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Civil Petition for Leave to Appeal No. 260/1) of 1984, decided on 10th December, 1985.

(On appeal from the judgment and order of the Peshawar High Court, dated 13‑10‑1984 in Civil Revision 301 of 1979).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 115‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑Shamilat land‑‑Record of rights‑‑Leave granted to consider inter alia questions‑‑Whether mere entries in Wajibul Arz and revenue record could form basis of title when respondents could not show as to how they became owners of suit land and no title deed, mutation or any other conveyance was relied upon; that Settlement and revenue record could not be changed to detriment of petitioners without notice or their knowledge and consent and, therefore, entries in revenue record had no evidentiary value; that land in dispute was Shamilat and mostly Banjar Qadeem in hilly area and record before 1903‑1904 showed petitioners who were original owners of village, as exclusive owners; that village had many hamlets out of which. Ghalo‑China etc. were carved out and tribal people who visited this area, were not real owners of these hamlets; that words "Maqbooza Malkan" did not specifically refer to respondents and were f no significance because earlier same words were being used in record of‑rights to show ownership and possession of petitioners; that mere entries in revenue record did not create title or adverse possession and these entries must be supported by genuine title deeds; and whether High Court in its revisional jurisdiction could record additional evidence.

S.M. Zafar, Senior Advocate Supreme Court, Iftikhar Hussain, Advocate Supreme Court and Abdul Samad Khan, Advocate‑on‑Record for Petitioners.

Raza A. Khan, Senior Advocate Supreme Court and Qasim Imam, Advocate‑on‑Record for Respondent No. 1.

Leave is sought to appeal against the judgment and decree of the Peshawar High Court, dated 13‑10‑1984 whereby revision petition of the petitioner was dismissed.

2. The suit property consists of the Shamilat lands which was originally owned and belonged to the owners of village Naryab, District Kohat as shown in the Settlement Record of 1975‑76. Village Naryab consisted of its inhabitants and owners of the lands and the entire Shamilat and small hamlets like Shina Wari, Chapri Banda, Ghalo China, Mir Khan Kalay and Shamsuddin Kalay. According to the petitioners, the trible people from the hills used to come down in summer season to these villages and by and by, settled in the three villages known as Ghalo China, Mir Khan Kalay and Shamsuddin Kalay; that in 1903‑1904 a fresh settlement took place whereby these three villages were separated from village Naryab but strangely enough the Shamilat of Naryab was also.

3. In the year 1956‑57 a dispute arose over the price of Mazri auctioned by the Government. As each of the parties claimed exclusive right, hence, they were directed to file a civil suit. The respondents claiming themselves to be the owners of Shamilat of these three villages Ghalo China etc. filed a civil suit for declaration and injunction against the petitioners to the effect that the owners of the village Naryab had no right in the produce of the Shamilat and that they be restrained from asserting their right thereto. The suit was filed in a representative capacity for both the parties. The suit was contested and a number of issues were framed and evidence recorded but the suit abated on 31‑1‑1964 on the death of one Ghulam Hussain. An appeal was preferred which was heard by the Additional District Judge, Kohat who remanded the case on 18‑7‑1964 for decision on merits. The suit was then entrusted to the Additional District Judge, Peshawar on the original side, who dismissed the same, vide order, dated 10‑6‑1965.

4. Plaintiffs filed first appeal in the Peshawar High Court against the aforesaid order which was accepted, vide order, dated 22‑10‑1974 and the case was remanded for fresh decision with the direction that the revenue record prior to 1903‑04 be brought on record in respect of the entire Shamilat and its total area; and it was also to be clarified as to how separate Mahals for Ghalo China etc. were carved out. After remand, a decree was granted to the respondents by the learned Senior Civil Judge, Kohat, vide order, dated 24th July, 1977. Appeal against this order filed by the petitioners was dismissed by the learned District Judge, Kohat per order, dated 12‑7‑1979. Revision petition was filed in the High Court which was heard by a learned Single Judge who found that the remand order was not complied with by the learned trial Court, and, therefore, one Amal Badshah Deputy Secretary, Board of Revenue, Government of N.‑W.F.P. summoned to assist the Court and his evidence was recorded where after the revision petition was dismissed, vide the impugned order, dated 13‑10‑1984.

5. Learned counsel appearing for the petitioner Mr. S. M. Zafar contended whether the mere entries in the Wajubul Arz and revenue record can form the basis of title when the respondents could not show as to how they became owners of the suit land and no title deed, mutation or any other conveyance has been relied upon; that the settlement and revenue record could not be changed to the detriment of the petitioners without notice or their knowledge and consent, and, therefore, the entries in the revenue record had no evidentiary value;1 that the land in question is Shamilat and mostly Banjar Qadeem in the , hilly area and the record before 1903‑04 showed the petitioners, who are the original owners of the village, as exclusive owners; that the; village Naryab had many hamlets out of which Ghalo China etc. were carved out and the tribal people who visit this area, were not the real owners of these hamlets. It was further contended by the learned counsel that the words 'Maqbooza Malkan' have not specifically referred to the respondents and these words are, therefore, of no significance because in the record of rights prior to 1903‑1904 the same words were used to show the ownership and possession of the petitioners which, words had continued in the subsequent record without any change and as such it cannot be assumed that the Maqbooza Malkan referred to the original owners since the inception of the entries in the year 1876‑77 record; and lastly it was urged that it has been held by the superior Courts time and again that mere entries in the revenue record do not create title or adverse possession and these entries must be supported by genuine title deeds. The learned counsel also objected to the recording of additional evidence by the learned High Court Judge and submitted that the case should have been sent back to the trial Court for doing the needful as the revisional jurisdiction of the High Court does not provide such procedure and that this Court has also granted leave in some cases to consider whether the jurisdiction of the High Court to record additional evidence could be challenged.

We grant leave inter alia to consider the contentions raised by the learned counsel. Security rupees two thousand and five hundred with liberty to the parties to file additional documents, if desired. Auction amount regarding the sale of Mazari by the Government shall be invested in Khas Deposit.

M.I. Leave granted.

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