The respondents/plaintiffs filed Suit No,242/1 of 1996 seeking declaration to the effect that they were owners in possession of the land comprising Khasra Nos.1188 and 1190 Khata No,867 Khatooni No,1126 situated at Bara Banda, Teshil Kable, District Swat and the entries in the Revenue Record in favour of the respondent were wrong, incorrect, result of collusion of fraud, hence ineffective upon their rights. Perpetual injunction restraining the petitioner/defendant to interfere into the property in dispute was also sought and in the alternative prayer for possession of the property in dispute was also made. The said suit was resisted by the petitioner/defendant by filing written statement. The learned trial Court after framing as many as 9 issues and recording pro and contra evidence of the parties partially granted decree in favour of the respondents/plaintiffs. They were held owners of upper portion a the mountain which comprised of Khasra Nos.1188 and 1190 vide judgment and decree dated 3-5-2000. Feeling aggrieved of the said judgment and decree, the petitioner/defendant filed Appeal No,76/13 of 2000 in the Court of learned Additional District Judge/Izafi Zilla Qazi Swat which was dismissed vide judgment and decree. Dated 5-9-2000.
Dissatisfied with the said judgments and decrees passed by the learned Courts below, the petitioner has filed the revision petition in hand.
2. Mr. Muhammad Waris Khan, the learned counsel representing the petitioner, argued that the suit-land which comprised of Khasra Nos. 1188 and 1190 consists of total 7 Kanals, 6 Marlas. The same has been properly recorded in the name of the petitioner in the first Settlement held in the year 1977 and the respondents did not challenge the entries of the Settlement Record, therefore, the suit filed by them in the year 1996 was barred by time.
3. It was also argued that there was decision of the Ex-Ruler of Swat given in Case No,234, dated 7- 4-1967 which was taken into consideration by the learned Courts below without realizing the fact that the said decision did not contain the measurement of land and after 32 years the same could not be implemented.
4. It was further argued that the petitioner was in possession of the suit land since the time of ancestors which fact had not been disputed by the respondents but the possession of the petitioner had not been taken into consideration.
5.. It was lastly argued that the report of the Local Commissioner dated 17-12-1999 was not based on proper facts. The learned trial Court had fallen in error by taking into consideration the said report of the Local Commissioner, therefore, the judgments and decrees of the Courts below are against the law and require interference.
6. On the other hand, Mian Iqbal Hussain, the learned counsel representing the respondents, argued that the Courts below of competent jurisdiction have concurrently held the respondents entitled to the upper portion of mountain comprising Khasra Nos.1188 and 1190. The judgments and decrees passed by the Courts below are based on proper appreciation of the evidence on record, hence need no interference by this Court.
7. It was also argued that the learned trial Court had based its judgment on the report of the Local Commissioner and there was no plausible reason as to why the said report of the Local Commissioner should have been ignored by the trial Court.
8. It was also argued that the suit filed by the respondents/plaintiffs was within time because the land settlement proceedings in the area had started in 1974 and ended on 31-12-1986. The suit in hand was filed on 1-10-1988 challenging the entries of the Revenue Record, therefore, it was within time.
9. I have heard the learned counsel for the parties and perused the record.
10. In order to prove their case the respondents/plaintiffs examined Fazal Ali Patwari Halqa as P.W.1, who placed on record copy of Jamabandi for the year 1993-94, Exh.P.W.1/1, Aks Shajra Kishtwar Exh.P.W.1/2.
11. Sher Afzal Khan the respondent/plaintiff No,2 appeared as P.W.11. He reiterated the facts which were mentioned in the plaint. He placed on record copy of .a decision made by Ex-Ruler of Swat in Case No,234, decided on 7-4-1967 as Exh.P.W.11/1.
12. In rebuttal Mian Adam Sher, Special Attorney of petitioner/defendant appeared as D.W.1. He placed on record copy of his power of attorney Exh.D.W.1/1.
13. The learned trial Court had appointed Muhammad Abdul Wakil as Local Commissioner to inspect the property and furnish his report. He was examined as C.W.1, who placed on record his original report Exh.C.W. Fn.
14. The perusal of the above mentioned evidence shows that a dispute had arisen between Pukhtuns and Miangans of the area upon which the matter was taken to the then Ruler of Swat, who sent Munsifans (Arbitrators) to inspect the property in dispute. The said Munsifans (Arbitrators) after inspecting the property in dispute submitted that report which was made basis for decision of Case No,234, decided on 7-4-1967 by the then Ruler of Swat. According to which the barren mountain was declared to be the ownership of Pukhtuns, whereas the lands which were cultivated five years prior to the said decision (dated 7-4-1967) were, declared to be ownership of Miangans. A copy of the said decision was placed on record as Exh. P. W .11/1.
15. The question which needed determination in the case was as to whether the land in dispute comprising Khasra Nos.1185 and 1190 was a Daftari land or Seri land. The learned trial Court in order to determine this position appointed Mr. Abdul Wakil, a senior practising Advocate of Swat with the directions to--
(i) inspect the property and find out as to whether the land in question was mountain i,e, Daftari land or Seri land;
(ii) ascertain the boundaries of the disputed land;
(iii) ascertain as to who was in possession of the said property;
(iv) ascertain as to whether there existed any Abadi on the said land or not.
16. The Local Commissioner inspected the property in dispute in presence of the representatives of the parties and Patwari Halqa. He recorded their -statements also and Patwari Halqa provided him site plan of the property in dispute. As per the report of the Local Commissioner eastern lower portion of Khasra No,1190 and southern Lower portion of Khasra No,1188 was under cultivation, whereas the upper western portion of Khasra No,1190 and upper northern portion of Khasra No,1188 was mountain. The property shown in- "Alif" and "Bay" in Khasra No,1190 and in "Alif" and "Jim" in Khasra N6.1188 was shown to be ownership of petitioners/defendants. The respondents/plaintiffs were cultivating the upper portion of the mountain whereas defendants were cultivating lower portion for the last many years. The Commission has demarcated the land owned by the parties in his report. The boundaries of the disputed Khasra Nos. Have also been given in the said report. The said report was admitted without any objection by the petitioners/defendants' side and the learned trial Court had placed its reliance over the same. Since the'report of the Local Commissioner had gone unrebutted and as per provisions of Order 26, Rules 10(2), C.P.C., the report of the Local Commissioner as also the evidence recorded by him is evidence in the case, therefore, the same was sufficient on the strength of which finding could be recorded by the learned trial Court justifiably under the law. Reliance in this regard is placed on Akbar Ali and others v. Province of Punjab and others 1990 CLC 718, Government of N.-W.F.P. Through Deputy Commissioner, Bannu and 2 others v. Muhammad Khan alias Aan 1990 CLC 1898. The judgments and decrees passed by the Court below are, therefore, based on proper appreciation of evidence.
17. So far as the argument of the learned counsel for the petitioners that the decree passed by the Courts below was vague in that no specific land has been decreed in favour of respondents/plaintiffs has no force. The learned trial Court, as mentioned above, had based its findings on the report of the Local Commission, which fully demarcated the land of petitioners vis- a-vis the land of respondents/plaintiffs. The site plan is on record which has been duly exhibited, therefore, no ambiguity is left out. I have not been able to find out any misreading/non-reading of evidence warranting interference by this Court in the concurrent findings of facts recorded by the Courts of competent jurisdiction.
Resultantly, this revision petition is dismissed with no orders as to costs.