This revision petition is directed against the judgment and decree dated 7.3.2009 passed by Additional District Judge-IV, Swabi, whereby the appeal of the present petitioners was dismissed and the judgment and decree dated 25.11.2008 passed by Civil Judge, Swabi was maintained.
2. The present petitioners had instituted a suit for, inter aliar declaration to the effect that they were owners in possession of land measuring 10 kanal situated in various `Khasrajats' of Mouza Dagai, Tehsil and District, Swabi ("disputed property") and in the alternative, they also prayed for possession thereof.
3. The present respondents appeared and admitted that the disputed property was originally owned by the predecessor-in-interest of the present petitioners. However, they added that the same had been sold to the predecessor-in-interest of the respondents, which was duly reflected in the revenue record. In addition thereto, the respondents asserted that with the transfer of title, possession of the disputed property was also transferred to them.
4. Based on the contesting pleadings of the parties, ten issues were framed. The parties adduced their evidence. Finally, the trial Court vide impugned judgment and decree dated 25.11.2008 dismissed the suit of the present petitioners.
5. Aggrieved thereof, the present petitioners impugned the same in appeal. The appellate Court also dismissed the suit of the petitioners vide judgment and decree dated 7.3.2009. Hence, the revision petition in hand.
6. The learned counsel for the petitioners vehemently argued that the respondents had not proved the written instruments on which they were basing their title over the disputed property; that Raza Muhammad, one of the defendants before the trial Court had admitted the claim of the petitioners being owners of the suit property; the order of the revenue Court had not been taken into account; that no limitation could be taken against the true owners of a property; that the title of the respondent was based on an un-registered deed, hence the same was a nullity in the eyes of law; and that neither the scribe nor the marginal witnesses to the deeds were produced in compliance with Article 79 of the `Qanun-e-Shahadat' Order,.1984 ("Order").
7. The learned counsel for the respondents, rebutting the arguments raised by the learned counsel for petitioners, contended that the original suit of the petitioners was not maintainable as deeds and entries in the revenue record in favour of the respondents, had not been challenged by the petitioners; that as the petitioners had admitted the possession of the disputed property to be with respondents and that the deeds were 30 years old, hence their interests in the disputed property were protected under Article 100 of the Order, whereby the respondents were not required to prove the contents of the same.
8. The Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
9. The most crucial and important aspect of the present case is that the possession of the disputed property was admittedly transferred to the predecessor-in-interest of respondents/defendants and after his death in 1993, the same was transferred to the present respondents/ defendants. In this regard, the present respondents produced evidence in the form of revenue record, which clearly showed that the disputed property was in the continuous possession of the present respondents. The veracity of the said entries in the revenue record, are confirmed, when Amjad Ali (PW-2), who was also the attorney of the present petitioners/plaintiffs, admitted that the disputed property was in possession of the predecessor-in-interest of defendants/respondents.
10.Once it was established that the disputed property was in the possession of respondents/defendants, then the onus to prove ownership thereof was shifted upon the present petitioners/plaintiffs to prove that the present respondents/defendants were not the actual owner of the disputed property. Article 126 of the Order confirms the same and reads as:-- "126. Burden of proof as to ownership.
When the question is whether any person is owner of any of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
Hence, the contention of the present petitioners that the present respondents did not prove their ownership of the disputed property is clearly misdirected and of no legal avail. Reliance may be placed on Syed Tawakal Hussain Vs. Mst. Shammim Rizvi (1999 M LD 1) Mst. Bha Bhari Vs. Muhammad Khan (2010 CLC 240). Bhambhar Vs. Mst. Nooria (1999 YLR 2078).
11.This brings us to the issue relating to the two contesting claims of the parties; the present petitioners seek reliance on Article 79 of Order, whereby they insist that the scribe and the two marginal witnesses of the written instruments on which they claim ownership ("deeds") of the disputed property were not produced and thus it adversely affected the claim of the present respondents and on the other hand the present respondents, seek support of Article 100 of the Order, claiming that the deeds to be thirty years old, which rendered protection to the holder. of the said documents.
12. This Court agrees with the contention of the learned counsel of the present respondents.
Admittedly, the, basic written instruments are thirty years old documents and thus are protected under Article 100 of the Order, which vests a presumption of truth to its execution, unless the same is rebutted by the other side. The said presumption, was not rebutted by the present petitioners/plaintiffs during the trial. Hence, its execution require no further proof. In this regard, reliance is sought from the judgment of this Court in Muhammad Darvesh Vs. Haji Muhammad Hussain (1999 CLC 106) wherein commenting on the said contesting two provisions of the Order, concluded that: "Thus, the questions to be determined is whether Article 79 or 100 of the 9anoon-e-Shahadat' Order be applied to resolve the controversy between the parties. If the former is relevant, the burden would be on the defendants to prove the execution of the Sale-Deed No. 171, notwithstanding its registration. If Article 100 aforesaid is found to be applicable, the burden to disprove the execution of the deed would shift to the plaintiffs. Under Article 100 of the qanoon-e-Shahadat Order presumption of correctness is attached to the signature and contents thirty years old document if produced from proper custody. When a document fulfils documents of Article 100, the person relying upon the document is not required to prove its execution unless the presumption is rebutted. Thus, the provisions of Article 79 of the `Qanoon-e-Shahadat Order would not come into play if the benefit of Article 100 is available to the defendants."
13.This leads us to another objection, raised by the learned counsel for the respondents regarding the maintainability of the suit of the present petitioners/plaintiffs, where they have failed to challenge the mutations, resolutions and the deeds through which their interest and title in the disputed property has been transferred to the present respondents. This legal lacuna would surely hit the maintainability of the original claim of the present petitioners. However, it appears that the petitioners were aware that the same, if challenged, would have led their suit to be surely hit by the statute of limitation, which prompted them not to specifically challenge the same.
14.In regard to the issue of limitation, this Court notes that the petitioners instituted their suit in December of 1998, to seek' a declaration of their ownership over the disputed property. The present respondents resisted the said claim of the petitioners based on deeds, resolutions and mutations in their favour dating back to the year 1952. The particulars of the same are; Iqrar Nama No. 215 dated 12.1.1952, Resolution dated. 26.11.1958, Iqrar Nama No. 1184 dated 10.1.1964, Mutation No. 9431 dated 22.5.1967, Mutation No. 9188 dated 25.5.1967 and Mutation No. 13053 dated 22.8.1988. It may be noted that when the original suit was instituted in 1998, apart from one mutation dated 22.8.1988, all deeds, resolution and mutations could not be challenged as the statutory period of limitation of twelve years, provided under Article 142 of the Limitation Act, 1908 ("Act ), had elapsed.
Moreover, Amjad Ali (P.W.2) had admitted in his evidence that the predecessor-in-interest of the petitioners was alive till the year 1979. There is no evidence to even suggest that during his life time, he agitated or challenged the said transfer of possession of the disputed property to the predecessor-ininterest of present respondent/defendants. In a situation similar to the present case, the august Supreme Court of Pakistan in Ghulam Haider Vs. Wali Muhammad (2008 SCMR 1428) declared a suit to be barred by limitation in the following terms:-- "The impugned mutation is dated 28.6.1953 while the suit was filed in the year 1972 i.e. after nineteen years. It 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 twelve years. That being so, the suit was hopelessly time barred and the findings on this issue, are unexceptionable.
There is nothing in evidence to indicate that the impugned mutation was collusive or fictitious.
Admittedly the petitioners the predecessor-in-interest of the petitioners were alive 6/7 years after the mutation and he never challenged the said mutation or the entries made in the revenue record. A presumption of regulatory is attached to these entries and in absence of any credible material to rebut the above presumption the Courts below had rightly dismissed the suit."
In another case, this Court in Sameen Khan Vs. Haji Mir Azad (2002 CLC 754) relying on the judgment of the Supreme Court in Muhammad Hussain Vs. Khuda Bukhsh (1989 SCM R 1563) clearly declared that; "Unchallenged consistent entries in the revenue record since the date of mutation could not be agitated or challenged after the period of limitation provided under Article 142 of the Act."
15. This Court is adjudicating the present petition in its revisional jurisdiction, the scope thereof as provided under Section 115 of the Code of Civil Procedure, 1908 ("CPC") has been dilated upon by the august Supreme Court in Shumail Begum V. Gulzar Begum (1994 SCM R 818) and more recently, reaffirmed in Muhammad Idrees Vs. Muhammad Parvez (2010 SCM R 5) and held that: "The High Court in exercise of its revisional jurisdiction under Section 115, C.P.C. unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1.949 PC 26. With regard to Section 115, C.P.C. it is observed by the Privy Council as under:-- (0 This section empowers the High Court to satisfy itself upon three matters:- (a)That the order of the subordinate Court is within its jurisdiction.
(b)That the case is one in which the Court ought to exercise jurisdiction.
(c)That in' exercising jurisdiction, the'Court has not acted illegally, that is breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to, interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
Keeping in view the above guiding principle regarding exercise of revisional jurisdiction, this Court considers that the Courts below had the jurisdiction to adjudicate upon the matter and that while exercising the said jurisdiction they applied their conscious mind to the facts of the case and correctly applied and interpreted the applicable law. Moreover, both the Courts below have rendered their concurrent findings and this Court does not find the same as arbitrary, capricious or out rightly absurd to warrant any interference in its revisional jurisdiction.
16. Accordingly, for the reasons stated above, this Court finds that the judgments and decrees passed by the Courts below are correct and in accordance with law and hence do not deserve any interference. This revision petition is thus dismissed.
No order as to costs.