JUDGMENT SYED SAJJAD HASSAN SHAH, J.---Abdul Sattar and 23 others have challenged by way of instant petition the judgment and decree dated 12-4-2010 of the learned Additional District Judge, Charsadda, whereby the appeal filed against the judgment and decree dated 25-1-2010 passed by Senior Civil Judge, Charsadda, was dismissed.
2. Brief facts of the case are that the plaintiffs-petitioners (hereinafter called as petitioners) filed a suit seeking for declaration to the effect that they are the owners of the suit property mentioned in the heading of the plaint, being the successors of Ahmad Gul, Shamshad and Sardar sons of Abdul Omni, the Chairman Pakistan Railway and two others the respondents/defendants neither have any concern with the suit property nor they have purchased it through sale transaction on behalf of the predecessors of petitioners nor received the sale consideration. The respondents got transferred the suit property illegally and unlawfully vide the Mutation No.3234 was attested and given effect in revenue record by altering the entries in favour of the respondents, hence, those entries are also frivolous, illegal and liable to be cancelled and the correction in Revenue Record may be made in favour of the petitioners.
3. The respondents have contested the suit by filing the written statement, in view of divergent pleas of the parties, the learned trial Court has framed issues, thereafter recorded evidence of the official witnesses, the oral evidence was yet to be recorded, for want of oral evidence of the petitioners, the learned trial court dismissed the suit in terms of Order XVII Rule 3 of the C.P.C. The petitioners being aggrieved of the judgment and decree passed by the learned trial court assailed by filing an appeal. The same was dismissed confirming the judgment and decree of the learned trial court.
4. The learned counsel for the petitioners contended that the learned trial court while deciding the case has not been attended the prerequisites of Order XVII, Rule 3, C.P.C., as no opportunity given at the instance of the petitioner much less last one for producing their evidence. Moreso, the petitioners and their counsel did not appear before the learned trial court, the learned trial court at the most, could have dismissed the suit, however, while dismissing the suit of petitioners, the provisions of Order XVII Rule 3 invoked against the petitioners. The learned trial Court while acting illegally and unlawfully dismissed the suit of the petitioners without having been fulfilled the requirements of law ibid. He further contended that it was the duty of the respondents being beneficiary to prove their case by leading cogent and plausible evidence, but they have failed to bring on record any such evidence. Nonetheless, the petitioners, relied upon the evidence of the official witnesses. He further contended that as a matter of fact, the petitioners have condemned unheard; the learned appellate court has not adverted to the legal aspect of the case, thus, erred in the law reaching to the conclusion, therefore, prayed for the setting aside of the judgments and decrees of both the courts below and for remitting the case to the learned trial court, so that may be decided afresh after recording of evidence.
5. The learned counsel for the respondents strenuously rebutted the arguments of the learned counsel for the petitioners by contending that the present litigation initiated by the petitioners, way back in the year 2006 and made all efforts to delay the decision of controversy by the learned trial court. During such a long period, the petitioners unable to complete their entire evidence, however, produced three official witnesses, despite granting various adjournments by the courts at their instance, however, failed to produce their oral evidence. No other course was available to the learned trial court but to dismiss the suit of the petitioners, as after the passage of four years, the matter was still pending for recording of oral evidence to be produced by the petitioners, as such while invoking its jurisdiction in terms of Order XVII, Rule 3 of the C.P.C., the learned trial court decided the case on the available record. He further argued that not a single document brought on record in order to substantiate their title in the suit property inasmuch as, the title of the respondents established by the evidence led by the petitioners, thus, the petitioners have no cause of action to claim the suit property acquired by the Railway Department, over which the department have constructed the Railway Track, Railway Station and other buildings, thus, prayed for dismissal of the present petition.
Arguments of learned counsel for the parties considered and record carefully perused.
6. A perusal of the record revealed that the instant suit was filed on 17-1-2006. The respondents filed the written statement, issues framed on 26-4-2006. After filing list of witnesses the case was posted for recording of evidence. Statement of Patwari Halqa was recorded as P.W.1. Altaf Hussain, Clerk Land Acquisition, examined as P.W.2. And Abdul Aziz, Land Inspector, examined as P.W.3., on the date of hearings i.e. 20-1-2007, 5-6-2007 and 27-6-2007. On 27-6-2007, the proceedings in the case was adjourned for recording of oral evidence to 27-11-2007, however, the petitioners have failed to produce their evidence. In this regard, the learned trial court granted eight adjournments to record the oral evidence of the petitioners, but the petitioners have failed to produce their evidence, lack of interest of the petitioners caused delay in deciding the suit as it, is discernible from the record that it took one year for producing oral evidence, but without any further progress in the proceeding of the suit, neither the petitioners nor their counsel appeared before the Court, therefore, the learned trial court was constrained to pass the order in terms of Order XVII Rule 3, C.P.C. Within the period of four years the petitioners could not arrange the production of their entire evidence, whatever, the material produced by the petitioners through their witnesses, supported the stance of the respondents.
7. A perusal of evidence so far recorded at the instance of petitioners i.e. Patwari Halqa was examined as P.W.1., who has produced the record of the suit property i.e Mutation No.3234 attested on 27-11-1964 as Exh.P.W.1/3. The same was attested as the Railway Department had compulsorily acquired the same, whereafter, the Revenue Officer in view of the above said acquisition proceedings, attested the Mutation No.3234 on 27-11-1964 in favour of the respondents and raised the construction after taking over the possession of the suit property by the respondents. The said mutation was incorporated in the Revenue Record. The predecessor of the petitioners received the amount of compensation, "tatimas" carved out whereof the possession of suit property handed over to the respondents/defendants on spot in presence of the owners and other inhabitants of the village, ever since entries made in Revenue Record have not been challenged. P.W.1. In his cross examination stated that the petitioners are not the owners of the suit property as per the revenue record. He has furnished the complete detail of alienation made in favour of Central Government vide Mutation No.3234 attested on 27-14-1964. The record of rights pertaining to the year 1962-63 also lends support to the stance of the respondents, as they have been shown as owners in possession of the suit property and also about the construction raised over it, as the complete detail mentioned in the said record, thus, the grounds on which the B petitioners have sought the decree in their favour manifestly falsified their contention.
8. Above resume of the facts abundantly show that the petitioners besides having no cause of action indulged in unlawful litigation, the conduct of the petitioners, made it clear that they are not interested in litigation, but bent upon to procure, the illegal benefit of protracted proceedings.
Otherwise, no reason existed to launch the present proceedings against the respondents. Since, the entries made in Revenue Record after completion of acquisition proceedings. Pursuant thereto, the Mutation No.3234 was attested on 27-11-1964, whereafter, the entries made in the Revenue Record pertaining to the acquisition proceedings in favour of the respondents, possession delivered, suit property duly utilized for the purpose for which it was acquired. Knowing fully well about the entire background of the matter, the respondents/defendants initiated the present proceedings that too, after the passage of more than half a century.
9. Even if, the plea of learned counsel that the suit should be decided after recording of oral evidence on its merit would be accepted, result would be the same because there is not an iota of evidence brought on record in support of their claim, the reliance again to be placed on the same documentary evidence already produced by the petitioners, which would render the same result.
Because the Revenue Record enjoyed presumption of truth under section 52 of the Land Revenue Act, 1967, after completion of acquisition proceedings, the mutation was attested and incorporated in the revenue record to rebut those entries by the strong reliable and valid documentary evidence, but no such evidence available on the record. Apart, that the suit was time barred, the petitioners estopped to file the instant suit as they have no cause of action to file the suit against the respondents. In support, thereof, reliance placed in case titled "Hakim Khan v. Aurangzeb and another", reported as 1979 SCM R 625, wherein, it was held that:-- "The entries in jamabandis, as is obvious, carried a statutory presumption of truth under section 44 of the Punjab Land Revenue Act XV of 1887 and section 52, West Pakistan Land Revenue Act XVII of 1967. As against the aforesaid bald statements of the kind mentioned above can hardly cut any ice.
In this state of affairs the objection of invalidity of mushaa gift on ground of non-delivery of possession factually goes away as was held in Sanaullah Fakir v. Alam Fakir and others (1) and Sahib Dad v. Muhammad Ajaib and another (2) approving Sheikh Muhammad Mumtaz Ahmad and others v. Zubadia Jan and others (3)."
10. The mutation was attested on 27-11-1964, the declaratory suit was filed on 18-7-2009, reliance placed on a case "Hakim Khan v. Aurangzeb and another" 'supra the relevant is reproduced as under:-- "It was obviously time-barred under Article 120 of the Limitation Act IX of 1908 and the learned counsel could not successfully challenge the finding of the Courts below on this subject before us. The plea of coercion not having been established (and not pressed) and the gift as held above having been completed by delivery of possession and entries in jamabandis etc., a suit to challenge the same after about 14 years was clearly time barred, because as is self evident it was neither a void gift and on the findings recorded not even proved to be voidable."
In this regard, reliance placed upon the case titled "Sardar Anwar Ali Khan and 10 others v. Sardar Bakar Ali through legal heirs and 4 others, reported as (1992 SCM R 2435), wherein, it was observed that: "The suit-land is consistently recorded in the name of the predecessor-in-interest of the defendants/respondents and in the names of their successors for the last about a century and during this long period Jamabandis were prepared and alienations were effected resulting in the incorporation of the transferees as owners in the Revenue Record but no efforts were made by the plaintiffs/appellants or their ancestors to correct them. The present suit filed by them after such a long time was hopelessly barred by time as well, in the above context."
12. The contention of the respondents supported by a dictum laid in the case "Ghulam Haider and others v. Wali Ahmed and others" reported as (2008 SCM R 1425) wherein, it was held that:-- "(5) The impugned mutation is dated 28-6-1953 while the suit was filed in the year 1972 i.e. After 19 years. It is in evidence that the mutation was duly reflected in the Revenue Record and the respondents/ defendants were in possession ever since the mutation and when the suit was filed.
Petitioners also prayed for possession. In terms of Article 142 of the Limitation Act the period of limitation for filing such a suit is 12 years. That being so, the suit was hopelessly time-barred and the findings on this issue are unexceptionable."
13. In view of above discussion, the judgment and decree passed by 'the learned appellate Court and that of learned trial Court are in accordance with law, not suffering from any illegality, irregularity or jurisdictional error, therefore, maintained.
14. This petition is, hereby, dismissed.