1. ' MRS, QAISAR IQBAL, J.---This 'Ind Appeal is directed against the judgment and decree, dated 24-2- 2007 and 28-2-2007 passed by IInd Additional District Judge Thatta in Ist Appeal No,33 of 2002, whereby the appeal filed by the appellants was dismissed and the judgment and decree passed by the Senior Civil Judge Thatha in F.C. Suit No,72 of 1995 was maintained.
2. ' Succinctly the facts leading to the case are that ' the plaintiffs/respondents Nos.1 to 5 filed suit for possession, mesne profit and permanent injunction against defendants Nos.1 to 7/respondents Nos. 6 to 12 defendants Nos. 8, 9, 11 and 12/appellant and defendant No,10. The suit against defendant No,10 was dismissed, restoration application filed by the respondents Nos. 1 to 5 was also dismissed. Subsequently the amendment sought by the respondents Nos. 1 to 5 seeking the mandatory injunction was allowed by the learned trial Court. It was the case of the respondents that respondent's Nos. 1 to 5 held one rupee share in Survey Nos. 294 and 196 and 50 paisa share in Survey Nos. 290, 295, 303 and 308 along with other land in Deh Karampur Taluka Mirpur Sakro and the record of right stood mutated in their favour. Respondents Nos. 1 to 5 had developed the land but the appellants had illegally encroached upon Survey Nos.290 and 294 by show of force and had illegally built their katcha hutments in the said survey numbers, due to the influence of appellants the respondents Nos. 6 to 11 had electrified the hutments of appellants by erecting 20 number of electric poles in Survey Nos.290, 194, 195, 196, 303 and 308, hence the respondents Nos.1 to 5 filed the suit.
3. ' Respondents Nos. 6 to 11 filed their written statement contended that the village was sanctioned namely Raboo Sheedie Goth in Survey Nos. 290 and 294 and respondents No,6 to 11 had illegally provided the electricity to the said village. The allegations against the respondents Nos. 6 to 11 were denied.
4. ' Appellants filed their separate written statement contended that there was ,:::age consisting of 50 houses in Survey Nos. 290 and 294 and the appellants were residing more than 60 years, The respondents Nbs. 1 to 5 had obtained the entries in Revenue Record in respect of suit survey numbers through misrepresentation, fraud from collusion with the lower Revenue staff. The electricity was provided to the village under the electrification scheme by Government. The appellants denied the allegations and states that the suit was filed with mala fide intention to stop the electrification of the village.
5. ' On the basis of the pleadings, the trial Court framed following issues:--
(1) Whether the suit is not maintainable?
(2) Whether plaintiff is owner of the suit-land?
(3) Whether defendants Nos. 8 to 12, encroached upon Survey Nos.290 and 294, by show of force and built their katcha hutments over the suit-land and settled their families?
(4) Whether the defendants Nos. 8 to 12 now want to get their hutments electrified through defendants Nos. 2 to 7, illegally and unlawfully and want to erect H.T./L.T. Polls in the suit-land and to provide the electric connection without permission and consent of plaintiff?
(5) Whether village of defendants is old one and entries in the name of plaintiffs are forged fraudulent and have been made in collusion of lower Revenue staff?
(6) Whether plaintiff is entitled for relief claimed?
(7) Whether the elected 22 Nos. Of polls by the defendants Nos. 3, 4 and 6 in Survey numbers 308, 295 and 290 of Deh Karampur Taluka Mipur Sakro during the pendency of suit are illegal without consent of plaintiff and are liable to be removed?
(8) What should the decree be?
6. ' Respondent Abdullah examined himself and two witnesses namely Muhammad Juman and Ghulam Muhammad and produced the documents while appellants examined appellant Dad.
7. Learned trial Court decided all the issues in favour of the respondents and partly decreed the suit for possession. The appellants preferred appeal which was dismissed by the learned appellate Court hence this second appeal.
8. ' Learned counsel for appellant has contended that the findings of the two courts below are not in conformity with law as the respondents Nos.1 to 5 have proceeded to file the suit for possession, mesne profit and permanent injunction against the appellant and respondents Nos. 6 to 12 without seeking a declaration in terms of section 42 of the Specific Relief Act as after the denial of the title by the appellant in the written statement filed the respondents Nos. 1 to 5 would have proceeded to seek amendments in the suit for removal of the cloud on the title of the subject property. It is next urged that the contesting private respondents have filed through Abdul Aziz Khawaja in the year, 1994, the entries in the mutation record Exhibits 133 and 134 cannot be relied upon in the absence of the proof. Once the entries in the Revenue Record were challenged onus has shifted upon the respondents Nos. 1 to 5 to prove that the entries were genuine. In support of the above contention reliance is placed in case of Muhammad Lehrasib Khan v. Mst. Ageela Naz and 5 others (2001 SCM R 338), dictum laid down is that under section 42 of West Pakistan Land Revenue Act (XVII of 1967) that mutation is not a document of title and such document by itself does not confer any title, right or interest, the burden of proof lies on the party who seeks to establish the genuineness of the transfer in his favour. It is further held that though record of rights are not instrument of title but unless rebutted presumption of truth is attached to them. It is next urged that respondents Nos. 1 to 5 are claiming title in the disputed survey numbers by way of inheritance, transfer as depicted from exhibit 133-134 has been manifestly denied by the appellant therefore the burden of proof lies upon the respondents to establish the genuineness of the transfer in their favour.
9. ' In case of Muhammad Akram and others v. Altaf Ahmed (PLD 2003 SC 688), the above dictum laid down in case of Muhammad Lehrasib Khan (supra) reflects that once a mutation is challenged the party that relies on that mutation is bound to revert to original transfer to prove such original transaction which resulted into the entry or attestation of such mutation as mutation is not title deed, merely the evidence of some original transaction between the parties that had been struck somewhere prior to the entry of mutation person relying on such mutation in the present case had failed to revert back to any transaction and bring on record any oral or documentary evidence therein. It is further held burden clearly rest on the said person to prove the transaction in existence therein throughout being alleged by him in the affirmative, and he was bound to fail in the event of non proof of transaction.
10. ' Mr. Nasir Mehmood Mughal learned counsel for respondents Nos. 1 to 5 has contended that the onus of proof has been discharged as the ancestral property through Abdul Aziz Khawaja stood mutated in the name of respondents Nos. 1 to 5 in mutation on record, such entries are protected under section 52 of the Land Revenue Act, 1967 per Sindh Amendment through Sindh Ordinance (XI of 1980) reads as follows:-- ' An entry in a record of right shall be presumed to be true until the contrary is proved or a new entry is mutually substituted therefor.
11. ' Learned counsel for respondents Nos. 1 to 5 has further contended that section 652 (ibid) raises a presumptive rebuttal of law as entries made in record of rights in accordance with law for the time being in force must be presumed to be correct until the contrary is proved. The onus heavily rested upon a party or the persons who asserts that revenue entries are incorrect. In support of the above contention reliance is placed on 2002 CLC Peshawar 5157 and 2004 YLR Karachi 2546.
12. ' Mr. Khadim Hussain learned counsel for respondents Nos. 6 to 12 has contended that the order of the First Appellate Court regarding the payment of compensation of WAPDA to respondents Nos. 1 to 5 is contrary to record as suit filed is based upon bogus entries. The benefit cannot be extended in their favour, as they are usurpers of the property as spelled out from Exhibits 133 and 134 both entries have come in existence as one day viz. 20th April, 1994, it is further revealed that hundreds of survey number in the name of Abdul Aziz son of Abdullah were transferred to Nawaz Ali and others on the basis of Bukhshish (gift) in the year, 4993-94. In column No,5 of the above entries the date of the gift deed has not been shown, it appears that the entries were made on the basis of statement recorded by Mukhtiarkar which manifestly shows that all the documents were fake as the total area of the survey number is missing. It has also contended that for the purpose_ of adjudication of issue of gift the (1) donor must have a clear title, (2) acceptation of the donation must be there, (3) coupled with the delivery of possession. There is no material on record to prove the validity of alleged gift, statement recorded by Mukhtiarkar was cleverly suppressed to establish the elements of gift. More particularly Abdul Aziz was not in possession as the respondents Nos. 1 to 5 being descendants have approached the Court for redress. Even if it is presumed that Abdul Aziz was owner of the disputed survey 'number, it is not spelled out, from the entries available on record as to why he did not assail his title until the respondents Nos. 1 to 5, asserted their claim of possession therefore for all purposes and intent the presumption under Article 129-G of Qanoone- Shahadat Order, 1984 would, rest in favour of the appellant against the respondents Nos. 1 to 5. So far as the claims of possession and mesne profit is concerned it always fall the entitlement and title in disputed survey number therefore the claim in respect of the possession was consequential relief and in the event of denial by the appellant, the respondents Nos. 1 to 5 ought to have claimed declaration in terms of section 42 of the Specific Relief Act. Undoubtedly scope of second appeal is very limited. The High Court does not sit as Court in second appeal but when there is a gross misreading of the evidence then the Court at this stage interfere in the impugned judgments.
13. In this case the whole edifice was built on the basis of gift, was not proved by the respondents Nos.
14. 1 to 5, this factum was deliberately suppressed, in such circumstances, testimony of Dad is neither confidence inspiring nor worth reliance, when respondents did not prove the title to property or right or interest thereto, as owner suit for possession, simplicity, without seeking declaration of title was completely misconceived and not tenable in law.
15. ' Concurrent findings of two courts below are set aside for the foregoing, IInd Appeal No,17 of 2007 was allowed vide short order, dated 28-1-2009, these are the reasons for the same with no order as to cost.