' Syed Kamal Shah son of Mir Qalandar resident of Pir Khel District Kohat plaintiff filed suit against Inayat Muhammad and others defendants, in the Court of Senior Civil Judge, Kohat for declaration to the effect that suit land is owned and possessed by the plaintiff and defendants Nos.322 to 324 namely Itibar Shah (son) and Mst. Pirzadi and Mst. Ruqia (daughters) of Mir Qalandar by virtue of inheritance of Mir Qalandar; that Mutation No,803 attested on 27-3-1990 purportedly by Mir Qalandar in favour of Sikandar Shah, predecessor of defendants Nos.309 to 321 is result of collusion between the Revenue officials and Sikandar Shah and thus unenforcible against the rights of the plaintiff and defendants Nos.322 to 324 and that the subsequent mutations attested on the strength of Mutation No,803 are also illegal and void and not binding on their rights. The plaintiff also prayed that defendants be restrained from interfering with the title and possession of the plaintiff. In the alternative, a decree for possession of suit land was also sought.
2. The suit was contested by defendants Nos.356 and 357 alone. The remaining defendants did not join the proceedings and they were proceeded against ex parte. The answering defendants also opted subsequently not to pursue the matter and they were placed ex parte. The parties were put to trial on following issues:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff is estopped to sue?
(3) Whether the suit is not maintainable?
(4) Whether the suit is wrongly valued for the purpose of court-fee?
(5) Whether this Court has got jurisdiction to entertain the present suit? .
(6) Whether the plaintiff is entitled to the decree of declaration as prayed for?
(7) Whether the plaintiff is entitled to the decree of perpetual injunction as prayed for?
(8) Whether the plaintiff is entitled in the alternative to the decree of possession of the suit property as prayed for?
(9) Relief.
3. Upon consideration of the evidence produced by the plaintiff, the learned trial Judge vide judgment and decree, dated 7-6-1999 dismissed the suit of the plaintiff with costs on the point of limitation. An appeal was preferred before learned Additional District Judge, Kohat which was also dismissed on 5-1-2001. Feeling aggrieved the plaintiff has filed instant Civil Revision No,270 of 2002 which is before me for consideration.
4. Mr. Pir Bakhsh Mahtab, Advocate learned counsel for the petitioner strenuously contended that the judgments and decrees passed by the Senior Civil Judge, Kohat and the learned Additional District Judge, Kohat, respectively, are in excess of their jurisdiction and as such are ultra vires, null and void. The learned counsel added that sufficient material was brought on record oral as well as documentary in support of the claim of the plaintiff-petitioner but the learned trial Judge put at shelf the evidence adduced on behalf of the plaintiff-petitioner and dismissed the suit without valid reasons and the learned First Appellate Court also dismissed the appeal without giving findings on each and every issue, separately enunciated under Order XX, role 5, C.P.C. The learned counsel submitted that the trial Court has not extended reasons separately on all issues and dismissed the suit, while deciding the appeal the learned Additional District Judge, Kohat has also not decided the appeal issue wise and, therefore, the two Courts below have seriously violated mandatory provisions of Order XX, rule 5, C.P.C. And Order XLI, rule 31, C.P.C. Have acted in exercise of their jurisdiction with material irregularity. In support of the contention reliance was placed on Ali, Muhammad v. Muhammad . Hayat and others 1982 SCM R 816. Concluding the arguments the learned counsel maintained that as the material on record has not been properly considered, the matter may be remanded to the trial Court to be decided afresh.
5. There is no denial of the fact that Mir Qalandar predeoessor-in-interest of the plaintiff-petitioner and defendants 322 to 324 was the original owner of the suit land who expired in 1921. The deceased is shown to have transferred land in suit' in favour of Sikandar Shah on the basis of Mutation No,803 attested on 27-3-1919. The grievance of the petitioner is that the mentioned mutation is fictitious and bogus and Mir Qalandar had not sold suit land to Sikandar Shah.
According to the petitioner, Mir Qalandar in his lifetime and after his death in 1921, the petitioner and other legal heirs of the deceased, had been receiving the usufructs of suit land without any objection from any quarter.
The onus to prove the factum of possession and cover limitation, was heavily placed on the petitioner but he has miserably failed to discharge the same through reliable evidence. The solitary word of the petitioner does not rehabilitate his case. The mere assertion of the petitioner that attestation of suit mutation was result of conspiracy between Revenue officials and Sikandar Shah and that the petitioner had been receiving usufructs, without a positive attempt on his, part to substantiate the same is of no consequence. It is an established principle of Qanun-e-Shahadat that a person who asserts/alleges a particular fact and wants the Court to believe that such fact exists, he shall be required to prove the existence of such a fact. So far as the question of limitation is concerned, suit having been filed in 1996 to assail mutation in question attested in 1919, is clearly barred by time as rightly held by the Courts below. The petitioner has awakened after a long slumber of more than 70 years without offering any valid explanation. The reason shown' for delay in filing suit is not satisfactory. Both the Courts below have given a unanimous verdict on question of fact regarding attestation of mutation in question and I see no good ground to upset the finding.
The following observations were made by this Court in Irshad Ali and another v. Munawar Khan 2001 CLC 1899:-- "The jurisdiction under section 115, C.P.C. Is discretionary and the Court will not interfere under the aforesaid provision of law to correct every irregularity in the exercise of jurisdiction but only where grave injustice or hardship will result on account of the non-interference. Section 115, C.P.C. Applies only to cases involving the illegal assumption, non-exercise or the irregular exercise of jurisdiction.
It cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court, no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. If a Court has jurisdiction it has jurisdiction to decide one way or the other and erroneous conclusion of law or fact can be corrected accordingly. It is not denied that the Courts are hesitant to interfere in revision if the order is just and proper though some irregularities may have been committed in the making of it. It also needs no reiteration that the Court will also not interfere where substantial justice has been done between the parties and where the petitioner has taken shelter behind technicalities or where the discretion has been exercised properly."
6. In the next limb of arguments, learned counsel for the petitioner maintained that the trial Court while dealing with the matter, has not given reasons separately on all issues and non-suited the petitioner on the ground of limitation and the First Appellate Court has also not decided the appeal issue wise in terms of Order XX, rule 5, C.P.C. And Order XLI, rule 31 thereof. The submission of the learned counsel is not tenable. It is true that a Court of law whether at the trial or the Appellate Court are to give their finding on each and every issue and the Appellate Court shall give points for determination and shall refer all the important questions involved in the case but it is equally true that these orders and rules are directory and not mandatory. Neither of the order or rule provides that if there is any omission of such details as required under Order XX, rule 5 or Order XLI, rule 31, C.P.C. The judgment and decree will become a nullity. Muhammad Hafiz v. Jalaluddin and others 1981 SCM R 1171, Mian Muhammad Latif v. Province of West Pakistan PLD 1970 SC 180, Muhammad Akbar v. Fateli Muhammad 1993 MLD 76 and Zardad Khan v. Mst. Safia Begum 1998 CLC 2006.
7. Adverting to the question, regarding remand of the case, I find that both the Courts below have properly dealt with the matter and dismissed the suit of the petitioner for valid reasons and no useful purpose would be achieved if the case is sent back to the trial Court for fresh decision.
8. In the wake of above discussion, finding no force in this civil revision, I dismiss the same in limine.