' This revision petition is directed against the judgment and decree of District Judge, Kohat dated 21-11-1984 whereby the plaintiffs-petitioners' appeal against the judgment and decree of Civil Judge, Kohat dated 29-2-1984 was dismissed.
2. Facts of the case briefly stated are that Zar Khan and 8 others, petitioners herein, brought Suit No,423/1 on 6-1-1982 in the Court of Senior Civil Judge, Kohat against Faqir Gul and 4 others, respondents herein, for declaration to the effect that Khasra No,1902 situated in Gumbat Tehsil and District Kohat is `Shar-e-Aam' while Khasra No,1905 is owned and possessed by the plaintiffs. That the entry made in revenue record whereby Khasra No,1905 is shown `Shar-e-Aam' and Khasra No,1902 as Ilanjar' is ineffective on their rights. It was further prayed that the defendants be restrained from bringing Khasra No,1902 under cultivation and from raising construction over it.
That the defendants be restrained from interference with plaintiffs' ownership and possession of Khasra No,1905.
3. It was alleged that Khasra No,1902 is `Shamilat-e-Deh' since before 1903/1904 and is used as `Shar-e-Aam' (thoroughfare) while Khasra No,1905 is owned by the plaintiffs and is in their exclusive possession. That defendants managed to tamper with the long-standing entries and on its basis ploughed Khasra No,1902 and collected building material to raise construction over it. That the matter was reported but the police did not take any action, hence this suit.
4. Defendants in their joint written statement resisted the plaintiffs' suit and raised several legal pleas. On factual side; the defendants simply denied the allegations made in the plaint. The learned trial Judge framed as many as nine issues arising out of the pleadings of the parties on which both the parties led their evidence. Asal Din Patwari Halqa (P.W.1) and Iqbal Khan ADK (P.W.2) in their statements recorded in Court placed on file correct copies from the Revenue Record of both the Khasra numbers from the year 1903-04 up to date and a copy of Aks Shajra Kishtwar' of the years 1931-32 and 1973-74. Zar Khan palintiff made his own statement and closed his evidence.
From the other side, Faqir Gul defendant appeared as his own witness. Plaintiffs' suit was dismissed by the trial Judge on 29-2-1984 and his appeal was also dismissed by the District Judge, Kohat on 21-11-1984.
5. The judgments and decrees Of both the Courts below are challenged by the plaintiffs in the present revision petition on the ground that oral as well as documentary evidence has been misread and the material part thereof ignored or misunderstood and misinterpreted.
6. I have heard the learned counsel for the parties and perused the record. The following issues are material for decision of the present revision petition:--
(7) Whether Khasra No,1902 is Shar-e-Aam (thoroughfare)?
(8) Whether the defendants have cultivated Khasra No,1902 and are using Khasra No,1905 owned by the plaintiff as thoroughfare? OPD
(9) Whether the plaintiffs are entitled to the declaration and perpetual injunction as prayed in the plaint? OPD
7. Giving his finding on issue No,7, it was observed by the learned trial Judge that in the Jamabandi (copy Exh.P.W. 1/2), Khasra No,1902 in question is entered as `Shamilat-e-Deh' and this has been admitted by the Patwari Halqa (P.W.1) in his cross-examination. As defendant is one of the co- sharers in `Shamilat', therefore, the issue was decided in defendants' favour. On the finding given on issue No,8, it was held that Khasra No,1905 is a thoroughfare per Jamabandi (copy Exh.P.W. 1/1) and Patwari Halqa in his statement also admitted this fact. Reliance was also placed on the copy of Khasra Girdawari in which defendants are shown in possession of Khasra No,1902 as `Hissadar Shamilat'. While discussing issues Nos. 1 and 9, it was held that plaintiffs' allegation that Khasra No,1902 is Shamilat-e-Deh and thoroughfare while Khasra No,1905 belongs to them was not supported by the revenue record. On such appraisal of the parties' evidence, the plaintiffs' suit was dismissed. The learned District Judge giving his finding, in para. No,7 of his judgment in cursory manner observed as under:-- "Now on the face of the above revenue record, there is no room for doubt whatsoever that Khasra No,1902 is presently Shamilat and ). Accordingly the contention of the plaintiffs that this Khasra is exclusively owned by them and it is not a thoroughfare, is not supported by the evidence and the above crucial issues were therefore, rightly answered against them."
8. It is regrettable that though the learned District Judge in substance totally admitted the plaintiffs' allegation made in the plaint that No,1902 is Shamilat-e-Deh and Shar-e-Aam and that the defendant shall not interfere with it maintained the finding given by the trial Judge which was to the contrary. The learned trial Judge relied on the revenue record of the year 1973-74, the correction of which was challenged in the suit but ignored the long-standing consistent entries from the year 1903-04 till before 1973-74 when the disputed Jamabandi was prepared.
9. It may be pointed out that previously Khasra No,269 presently Khasra No,1902 per settlement record of 1903-04, copy Exh.P.W.2/2, is "Shamilat-eDeh" and "Ghair Mumkin Rasta". Such entry continues till the Jamabandi of 1960-61. Through Mutation No,128 attested on 14-10-1975 one Mehmood Khan is shown to have sold 3/18332 share, purportedly, his share in the entire village `Shamilat' out of 1727 Khasra numbers total measuring 1,06,635 Kanals 6 Marlas in favour of one Imam Din. In this manner, in the column of ownership, a change was brought and instead of repeating the entry `Shamilate-Deh' in the column of ownership, the names of the owners in Shamilat and their respective shares were recorded and its nature from `Shar-e-Aam' was changed to `Banjar Qadim' and `Maqbooza Malikan' in column of cultivation. Although the learned District Judge presumably relying on the long-standing entries, held that Khasra No,1902 is `Shamilat' and `Shar-e-Aam' but erred and misread the plaint and the plaintiffs' claim as is evident from the concluding para. Of his judgment, reproduced above.
10. It may be pointed out that Khasra No,1905 was exclusively owned and possessed by the plaintiffs' predecessor as is evident from the settlement record of the year 1903-04, copy Exh.P.W.2/4. In the year 1940-42, Khasra No,2699 was split up into three parts i,e, 3331/2699 measuring 11 Marlas `Ghair Mumkin Chah', 3332/2699 measuring seven Kanals 3 Marlas Dagoba and Khasra No,3333/2699 four Marlas Chah and `Ghair Mumkin Kotha' without any change in the ownership. These entries are repeated in the subsequent Jamabandis up to 1964-65 and the plaintiffs are recorded as its owner. Out of the total land, which plaintiffs owned land measuring 29 Kanals 3 Marlas is shown as Chahi and nine Marlas `Ghair Mumkin Chah and Kotha'. It was for the first time in the year 1973-74 that Khasra Nos.3331, 3332, 3333/2699 were allotted new Khasra No,1905 and it was shown `Shar-e-Aam' in the column of cultivation. Such being the case, there is no doubt in holding that learned trial Judge misread the entire evidence rather omitted to look into the long-standing entries. Similarly, the learned District Judge misunderstood and misjudged the plaintiffs' case. As such the findings of both the Courts below are reversed and on acceptance of the revision petition, the judgment and decrees of both the Courts below are set aside and the plaintiffs' suit that they are the sole owners of Khasra No,1905, and that the same is not a thoroughfare and that Khasra No,1902 is `Shamilat-e-Deh' and a thoroughfare is decreed. The entries in revenue record, contrary to the above, are declared illegal and ineffecive on the plaintiffs' rights. Plaintiffs are also granted a decree restraining the defendants from using the plaintiffs' land as a thoroughfare. Defendants are also restrained from changing the character of the land bearing Khasra No,1902 by making it cultivable and raising construction over it. The revision petition is accepted with costs throughout.