GOVERNMENT OF KHYBER PAKHTUNKHWA Versus MARORANG

MUHAMMAD YOUNIS THAHEEM, J.--- Through the instant revision petition, the petitioners have called in question the judgment and decree dated 09.5.2005 passed by learned Additional District Judge/Izafi Zila Qazi-II, Bunir at Dagger, whereby appeal preferred by respondents against judgment and decree passed by learned Civil Judge/Illaqa Qazi, Bunir was accepted by setting aside judgment/decree of trial Court and as a consequence thereof suit of plaintiffs/respondents was decreed.

2. Brief facts of the case are that present plaintiffs/respondents instituted a civil suit against the present petitioner No. 1 and others in the Court of learned Senior Civil Judge/A'lla Illaqa Qazi, Bunir at Dagger, which was entrusted to Civil Judge/Illaqa Qazi Bunir at Dagger for disposal. Later on vide order sheet No. 13 dated 20.3.2002, the defendant No. 6, Commissioner Malakand Division at Saidu Sharif Swat was deleted from the panel of defendants. The suit was for decree of declaration to the effect that a land measuring 20 kanals bearing khasra No. 408, khatooni Nos. 248/343 situated in the local limits of Mauza Bashonri, District Bunir is owned and possessed by them vide sale deed No. 639 dated 11.3.1914 and since then they are in possession of the afore-mentioned suit land and defendants/ respondents have got no concern whatsoever with the same and the entries in column of ownership as of provincial government and possession with forest department are wrong, against the law and ineffective upon the rights of plaintiffs. The plaintiffs/respondents also made a prayer for permanent injunction and as an alternate relief also sought for possession of the suit land if it is proved with defendants.

3. The defendants were summoned, who submitted their written statements, however after deletion of the name of defendant No. 6, i.e. Deputy Commissioner Malakand Division the present petitioners relied on the same written statement, wherein they raised several objections both legal as well as factual and out of the divergent pleadings of the parties, the learned trial Court framed eleven (11) issues including the relief, thereafter, parties were allowed to produce their respective evidence and on conclusion of trial, the learned trial Court dismissed the suit of plaintiffs/respondents vide judgment and decree dated 13.02.2004.

4. Feeling dissatisfied from the judgment and decree of learned trial Court, the respondents/plaintiffs filed regular civil appeal before the Court of learned District Judge/Zila Qazi, Bunir at Dagger, which was entrusted to the learned appellate Court of Additional District Judge/Izafi Zila Qazi-II, Bunir at Dagger, who after hearing both the learned counsel for the parties allowed the appeal, resultantly judgment/decree of learned trial Court was set aside and decreed the suit of plaintiffs/respondents vide impugned judgment and decree dated 09.5.2005. Being aggrieved from the judgment and decree of learned appellate Court, the present petitioners filed instant revision petition inter alia on the grounds mentioned therein.

5. Mr. Sabir Shah, learned Additional Advocate General, appearing on behalf of the petitioners argued that Patwari Halqa Faiz-ul -Manan appeared as PW-1, who brought on record 'Misl-e-Haqiyat' pertaining to the year 1977-78 as Ex. PW-1/1 and 'Fardjamabandies' for the years 1982-83, 1986-87,1990-91, 1994-95 and current 'jamabandi' of 1998-99 consisting of 5 pages as Ex.PW-1/2. According to the said revenue record the area of Khasra No. 408 is 20 Kanals as 'Dhaka Daraktaan' pertaining to Khata Nos. 248/343, wherein the entry in column of ownership is of provincial government while in the column of cultivation Forest Department has been shown in possession and these entries continued up to the current Jamabandi 1998-99. The Patwari Halqa also produced Khasra-Girdawari pertaining to khasra No. 408 for the year `Kharif 1980' to `Kharif 2002'. The entries in the same khasra number are in the name of provincial government as owner and Forest Department as in possession of the same, so, from the evidence of this important revenue official, it has been proved that suit khasra No. 408 is coming in ownership of petitioners since the first ever settlement, the learned counsel for petitioners on the strength of above-referred evidence contended that learned appellate Court has wrongly allowed the appeal of plaintiffs/respondents without adhering to law and non-reading of the documentary evidence produced by the Patwari Halqa and had erred in law by relying upon the oral evidence produced by the plaintiffs. He further argued that the judgment of learned appellate Court is based on presumptions and assumptions, thus, the findings arrived at by the learned appellate Court are the result of misreading and non-reading of the evidence, as it failed to consider the history-sheet Ex.DW-1/2 showing it forest in the year 1964, which is documentary evidence. In respect of existence of forest at the spot, which entirely disproves the claim of respondents/plaintiffs. He also argued that if DW-1 has made some admissions, those are not binding upon the petitioners and thus have no legal sanctity and has no adverse effect in the eye of law on the petitioner's case, as the same might be the result of ignorance of facts and law or other ulterior motive. He lastly argued that judgment of learned appellate Court may kindly be set aside and that of learned trial Court be restored.

6. On the other hand, Messrs Haq Nawaz Khan and Shah Bros Khan Bunery, Advocates while supporting the impugned judgment and decree passed by the learned appellate Court argued that the appellate Court after proper reappraisal of the material evidence available on record rightly upset the judgment/decree of learned trial Court. They further submitted that the present petitioners have made wrong entries in their favour in the first ever settlement pertaining to khasra No. 408 in respect of an area measuring 20 kanals entered as Dhakka Darakhtaan, despite the fact that the same suit land was and is the ownership and in possession of the respondents/plaintiffs since 1941 even before the merger of the Princely State of Swat into Federation of Pakistan and at the time of settlement ownership of the property was wrongly entered in the name of provincial government and its possession in the name of Forest Department. He vehemently argued that the entries in revenue record were continued wrong and has been correctly decreed by the learned appellate Court. They further contended that the plaintiffs produced cogent and believable evidence in shape of sale deed No. 639 dated 11.03.1941 pertaining to khasra No. 408 Mauza Bashonri. Copy of the same was produced during trial, placed on record as Ex. PW 3/1, which is an old record duly scribed on stamp paper issued by the then 'Yousafzai State' of Swat written in Pashto language, as in those days all the deeds were written in native language of The State of Swat. They further argued that the plaintiffs in support of their case produced Patwar Halqa as PW-1 in respect of wrong revenue entries, Shamsher, Muharir, Sub-Tehsildar Garaizi as PW-2 about proof of No. 639 dated 11.3.1941, who stated that the record of same has been destroyed. Sultan appeared for himself as well as attorney for rest of the plaintiffs as PW-3 and narrated the same story as alleged in the plaint and stated that their paternal uncle Firdoos son of Mohsin had purchased the suit property from one Abdul Ghani son of Rahmat resident of Bashonri vide No. 639 dated 11.3.1941, Ex. PW-3/1 and their paternal uncle was issueless, therefore, their father being his real brother inherited the same property and became owner of suit property, but during settlement after accession of the Princely State of Swat into the Federation of Pakistan, in spite presenting the same deed/ to the revenue settlement staff, the suit land could not been entered in their names in the column of ownership as well as in the column of possession as the respondents were illiterate and were not aware from the laws/procedures of settlement, therefore, could do nothing and with the connivance/collusiveness of settlement staff it had been wrongly entered in the name of provincial government as owner and showing wrong possession of forest department, so same entries were against actual fact and the law, thus this illegality has been rightly rectified and corrected by the learned appellate Court through its judgment and decree. Similarly Raidullah son of Nawas appeared as PW-4, who is 60/62 years old, who supported the averments made by the plaintiffs in their plaint, who categorically stated that an area measuring 20 kanals pertaining to khasra No. 408 is ownership and in the possession of the plaintiffs, however, the defendants/present petitioners failed to produce any cogent and reliable evidence, rather produced only one witness namely Khan Zada, Forest/Incharge Pacha Forest Block as DW-1, who during cross-examination made admissions. Learned counsel further submitted that only one witness appeared on behalf of the defendants, who made admissions to the effect that the suit property is surrounded by retaining wall constructed by the plaintiffs/respondents and further admitted that the possession of suit land lies with the plaintiffs and he did not inform his high ups in respect of possession of the suit land with the plaintiffs. This DW1 further admitted during cross-examination that he has not obtained information from the Patwari Halqa as to whether the suit property is part and parcel of Compartment No. 3 or the same is ownership of plaintiffs. Lastly argued that the referred history-sheet, Ex.DW-1/2 is not about the suit land so could not help the petitioner, as it pertains to year 1964 before accession of State, so was rightly disbelieved.

7. Arguments of learned counsel for the parties heard and record perused with their able assistance.

8. From the perusal of the record, it is an admitted position that revenue settlement of agriculture land etc in the area before accession of Princely State of Swat had not taken place and after accession/merger of 'Yousafzai State of Swat' into Federation of Pakistan, settlement proceedings were initiated in the area in the year 1977, which were completed in the year 1978. It is also an admitted position that previous to accession, the transactions amongst the subjects of State of Swat were scribed on the stamp papers issued by the then 'Waali-e-Swat'' locally known as 'Badshah Sahib', usually all the deeds/ were written in native Pashto language. In the context of present case, the plaintiffs produced one No.639 scribed on 11.3.1941 in Pashto language. In this respect, Shamsher, Muharir, Tehsildar Garaizi appeared as PW-2, who though did not deny the existence of said deed/ No.639 dated 11.3.1941, but stated that the record kept by the government of 'Badshah Sahib' has been destroyed, so, he could not say, as to whether the deed/ is fake or genuine. This witness was not cross-examined by the petitioners/government, so, the probative worth of his testimony in respect of the deed in question could not be shattered. In support of this deed, the plaintiffs also produced PW-3, who appeared for himself as well as on behalf of other plaintiffs and PW-4 Raidullah, all these witnesses supported the stance of plaintiffs in respect of the sale deed.

9. As discussed earlier, settlement proceedings in the area were started in the year 1977, which were completed in the year 1978 and before that all the deeds about immovable property were scribed/transcripted through local mannerism by giving their boundaries. From perusal of deed/ No.639 it transpires that in North of it situates 'Jao Dehrai' in South 'Tangai', in East 'passage' and in West it is surrounded by 'Tangai'. Photocopy of the original deed is placed on record as Ex. PW-3/1, the suit land was sold by Abdul Ghani son of Rahmat to Firdoos, the predecessor of present respondents.

10. From the perusal of the record in shape of history sheet, it describes the boundaries of some other land/compartment block as below:-

"North East and South East land of Gadizai Tehsil Nullah, in South lands of Bishource, North West Compartment No. 4".

Furthermore, DW-1 admitted the possession of plaintiffs over the suit land and he also deposed that he has not obtained any information from PW-1 i.e. Halqa Patwari as to whether the suit land is part and parcel of compartment No. 3 or the same falls outside the said compartment. He further admitted that the suit property is surrounded by retaining wall, which had been constructed by the plaintiffs, so, from the preponderance of the evidence it is proved on record that the suit property measuring 20 kanals is inherited property of the plaintiffs/respondents, which was purchased by their predecessor Firdoos from Abdul Ghani and is not property whose descriptions have been given in the Ex.DW-1/2 pertaining to Compartment No. 3.

11. The arguments of learned A.A.-G. that the suit property is part and parcel of compartment No.3 and in this respect DW1 produced pictorial sketch of the compartment No. 3 as Ex. DW-1/1 and history-sheet of the compartment concerned as Ex. DW-1/2, but during cross-examination, this witness made admission to the effect that around the suit land there exists 'retaining wall' constructed by the plaintiffs. Moreover, descriptions of compartment No. 3 (Ex. DW-1/2) and suit land are different as discussed above. He has also admitted that he has no record of cutting of trees from the suit property with the permission of government and in spite of commitment he did not produce the said record. He further admitted that since construction of the retaining wall over the suit property by the plaintiffs, they (plaintiffs) are in possession of suit property on the spot. He also stated that he has not informed his high ups about the fact regarding possession of the plaintiffs over the suit land and prior to his taking of charge if some Forest-guard had reported this matter to high ups, then, record of the same would be lying in the office.

12. The document in shape of deed No. 639 has not been challenged by the present petitioners, besides, it is 70 years old documents. So, strong presumption of truth is attached to it, as at the time of accession of Princely State of Swat into Federation of Pakistan in the year 1969 all the transactions amongst the subjects, local customs and Rules/Regulations of the then era of 'Badshah Sahib' were saved under section 7, West Pakistan Regulation 1 of 1969 (Dir, Chitral and Swat) Administration Regulation 1969 by the then Federal Government of Pakistan and the Evidence Act, 1872 was extended vide Schedule under section 2, N.-W.F.P. (Now K.P.K.) (Application of Laws) Regulation 1970 and Qanun-e-Shahadat was promulgated in the year 1984. So, provisions of Article 79 of the Qanun-e-Shahadat Order 1984 are not applicable to the instant case, so, the arguments that respondents/plaintiffs had not produced attesting witnesses of old document is not valid in view of above scenario particularly when witnesses had died since long much before extention of Qanun-e-Shahadat to PATA (The Ex Princely State of Swat), so the Qanun-e-Shahadat has no retrospective effect.

13. The learned trial Court while giving findings on various issues fallen into an error of law and dismissed the suit of plaintiffs on flimsy grounds, while the learned appellate Court after proper reappraisal of evidence on record and appreciation of law had correctly appreciated the material available on record and law on the subject by setting aside the judgment/decree of learned trial Court as discussed above and this Court too after going through the entire record as well as hearing valuable arguments advanced by both the learned counsel for the parties reaches to the conclusion that the judgment and decree passed by the learned appellate court is correct and rendered in accordance with law. Even otherwise, it is settled by now that the judgment of appellate Court will be preferred over the findings of learned trial Court especially when are not supported by evidence or is the result of wrong appreciation of law. In this regard reliance is placed on the judgment of Hon'ble Supreme Court of Pakistan in case titled "Muhammad Hafeez and another v. District Judge, Karachi East and another" (2008 SCMR 398). Relevant portion of the judgment is reproduced as under:-

"It is well settled that in the event of conflict of judgments finding of Appellate Court are to be preferred and respected unless it is shown from the record that such findings are not supported by evidence; that the conclusions drawn are against the material on record; that the judgment of the Appellate Court suffers from misreading or non-reading of evidence or that the reasons recorded for reversal of judgment are arbitrary, fanciful and perverse."

14. In view of what has been discussed above, this revision petition being bereft of merits stands dismissed.

ZC/6-P Revision dismissed.