MUHAMMAD BASHIR KHAN JEHANGIRI, J.---The suit of the plaintiffs-petitioners in the representative capacity against the defendants --respondents was dismissed by the trial Court and the judgment and the decree, on appeal, was affirmed by the learned District Judge. Their revision petition against the appellate judgment and the decree was also dismissed by a learned Judge of the Peshawar High Court, at Peshawar, on 17-3-1994. This is a petition filed by them for leave to appeal from the judgment and the decree passed by the High Court.
2. Brief facts of the case noted in the impugned order of the High Court are that the petitioners filed, as representatives of the residents of Village Nawagai, Tehsil Daggar, suit for a declaration that the proprietary body of village Nawagai were owners-in-possession of an area measuring 3810 Kanals and 12 Marlas 'Ghair Mumkin Pahar' bearing Khasra Nos.4135 to 4143, 4148 4150, 415.6/ 1, 4126 to 4128 and 4147 and another area measuring 2623 Kanals and 6 Marlas comprising of Khasra Nos.5139, 5147, 5190, 5197, 5200, 5203, 5204, 5206, 5213, 5194 to 5196, 5198, 5199, 5201, 5202, 5142 to 5146, 5149, 5151, 5152, 5189 and 5148 also of 'Ghair Mumkin Pahar' classification in the same village on the strength of the decision dated 4-7-1961 of the ex-Ruler of erstwhile Swat State. They had also sought the annulment of the wrong entries to the Settlement Record for the year 1977-78 in favour of the respondents recording the aforementioned area to be situated in village Bajkatta while that described latter in village Kalpani seeking correction thereof. In the alternative a possessory relief was also added. It was averred in the plaint that the lands in dispute being adjacent to village Nawagai and the petitioners being the residents. Of village Nawagai were its owners under the custom prevailing in the area that earlier the respondents had laid claim to the ownership of the said land and the dispute was resolved by the ex-Ruler of Swat by order dated 4-7-1961 by holding the petitioners to be the proprietors of the suit land subject to the payment of Rs.20,000 to the respondents; that in pursuance of the said order, the petitioners had deposited a sum of Rs.20,000 in the Treasury; During the settlement proceedings, the respondents produced "a forged" order of the ex---Ruler of Swat and on account of their machination and influence the Revenue Officer concerned ignored the customary principle of 'Pani Dhal' governing the demarcation of mountains and illegally declared them the owners of the property in dispute vide his order dated 16-3-1976 as a result of which wrong entries were made in the Settlement Record of 1977-78 in favour of the residents of Bajkata and Kalpani which were liable to correction.
3. These averments were traversed by the defendants in their joint written statement both on factual and legal plane. The parties went to trial on as many as 11 issues including the relief but for the purpose of this petition, the following issues are material:-
(2) Whether the plaintiffs are estopped to sue?
(6) Whether the suit is hit by the principle of res judicata?
(7) Whether the judgment dated 4-7-1961 on which the plaintiffs based their claim is the result of fraud and collusion, if so, its effect?
(9) Whether the plaintiffs are entitled to the decree for declaration and permanent injunction as prayed for?
(10) Whether the plaintiffs are entitled to the decree for possession of the suit land as prayed for in part 2 of the heading of the plaint?
4. The learned Judge in Chambers of the High Court had reduced the following reasoning of the trial Court in non-suiting the petitioners and that of the learned appellate Court in upholding the dismissal of the suit:- "(a) The petitioners had not produced the original order dated 4-7-1961 of the ex-Ruler of Swat;
(b) There was enough material on record including the order dated 6-10-1969 of Mashir Mal of erstwhile Swat State that the order dated 4-7-1961 was subsequently rescinded by the ex-Ruler of Swat and was never acted upon;
(c) The revocation of the order dated 4-7-1961 of the ex-Ruler of Swat was confirmed by Mr. Taj Muhammad Khan the then Mashir Mal of Swat State whose statement was recorded by a Statement Commissioner on 22-2-1987
(d) According to the report of the local Commissioner Hussain Zada Khan E.A.C. Daggar who had inspected the spot on 5-5-1988, the suit property was not in possession of the petitioners."
5. It was contended on behalf of the respondents before the learned Judge in the High Court that:
(i) the petitioners had withheld the original order dated 4-7-1961 which was the ground norm of their claim and also ignored to place on the record the entry in respect thereof in the Register of Judgments, produced by Kabat, Reader to Tehsildar, Nawagai (P.W.1), had no evidentiary value besides bearing no signature of the ex-Ruler of Swat (ii) that the principle of 'Pani Dhal' had neither been recorded in the written Riwaj nor was applied in all the cases in Swat State; (i.e) that the issues of Pani Dhal and possession were of fact regarding which the findings of the learned lower Courts were concurrent; (iv) that Taj Muhammad Khan ex-Mashir Mal of Swat State, had rectified the correctness of the orders dated 5-9-1963, 3-8-1964 and 1-8-1964 which had been passed by different functionaries on the applications moved by the petitioners; and (v) that the petitioners were not in possession of the suit land and that the entries in the Revenue Record were well- founded.
6. These contentions had weighed with the learned Single Judge in the High Court who had unhesitantly held that the impugned Settlement Record of 1977-78 had been prepared after all the due inquiries during the settlement proceedings and, therefore, presumption of correctness is attached to the entries incorporated therein. According to the learned Judge, the evidence adduced by the petitioners in rebuttal was not sufficient to rebut the well-founded entries of the settlement record. The report of the local Commissioner Hussain Zada Khan E.A.C. Daggar (C.W.1), were referred to lend support to the finding that the petitioners were not in possession of the suit property which circumstance, according to the learned Judge, "goes a long way to knock the bottom out of their case." The report of the local Commissioner was held not to suffer from any serious infirmity particularly, when there was nothing on the record to demolish the finding of the local Commission on the factual plane. Then the learned Judge declined to assign any significance to the order EXh.P.W.l/1 dated 4-7-1961 of the ex-Ruler of Swat on the ground that it does not bear the signature of the ex-Ruler and as such "the petitioners cannot draw any premium from it." The objection raised on behalf of the petitioners that the respondents had failed to raise a formal objection was not entertained by the learned Single Judge in the High Court holding that it was not sufficient to cure its inherent infirmity and rendered it worthy of any reliance. The learned Judge has also noticed from the statement of Taj Muhammad Ex-Mashir Mal of Swat State and reached the conclusion that the order dated 4-7-1961 was either orally annulled subsequently or had not been acted upon. The learned Judge in the High Court then noticed that no record worth the name was placed on the file to establish that the alleged amount of Rs.20,000 which the petitioners claimed to have deposited in the State Treasury was ever paid to the respondents which pointed to the non-implementation of the order dated 4-7-1961. The claim of the petitioners that they were the proprietors of the disputed land on the basis of the principle of 'Pani Dhal' was not accepted by the learned Judge on the ground that it had not been accepted by the Settlement Authorities inasmuch as it was not established before them by any legal evidence. The statement of Patwari Halqa Chinglai (P. W.2) was referred to hold that the principle bf ' Pani Dhal' was not followed in all the disputes concerning the line of demarcation of the mountains in the Settlement areas. It was, therefore, held that the impugned judgments and the decrees were not shown to suffer from any jurisdictional defect or were the result of misreading or non-reading of evidence so as to warrant interference in the concurrent findings of the learned Courts below and thus the revision petition was dismissed.
7. Sh. Wazir Muhammad, learned Advocate-on-Record, who represented the petitioners, contended that the Revenue Officers engaged to the first settlement in the Ex-State of Swat had altogether ignored the tribal customary law while drawing the boundary line between to adjacent tribes and their hilly agricultural properties and that in any case the revenue officials engaged in the settlement had exercised their discretionary powers arbitrarily and, therefore, the findings of the to Courts below and the learned High Court were not sustainable. It was next contended that the to Courts below and the Peshawar High Court had fallen into a grave error in not agreeing to the judgment dated 4-7-1961 of Ex-Ruler of Swat. According to the learned counsel since this document was not objected to by the respondents when it was tendered in evidence, it must be deemed to have been admitted and as such the Courts below were clearly in error in excluding it from consideration on the ground that it had not been formally proved. In support of this proposition, the learned counsel placed reliance on the principle enunciated in Gulzar Hussain v.
Abdur Rehman and another (!985 SCMR 301). In this case after the close of his evidence and before the commencement of the evidence of his rival applied for production of, inter alia, statement of net profits Exh.P-4 which was allowed to be brought on the record. The matter came up to this Court, wherein leave was granted in order to consider the contention raised on behalf of the appellant "that it was necessary to proceed to the alternative ground (of there being no evidence on record) because in fact Exh. P-4 (the statement of net profits) was admissible in evidence, even without its having been formally proved by producing its author in evidence." After hearing the learned counsel for the parties, this Court held in Gulzar Hussain's case (supra) that the High Court did not go into the question whether Exh.P-4 was admissible in evidence or whether it was proved on record according to law, although this was the only contention raised before the appellate Court by the respondents. It was further observed that the Court could look at the document without its being proved in evidence. Proof of the document would have become necessary only if the Court had embarked upon enquiry contemplated by section 9 of the Court-Fees Act. (VII) of 1870. It would thus be seen that the facts of the precedent case are entirely different and have no application whatsoever to the proposition canvassed before us. The proof of the so-called judgment of the Ruler of the State dated 4-7-1961 was necessary because the trial Court had embarked upon the inquiry of the controversy adjudicated upon in the aforesaid order and, therefore, the authenticity or otherwise of this document was a sine qua- non for giving a finding on its evidentiary value.
8. The contents of the record of rights which also includes the settlement record used to be followed with more or less exactness by the Settlement Officers, which included Wajib-ul-Arz, Jamabandi and the portion of the Shajra--nasb or genealogical tree of the proprietors.
The presumption of truth is attached to the record of rights generally but to the first ever settlement record in particular. Very strong evidence is required to rebut the presumption of correctness attached to the first settlement record of an area.
9. In the light of the principle enunciated above for the adjudication upon the authenticity of the entries of the revenue papers and those of the first ever settlement record very strong evidence is required in rebuttal of those entries. In the instant case as has been held by all the three Courts below no evidence of any consequence has been adduced by the petitioners in rebuttal of the entries of the settlement record. We tend to agree with the conclusions arrived at by the learned three Courts below.
10. In view of the legal position enunciated above, the conclusion arrived at by the to Courts below and the learned High Court are fully sustainable on record. The petition has no merit and is accordingly dismissed.