Shakoor Nayab and others plaintiffs, lodged suit on 7-12-1994 in the Court of Illaqa Qazi/Civil Judge, Chitral Camp Court at Buni, against Mati Ahmad and others defendants, claiming a declaration to the effect that plaintiffs are owners in possession of suit land (fully detailed in the plaint) having inherited the same from their forefathers; that defendants have no concern with it and that defendants be restrained to interfere in possessory rights of the plaintiffs.
2. The suit was resisted on all grounds legal as well as factual and the allegations of the plaintiffs were denied. The parties were put to trial on following issues:---
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the plaintiffs have locus standi to institute the suit?
(3) Whether the suit is liable to rejection for want of misjoinder of necessary parties?
(4) Whether the suit hit by the principles of waiver, estoppel and acquiescence?
(5) Whether suit is wrong, baseless, illegal, mala tide and against Shara, hence section 35-A, C.P.C.
Is applicable in the case?
(6) Whether the plaintiffs have got no inherited land in village Buni, Chitral?
(7) Whether the suit is time-barred?
(8) Whether the plaintiffs are owners in possession of suit land through inheritance?
(9) Whether the deed, dated 11-3-1978 has any adverse effect on the suit of the plaintiffs?
(10) Whether the plaintiffs are entitled to the decree prayed for?
(11) Relief.
3. In order to prove the case, Shakoor Nayab appeared as P.W.1 and he produced Ghulam Yaqoob and Ghulam Idrees as P.Ws. 2 and 3 respectively. As against this, the statement of Sultan-ul-Mulk was recorded as D.W.1 and he produced Asimullah, Qazi Fazle Subhan, Nazar Muhammad, Gul Shahi, Zao Khan and Mir Dad to rebut the claim of the plaintiffs in respect of suit land.
4. Upon consideration of the evidence adduced by the parties, the learned trial Judge proceeded to hold that plaintiffs have miserably failed to prove that they are owners in possession of suit land by virtue of inheritance of their forefathers or they are in possession of suit land through exchange and as such they possess no cause of action to file suit. Having held so the suit was dismissed through judgment and decree, dated 28-3-2001 which was maintained in appeal by learned District Judge/Zila Qazi Chitral, through judgment, dated 17-10-2001.
5. Feeling aggrieved the petitioners have tiled instant Civil Revision No,23 of 2002 impugning the legality and correctness of the judgments of the Courts below, on a variety of grounds.
6. Mr. Ruhul Amin, Advocate appearing on behalf of the petitioners vehemently contended that the impugned judgments and decrees are the result of gross misreading and non-reading of evidence and sufficient material was available on the file in support of the claim of the petitioners which has been ignored and put at shelf without any justifiable reason which has materially prejudiced the interest of the petitioners. To substantiate the pleas, my attention was invited to affidavits, dated 6412-1994 sworn by Ghulam Idrees and Ghulam Yaqoob and settlement, dated 11-3-1978.
7. Mr. Asghar Khan Kundi; Advocate for the respondents, in reply to the arguments of learned counsel for the petitioners, supported the impugned judgments and decrees and contended that the forefathers of the petitioners were tenants of suit land which came to an end through deed, dated 11-3-1978 and that the plea of exchange subsequently introduced contrary to the stand taken earlier, is not available to the petitioners and they cannot be allowed to take shelter under it.
He added that Sherin Nayab, one of the brothers of the petitioners, signatory to thfe deed, dated 11- 3-1978 has been purposely withheld and not made party to the suit which clearly exhibits mala tides on the part of the petitioners. Concluding the arguments, the learned counsel reiterated that concurrent findings of fact of the Courts below are supported by actual evidence on record and hardly call for interference of this Court. To substantiate the pleas he paced reliance on Radar Zaman v. Sultan (1996 CLC 202 Peshawar) and Riaz v. Muhammad Saleem and 4 others (1989 SCM R 1491).
8.The claim of the petitioners is the t they are owners in possession of suit land by virtue of inheritance from their forefathers; that respondents have no concern with it and that they are not justified to interfere with possessory rights of the petitioners. On the contrary, the claim of the petitioners has been totally denied and it is asserted that the forefathers of the petitioners were personal servants of respondents besides being Shemooras' (tenants) and had no connection with suit land. Both the parties have adduced evidence in support of their respective contentions. The main ground of attack of learned counsel for the petitioners is that the findings of the Courts below are not based on the material available on the record. The submission of the learned counsel is not tenable. The learned counsel has not been able to point out any misreading or non-reading of the evidence on the record. The Courts below have appreciated the evidence on the record and the inference drawn from such appreciation has been lawfully made. No illegality or infirmity in the impugned judgments has been indicated. It is an established principle of law 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. In the instant case the petitioners have not been able to prove successfully that they are owners in possession of suit land by virtue of inheritance or exchange and that respondents have no interest in the same. As it was for the petitioners to prove their case, they in view of the said discussion have clearly failed to prove their assertions and version in the plaint. There was no material with the trial Court to have passed decree in their favour. It is well settled law that the plaintiff must B prove his case on the strength of his own evidence and cannot take advantage of the shortcomings of the defendants' case. Onus in this case was heavily placed on the plaintiffs which they have not been able to discharge satisfactorily, so the consequence would be that their suit must fail. Both the C Courts below have 'given a concurrent finding of fact against the petitioners which warrant no interference of this Court.
9. In view of what has gone above it follows that forefathers of the petitioners and after their death, the petitioners were tenants of the respondents and this tenancy came to an end and relationship of landlord and tenant extinguish through deed, dated 11-3-1978 and the petitioners have no interest left in the land in suit.
10. In the result and for the foregoing reasons finding no substance in this Civil Revision, I dismiss the same with no order as to costs.