PLJ 2022 Peshawar 100
Specific Relief Act, 1877 (I of 1877)--
----Ss. 42 & 54--Suit for declaration--Concurrent findings--Appeal was dismissed after post remand proceedings--Ancestral property--Denial of right of ownership of petitioner--Petitioners were not raised any objection entry of property in joint holding--Presumption of correctness--Limitation--Question of--Whether property is dispute had been ancestral property of Tal Umer Khel as claimed by plaintiff in this plaint--Challenge to--Petitioners have very much been onboard at time of settlement but they had not raised any objection in respect of entry of property dispute in joint holding of Tal Painda Khel or exclusive ownership and possession of Respondent No. 1--Petitioners could not show record of any application filed before settlement authorities or any further proceedings taken in this respect--Presumption of correctness is attached to entries in revenue record but a strong presumption
of correctness is attached to entries made in course of first settlement--Suit of petitioners was not only baseless but was time barred as well--Civil Court had also held that suit of petitioners was barred by law of limitation, which findings had been maintained by appellate Court in impugned judgment, for right reasons--It is settled proposition of law that plaintiff’s suit has to stand on his own legs and his case cannot succeed merely by exploiting weaknesses of opposite party i.e. Defendant No. 1 in this case--When petitioners could not prove that property in dispute had been part of property assigned to Tal Umar Khel or that they had ever remained in possession of specific part of property in dispute, then weaknesses in plea of Respondent No. 1 would not be sufficient to give a decree to petitioners for setting aside entries made in revenue record in course of first settlement--Petitioners/plaintiffs had failed to rebut presumption of correctness attached to entries made in revenue record, as per discussion--Two Courts below had concurrently dismissed suit of plaintiffs--Such decisions could not be shown to be result of misreading and non-reading of evidence or causing miscarriage of justice--This Court, for reasons recorded hereinabove has also reached to same conclusion to which two Courts below had arrived--Counsel for petitioners was heard at great length, but he could not make out a case for interference of this Court--Revision petition dismissed.
[Pp. 111, 112 & 113] A, B, C, D, E, F & G
1997 SCMR 1840, PLJ 2018 SC 779 and 2010 SCMR 1630 ref.
Mr. Sher Muhammad Khan, Advocate for Petitioners.
Qazi Midrarullah, Advocate for Respondents.
Date of hearing: 3.2.2022.
PLJ 2022 Peshawar 100
[Mingora Bench (Dar-ul-Qaza, Sawat)]
Present: Wiqar Ahmad, J.
AMIR RAWAN and others--Petitioners
versus
MANZARAY and others--Respondents
C.R. No. 1297-P of 2005 with C.M. No. 2193 of 2021,
decided on 3.2.2022.
Judgment
Plaintiffs (petitioners herein) had filed a suit for declaration to the effect that they (27 in number) had been co-owners of the land measuring 2 Kanal 7 Marlas comprised in Khasra No. 1410 Khata No. 10 Khatoni No. 19 as well as land measuring 5 Kanal 14 Marlas comprised in Khasra No. 1440 Khata No. 72 Khatoni No. 107 recorded as such in jamabandi of the year 1994/1995 of Moza Chanda Khwara Kabal Swat, (except 1350 sq ft of land, which had been sold by Defendants No. 4 & 5 in favour of Defendant No. 1, in Khasra No. 1440 vide sale-deed No. 208 attested in the office of Sub-Registrar Kabal on 13.02.1982) and that defendants had got no right to deny such right of ownership of plaintiffs in property in dispute. Registered sale-deed No. 164 registered in office of Sub-Registrar Kabal on 21.04.1985, whereby Defendant No. 1 had sold certain property in favour of Defendant No. 6 was also sought to be declared as illegal, unlawful and ineffective upon rights of the plaintiffs. Plaintiffs have also prayed for necessary rectification in revenue record according to their prayer of declaration sought in the plaint. They had also prayed for perpetual injunction for restraining the defendants from denying their rights as claimed in the plaint. In prayer “ج”, plaintiffs had prayed for a decree for possession if they were found out of possession at final conclusion of the suit. In body of the plaint, they had contended that plaintiffs along with their co-tribesmen (Umar Khel Tribe) had been owners of a total property of 6-1/2 rupees daftar (local scale) in the entire property of village Chanda Khwara and that out of said property, plaintiffs of the suit had been entitled to 1/3rd share. They have also contended that certain other people had denied ownership of the tribe in year 1980, which denial had resulted in litigation, which terminated into decision of the Additional Home Secretary dated 20.11.1986 m favour of co-tribesmen of the plaintiffs, under the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (hereinafter referred to as “Regulation”). Defendants No. 4 & 5 were also stated to have been co-tribesmen of plaintiffs and co-sharers in the property including property in dispute to the extent of their respective shares, where-from they had sold an area measuring 1350 sq ft in favour of Defendant No. 1 vide sale-deed No. 208 dated 13.02.1982 registered in office of Sub-Registrar Kabal. It was also alleged that revenue officials at the time of first settlement had colluded with Defendant No. 1 and entered an area of 8 Kanal 1 Marla, which was beyond his entitlement and therefore illegal, ultravires and ineffective upon rights of the plaintiffs. Other litigations that had earlier taken place between the parties, have also been mentioned in the plaint.
2. Defendants were summoned, who filed their written statement whereby they contested claim of the plaintiffs on various factual and legal grounds. The learned civil Court framed issues in the case and put it to evidence of the parties. After conclusion of proceedings in the case, learned civil Court vide its judgment dated 03.07.2001 dismissed suit of the plaintiffs (petitioners). They filed appeal there-against, which was also dismissed vide judgment dated 25.06.2002 of the Court of learned Additional District Judge-II, Swat. Thereafter, they filed a Civil Revision No. 637 of 2002 before this Court, which was partially allowed vide order dated 07.03.2005 and the matter was remanded to the learned appellate Court with certain directions. After remand, additional evidence was also recorded in the case, whereafter arguments were heard and the appeal was dismissed again vide impugned judgment dated 11.07.2005 of learned District Judge, Swat. Feeling aggrieved there-from, petitioners have filed the instant civil revision with the following prayer;
“It is, therefore, prayed that on acceptance of this revision petition, the judgments and decrees of both the Courts below may kindly be set aside and suit filed by the plaintiffs/petitioners be decreed with costs.”
3. Learned counsel for petitioners submitted during course of his arguments that Kanungo while appearing in Court as CW-1 in the Proceedings after remand had clarified that entry of ownership in favour of Defendant No. 1, in Khasra No. 1440 had been made on the basis of deed No. 208 dated 13.02.1982, which deed had been showing alienation in favour of Defendant No. 1 to the extent of 1350 sq ft only and therefore entry in his favour to the extent of 5 Kanal 14 Marlas on the basis thereof, could not be explained. He added that so far as entries of Defendant No. 1 as ancestral owner in Khasra No. 1410 measuring 2 Kanal 7 Marlas was concerned, said property had been part of Tal Umar Khel and being ownership of the tribe of petitioners, has also been wrongly entered in name of Defendant No. 1. In order to bolster his submission that the property in dispute had been belonging to tribe of plaintiffs/ petitioners i.e. Tal Umar Khel, learned counsel placed reliance on record of earlier litigations, which had terminated in favour of said tribe and produced in evidence as Ex PW 3/10. Additionally, he also placed reliance on statement of PW-2, who was stated to be first cousin of Defendant No. 1 and to have conceded to the rights of plaintiffs. Learned counsel also added that Defendant No. 1 had raised a specific plea that his purchased property had been included in Khasra No. 1410 while Khasra No. 1440 had been his inherited property but as per statement of District Kanungo namely Haji Bakht Rashid (CW-1), Khasra No. 1440 had been shown entered in his name on the basis of Deed No. 208 dated 13.02.1982 while Khasra No. 1410 had been shown his ancestral property. He further added that defendants had failed to substantiate their plea raised in the written statement and that said plea was conflicting with the evidence produced by CW-1 relating to the basis on which entries had been made in his favour in the course of first settlement and that this fact by itself was sufficient to declare such entries illegal, ultra-vires and ineffective upon rights of the plaintiffs/petitioners. Learned counsel for petitioners also placed reliance on judgments of the Hon’ble Supreme Court of Pakistan given in the case of Ali Ahmad and another vs. Muhammad Fazal and another reported as 1972 SCMR 322, case of Ghulam Farid and another vs. Sher Rehman through legal heirs reported as 2016 SCMR 862, case of Mst. Brikhna vs. Faiz Ullah Khan and others reported as 2020 SCMR 1618 and case of Shafqat Ali Shah vs. Nasreen Akhtar and 3 others reorted as PLD 2020 Supreme Courrt 148 as well as judgment of Hon’ble Lahore High Court given in the case of Mst. Ghulam Sughran and others vs. Sahibzada Ijaz Hussain and others reported as PLD 1986 Lahore 194.
4. Learned counsel for respondents on the other hand submitted that the entire chunk of land where property in dispute had been situated, had fallen to the share of Tal Painda Khel i.e. the tribe to which Defendant No. 1 has admittedly been belonging. He stated that being co-owner in the entire Tal Painda Khel and being in possession of the specific property i.e. the property in dispute, Defendant No. 1 was not required to show any evidence of his entitlement. He added that a small portion in said property had no doubt been purchased by him from Defendants No. 4 & 5 (co tribesmen of plaintiffs) but those co-tribesmen of plaintiffs had also been purchased owners and the additional area entered in the revenue record in favour of Defendant No. 1 was his ancestral property. He also added that no one from the caste of Painda Khel had ever disputed entry in favour of Defendant No. 1 and that so far as caste Umar Khel is concerned, their 6-1/2 rupees daftar has already been entered and registered in their names during the course of first settlement and that earlier decrees passed by PATA Courts under the Regulation had also been related to said property and not to the property in dispute. In support of his assertions, learned counsel also referred to parts of statement of CW-1.
5. I have heard arguments of learned counsel for the parties and perused the record.
6. Perusal of record reveals that the property of Moza Chanda Khwara Kabal had been divided in three Tals (neighborhoods) i.e. Tal Painda Khel, Tal Umar Khel and Tal Musa Khel. Statement of District Kanungo recorded as CW-1 before learned appellate Court after remand of the case is quite clear in this respect. Petitioners/ plaintiffs have been belonging to Tal Umar Khel while Respondent No. 1/Defendant No. 1 belonged to Tal Painda Khel. Defendants No. 4 & 5 in the suit before civil Court had also been belonging to Tal Umar Khel, who had admittedly sold property measuring 1350 sq ft vide sale-deed No. 208 dated 13.02.1982. Dispute in case in the hand as raised by petitioners/plaintiffs before civil Court was that Property comprised in Khasra No. 1440 to the extent of 5 Kanal 14 Marlas and in Khasra No. 1410 to the extent of 2 Kanal 7 Marlas, had been ancestral ownership of the plaintiffs being members of Tal Umar Khel, to the exclusion of the property expressly sold by two members of Tal Umar Khel i.e. Defendants No. 4 & 5 to Defendant No. 1 vide registered sale-deed No. 208 dated 13.02.1982 measuring 1350 sq ft, (which comes to be 4.96 Marlas). Claim of the petitioners/plaintiffs have not been found well placed by the two Courts below, which have dismissed the suit concurrently, then while hearing revision petition bearing No. 637/2002, this Court had remanded the matter to the learned appellate Court by observing as follows:
“Whether Respondent No. 1 owned some property as an owner in Tal Painda Khel besides the one purchased by him from Respondents No. 4 & 5 and what is the effect of the litigation taking place in different forums of the hierarchy under PATA are the questions which though have bearing on the fate of this case, have not been attended to by the learned appellate Court in spite of the fact that it being first Court of appeal and final Court of fact was required to have attended to them. Since, no just decision could be made without attending to the questions mentioned above, I do not feel inclined to maintain the impugned judgment.
For the reasons discussed above, this petition is allowed, the impugned judgment is set aside and the case is sent back to the learned Zilla Qazi Swat for decision afresh after attending to the questions adverted to above. He would, however, be at liberty to examine additional evidence, if feels it necessary for the just decision of the case.”
The learned appellate Court after remand of the case had got additional evidence recorded as desired by the parties. Most important statement recorded after remand of the case was statement of Haji Bakht Rashid Khan District Kanungo as CW-1. In his statement, he has produced record of first settlement and has also clarified same to a larger extent.
7. One of the important question for determination that emerge here is, whether the property in dispute had been ancestral property of Tal Umar Khel as claimed by plaintiffs in their plaint ? Resolving this question would answer most of controversies in the case in hand. Petitioners/plaintiffs have been relying upon six (06) number of witnesses, who have been examined in the Court before remand as well as the sole witness examined by them after remand. They have also relied upon documentary evidence produced in the case in this respect. Main reliance of petitioners/ plaintiffs was on the results of earlier litigations that had taken place in PATA Courts. Some of the owners of Tal Umar Khel had brought a suit before Extra Assistant Commissioner Swat, who had been exercising powers of civil Court under the Regulation. Said matter had been referred to Jirga vide order dated 20.10.1982. The Jirga had returned its verdict, findings of which are reproduced hereunder for ready reference;
"ہم جرگہ سفارش کرتے ہیں کہ موقع پر مد عاعلیہم میں سے مشران مسمیان دلارم خان ، گلبر جو کہ مشران اور حاجی صاحبان ہیں انکو حلف اٹھانے کے متعلق کہا تھا مگر وہ انکاری ہوئے اور مد عاعلیہ نمبر 1 بخت روان نے اپنے بیان میں اراضی متد عو یہ مشترکہ تسلیم کی ہے ۔ اسلئے ڈگری متد عیہ اس طرح صادر فرمایا جاوے ۔
اراضی متدعویہ کے جانب شمال مشرق جو کہ بنجر اراضی ہے میں سے مدعیان 2 پیسہ 2 روپے ( دوروپے دو پیسہ کل دفتر 2 / 1-6 روپے ) کے حقداران میں یعنی ڈگری کل دفتر 2 / 1-6روپے سے بقدر 3/1 حصہ بحق مدعیان صادر فرمایا جاوے اور مدعیان جو اراضی بنجر ہے اور کسی کی قبضہ میں نہیں ہے جو کہ نقشہ مشمولہ میں پلاٹ A سے ظاہر ہے اس اراضی سے بروۓ تقسیم حصہ خود مدعیان لینگے اسی طرح مد عاعلیہم کا قبضہ بھی متاثر نہیں ہو گا اور مدعیان بھی حق رسید ہونگے ۔ لہذا ڈگری بحق مدعیان صادر فرمایا جاوے ۔ "
Decision of the Jirga was upheld and same was maintained throughout the hierarchy, which was then culminating into last appellate forum of Additional Secretary Home under the Regulation. Net effect of said declaration was that members of Tal Umar Khel were declared to be owners to the extent of 6-1/2 rupees daftar in the entire property (daftar of village Chanda Khwara). This is not denied that beside 6-1/2 rupees dafter of members of caste Umar Khel, members of caste Painda Khel and caste Musa Khel had also been owners in the property of village Chanda Khwara. Members of caste Painda Khel have been shown owners to the extent of 5 rupees daftar while that of caste Musa Khel have been shown owners to the extent of 3/4 rupee daftar and members of caste Umar Khel have also been shown owners to the extent of 3/4 ruppes daftar. This fact has not been denied by witnesses of the plaintiffs also. PW-3 who was Plaintiff No. 1 in the case has also stated in his cross-examination in this respect;
"عمر خیل 6-1/2 روپے جائیداد ہے۔ دو ٹل موسیٰ خیل کے مشترکہ طورپر 11 روپے ہیں اور پیندہ خیل کے 4-1/2 روپے دوتر ہے۔"
8. As stated earlier the question that emerges at this moment is, whether the exact property in dispute had been falling in share of Tal Umar Khel and had been same property in respect of which declaration of PATA Courts had been existing in favour of petitioners/plaintiffs or it was ancestral property of Members of Tal Painda Khel?. In this respect, petitioners/plaintiffs have not been able to get any help or support from decisions of earlier litigations produced in evidence as Ex PW 3/7 to Ex PW 3/10.
9. Main focus of learned counsel for petitioners was that this fact had been admitted by defendants/respondents in their written statement that the property in dispute had been part of ancestral ownership of Tal Umar Khel. Besides, he was also placing reliance on statement of PW-2, who was statedly first cousin of Defendant No. 1/ Respondent No. 1. So far as assertion of learned counsel for petitioners relating to admissions made in written statement is concerned, his focus has mainly been on assertions made in para-3 of the plaint but while claiming said admissions, he had not been giving his due attention towards the contentions made in reply to para-4 of the plaint as follows;
"فقرہ نمبر 4 غلط اور بے بنیاد ہے اور انکار ہے ۔ حقیقت یہ ہے کہ مدعاعلیہ نمبر 1 نے جو جائیداد بروۓ بیعنامہ دستاویز208/13.02.1982خریدی ہے اسکا زیادہ حصہ خسرہ 1410 میں واقع ہے جبکہ اسکا بقایا حصہ خسرہ 1410 کے جانب شمال راستہ میں شامل کیا گیا ہے ۔ کیونکہ دونوں خسرات کے مابین راستہ بوقت بیعنامہ208/13.02.1982 اتنا چوڑا نہیں تھا جو کہ اب ہے ۔ اسکے علاوہ خسرہ 1440 مد عاعلیہم کی دفتری موروثی جائیداد ہے ۔ بدیں وجہ اندراجات بحق مد عاعلیہم درست طور پر کیے گئے ہیں ۔ نیز مدعیان نے بوقت اندراجات مدعاعلیہم کے حق میں اندراجات کئے جانے پر کوئی اعتراض نہیں کیا ہے ۔ اور مقدمہ ہذا سے قبل مقدمہ بازی کے دوران بھی مذکورہ اندراجات پر کوئی اعتراض نہیں کیا ہے ۔ "
In para-4 of written statement, Respondent No. 1 had claimed that some part of the property in dispute had been entered in his name as his purchased property while other part was his inherited and ancestral property. This is a basic principle for consideration of admission that in order to decree a suit on the basis of admission, it has to be clear, unambiguous, unqualified and unequivocal as held by Hon’ble Supreme Court of Pakistan while giving its judgment in the case of Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others vs. Messrs Educational Excellence Ltd. and another reported as 2020 SCMR 171. Admission has to be taken as a whole. Admission, if any, cannot be divided in piecemeal so as to consider some part of which favour a party and to ignore the other part. Hon’ble Supreme Court of Pakistan while giving its judgment in the case of Messrs Kuwait National Real Estate Company supra, has also held in this respect:
“In any view of the matter even if the aforenoted contents of the written statement are stretched so as to construe them as an admission, the same still would not meet the requirement, for those to result into an order decreeing the suit, as it is now well settled that in order to invoke the provisions of Order XII, Rule 6, C.P.C. it is absolutely necessary that the admission relied upon be clear, unambiguous, unqualified and unequivocal, and further that the purported admission has to be read as a whole, one cannot be allowed to rely on a part ignoring the rest.”
Emphasis supplied
10. Here also, stance of Defendant No. 1 in written statement is to be taken as a whole and when so taken, he had duly claimed himself to be ancestral owner in the property in dispute being a member of Tal Painda Khel. Record of first settlement is available before the Court as being exhibited in statement of CW-1. In this respect, preliminary work of entry (پرچہ کھتونی) was brought in evidence as Ex CW-1/1 in Khasra No. 1440. In column of remarks/کیفیت, this has no doubt been mentioned that property in dispute had been purchased by Defendant No. 1 vide Sale-Deed No. 208 dated 13.02.1982 but it is important to be noted that on top of this paper, it has been shown that this Khasra number has been situated in the area falling to share of Tal Painda Khel. Similar is the case with Khasra No. 1410. Parcha khatoni of Khasra No. 1410 has been exhibited in evidence as Ex CW 1/6, overleap which Khasra No. 1410 measuring 2 Kanal 7 Marlas has been shown. On first page, it has duly been indicated that all those Khasra numbers had been falling to the share of Tal Painda Khel along with other properties mentioned in the preliminary record of settlement. These entries had been notified finally in record of rights of first settlement in years 1985/1986 but caste of Umar Khel, has never challenged such entries recorded in favour of caste Painda Khel, in representative capacity. It is the petitioners/plaintiffs who have chosen to contest rights of Defendant No. 1 but even they have not laid any claim on rest of the properties in surroundings of the property in dispute, which have also been entered in the name of caste Painda Khel. The persons who had been Defendants No. 4 & 5 and from whom Defendant No. 1 had obtained some part of property in dispute through purchase, had also not chosen to challenge entries made in the first settlement in favour of caste Painda Khel in respect of property in dispute as well as surrounding properties. This fact is relevant because claim of plaintiffs/petitioner in the suit was not based on personal and exclusive rights of ownership and possession in respect of the property in dispute but they had rather been claiming same to be the co-ownership/joint ownership of the entire caste of Umar Khel. Vis-a-vis petitioners/plaintiffs, claim of Defendant No. 1/ Respondent No. 1 was regarding exclusive ownership and possession of the property in dispute, some part of which had been inherited by him as member of Tal Painda Khel and other part purchased by him. Umar Khel tribe as a whole has never raised any objection to entry of the property in dispute in the course of first settlement in favour of Painda Khel tribe. Even petitioners/plaintiffs had brought the suit on 16.04.1996 i.e. 10 years of the notification of first settlement. There also, their challenge had only been limited to the property shown owned and possessed by Defendant No. 1. In such circumstances, entries in revenue record showing the property in dispute to be ancestral property of members of caste Painda Khel and then petitioners/plaintiffs have rightly been given due weightage by the two Courts below.
11. Another argument of learned counsel for petitioner was that Defendant No. 1/Respondent No. 1 had been shown Malik-e-Qabza in Khasra No. 1440 and it indicates that he had been purchased owner, which purchase was limited to 1350 sq ft and therefore all the property beyond said share had wrongly been entered and attested in his name. As stated earlier, this property comprised in Khasra No. 1440 had been indicated to be falling in the share of caste Painda Khel and no objection to same had been raised by any member of same caste. If petitioners/plaintiffs had been possessing any share more than his entitlement, then same property being shown in share of
Tal Painda Khel was for other members of Painda Khel tribe to be objected upon and not for any member of caste Umar Khel, who could not show that such property had been ownership and in possession of members of caste Umar Khel. The reason why Defendant No. 1/Respondent No. 1 had been shown as Malik-e-Qabza had also been explained by CW-1 in closing lines of his cross-examination in the following words;
خسرہ نمبر 1440 بندوبستی ریکارڈ کے مطابق قبضہ منز رے کا ہے اور زیر کار چار سالہ کے مطابق خیر الرحمان خود کاشت درج ہے ۔ ابتدائی بند وبست میں خسرہ نمبر 1440 محمد پرویش و غیره پسران درویش کا ملکیت با قبضہ درج تھا ۔ ضلع سوات میں بندوبست سال 1980-1981 میں شروع ہوئی تھی اور 31.12.1986 کو مکمل ہوئی تھی ۔ چونکہ محمد پرویش وغیرہ اس موضع کے اصل مالکان نہیں تھے بلکہ خسرہ نمبر 1440 کے مالکان قبضہ تھے اور بروۓ رجسڑی بیعنامہ 208 ان کی ملکیت اس اراضی کی نسبت ختم ہوئی تھی اور وہ اس موضع میں دیگر جائیداد کے مالکان نہیں تھے بدیں وجہ محمد پرویش وغیرہ شجرہ نسب میں مالکان درج نہ ہیں ۔ "
Emphasis supplied
12. This riddle has been solved in abovementioned part of the statement, where it is shown that Defendants No. 4 & 5 from whom Defendant No. 1 had purchased the property had not been original owners of the property in dispute, therefore their entry had actually been recorded as Malik-e-Qabza, which entry had also continued in respect of Defendant No. 1/Respondent No. 1. The fact that he had been shown Malik-e-Qaba cannot therefore be construed that he had not been ancestral owner of the property in dispute. This fact also shows that Defendants No. 4 & 5 i.e. Parwesh and Gul Faroosh, who had been belonging to caste Umar Khel had not been original owners of the property in dispute, which also collaterally establish the fact that property in dispute had not been ancestral ownership of caste Umar Khel and that revenue officials at the time of settlement had rightly entered and treated it as part of share of Tal Painda Khel.
13. So far as reliance of petitioners/ plaintiffs on statement of PW-2 is concerned, his and other oral testimony produced by plaintiffs/ petitioners cannot be given more weight than entries of revenue record effected in the course of first settlement but even then if his statement is considered as a whole, same is not conclusive and categorical in itself. It has no doubt been stated in examination-in-chief that the witness as well as Defendants No. 1 to 4 had not been owners or co-owners of the property in dispute and that property in dispute had been part of the property of Tal Umar Khel to the extent of 6-1/2 rupees daftar but during the course of his cross-examination, he had at one time stated that petitioners/plaintiffs had been belonging to Tal Musa Khel. Further ahead, he had also stated that members of Tal Musa Khel had effected partition inter-se while some of the property had been comprising of pasture etc, which has still been running joint and that property in dispute had been part of same joint holding of Tal Musa Khel. Petitioners/plaintiffs had admittedly been belonging to Tal Umar Khel as stated by Petitioner No. 1 namely Amir Rawan in his statement before remand as well as after remand. Amir Rawan while testifying as APW-1 has also stated in his cross-examination that he had been present at the time of proceedings of settlement, (which have commenced in the year 1981 and had concluded in the year 1986). He has also stated that during settlement, the officials used to give them parcha khatoni of their respective properties, however he had not been handed over parcha khatoni in respect of property in dispute. Further ahead in his cross-examination, he has stated that settlement officials had given them parcha khatoni in respect of those properties which they had themselves pointed out to them and that they used to be present with settlement officials at the time of settlement. He also stated that settlement officials had given parcha khatonis of respective properties of Tal Umar Khel, Tal Painda Khel and Tal Musa Khel to respective owners of said caste and that the properties had been entered in their names. It was further added that members of Tal Umar Khel have been owners to the extent of 6-1/2 rupees daftar while members of Tal Painda Khel have been owners to the extent of 4-1/2 rupees daftar and members of Tal Musa Khel have been owners to the extent of 11 rupees daftar in property of the village. It has also been stated that Munja Khan (father of Respondent No. 1) was ancestral owner in property of the village and that he had been belonging to caste Painda Khel. This shows that petitioners have very much been onboard at the time of settlement but they had not raised any objection in respect of entry of the property in dispute in joint holding of Tal Painda Khel or exclusive ownership and possession of Respondent No. 1/Defendant No. 1. They could not show record of any application filed before settlement authorities or any further proceedings taken in this respect.
16. One of objection of learned counsel for petitioners was relating to the plea raised in para-4 of the written statement, wherein Defendant No. 1 had claimed that his purchased property had been included in Khasra No. 1410 while property comprised in Khasra No. 1440 had been his ancestral property. According to learned counsel, CW-1 had stated and produced record showing the fact that property purchased by Defendant No. 1/Respondent No. 1 had been included in his ownership shown in Khasra No. 1440 and thus the plea of defendant was not being supported by existing revenue record. This conflict of contents of written statement has no doubt been existing with revenue record but it is settled proposition of law that plaintiff of a suit has to stand on his own legs and his case cannot succeed merely by exploiting weaknesses of opposite party i.e. Defendant No. 1 in this case. Reliance in this respect is placed on judgment of Hon’ble Supreme Court of Pakistan given in the case of Sultan Muhammad and another vs. Muhammad Qasim and others reported as 2010 SCMR 1630. When plaintiffs/petitioners could not prove that property in dispute had been part of property assigned to Tal Umar Khel or that they had ever remained in possession of specific part of property in dispute, then weaknesses in the plea of Defendant No. 1/Respondent No. 1 would not be sufficient to give a decree to plaintiffs/petitioners for setting aside entries made in revenue record in the course of first settlement.
19. The instant revision petition was therefore found divested of any force and same is accordingly dismissed.
(Y.A.) Petition dismissed
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