Mst. ZARMEENA Versus Haji PESHMEEN KHAN

IJAZ-UL-HASSAN KHAN, J.--- Instant Civil Revision assails the judgment and decree dated 24-5-2004, passed by learned Additional District Judge/Izafi Zila Qazi, Swat, whereby appeal of the respondents was accepted and by reversing the judgment and decree dated 10-12-2003 of learned Civil Judge/Illaga Qazi, District Swat, suit of the petitioners was dismissed, with no order as to costs.

2. Shortly narrated the facts are, that Mst. Zarmina and others, plaintiffs instituted suit against Saeed-ur-Rehman and others, defendants, for a declaration to the effect that plaintiffs were owners in possession of suit land by virtue of inheritance from their predecessor-in-interest namely, Qadar Gul and defendants had no justification to deny title of the plaintiffs and assert their own or sell, mortgage or alienate the suit property in any manner. The plaintiffs also alleged that inheritance mutation No.158 dated 24-6-1998 in favour of defendants 1 to 6 and sale mutation No.165 dated 23-2-1999 in favour of defendant No.7 were void, illegal, collusive and ineffective on their rights. In the alternative, plaintiffs prayed for grant of perpetual injunction on possession of suit property in case they were not found in possession of the same.

3. The answering defendants in their joint written statement resisted the suit on all grounds, legal as well as factual. They denied the claim of plaintiffs alleging that in fact Banjaray, predecessor-in-interest of defendants 2 to 7 was owner of the property in suit and plaintiffs had no concern with it. In view of the pleadings of the parties, following issues were framed:--

4. Learned trial court after recording evidence of the parties, allowed the suit vide judgment dated 10-12-2003. An appeal was preferred by the respondents, which was accepted by learned Additional B District Judge/Izafi Zila Qazi, Swat, by his judgment dated 24-5-2004. The judgment and decree of the trial court was set aside and suit was dismissed.

5. Mr. Bismillah Khan, Advocate appearing on behalf of the petitioners contended that judgment and decree of learned trial court is legal, proper and correct and the learned appellate court has proceeded on wrong premises to take contrary view of the matter and non-suit the petitioners. The learned counsel asserted that sufficient material was available on the file to substantiate the claim of the petitioners, which has been put at shelf and excluded out of consideration by the appellate court without any justifiable reason. The learned counsel further reiterated that mandatory provisions of Order XLI, rule 31, C.P.C. have not been complied in this case and the matter has been dealt with in a mechanical manner without application of independent mind. Conversely, Mr. Khalil Khan Khalil, Advocate learned counsel for the respondents, controverted the arguments of the learned counsel for the petitioners and supported the impugned judgment and decree whole heartedly.

6. Land measuring 41 Kanals, 7 marlas, bearing different Khasra numbers, situated in the area of "Shoro Bari", district Swat is the subject of dispute between the parties. According to the averments of the plaint, one Qadar Gul, predecessor-in-interest of the petitioners was owner in possession of suit land having purchased the same from one Sherzada on the basis of sale deed 382 dated 17-6-1968. After the demise of Qadar Gul, suit property devolved upon the petitioners. During the settlement proceedings, respondents in conspiracy with the revenue officials manipulated to get the suit property transferred in their name to the detriment of the petitioners.

7. The petitioners, in order to prove their claim, have produced five witnesses namely, Habib Gul (P.W.1), Ali Zar (P.W.2), Farosh (P.W.3), Akbar Hussain Patwari Halga (P.W.4) and Fazal Muhammad (P.W.5). In rebuttal Haji Pashmin (D.W.1), Tooti (D.W.2) and Ziarat Gul (D. W.3) have been examined.

8. Having considered the matter from all angles, with reference to the material on record, I find that the evidence produced by the petitioners is discrepant and suffers from serious infirmities and does not lead to the conclusion that late Qadar Gul was owner in possession of the land in suit by virtue of purchase, on the basis of sale deed No.328 dated 17-6-1968 and after his death the same was devolved upon his legal heirs i.e. petitioners.

9. It is well settled principle of law that initial burden of proof of a fact is on the party which alleges it. It needs no reiteration that plaintiffs cannot be benefited from shortcomings of defendants' case. In the instant case, the appellate court has rightly proceeded to hold that petitioners have failed to produce sufficient evidence to substantiate their claim. The case of petitioners was doubtful and the entire evidence of petitioners was contradictory and highly discrepant.

10. It is well settled that if the entries in the mutation register are given effect to in the record of rights/jamabandis, then presumption of truth and correctness does arise in respect of the entries contained therein, as held in Hakim Khan v. Nazeer Ahmad Lughmani and 10 D others (1992 SCMR 1832), Chief Administrator of Auqaf Punjab, Lahore v. Mian Ghulam Farid and others (1993 SCMR 643) and Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 376).

11. Adverting to the objection regarding non-compliance of provision of Order XLI, rule 31, C.P.C., it needs no emphasis that an appellate judgment should set the points arising for determination, its decision thereon and the reasons for its decision. It is necessary for the appellate court to record the point for determination, so that it can be determined whether the court has dealt with all the points. The appellate Court must state its reasons for the decision. The provisions of Order XLI, rule 31, C.P.C. are mandatory.

12. In the instant case I find that the appellate court has fully attended the controversy involved and stated the points arising for determination and its decision thereon. The impugned judgment is in conformity with the material on record and provisions of Order XLI, rule 31, C.P.C. are not found to have been violated in this case. The parties were fully alive to controversy involved and they were given reasonable opportunity to produce evidence in support of their respective contentions.

13. The appellate Court has properly appreciated the evidence available on record and learned counsel for the petitioners not been able to point out any misreading or non-reading of evidence or any material irregularity or any jurisdictional error or detect warranting interference in the finding of the appellate court. Finding no merit in this civil revision, I dismiss the same with no order as to costs.

H.B.T./80/P ???????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.