CH. SHAHID SAEED, J. --- As common question of facts and law is involved in the above-mentioned civil revisions bearing Nos. 123 and 228 of 1996, therefore, I propose to dispose of the same by this single judgment as the same are directed against the judgment and decree dated 14.2.1996 passed by the learned Appellate Court, by way of which, the appeal filed by the respondents/plaintiff was accepted. Resultantly, suit for declaration filed by the respondents/plaintiffs was decreed and suit for permanent injunction filed by the petitioners/defendants was dismissed.
2. Briefly, the facts as leading to the instant civil revision are that the petitioners filed a suit for permanent injunction on 11.4.1987, alleging therein that they are owners in possession of land measuring 200 kanals of lot Nos. 22 and 25, situated in Chak No. 86/A, Tehsil Liaqatpur District Rahim Yar Khan. It was further alleged in the plaint that the defendant have no concern whatsoever with the suit land. The defendants are adamant to interfere into the possession of the plaintiffs illegally and forcibly. It was lastly alleged that the defendants have been requested time and again not to interfere into the possession of the plaintiffs but they refused to do So.
3. The father of defendants (of suit for permanent injunction ), namely, Mehnga also filed a suit for declaration on 14.6.1987, alleging therein that Mehnga (predecessor-ininterest of plaintiffs) is owner in possession of land measuring 150 kanals situated in Chak No. 86/A, Tehsil Liaqatpur District Rahim Yar Khan. It was alleged in the plaint that defendant No. 1 whose real name is Rulla is real brother of plaintiff but he has posed himself as Mehnga. The plaintiff got land measuring 100 kanals on Abadkari Scheme in 1950 and 50 kanals from inheritance of late Umer Din. He gave the said land to defendant No. 1 for cultivation and himself went to Faisalabad. The defendant No. 1 (Rulla posed himself as Mehnga) has been paying share of produce to him regularly but 4/5 months back he refused to pay the same to the plaintiff and declared that the plaintiff has no concern whatsoever with the suit land. It was further alleged in the plaint that defendant No. 1 (Rulla posed himself as Mehnga) alienated the suit land in his favour through mutation No. 50, dated 3.10.1984, with the connivance of Helga Patwari, Lumberdar of village. Subsequently he transferred the land in dispute in favour of his sons (defendant Nos. 2 to 5) through mutation No. 53, dated 13.2.1986. It was also averred that both these mutations are result of fraud, forgery, collusive and ineffective upon the rights of the plaintiff and are liable to be cancelled. The plaintiffs also claimed Rs. 20,000/- as mesne profit from the defendants since Kharif 1986. It was prayed that the defendants have been requested to admit the plaintiff to be owner in possession of suit land as well as get cancelled the impugned mutations, but of no avail.
4. Both the suits were contested by the respective parties by filing written statements. From the factual controversy appearing on the pleadings of the parties, the learned Trial Court led to frame ten issues including the relief. Thereafter both the parties were put to adduce their respective evidence. The plaintiffs of respective suits, produced oral as well as documentary evidence in support of their contentions. Learned Trial Court vide judgment and decree dated 18.11.1991 dismissed the suit for declaration filed by the respondents, while the suit for permanent injunction filed by the petitioners was decreed with costs. Feeling aggrieved thereby, the respondents/plaintiffs preferred an appeal before the Appellate Court, which was accepted vide judgment and decree dated 14.2.1996. The judgment and decree passed by the Trial Court was reversed.
5. Learned counsel for the petitioners/defendants (of suit for declaration) contended that the impugned judgment and decree dated 14.2.1996 passed by the Appellate Court is illegal, against law and facts on record. That learned Appellate Court relied upon the verbal evidence while the documents were tendered by the petitioners/defendants at the time of adducing evidence. If the predecessor of plaintiffs (Mehnga) was original owner then they should had been tendered all these documents in support of their contentions. Further stated that the findings of learned Appellate Court are the result of misreading and non-reading of documentary evidence i.e. Ex.D-1 to Ex.D11. That the Appellate Court wrongly observed that DW-1 has stated in his cross-examination that Rulla is not a dead, whereas his deposition is that Rulla died issueless 8/9 years ago and if it is presumed that Rulla was alive at that time but in this regard no any application was moved to produce him before the Court. That the Appellate Court relied upon the documents Ex.P-1 to Ex.P-3, reports of Revenue Officers, but in this regard none of them got recorded his statement in favour of respondents/plaintiffs. It has been further argued that the requirements of Article 64 of Qanun-e-Shahadat Order, 1984 have not been fulfilled as has been held by the Appellate Court. That the predecessor of respondents/plaintiffs miserably failed to substantiate that he was real Mehnga, thus, learned Trial Court rightly passed a decree for permanent injunction in favour of the petitioner/defendants.
6. On the other hand, learned counsel for respondents/plaintiffs vehemently opposed the arguments advanced by the learned counsel for the petitioners/defendants and contended that the findings of learned Trial Court on issues Nos. 5 to 7 are not based on correct appreciation of evidence produced by the plaintiff. The judgment and decree passed by the Appellate Court is based on well reasons and the same is sustainable.
7. I have heard the arguments of learned counsels for.The parties and perused the record minutely.
8. From the careful scanning of evidence produced by the plaintiff (of suit for declaration) it is evident that the version of the respondents/plaintiffs is that the land in dispute was allotted to their predecessor-in-interest, namely, Mehnga. The defendant No. 1 assembled to get the land by posing himself as Mehnga in place of Rulla and transferred the same in his favour in connivance of the revenue officials. They further included that defendant No. 1 Rulla is alive but he was shown as dead by the alleged Mehnga at the time of sanctioning of inheritance mutation No. 50, dated 8.10.1984 and posed his same as Mehnga. The plaintiffs in order to support their version, produced 'PW.1 and PW.2 but from their deposition it is clear that they never visited Chak No. 86-A, Tehsil Liaqatpur nor the suit land. As per statement of PW.3 that the suit land was allotted to his father Mehnga in 1950 under Abadkari Scheme who had made it cultivable and then the same was given by his father to defendant No. 1 Rulla (real brother of Mehnga plaintiff) on tenancy. Thereafter he proceeded to Faisalabad in the year 1960-61. But in this regard no any documentary evidence was produced by the plaintiffs to trengthen the version as regards to the tenancy as well as payment of share of produce of suit land. Perusal of record further reveals that neither the allotment order nor the receipts of instalments were produced in documentary 3vidence. The plaintiffs relied upon the inquiry report dated 0.2.1988 (Ex.P-2) prepared by Tehsildar, Liaqatpur that the matter previously taken up by the revenue officials who after investigation had found in favour of the plaintiffs and recommended the review of impugned mutations Nos. 50 and 53 (Ex.P-7 and P-16), but the matter was prejudiced before the Civil Court as suit for declaration was instituted on 14.6.1987. The said Revenue Officer was not competent to decide the matter. From the perusal of inquiry report (Ex.P2) as well as copy of application moved by Mehnga plaintiff (of declaratory suit) before the Deputy Commissioner, Rahim Yar Khan, it reveals that Mehnga of Faisalabad had leased the suit land to the defendants which differ from the pleadings of the plaintiff as well as their evidence. It is settled law that the pleadings of a party must always be corroborated by confidence inspiring evidence. The parties cannot twist from their stand taken in the pleadings. Moreover, there is no denial on the fact that the suit land is in continuous possession of the petitioners/defendants. The defendants had deposited all the instalments of suit land which resulted into the issuance of Pattas-Malkiat (Ex.D-1 to Ex.D-4) in favour of Mehnga defendant of Chak No. 86-A, Tehsil Liaqatpur. The contention of plaintiffs that Rulla is still alive but death certificate Ex.D-7 shows that Rullah had died on 25.2.1983 prior to the institution of suit when there was no litigation started. For the sake of arguments, if it is presumed that Rulla was still alive at that time, then why he was not produced in the Court by the plaintiffs themselves or through application before the Court and no any plausible explanation was furnished by the them in this regard.
9. On the other hand, the petitioners/defendants (of suit for declaration) have produced three witnesses to controvert the contentions of the plaintiffs. Their version is that defendant No. 1 is in fact real Mehgna who was allotted the land in dispute in 1950 under Abadkari Scheme and since then he is in continuous possession of said land.
He deposited all the instalments in the Government. Treasury and in this regard Pattas-Malkiat (Ex.D-1 to Ex.D-4) were issued in his favour which have been fully proved. The defendants further clarified that Khair Din had two sons, namely, Mehnga and Rulla. Rulla died issueless on 25.2.1983 and inheritance mutation No. 50 was sanctioned on 8.10.1984, after about 1- 1/2 year, in favour of defendant No. 1 (Mehnga). The defendants have fully proved the suit for permanent injunction by producing documentary evidence consisting of original Pattas-Malkiat, Order of Deputy Commissioner, Rahim Yar Khan, dated 25.5.1989, School leaving certificate, birth certificate, copies of KhasraGirdawari and copy of National Identity Card, etc. (Ex.D-1 to Ex.D-11).
10. The sequel of the above discussion is that the respondents /plaintiffs of suit for declaration tried to conceal the material facts throughout, as they deposed that Rulla is 'alive but it is evident from death certificate Ex.D-7 that he did on 25.2.1983. It is further clear that the respondents/plaintiffs filed the suit after about 5 years but did not prove the fact that Rulla was the brother of Mehnga.
Rulla died issueless and his property was mutated in favour of Mehnga, the predecessor of petitioners/defendants. On the application filed by the respondents/plaintiffs, an inquiry was also conducted by the revenue authorities which was incomplete as the suit filed by respondents/plaintiffs was pending adjudication before the Trial Court, wherein they challenged the mutation already sanctioned in favour of the predecessor of the petitioners/defendants. The decision made by the Trial Court has always upper hand as the judicious order cannot be ignored.
In these circumstances, the evidence of the respondents/plaintiffs is not based on material facts as regards to the land in dispute. Learned Appellate Court totally erred in law in holding that the evidence on the relationship, by the persons having special mean of knowledge, on the subject is much relevant as is required under Article 64 of Qanun-e-Shahadat Order, 1984. The Appellate Court also observed that the DWs are related to the petitioners/defendants and did not consider the documentary evidence, whereas they succeeded to prove their version by producing confidence inspiring evidence. So the Appellate Court incorrectly reversed the findings on issues Nos. 5 to 7 as well as on the other issues and improperly appraised the evidence. Resultantly, the instant civil revision is allowed and the impugned judgment and decree dated 14.2.1996 passed by the Appellate Court is set aside and judgment and decree dated 18.11.1991 passed by the Trial Court is maintained.
Civil Revision .