AMIN-UD-DIN KHAN, J. --- Through this civil revision , the petitioner have challenged the judgment and decree dated 31.1.2005 passed by Additional District Judge, Ahmadpur East whereby appeal filed by the defendants-respondents was accepted and the judgment and decree dated 24.1.1994 passed by Civil Judge, Ahmadpur East decreeing the suit of the plaintiffs-petitioners was set aside and the suit was dismissed.
2. Brief facts of the case are that the plaintiffs petitioners filed a suit for declaration on 6.12.1980 alleging therein that they are the owners of the suit land and the defendants-respondents have no rights in the suit property. They challenged various mutations from the years 1956 to 1982. The main contention of the plaintiffs-petitioners was that one Sepahi son of Hayat was their predecessor who was owner in Khata No. 1 in the year 1889 and was recorded owner in the jamabandi whereas actually he was owner of 3/10 share, Mehmood son of Hayat was owner of 5/10 share, Paliya son of Sultan and Ditta son of Tahir were owners of 1/10 share and Salehoon son of Ghazi was owner of 1/10 share but inadvertently in the jamabandi Sepahi son of Hayat was shown full owner of this khata.
They further averred in the plaint that in the jamabandi for the year 1904 wrongly without any legal document name of the predecessors of the defendants-respondents were entered as owner in the jamabandi. Therefore, the share of the predecessor of the plaintiffs-petitioners was reduced.
3. The defendants-respondents filed written statement and contested the suit. The Trial Court framed the issues and invited the parties to produce their respective evidence. The parties produced their oral as well as documentary evidence. The Trial Court, after the close of the trial and after hearing the parties vide judgment and decree dated 24.1.1993 decreed the suit. The defendants-respondents filed appeal which was accepted by Additional District Judge; Ahmadpur East vide judgment and decree dated 31.1.2005. Hence this civil revision.
3. Learned counsel for the plaintiffs-petitioners states that during the pendency of appeal, the defendants filed application under Order VI, Rule 17 of the C.P.C. For permission to amend the written statement and another application under Order XLI, Rule 27 of the C.P.C. For production of additional evidence; that both these applications were dismissed by the Appellate Court on 3.2.2001; then C.R. No. 307-2001/BWP was filed which was dismissed in limine by this Court on 9.5.2001 and that against the said order Civil Petition No. 1827-L-2001 was filed before the august Supreme Court of Pakistan which too was dismissed on 18.7.2001. Learned counsel further states that documents appended with the application filed sale-deed and mutation on the basis of sale- deed allegedly in favour of predecessors of the defendants by said Sepahi under Order XLI, Rule 27 of the C.P.C. Were certified copies of sale-deed and mutation on the basis of sale-deed allegedly in favour of predecessor of the defendants by said Sepahi son of Hayat, predecessor of the plaintiffs- petitioners and that the Appellate Court was influenced by these documents while recording findings on the issues in the judgment. Learned counsel states that when applications far permission to produce additional evidence and to amend the written statement were dismissed upto the Hon'ble Supreme Court, the first Appellate Court was not competent to consider those documents to be part of the file.
4. On the other hand, Mr. Abdul Majeed Bhatti, Advocate, learned counsel for respondents Nos. 14 to 28 states that during the pendency of the appeal compromise was effected between respondents Nos. 14 to 28 and the plaintiffs-petitioners and to their extent the suit was dismissed by the Appellate Court and appeal was allowed as mentioned in the judgment of the first Appellate Court.
5. Malik Abdul Ghafoor Awan, Advocate, learned counsel for respondents Nos. 2 to 6 and 8 to 11 states that the plaintiffs-petitioners have not proved their suit. They have not even produced the pedigree-table; that the pleadings of the plaintiffs-petitioners are in contradiction of the Revenue Record produced and relied upon by them; that as the matter is more than hundred years old and at least four generations have passed, therefore, written statement was filed on the basis of presumptions and that the plaintiffs petitioners have not proved their case. Further states that the suit was hopelessly time-barred and the decree passed by Trial Court was against law. Further states that the suit was hopelessly time-barred and the decree passed by Trial Court was against law. Further states that the statements of the witnesses produced by the plaintiffs-petitioners in support of their version were inadmissible because they were of the age of sixty years whereas the event in dispute was more than hundred years old at the time of making statements before the Trial Court. Learned counsel states that the plaintiffs-petitioners have not proved their locus standi to file the suit; that the fraud was to be fully pleaded in the plaint in accordance with Order VI, Rule 4 of the C.P.C. Learned counsel states that the sale-deed and the mutations pertaining to the year 1989 in favour of the predecessors of the defendants by said Sepahi son of Hayat were not permitted to be produced in additional evidence by the defendants but at the same time those documents had come in the knowledge of the plaintiffs-petitioners but they had not challenged the said documents, therefore, this is another hurdle in granting decree in favour of the plaintiffs- petitioners; that the registered sale-deed dated 21.11.1988 and Mutation No. 373, dated 30.4.1989
6. I have heard the arguments of learned counsel for the parties and have perused the record with their able assistance.
7. The plaintiffs-petitioners have challenged the entries of jamabandi for the year 1904. They produced said jamabandi as Exh.P-19 wherein Sepahi son of Hayat has been shown as owner of 3/10 shares whereas 7 other shares have been shown of the ownership of predecessors of the defendants-respondents". The main contention of the plaintiffs-petitioners is that names of the persons except Sepahi son of Hayat were wrongly incorporated in those jamabandies without any backing of law and without mentioning any ,mutation or registered deed or document on the basis of which the name of a person can be entered as an owner. It is admitted that names of Abdul Qadir Shah, etc. Predecessors of the defendants is mentioned in this jamabandi. To prove their contention plaintiffs-petitioners were bound to produce the previous jamabandi to the jamabandi of 1904 and they were able to prove their contention, if on the previous jamabandi the name of Sepahi son of Hayat would have been entered as full owner of Khata No. 1. In "Khana Kafiyat" of jamabandi there is no mention of any mutation or registered instrument of transfer of rights or any decree then they were not able to prove their contention because plaintiffs-petitioners produced jamabandi of the same Khata No. 1 of the year 1889. There is a gap of fifteen years between those two jamabandies. At the relevant time the Punjab Land Revenue -Act XVII of 1887 was applicable. In accordance with Section 33 of the said Act at that time record of the ownership was prepared by the Patwari yearly. In this view of the matter, after 1889 if instrument of transfer of rights or mutation or any decree were in favour of the persons whose names are available in Exh.P-9 jamabandi for the year 1904 it cannot be said to have been entered without any lawful manner because the event of any change is first brought in Khata No. 10 which is "Khana Kafiyat" and then it is incorporated in Khana No. 3 i.e. "Khana Malkiyat". The reference in the next jamabandi mentioned in "Khana Kafiyat" is removed. In this view of the matter when there is gap of fifteen years in two jamabandies produced by the plaintiffs-petitioners Themselves, they have miserably failed to prove the case pleaded by them. Further that without producing and proving the "Shajra Nasb", the plaintiffs- petitioners failed to connect their relationship with Sepahi son of Hayat and other plea as pleaded by them in their plaint. They failed to show their relationship with the owner of the property in the year 1904. After more than hundred years the plaintiffs-petitioners filed the suit. Admittedly, the Record-of-Rights was continuously in the names of defendants or their predecessors for more than hundred years. Therefore, without any solid evidence the suit was not liable to be decreed. The learned Trial Court fell in error while decreeing the suit because the entries of jamabandi have the presumption of truth. No doubt these presumptions are rebuttable but with strong and reliable evidence.
8. The limitation provided under Article 120 of the Limitation Act, 1908 for challenging the validity of mutation entry is six years. Filing of suit after 100 years was not competent and was liable to dismissal. Even it was a case where Section 3 of the Limitation Act, 1908 was to be applied and plaint was liable to be rejected under Order VII, Rule 11 of the C.P.C.
9. Contention of the learned counsel for the defendants-respondents that when registered document and a mutation executed and sanctioned more than hundred years back, the Appellate Court as well as this Court cannot take even the notice of those documents and in the instant case when those documents were in the knowledge of the plaintiffs-petitioners, they were bound, under the law, to challenge the same and that they have not challenged those documents, has some weight. Learned counsel for the defendants-respondents relying upon Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCM R 398) states that when there are conflicting judgments of the Trial Court and Appellate Court, findings of the Appellate Court would be preferred and respected in such an event even there is no exception available. It is also settled law that technicalities cannot be hurdle in the way of administration of justice. It is also paramount principle of justice that the plaintiffs-respondents are to stand on their own legs. They are, under the law, bound to prove their case and they cannot take benefit of weaknesses of the defendants. It is also settled law that an erroneous admission by the defendants against record is not binding on him. Under Article 119 of the Qanun-e-Shahadat Order, 1984 there is specified procedure of burden of proof of particular fact. The relationship was to be established by direct evidence which is missing in this case. Even no "Shajra Nasb" has been produced by the plaintiffs-petitioners whereas at least four generations have passed they were bound to connect relationship with said Sepahi son of Hayat to whom they are claiming to be their predecessor.
10. For what has been discussed above, there is no force in this civil revision and the same is dismissed with costs.
Civil .