attested on 7-8- 1945 plaintiffs sold out of their inherited land an area measuring 9 kanals bearing Khasra No.518, 542 and 543 in favour of one Hashim Ali Khan which sale was successfully pre-empted by Abdul Khaliq in suit No.581/1 decided on 11-11-1946. The pre-emption decree was given effect in the revenue record through mutation No.2550 attested on 23--2-1957. It also appears on the perusal of the revenue record, Jamabandi of the year 1954-55, copy Ex.PW 1/7, that the share of non-Muslim evacuees was separated and thereafter vide mutation No.2707 attested on 30-8-1959 the evacuees interest was transferred in the name of Central Government and allotted to claimants.
From the above, it appears that the Courts below while giving their findings on the issues did not appraise the evidence available on the record. Although the learned Courts below have referred to the discrepancies appearing in various Jamabandis in respect of the same land with reference to the shares of the parties recorded therein but they did not care to resolve the discrepancies. The learned Trial Judge has in a very cursory manner held that the plaintiffs have been shown owners of lesser area than that to which they were entitled but failed to work out their entitlement and failed to find out how and in what manner the plaintiffs were shown owners of lesser area. Similarly the gift transaction in respect of land measuring 84 kanals 12 Marlas was held to be illegal on the ground that the donor had purchased land measuring 61 Kanals 3 Marlas and not 84 Kanals 12 Marlas from Aslam Khan. The Courts below did not take into consideration the fact that the plaintiffs had sold some of their inherited land which was pre-empted by Abdul Khaliq and had further acquired other lands from time to time during the period between 1927 and the institution of the present suit. Unfortunately, the learned Additional District Judge did not care to look into the revenue record and ignored the decree of the Civil Court duly given effect to through mutation merely on the ground that this fact had not been mentioned in the written statement.