MIAN JAN vs Mian PIR JAN and others

' NASIR-UL-MULK, J.---This petition for leave to appeal filed by Mian Jan impugning judgment of the Peshawar High Court arises in the background that the petitioner had filed a suit against his brothers Mian Pir Jan and two others for declaration that he is owner of land measuring 3 kanals in Khasra No,779 situated in Mauza Teghak, Tehsil Kabal, District Swat, on the basis of sale deed No,692 registered on 16-9-1965; that the ancestral property mentioned in the suit was privately partitioned between the parties in the year 1995 regarding which the partition deed was also executed and the parties are in possession of their respective share. He claimed that the said property was purchased with his own sources during life time of his father and had remained in his possession since then; that however the property was incorrectly recorded in the revenue record as legacy of their father at the behest of the defendants. The defendants contested the suit and after recording of evidence the petitioner's suit was dismissed. The judgment and decree of the trial Court was upheld by the Appellate Court and maintained by the High Court in its revisional jurisdiction through the impugned judgment.

2. All the three Courts had non-suited the petitioner on the ground that neither khasra numbers nor area of the land or its boundaries were mentioned in the sale-deed No,692 on which the petitioner had based his title. The learned counsel for the petitioner submitted that the Courts had overlooked the fact that the property was purchased during the period when Swat was not district but it was a State and the laws of rest of the country were not in force; that the settlement operation commenced in the years 1974-75 and that prior to that there was no revenue record maintained in the State; that the Court had erroneously ignored the registration of the sale-deed.

3. The learned counsel for the respondents reiterated the reasons that prevailed with the three Courts, namely, absence of khasra numbers, the area and the boundaries in the sale-deed. The learned counsel submitted that it has not been explained on behalf of the petitioner as to how the property purchased by the said sale-deed could be translated into three kanals.

4. The fact remains that the State of Swat was merged into rest of the country in the year 1969 and prior to that no revenue record was maintained. Neither the Registration Act nor any other similar law relating to registration of documents was in vogue during that period. However, the sale transaction used to be reduced into writing and registered in the office of the local Tehsildar. In the present case the sale deed was duly registered, according to which the petitioner had purchased the property from one Ahmed Khan. The Record Keeper, Ismail appeared as P. W.1 and produced the relevant page from the Register of deed No,692 as Exh.P.W.1/1. According to the law prevalent at the time entry of the deed in the Register maintained for the purpose was sufficient to prove the transaction. The lands sold during those days were not expressed in terms of khasras as there was no revenue record. The only mode of identity of the property sold was by reference to the surrounding lands. Upon perusal of the said deed the property sold has been duly described according to the ownership of lands surrounding it on all four sides. As regards the ancestral property the same was privately partitioned by the deed dated 23-6-1995 after the death of father of the parties. Though denied in the written statement by the defendants, defendant No,1 Mian Pir Jan who appeared as D.W.2 admitted that the private partition had taken place not once but three time; that however the defendants were not satisfied with the partition. He further conceded that the petitioner had been living separately from' rest of the family even during the life time of their father.

5. This Court is slow in reversing findings on facts, more so when the same have been concurrently arrived at by all the Courts. However, in the present case we have noted that all the Courts have proceeded on the legally erroneous premise that the sale deed of 1965 does not hold good as its execution is not in accordance with the laws currently enforced in the District. As earlier observed the deed had to be examined on the touchstone of the practice and the laws prevalent at the time the C same was executed. We are, therefore, constrained to hold that the Courts have fallen into grave error in dismissing the suit of the petitioner by misapplication of law. The petition is therefore converted into appeal and allowed. The impugned judgments and decrees are set aside and the suit filed by the petitioner is decreed as prayed for.