AMIN-UD-DIN KHAN, J. --- Through this single judgment I intend to decide Civil Revision No. 29 of 2000 and Civil Revision No. 470 of 1999, as these are directed against the judgment and decree dated 8.9.1999 passed by the learned Additional District Judge, Rahim Yar Khan, whereby the appeals filed by petitioners of both the revisions were dismissed and the judgment and decrees dated 6.12.1995 passed by the learned Civil Judge 1st Class, Rahim Yar Khan, whereby the suits filed by the petitioners-plaintiffs for declaration with permanent injunction and for possession, were dismissed.
2. The facts are that petitioners-plaintiffs on 22.2.1979 filed a suit for declaration and permanent injunction, contending therein that they are owner of 1200/2544 share of land in Khata No. 10/8 in accordance with Jamabandi for the year 1976-77 Mouza Tola, Tehsil Sadiq Abad, measuring 89 kanals, 7 marlas and mutation No. 234 of the year 1974, mutation No. 247 and sale-deed registered on 14.6.1976 are the result of fraud and have no effect upon the rights of plaintiffs. The facts as narrated in the plaint are that in accordance with Jamabandi for the year 1922-23, mutation No. 301 attested on 19.2.1925 Mouza Garhi Bela in Khata No. 19 total land measuring 854 kanals, 6 marlas, Maula Bakhsh, Fateh Din, Boota and Suleman were owners of 50/53 share of land measuring 805 kanals. Thereafter, Boota and Suleman sold their shares 25/53 to Shahbaz A.I before the year 1923, whereupon Maula Bakhsh and Fateh Din filed a suit for pre-emption to pre-empt the said sale, which was decreed in their favour by the learned District Judge, Rahim Yar Khan, on 19.12.1923, so Maula Bakhsh and Fateh Din became owner of 50/53 shares and on the basis of decree mutation No. 307 was attested on 19.2.1925. Maula Bakhsh and Fateh Din through mutation No. 308 attested in the year 1925 25/53 shares sold through registered sale-deed dated 26.3.1924 in favour of Jan Muhammad and Khair Muhammad. In the years 1927-28, 1932-33 Bandobast' was carried out and Mouza Garhi Bela was bifurcated in two Mouza and land measuring 692 kanals remained in Mouza Garhi Bela, whereas land measuring 162 kanals, new Mouza was created as Mouza Tola. The land owned by Maula Bakhsh and Fateh Din consisting upon 25/53 share, in the year 1926 was transferred through oral sale in favour of Mehar Din (predecessor of plaintiffs) and Nabi Bakhsh, the mutation No. 339 of which was sanctioned and is not traceable but in mutation No. 71 attested on 29.1.1932 there is mention of mutation No. 339. On the basis of this record the plaintiffs have claimed the suit land and they have challenged subsequent transfers from the year 1925 till the filing of suit in favour of various persons.
The transfer of land in favour of Muhammad Ismail has specifically been challenged in this suit, who has also filed a connected suit for possession of part of suit land measuring 32 kanals against Muhammad Shafi s/o Beer-ud-Din on 21.2.1979. Vide order dated 18.11.1985 both the suits were consolidated and proceedings were ordered in suit for possession filed by Muhammad Ismail. On the said date consolidated issues were framed and the parties were invited to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After close of trial, vide judgment and decrees dated 6.12.1995 the Trial Court dismissed both the suits. Feeling aggrieved by the said decrees, both the parties went in appeals before the first Appellate Court, which also met with the same fate vide judgment and decrees dated 8.9,1999.
3. Civil Revision No. 29-2000 is outcome of suit for declaration and permanent injunction filed by Muhammad Shafi, whereas Civil Revision No. 470-1999 is outcome of suit for possession filed by Muhammad Ismail. In the proceedings Muhammad Ismail is presumed to be plaintiff and Muhammad Shafi as defendant.
4. Learned counsel for the petitioners has narrated the facts as mentioned in the plaint. The main contention is that mutation No. 306 (Ex.P-11) was not incorporated in the revenue record, therefore wrong occurred; that again part of this property was transferred through Ex.P-11 sale-deed No. 234, dated 5.9.1974 on behalf of Boota and legal heirs of Suleman in favour of Muhammad Ismail and the other part of property was transferred through registered sale-deed (Ex.P-2) dated 14.6.1976 by Maula Bakhsh in favour of Muhammad Ismail. Further states that case of petitioner Mst. Zainab is that Maula Bakhsh died in the year 1938, therefore, the transactions are fictitious; that through mutation No. 339 in the year 1932 25/53 share of Maula Bakhsh and Fateh Din was transferred in favour of Beer-ud-Din and Nabi Bakhsh (predecessor of Mst. Zainab). Learned counsel states that through the record of this mutation No. 339 is not traceable but its reference is available in mutation No. 71 attested on 29.1.1932 (Ex.P-7), therefore, all these wrong entries occurring in the revenue record are liable to be corrected.
5. On the other hand, learned counsel for revision petitioners in C.R. 470-1999 states that petitioners who are: plaintiffs of suit for possession have purchased the suit property through registered sale- deeds in the years 1974 and 1976 and part of property being part of joint khata, was in the illegal possession of defendants, therefore, they filed suit for possession and their title is clear as the other suit for declaration of title filed by Muhammad Shafi has been dismissed and only declaring the suit of petitioners to be time-barred, relief has not been granted. Lastly prayed that the findings on this point are not sustainable under the law.
6. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
7. First of all, I discuss the findings recorded with regard to the suit for declaration and permanent injunction filed by Muhammad Shafi (predecessor of Mst. Zainab, etc.). Though learned counsel for petitioners of C.R. 29-2000 has dutifully narrated the facts of case and so are mentioned in the plaint but only the mentioning of facts in detail in the pleadings and dutiful ,arguments are not sufficient to set aside the concurrent findings of facts recorded by two Courts below. I have noticed that the Courts below have recorded concurrent findings of facts against the plaintiffs of suit for declaration and permanent injunction, as they failed to substantiate their assertions through documentary as well as oral evidence.
8. The suit filed u/S. 42 of the Specific Relief Act, 1877, for declaration declares a pre-existing right and through a declaratory decree a new right cannot be created. The filing of suit after a half century of an occurrence the plaintiff of that suit is required to produce cent per cent satisfactory evidence, as he is asking the Court to believe him and grant a decree for declaration, therefore, not only, the onus but the quantum as well as quality of evidence is required to grant him the declaration. In this suit when case of petitioners is that one mutation could not be incorporated in the revenue record and the other mutation which is even not traceable, therefore, on the basis of oral assertions that there was a mutation being not traceable, the Court cannot believe that person and cannot grant a declaration on the basis of his oral assertions. I have observed that the concurrent findings recorded by the Courts below are absolutely in accordance with the record of case and evidence produced by the parties, therefore, the same are not exceptionable.
9. So far as, the other suit for possession is concerned . There are registered documents of transfer of title in favour of plaintiff Muhammad Ismail, which have not been set aside or declared against the law in the consolidated judgments passed by the Courts below. The cause of refusing the relief to the plaintiff was bar of limitation which the Courts below have observed. The property fall within joint khata and when defendants have no right therein, as they are not owner in joint khata and are in possession of a specific portion of that joint khata, therefore, decree for possession of land in their possession can safely be granted. As such, the Courts below were bound to grant a decree for possession and the suit was filed within the. Prescribed limitation. For filing the suit for possession after purchasing the property and reliance by the Courts below on a document which is Jamabandi even 20 years before the purchase of property by the plaintiff and even the entry upon which reliance has been made, is not having a presumption of correctness, as the entry 'Khud Kasht' of Jamabandi is not having presumption of correctness. The Courts below have relied upon Jamabandi for the year 1956-57 (Ex.P-8). I am clear in my mind that column of possession does not have the presumption of correctness attached with it, as the plaintiff purchased the property in the year 1976 and filing of suit within 12 years from the date of purchase, cannot be said to be time- barred from any stretch of imagination. There is no bar of limitation available against the plaintiffs for grant of a decree for possession when their title is clear. In this view of the matter, both the Courts below fell in error while relying upon these kinds of entries. Therefore, the findings on issue No. .3 are recorded in favour of plaintiffs of suit for possession.
10. In the light of what has been discussed above, C.R. No. 29 of 2000 being devoid of any merits is hereby dismissed. Whereas C.R. No. 470 of 1999 is allowed and the judgments and decrees passed by two Courts below, dismissing the appeal and suit, are set aside. The result would be the suit for possession shall stand decreed. Parties are left to bear their own costs. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.