' This petition is directed against the judgment and decree, dated 30-8-1997 passed by Majlis-e- Shoora, Kalat Division at Mastung whereby appeal filed against the judgment and decree, dated 31-8-1995 passed by Qazi Sarawan at Mastung was accepted and the suit filed by the petitioners was ordered to be dismissed.
2. The facts briefly stated are that the petitioners filed a suit for declaration, permanent injunction and cancellation of mutation entries in respect of property bearing Khasras Nos.859 and 858 Khewat No,742, Khateoni No,495, Mauza Injeeri, Sub-Tehsil Karcoocha, District Mastung (hereinafter referred to as the property in dispute) measuring 607 rods 30 poles averring therein that the property in dispute is their ancestral property and since the time of their ancestors has been in their cultivating possession. It is further stated that the respondents filed a suit for possession in respect of property in dispute in the Court of Qazi Sarawan on the ground that they are owners of the property in dispute and possession of the petitioners is illegal. Petitioners before filing of the said suit approached Revenue Authorities and came to know that the mutation entries have been wrongly entered in the name of the respondents. Thus, they filed the present suit.
3. Respondents resisted the suit and stated in the written statement that they are owners of the property in dispute and petitioners have got nothing to do with the same and also disputed possession of the petitioners. Pleadings of the parties were reduced to the following issues:- {{URDU TEXT}}
4. Petitioners in support of their claim examined the following witnesses:--- ' P.W.1 Niazullah, P.W.2 Allah Bakhsh, P.W.3 Muhammad Arif, P.W.4 Ahmad Mir who produced documents Exh.P/1 and statement of Abdul Fathe, attorney for the petitioners was recorded.
Besides, petitioners also filed certain documents relating to the property in dispute. Respondents did not 'produce any evidence; however, statement of Nehangan was recorded as Attorney for all the respondents.
5. After assessing the evidence on record, the learned Qazi Sarawan at Mastung decreed the suit of the petitioners vide judgment and decree, dated 31-8-1995. Being aggrieved, respondents preferred an appeal before Majlis-eShoora, Kalat Division at Mastung who dismissed the appeal vide judgment and decree, dated 12-12-1995. Against the said Order the petitioners filed Civil Revision No,72 of 1996 before this Court. The petition was partly accepted and the case was remanded to Majlis-e-Shoora for re-writing of the judgment, vide Order, dated 1-4-1997. After remand the learned Majlis-e-Shoora accepted the appeal and set aside the judgment and decree, dated 31-8-1995 and dismissed the suit of the petitioners vide judgment and decree, dated 30-8- 1997; thus, this petition.
6. I have heard Mr. Khshnood Ahmad, Advocate for the petitioner and Mr. Mushtaque Ahmad Lodhi, Advocate for the respondents.
7. Mr. Khushnood Ahmad, Advocate for the petitioners contended that the petitioners had produced sufficient evidence to prove that they are owners of the property in dispute and mutation entries had been wrongly entered in the name of the respondents. The learned Qazi after proper appreciation of evidence rightly came to the conclusion that the property in dispute has been wrongly entered in the name of the respondents; thus, decreed the suit but the learned Majlis-e- Shoora has wrongly set aside the findings arrived at by the learned Qazi on the basis of surmises and conjectures. The learned counsel further stated that the respondents had not produced any evidence; however, the learned Majlis-eShoora set aside the well-founded and well-reasoned judgment of the Qazi while considering the evidence produced by the respondents in the counter- suit filed by them for possession. Thus, the findings of the learned Majlis-e-Shoora are not sustainable and is based on no evidence.
8. Mr. Mushtaque Ahmad Lodhi, Advocate supporting the impugned Order stated that the learned Majlis-e-Shoora has rightly set aside the judgment of the Qazi as the same had been arrived at due to misappreciation of evidence and while properly appreciating the evidence on record, the learned Majlis-eShoora set aside the findings of the Qazi and further argued that the respondents failed to prove their possession over the property in dispute; thus, their suit was rightly dismissed.
9. I have heard the learned counsel for the parties and have also perused the record available.
10. Adverting to the arguments of Mr. Khushnood Ahmad, Advocate, it may be observed that the petitioners filed a suit for declaration and correction of mutation entries. It has been stated in the plaint that the petitioners had no knowledge about the mutation entries. They came to know about the same when respondents filed a suit for possession in respect of property in dispute and after consulting the Revenue Authorities they came to know that the mutation entries have been entered in their name. As far as filing of the suit for possession by the respondents is concerned, the same has not been disputed by the respondents. The learned Qazi after proper appreciation of the evidence on record has given detailed reasoning on each and every issue and thereafter, has decreed the suit of the petitioners.
11. The learned Majlis-e-Shoora 'while disposing of the appeal has discarded the evidence produced by the petitioners erroneously. P.W.1 Niazullah stated that he had seen the property in dispute and the same was in possession of the petitioners and they had been cultivating the same.
He further stated that respondents have no concern with the same. In cross-examination he stated that he was cousin of one Ghulam Hyder and further stated that he had no knowledge about the mutation entries and also stated that he had no knowledge about the settlement operation in the area; however, he stood firm on the question of possession of the petitioners. Possession of the petitioners was not denied even by the respondents and it was suggested that the petitioners came into possession recently which was denied by the witnesses. Similarly P.W.2 Allah Bakhsh in his statement stated that the petitioners were in possession of the property in dispute and there were crops over the same which had been cultivated by the petitioners. However, he showed ignorance about the settlement operations and stated that he had no knowledge as to when the property was entered in the name of respondents. Likewise Muhammad Arif also stated that possession of the property in dispute is with the petitioners and they have been cultivating the same since the times of ancestors. He also showed ignorance about the mutation entries. While discussing the statements of the above three witnesses the learned Majlis-e-Shoora only discarded the same on the ground that since the aforesaid witnesses showed their ignorance about the settlement operation and mutation entries in favour of the respondents, thus, their evidence is not reliable.
12. It may be observed that statements of the witnesses could not be discarded merely on the ground that they showed ignorance about the mutation entries whereas all the witnesses have given proper boundaries of the property and their statements were in consonance with the contents of the plaint, thus, the learned Majlis-e-Shoora had misdirected himself by taking a different view and committed gross error by misappropriating the evidence adduced by the petitioners. .
13. It is a settled principle of law that entries in the record of rights do not confer any right/title and carry a presumption and party in whose favour such entries are recorded has to establish its title by adducing evidence. In this regard statement of P.W.4 is very much relevant. He stated that prior to the entry in the name of the respondents, the property in dispute was shown as Shamilat-e-Deh in the record of rights and thereafter, Revenue Officer without any Order has recorded the same in the name of the respondents. To establish their title over the property in dispute, respondents did not produce any evidence and only statement of their Attorney Nehangan was recorded who stated that they are owners of the property in dispute and they have constructed Laths over the same. He admitted that respondents filed a suit for possession against the respondents and stated that they admitted possession of the petitioners only on a piece of land. Respondents failed to produce any title/documents in respect of the property in dispute. The learned Majlis-e-Shoora while reversing Issues Nos.4 and 5 has held that since the property in dispute was recorded in the record of rights in the name of respondents; thus, they were also in possession of the same. It may be observed that the learned Majlis-e-Shoora wrongly came to erroneous conclusion that the respondents are owners of the property only on the basis of mutation entries which had been challenged by the petitioners. As mentioned hereinabove the evidence produced by the petitioners could not be discarded merely on the ground that the witnesses had no knowledge about the mutation entries in the name of the respondents in the record of rights. The learned Qazi while decreeing the suit has discussed the statement of each and every witness and also each and every issue separately and has given cogent reasons for deciding the issues in favour of the petitioners but the learned Majlis-e-Shoora, as stated above fell in error in discarding the positive evidence produced by the respondents and the conclusion arrived at by the learned Majlise- Shoora is based on no evidence.
14. The learned Majlis-e-Shoora while discussing the issue of limitation, held that the suit was barred by time. It is the case of the petitioners that they came to know about the mutation entries in favour of the respondents when they filed a suit for possession in the Court of Qazi on 7-9-1992 and prior to that they had no knowledge about the same and after consulting the Revenue Authorities they came to know about the wrongful entries. It may be observed here that filing of the suit by the respondent has not been denied and further the petitioners were not cross-examined that they were in the knowledge of the mutation entries from the date of attestation and respondents have not produced any evidence regarding knowledge about the mutation entries. It may further be pointed out that even if petitioners were in the knowledge of the mutation entries, as they were in possession of the property in dispute, they were not supposed to file a suit within the limitation period until their possession was threatened. In the case in hand, since the petitioners came to know about the wrongful entries, they filed a suit. The learned Majlis-e-Shoora has misdirected itself in holding that the suit was barred by limitation. The findings arrived at by the Appellate Court are based on conjectures and surmises based on no evidence. The learned Majlis- e-Shoora further held that since the property in dispute has not been described properly by the parties, thus, the suit was not maintainable and has held that the Qazi had passed decree in respect of Khasras Nos.958 and 959 whereas the suit of the respondent was for Khasras Nos.858 and 859; suffice it to observe that throughout the plaint, the petitioners had mentioned Khasras Nos.858 and 859 and even prayed for transfer of Khasras Nos.858 and 859 and so much so an issue in respect of Khasras Nos.858 and 859 was framed. The learned Qazi inadvertently mentioned Khasras Nos.958 and 959 and the same being a clerical error could be rectified any time and the suit could not be dismissed on the ground that wrong Khasras Nos. Have been mentioned.
15. Thus, in my view the Appellate Court seriously fell in error to set aside' c the judgment and decree, dated 31-8-1995.
16. It is a settled proposition of law that in event of conflict of judgments between the trial Court and the Appellate Court, ordinarily the findings of the C Appellate Court have been given weight, unless the same is not supported by legal evidence or is based on surmises and conjectures. In the present case the learned Majlis-e-Shoora misdirected itself by taking a different view from that of the trial Court; thus, committed gross error by misappropriating the evidence and came to conclusion based on conjectures and surmises.
17. For the foregoing reasons the impugned judgment, dated 30-8-1997 passed by learned Majlis- e-Shoora, Kalat Division at Mastung is set aside and the judgment and decree, dated 31-8-1995 passed by Qazi Sarawan at Mastung is upheld. However, parties are left to bear their own costs.