The plaint, which starts the present litigation between the parties, sets forth that the land, fully detailed in the heading of the plaint, in the first instance, belonged to the defendants/petitioners.
The defendants had partitioned the land and all the co-owners, with mutual consent, were given the possession of their respective shares in the land. Similarly, all of them agreed to leave and in actual fact left a path (now under dispute) 6 feet in width, towards the eastern side of the land, which was to be used by all of them as an approach road to their respective shares.
2. Subsequently, defendant No. 3 sold his land to the plaintiffs/respondents and also delivered its possession to them. Thereafter the plaintiffs started using the disputed path as an approach road to their land. In the meantime, some of the plaintiffs (Nos.1 to 5), constructed a house in the said land, i.e., the area which they had purchased from defendant No.3.
3. However, it was in April, 1986, that defendants Nos. l and 2 stopped the plaintiffs from using the disputed path. Resultantly, the plaintiffs filed a complaint, in this respect, in the Court of S.D.M., Karak who bound down the parties under section 107/151 Cr.P.C. Thereafter, to resolve the controversy once and for all, the 'parties appointed arbitrators who gave their award on 12-6-1986.
Vide the said award, defendants Nos. l and 2, were directed not to close the said path and allow the plaintiffs to use the same. Initially, both the contesting defendants, accepted the Arbitration Award and accordingly allowed the plaintiffs to use the path. Later, they went back on their words and therefore their security, kept with the Arbitrators, amounting to Rs.10,000 was confiscated. A separate civil suit, for the recovery of the said amount, was filed against the Arbitrators by defendant No. l in the Court of Civil Judge which is still pending disposal.
4. The plaintiffs' suit, briefly stated, is that defendant No.3 has sold his land, along with amenities and appendages attached to it, to them and that therefore they were entitled, as of right, to use the disputed path. Since defendants Nos.1 and 2 were not allowing them to use the path, therefore, the present suit has been set on foot.
5 Defendants Nos.1 and 2 contested the suit, filed their joint written statement, and raised quite a few, legal as well as factual, objections. It was alleged that the plaintiffs had deceitfully purchased the share of defendant No.3 by practising fraud and that the disputed path was not given to the plaintiffs to he used by them. It was further alleged that in fact. There did not exist any path either on the spot or in the Revenue Record. That the contesting defendants were not at all ready to allow the plaintiffs to use their share of land as a path, The factum of the appointment of Arbitrators was also denied and it was alleged that the Arbitrators, a reference to which has been made in the plaint, were appointed in respect of some other dispute. The defendants also contended that there was no law by which they could be forced to permit the plaintiffs to go/pass through their lands.
6. The pleadings of the parties gave rise to as many as 10 issues which are reproduced as under:-- -
(1) Whether :he plaintiffs have got a cause of action?
(2) Whether the suit is within time?
(3) Whether the plaintiffs are estopped to sue?
(4) Whether the suit is bad for non joinder of necessary parties?
(5) Whether the suit is incompetent in its present form?
(6) Whether the suit is based on mala fide and revenge?
(7) Whether the defendant No.3 has sold his share alongwith amenities and appendages including his rights over the suit path to the plaintiffs?
(8) Whether the plaintiffs can use the suit path?
(9) Whether the plaintiffs are entitled to the decree as prayed for?,
(10) Relief.
7. In order to prove their case, the plaintiffs produced the following witnesses at the trial:--- P.W.1: Mehrab Gul, Patwari Halqa.
P. W.2: Abdul Qadeem, Petition-Writer.
P.W.3: Gul Bostan, Petition-Writer.
P.W.4: Gul Muhammad (vendor) respondent No.3 P.W.5: Dilawar Khan, plaintiff himself,
8. On the other hand, Mir Ahmad Khan defendant No. l in support of his case appeared as his own/sole witness and closed his evidence.
9. After going through the evidence and hearing the learned counsel for the parties, the Senior Civil Judge, Karak (Mr. Muhammad Naseem Khan), vide his judgment/decree dated 10-2-1993, granted a decree, as prayed for, to the plaintiffs against the defendants with costs.
10. The contesting defendants, assailed the findings of the trial Court before the District Judge, Karak (Mr. Muhammad Jehangir Khan) who by his judgment/decree dated 21-12-1993 dismissed the appeal leaving the parties to hear their own costs
11. Hence the present revision petition by the petitioners/defendants for the redress of their grievance. They have prayed that the judgments/decrees of the lower Courts be set. Aside and the suit of the respondents (plaintiffs) be dismissed.
12. I have heard Mr. Muhammad Ismail Fehmi, Advocate, learned counsel or the petitioners (defendants) and Mr. Saeed Baig, Advocate, learned counsel for the respondents (plaintiffs) at length and have also gone through the record of the case with some degree of care.
13. The respondents in order to prove their case, produced Gul Muhammad (petitioner No.3) as P.W.4, Gul Muhammad, aged about 42/43 years, stated on oath, that he was the real brother of petitioners Nos. l and 2 and that the landed property was jointly owned by all the three brothers.
According to him he and his brothers had privately partitioned the land and he was given his share towards the south of the land. According to him agreement (Exh. P.W.2/1) was duly executed in this respect in the year 1976, in which a reference was made in crystal clear words about the suit path.
He further stated that his brother, petitioner No, 1, Mir Ahmad Khan had undertaken vide the said agreement (Exh. PW 2/ 1) that he would not stop his other brothers from using the suit path as an approach road and that as and when he was to sell his landed property, he would leave the suit path on the spot. P.W.4 admitted to have executed the deed (Exh. PW3/1) wherein it was stated that the landed property, which belonged to petitioners Nos. l to 3, had been privately partitioned, among the three brothers, and that Mir Ahmad Khan was given the share towards the north side of land whereas Gul Muhammad P. W.4 was given the share towards the south. Whlie third brother (Munawar Khan) got the central portion of land situated in--I1ctween the shares of the other two brothers. It was further, mentioned in the said deed that P.W.4 was using the suit path for approaching his land, situated towards the south, as mentioned above. A reference was also made in the said deed (Exh. PW 3/1) to an earlier deed (Exh. PW 2/1) executed on 21-7-1976, between the brothers (petitioners). It was stated that since P.W.4 has already sold his share of land to Dilawar Khan etc. (respondents), alongwith the appendages attached to the same, therefore, Dilawar Khan etc., who had stepped into his shoes had the right to use the path as an approach road.
14. In cross-examination P.W.4 (petitioner No.3) admitted that agreement Exh PW 2/1 was executed amongst the brothers i.e., petitioners in the year 1976. He also admitted that the suit path did not belong to the Government and is therefore not a "Shahrah-e-Aam".
(A) to another question be replied:---
(B) he further stated:--
(C) He, however, refuted the suggestion that he had some dispute with his brothers (petitioners No. l and 2) and that it was for that reason that he was appearing, against them as a witness and was deposing in favour of the respondents.
15. Dilawar Khan respondent No. l (since dead) was examined by trial Court as P.W.5. According to him the respondents had purchased the share of petitioner No.3 (Gut Muhammad P.W.4). He further stated that before purchasing the share of Gut Muhammad he had enquired from him (P.W.4) about the disputed path as a result of which Gut Muhammad (P.W.4) had given him the requisite deed (Exh. PW 2/1). According to the said deed, the path in dispute, existed up to the land of Gut Muhammad (P.W.4). He further stated that he had been using the suit path, peacefully till recently and that only a few days back petitioners (Nos.1 and 2) have started taking cudgles with them and have stopped them from using the path.
16. In cross-examination, he admitted that petitioners Nos.1 and 2 (Mir Ahmad and Munawar Khan) had not sold any "Rasta" to him and that he had only purchased the share of Gut Muhammad (petitioner No.3), including the disputed path. He refuted the suggestion that the present suit was set on foot against the petitioners (Nos.1 and 2) as a counterblast to their pre-emption suit. He alleged that in fact Mir Ahmad Khan (petitioner No. l) had not instituted any suit for pre-emption against him in respect of the land which he has purchased from his brother, Gut Muhammad (petitioner No.3/P.W.4).
17. Mehrab Gut, Patwari Halqa, Karak was examined as P.W.1. He produced the Fard Jamabandi, pertaining to the year 1981-82 (Exh. PW 1/1) and 1985-86 (Exh. PW 1/2) in respect of the land. Copy of Khasra Girdawari for the year 1975-89 (Exh. PW 1/3) was also produced in evidence by him, regarding the land owned by the petitioners (brothers). According to the Patwari Halqa, the respondents have become the owners of the land, including the suit path. He further stated that a reference to this effect has been duly made in Khasra Girdawar (Exh. PW 1/3) besides the map Exh.
PW 1/6, wherein path has been marked, with red ink, from point A to point B. He stated that the suit path actually exists on the spot and is being used, as an approach, not only by Dilawar Khan etc. (respondents) but also by others, including the petitioners, whose lands are located between point No.1 to point No.4 as is apparent from map Exh. PW 1/6.
18. When cross-examined, the Patwari admitted that no mention was made about the said path in the Jamabandi of 1981-82. However, in the next Jamabandi (1985-86), an entry regarding the suit path (measuring four Marlas) has been duly made. He further stated that this fact has also been mentioned in Khasra Girdawari (Exh. PW 1/3).
19. Abdul Qayyum, Petition-Writer, Karak (aged about 60 years) appeared as P.W.2 and stated on oath that agreement deed (Exh. PW 2/1) was scribed by him which was duly signed; in his presence, by Mir Ahmad Khan petitioner No. 1.
20. In cross-examination he refuted the suggestion that agreement deed (Exh. PW 2/1) was scribed by him at the instance of respondents and that the petitioners had no knowledge, whatsoever, about its execution.
21. Another Petition Writer, Gut Bostan of Karak, deposed as P.W.3. While in the witness-box, he stated, on oath, that agreement deed (Exh.PW 3/1) was scribed by him on 11-1-1987. According to him the said deed (Exh.PW 3/1) was duly attested by a Notary Public. He further contended that he was well-- conversant with the signatures of the said Notary Public and that Exh.PW 3/1 was duly signed by him,
22. In cross-examination he admitted that Exh. PW 3/1 was executed only by Gul Muhammad (petitioner No.3).
23. It may be stated at the outset that from the perusal of the evidence, discussed above, it has become crystal clear that the landed property, including the suit path, originally belonged to all the petitioners, that the petitioners Nos. 1 to 3, who are admittedly brothers inter se, had effected a private partition and latter, one of the brothers, namely Gut Muhammad (petitioner No.3), had sold his share alongwith his rights of the suit path, to the respondents and that the respondents had, thereafter, stepped into his shoes and accordingly they were entitled to use the disputed path, not as a matter of grace but as a matter of right, in accordance with the terms of the two agreement deeds, mentioned above.
24. On the other hand, to rebut the respondents' case, petitioner No. l (Mir Ahmad Khan) appeared as the sole witness of the petitioners and closed his evidence. While appearing as D.W.1, in his examination-in-chief, he simply alleged that he had not left any "Rasta" i.e., the suit path, to be used by Dilawar Khan etc. (respondents). Similarly, he stated that he or his other brother namely.
Munawar Khan did not execute any agreement in favour of the respondents
25. However, in his cross-examination, he admitted that he had two other brothers, namely Gut Muhammad (petitioner No.3), who had appeared as the plaintiffs' witness as P.W.5, and Munawar Khan (petitioner No.2). He furthy--r admitted:---
26. When subjected to cross-examination further he admitted:---
27. He further admitted as under:---
28. In nutshell, Mir Ahmad Khan petitioner No. 1, while appearing as D.W.1, admitted that:---
(a) the landed property was jointly owned by the brothers in the first instance;
(b) the brothers (defendants/petitioners Nos. l to 3) had duly effected a private partition and had given the share of Gut Muhammad to him which was situated towards the south;
(c) agreement deed (Exh. PW 3/1) was executed by Gut Muhammad, his brother, in favour of the respondents in respect of the suit path: and
(d) Gul Muhammad petitioner No.3 had sold his share to the respondents.
29. In the light of revenue record and what has been stated above, it has been established that the suit path in fact exists on the spot which was given to Gul Muhammad petitioner No.3 (P.W.4), by his brothers, petitioners Nos. l and 2 and that, he in turn, sold the same to the respondents. That the respondents had proved their case, against the petitioners, and were therefore, entitled to the decree as prayed for.
30. To the same effect are the concurrent findings of the Courts below. In the circumstances mentioned above, I am of the opinion that the lower Courts have neither misread the evidence produced by the parties nor have they exercised a jurisdiction which was not vested in them or have failed to exercise a jurisdiction so vested in them. The lower Courts, therefore, have committed no illegality (acted illegally in breach of some provision of law) or material irregularity
(b) committing some error of procedure during the course of trial). The orders of the lower Courts are well founded and need no interference in revisional jurisdiction.
31. This revision petition is without any substance and is accordingly dismissed with costs.