MUHAMMAD BASHIR KHAN JEHANGIRI, J.---By this petition, the petitioners seek leave to appeal against the order dated 20-3-1996 of a learned Single Judge of the Peshawar High Court, Peshawar, whereby their Civil Revision (C.R. 321 of 1989) directed against the judgment and the decree of the District Judge was dismissed.
2. Brief facts of the case are that the plaintiff-petitioners instituted a suit against the respondent- Government and its to functionaries in the Court of Senior Civil Judge, Malakand, at Batkhela, wherein, besides claiming a decree for declaration of their proprietary title to and confirmation of their possession over the disputed land, they had sought the annulment of Notification No. 10/6-- HSO (SOTA)-11/72, dated 25-5-1972 issued by the Government of N.-W.F.P. Declaring the disputed land to be the State property. The factual background narrated in the revisional judgment giving rise to Civil Revision No.321 of 1992 are that the disputed land had been confiscated by way of punishment under custom by the erstwhile Nawab of Dir in the year 1937 after the petitioners' predecessors were expelled by him on the charge of murder of one Habibullah. In the wake of merger of Dir State in the N.-W.F.P. The entire property of State of Dir was declared by Land Disputes Enquiry Commission to be the State property which also included the disputed land. The petitioners averred in the plaint and later attempted to substantiate in the witness-box that the disputed property being situate within the territorial limits of Malakand Agency could not be and had not been legally confiscated by the ex-Nawab of Dir, therefore, it could neither be declared as State property nor could the petitioners be divested of their proprietary rights therein. The suit was hotly contested by Respondents Nos. l to 3 wherein the averments of the petitioners on factual plane were traversed while objections of limitation, bar of res judicata, and estoppel were pleaded on the legal plane. As many as 16 issues were settled between the parties, but for the purposes of this petition, the following issues are material:-
(1) Whether the plaintiffs have got a cause of action?
(2)Whether the suit is within the?
(5)Whether the suit is res judicata?
(10)Whether a writ petition of the plaintiffs regarding the suit property has been dismissed by the High Court?
(12) Whether the suit property has been declared as the property of the Government on the basis of Notification, dated 15th September, 1972, if so, its effect?
(14) Whether the plaintiffs are entitled to the decree of declaration as prayed for?
(15)Whether the plaintiffs are entitled to the decree of possession as prayed for?
3. Issues Nos. 14 and 15 were taken up together holding that admittedly the suit land was situated within the limits of Malakand Agency and, therefore, it was neither the State property of Dir nor could it be confiscated by ex-Nawab of Dir as he was devoid of territorial jurisdiction; that Khatooni Exh.ADW-1/2 of the disputed land recorded its situation as lying in the area of 'Laghar' (Thana) and that it recorded the Khasra number and as no Land Settlement had taken place in Dir District it was ridiculous to assume that the land was situated in District Dir. Both issues were thus answered in the affirmative. Issue No.5 was answered in the negative holding that since the land in dispute was different than that which was subject matter of Land Inquiry Commission, the Federal Land Commission and that of Writ Petition No.696 of 1979 decided by Peshawar High Court on 10-11-1980 was barred as res judicata. On the strength of his findings on Issue No.5, Issues Nos. 10 and 12 were also decided against the defendant-respondents. The suit was held within the as the cause of action, according, to the trial Court, had accrued to the petitioner with effect from 12-5-1977 when the earlier revenue suit between the petitioners and respondent No:4 was withdrawn while the present suit was filed on 24-2-1979. Likewise in the light of his affirmative findings on Issues Nos. 14 and 15, the petitioner were held on Issue No. l to have got a cause of action. He, accordingly, decreed the suit of the plaintiff-petitioners.
4. The learned District Judge on appeal, reversed the a forenoted findings holding that in pursuance of the custom which had been reduced into writing in the shape of 'Dastoor-ul-Amal' ex-Nawab of Dir was competent to confiscate the property of a deceased and the murderer wherever it was situated; the confiscated land was described as "Ghar-pa-Sama" which denoted wherever it was situated. The learned District Judge further observed that in the Khatooni the land described was in Wand Pirakhel and according to Muhammad Saleh Shah Exh.ADW-1 Pirakhel Wand was also called as 'Laghar'; that lands of village Thana and Malakand Agency and those in Ouch in Dir District were within the aforesaid area having no clear and separate delineations; that reliance of the petitioners on the testimony of Mohibullah APW-2 and Faqir APW-3 were not confidence inspiring and lent no support from any other reliable evidence. According to the learned District Judge the cause of action had not accrued to the petitioners on the compromise between them and defendant No.4 in the Revenue Court having been executed in the absence of Respondents Nos. l to 3, therefore, this suit was hopelessly barred by the. Again according to the Appellate Court, the petitioners had earlier taken the matter to the Land Disputes Inquiry Commission, Federal Land Commission and the Peshawar High Court in the writ petition but ignored to agitate their proprietary rights to the land in dispute asserting that it was not the land which was subject matter of the confiscation by ex-Nawab of Dir. It was lastly concluded that 'Khatoni' relied upon by the respondents was a genuine document and thus findings of the trial Court suffered from misreading and non-reading of evidence.
5. The High Court on revision filed by the petitioners declined to interfere with the findings of the District Judge that the disputed land having been declared as State property on account of an old order of its confiscation by the ex-Nawab of Dir was a question of fact and interference therewith by appraising the evidence afresh which the petitioners in fact described was beyond the scope of section 1.15, C.P.C.
6. The learned counsel appearing in support of this petition has reiterated before us that the disputed land was situated in the limits of Malakand Agency and not in the area of Tehsil Adenzai of Dir District and, therefore, the learned Appellate Court had erroneously held otherwise and that the learned Single Judge of the Peshawar High Court had erred to dismiss the revision petition substantially on the ground that the learned District Judge, after having duly appraised the evidence, had opined that the property was situated in Dir District and that same being the finding of fact could not be interfered with. The learned counsel seems to have misconceived the revisional judgment of the High Court. The learned Single Judge seems to have been cognizent of the proposition that it was not a case of concurrent findings of fact. Conversely, the learned Single Judge was conscious that the findings of the to Courts below, ' being at variance, he had, as held by this Court in Madan Gopal v. Maran Bepari (PLD 1969 SC 617) examined the basis of the varying findings arrived at by the to Courts. He had, therefore, rightly undertaken the examination of the evidence on record for determining that the findings of the appellate Court could be supported by the evidence and that there was logical basis for differing from the findings of the learned trial Judge.
7. We have carefully examined the matter in the light of the evidence on record and find that the learned District Judge was justified in reversing the finding of the learned trial Court on the crucial issue as to the location of the disputed property and had based his decision on proper material, placed on the record and had drawn the correct inference therefrom. The learned Judge in the High Court was, therefore, right in not interfering with the finding on the material question in the circumstances of the case. We fully endorse the judgment recorded by the High Court and find no ground for interference therewith.
8. The result is that this petition must fail and is, accordingly, dismissed.