By this order I intend to dispose of the captioned revision petitions as in both the cases common questions of law and facts are involved.
2. The facts out of which both the revision petitions arise, briefly stated, are that Muhammad Afzal etc. And Haji Faqir Khan, plaintiffs/respondents herein, had filed suits against Abdul Malik etc. And Shah Mazai, defendants/petitioners herein, in the Court of E.A.C., exercising the powers of Deputy Commissioner under PATA Regulation II of 1975, for declaration that the land, details of which are given in the heading of both the plaints, is their ancestral property and that the defendants are not entitled to deny their title over the suit land or to transfer it or change its nature in any manner. It was also alleged that the sale-deed scribed as ' Raseed' dated 27-4-1979 annexed with the plaint is fraudulent, collusive, illegal and thus ineffective upon the rights of the plaintiffs/ respondents.
Perpetual injunctions were also prayed for. In the alternative, the possession of the suit land was claimed.
The suits were contested by the defendants. Haji Faqir Khan, respondent No.7 in C.R. No.104/96 however, admitted the claim of the plaintiffs by filing separate written statement. The contesting defendants raised preliminary objections on factual side claiming the title of the suit land on the basis of the sale-deed dated 27-4-1979.
3. It is pertinent to note that no settlement record has been prepared so far in that part of the country and that the disputed sale-deed is an unregistered document.
4. During the proceedings, PATA Regulation II of 1975 under which the suit was brought by the plaintiffs/respondents, was repealed by the judgment of the Supreme Court of Pakistan and 'the Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation (N.-W.F.P. Regulation NO.II, of 1994) was promulgated and thus the case was transferred to the Court of Senior Civil Judge/Aala Illaqa Qazi, Malakand, where both the parties made a joint statement that the dispute may be referred for decision in accordance with Shariah to one Syed Khan Badshah, Mediator who, on receipt of file, recorded the evidence of Muhammad Afzal, plaintiff No.1 wherein he stated that the suit land, namely, ' Bostai' is their ancestral property and that Shah Mezai was in possession as his tenant since his forefather. He alleged that till the death of his father in 1985 Shah Mezai tenant used to pay the share of produce regularly and then refused to pay the share of produce uptill now. He deposed that the sons of Shah Mezai, namely, Rashid and Ajmal Shah contacted him to sell the suit land to them on consideration of Rs.22,000 but he' refused to sell it and further added that whenever he intended to sell the suit land he will sell it to them on the prevailing market rate. In support of the above allegations the plaintiff Muhammad Afzal produced one Habibur Rehman who deposed that the suit land, namely, ' Bostai' is the ancestral property of Muhammad Afzal etc. And that Shah Mezai etc. Are their tenants. Being Paracha he used to collect the share of produce from Shah Mezai etc. And hand over to Muhammad Afzal etc. A few year back when he came to Shah Mezai for the share of produce, he refused to pay the share of produce on the pretext that he had purchased it. To further strengthen his allegations, Muhammad Afzal plaintiff also produced one Haji Fazalur Rehman who happened to be a witness to the exchange deed between Saeed Khan father of the plaintiffs/respondents on the one hand and Faqir Khan his brother on the other.
The witness deposed that the disputed land known as ' Bostai' is different than the land known as '
Painda Kandaro' rather laying at some distance from each other. He stated that the disputed land, namely, ' Bostai' was neither measured nor transferred through exchange to Faqir Khan, the alleged vendor in the sale-deed dated 27-4-1979.
5. In rebuttal, Shah Mezai defendant appeared as his own witness and deposed that the disputed land, namely, ' Bostai' was given in exchange to Faqir Khan defendant/respondent No.7 and that the suit land is a part of ' Painda Kandaro' which was purchased by him through a written deed in 1979. He stated that in 1985 Faqir Khan uncle of Muhammad Afzal plaintiff sued him and in 1988 Muhammad Afzal filed the instant suit against him. He denied the payment of share of produce to the plaintiff. In support of the evidence he produced one Muhammad Murad, resident of ' Painda Kandaro' who stated before the Mediator that the disputed land, namely, 'Bostal' was given to Faqir Khan in exchange by the father of Muhammad Afzal plaintiff since its purchase by Shah Mezai. He further stated that Muhammad Afzal plaintiff has not been paid any share of produce.
6. The Mediator apart from recording the evidence of both the parties and spot inspection tried to patch-up the matter but no compromise was effected and, therefore, he gave his Award in the case with the findings that the suit land, namely, ' Bostai' has not been purchased by Shah Mezai defendant from Muhammad Afzal etc. Plaintiffs; that Shah Mezai etc. Defendants forcibly possessed the suit land; and that Muhammad Afzal etc. Plaintiffs were the real owners. The learned Senior Civil Judge/Aala Illaqa Qazi, after the receipt of Award of the Mediator and giving full opportunity to the parties to raise objections, made the same Award as the rule of the Court and passed a decree in favour of the plaintiffs on 26-10-1995.
7. The defendants/petitioners, being dissatisfied with the judgment and decree of the trial Court, preferred an appeal before the District Judge/Zilla Qazi, Malakand at Batkhela which was dismissed on 10-12-1995. Hence these revision petitions against the aforesaid judgments and decrees of the Courts below.
8. The learned counsel for the petitioners in support of the revision petitions argued that the Mediator has not provided an opportunity of cross-examining the witnesses and that it was established in evidence before the trial Court that the suit land is the purchased property of the defendants/petitioners vide sale-deed dated 27-4-1979. The learned counsel read some portions of the new Regulation II of 1994 relating to Mediators and argued that, the Mediator was bound to deliver the Award based on Shariah. He further urged that the burden was on the plaintiffs/respondents to prove their case.
9. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioners and have thoroughly examined the record. I find that there is no substance in the present revision petitions, for, the learned counsel for the petitioners has not been able to point out any misreading or non--reading of material evidence rather there is concurrent finding of fact recorded by the two Courts below with regard to factual controversy. I am, therefore, afraid that in the absence of any misreading or non-reading of evidence or material irregularity or illegality in the proceedings conducted by the lower Courts, this Court cannot interfere in the impugned judgments and decrees. The petitioners were given full opportunity to adduce evidence as they wished to produce but they have nuserably failed to prove that they were owners by purchase of the suit land, namely, 'Bostai'. The unregistered sale-deed relied upon by the petitioners is in respect of a culturable part of the suit land, namely, ' Painda Kandaro' and the petitioners are enjoying usufruct of the said culturable land and nobody had denied their rights over -the same. In so far as the land known as ' Bostai' and unculturable land, namely, ' Painda Kandaro' are concerned, the defendants/petitioners have failed to produce any evidence in the shape of documentary or oral, therefore, both the lower Courts have rightly decreed the suitsbrought by Muhammad etc. Plaintiffs/respondents against the defendants/petitioners in Civil Revision No.104/1996 and Haji Faqir Khan plaintiff/respondent No. l against Shah Mezai etc. In Civil Revision No.105/1996.
10. For the abovestated reasons, both the revision petitions stand dismissed in limine alongwith the Miscellaneous Applications Nos.259 and 260 of 1996 and the status quo order issued on 21-4-1996 is recalled.