' MUHAMMAD KHALID MEHMOOD KHAN, J.--- Petitioners filed a suit for declaration, consequential relief, mandatory and permanent injunction against the respondents. The learned trial court after recording the evidence dismissed the suit on 18-10-2003, the petitioners filed an appeal which too was dismissed vide judgment and decree dated 29-10-2004.
2. Petitioners filed a suit under Order I, rule 8, C.P.C. Claiming that claimants are large in number and as such the suit is being filed in representative capacity. The List-A, showing the claimants is annexed with the plaint likewise respondents who were not impleaded in the suit are shown in List- B being large in number. The detail of suit property is given in the heading of plaint.
' The petitioner averred that suit property was the part of Shamlat Deh of Mauza Khushab and Shawala. As per Jamabandi for the year 1945-46, the suit-land is the part of Shamlat Deh. The partition of Shamlat Deh took place between the year 1938 and 1940. During the proceedings of partition, M/s Sardar Muhammad, Ameer Khan Balouch, Malik Muhammad Khan Lumbardar, Ghulam Muhammad Lumbardar Shawala and Syed Moazam Shah, the co-sharers of Shamlat Deh surrendered their rights in favour of predecessor-in-interest of petitioners vide statement dated 14- 4-1938, and they become the owner of suit-land. On the basis of statement dated 14-4-938, the Revenue officials, submitted their report on 8-5-1938, recommending the Revenue officials for attestation of mutation in petitioners favour. The sub-Division Officer/Assistant Collector Khushab on 21-2-1940 by declaring Sheikh Buddha, Noor Din etc. As owner the entries in favour of petitioners as owner in the Revenue Record were recorded. On 21-2-1940, it was directed that final approval may be obtained from superior officers. Mutations No,1494 and 1495 of the petitioners ownership were entered in the Revenue Record but before attestation of mutations, Second World War erupted, a large number of owners of said land were recruited in the Army, hence the mutations were not attested and were cancelled; it was decided when the War will come to an end, the above said mutations will be attested. It is asserted that since then the predecessor-in-interest of petitioners are in possession of suit-land but due to carelessness of Revenue officials mutations of ownership in favour of petitioner have not been attested so far and as such a declaration be granted, declaring that the petitioners are owners of suit-land and mutations in their favour be ordered to be attested in Revenue Record.
3. The respondents resisted suit; the learned trial court framed the following issues:--- "ISSUES:
(1) Whether the plaintiffs are owners in possession of the suit property? OPP
(2) Whether the plaintiffs are entitled to declaration and permanent injunction? OPP
(3) Whether the plaintiffs have no cause of action and locus standi to file the suit? OPD
(4) Whether the plaintiffs are estopped by their conduct to file the suit? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether the suit is hit by res judicata? OPD
(7) Whether the suit is bad for misjoinder/non-joinder of necessary parties? OPD (7-A) Whether the suit filed by the plaintiffs is barred by time? OPD (7-B) Whether the defendants No,3-A to 3-D are bona fide purchasers of. The suit property for value without notice? OPD
(8) Relief."
4. Both the parties adduced their respective evidence both verbal and documentary and dismissed the suit, appeal thereagainst also failed.
5. Learned counsel for petitioners submits that judgments of both the courts below suffer from misreading and non-reading of record; learned courts below fallen in error while holding that 4 persons who surrendered the suit-land in favour of predecessor-in-interest of petitioners were not authorized to make the statement on behalf of other coowners of the entire land of Shamlat Deh.
Learned counsel submits that in fact 4 persons who surrendered their rights in favour of petitioners predecessor-in-interest were the owners of suit property and they rightly surrendered their ownership in favour of petitioners' predecessor-in-interest. This material fact has not been considered by the learned courts below while dismissing the suit. Learned counsel argues that learned courts below have disbelieved the documents which were more than 30 years old and as such the judgments of both the courts below are liable to be set aside. He submits that document Exh.P-6 is a proven document as the same is available on record, he submits that rejection of plaint does not operate as res judicata. He submits that suit for adverse possession filed by petitioners was concluded under Order VII, rule 11, C.P.C. By operation of law, the same was not decided on merits and as such the rejection of plaint will not operate as res judicata. He lastly adds that learned courts below have wrongly ignored the request of petitioners for molded relief and wrongly held that molded relief cannot be allowed without amendment in plaint and at the final stage of suit the plaint could not be allowed to be amended. Learned counsel submits that plaint can be amended even at the appellate stage. Valuable rights of parties were involved in this case and the learned trial court if was of the view that molded relief can be allowed only after amending the plaint, the learned trial court was duty bound to allow to petitioners time for amending the plaint. He relied on Mst. Kaniz Fatima and 3 others v. Member (Revenue) Board of Revenue, Punjab Lahore and 5 others (PLD 1973 Lahore 495), Abdul Ghafoor v. Chief Settlement Commissioner and another(1985 SCMR 464), Bahadar and others v. Sohna and another(PLD 1961 Lahore 387), Khuda Bakhsh and others v. Amir and another(1980 SCMR 760) and Muhammad Khalil v. The Province of Punjab through its Secretary, Industries and Mineral Development and another(1999 CLC 163).
6. Learned counsel for respondents supports the judgments of two courts below and submits that findings of fact of two courts below are concurrent and could not be upset in the revisional jurisdiction of this Court even if this Court come to a different conclusion. Learned counsel submits that earlier suit was a suit for adverse possession, the claim of adverse possession only arises when the claimants first accept the owner of property. Learned counsel submits that molded relief requested by the petitioner was rightly denied by the learned trial court. He further submits that molded relief however has been discussed by the court and definite findings are given against the petitioners that they are the tenants-at-will and as such they have no right or interest in the suit property. Further submits that learned trial court has rightly disbelieved the statement of 4 persons on two counts; one that the statement is not a genuine document as the stamp of recording officer and signatures/thumb-impression of the owners are not available on record and secondly that 4 persons were not authorized to make the statement on behalf of other owners. He submits that Revenue officials have no authority to declare any person the owner on the basis of statement of alleged owners, it is the civil court who can pass a decree regarding ownership of suit-land. The civil court after recording the evidence has dismissed the petitioners claim and as such the judgments of two courts below are in accordance with law. He has relied on Durranai and 35 others v. Hamidullah Khan and 15 others (2007 SCMR 480), Bahadur Khan and others v. Darveshi Ali Khan and 5 others (PLD 1994 SC 354), Ghulam Qadir v. Ahmad Yar and others (PLD 1990 SC 1049), Mehrab Shah through his legal heirs v. Shah Zaman and others (1985 SCMR 497) and Syed Muhammad Iqbal Jafri v. Registrar, Lahore High Court, Lahore (2004 SCMR 540=2004 PLC (C.S.) 809). He lastly adds that both reliefs of petitioners, that of adverse possession and title are self-destructive.
Jamabandies and Khasra Girdawaries show that the petitioners are "Ghair Moroosi tenants" and entry in column of Lagan "Billa Lagan Ba Tasawor Malkeyat" did not create ownership in favour of petitioners.
7. Heard, record perused.
8. The petitioners claim revolves around the statements of 4 persons named in the plaint, the respondents have not denied their ownership but claim that they were not authorized on behalf of other co-sharers of Shamlat Deh to surrender their ownership in favour of petitioners predecessor in interest. The learned trial court has not given any finding nor has considered this aspect of case whether the 4 persons were entitled to surrender their rights in favour of petitioners to the extent of their ownership or not?
9. As per respondents own admission, the 4 persons named above were the owners of land and were co-sharers in the Shamlat Deb and as such the learned trial court should have given finding to the effect whether the statement of 4 persons is operative to their extent or not? Now for resolution of real dispute, it has to be seen what statement 4 owners recorded before the Revenue officials and what is its effect. The alleged statement is Exh.P-6 which is read as under:---{{URDU TEXT}}
10. This statement bears their signatures and thumb-impression along with the thumb-impression of Lumbardar. This statement remains subject-matter of legal proceedings of Revenue officials and ultimately Mutations Nos.1494 and 1495 were entered in the Revenue Record. The petitioners claim is that mutations were not attested, as Second World War broke and most of the claimants joined royal British Army and it was decided that mutations will be attested when, the majority of claimants will return from the War. The mutations Nos.1494 and 1495 are Exhs.P36 and P37. The narration of Exh.P37 shows that attesting officer whose signatures in English are available on Exh.P37 passed the following order:- {{URDU TEXT}}
11. The two mutations are available in the Revenue Record and respondents have not attacked their genuineness. Learned trial court has disbelieved the statement of 4-owners, subsequent proceedings and mutations on the ground that P.W.2 a government official appeared and he admitted that statement does not bear the stamp of any court or it does not bear the signatures of any Revenue Officer. On the said admission of P.W.2 the learned trial court has given a finding in the following terms:--- "The above said deposition of the P. W. 2 clearly shows that Exh.P.6 i,e, statement of 4 predecessors-in-interest of defendants does not bear any stamp of any court or it does not bear the signature of Revenue Officer. So it cannot be said that with certainty 4 predecessors-in- interest of defendants had ever made the said statement."
12. This finding of learned trial court is against the facts. The statement bears the thumb- impressions of 4 persons along with the thumb-impression of Lumbardar, the said statement finds mention in official proceedings, which took place subsequent to the statement. The official proceedings are Exh.P7, prepared by the Assistant Collector whose signatures in English are available and is dated 9-5-1988. Exh.P8 shows that partition proceedings were conducted by the Revenue officials in the presence of owners in possession of the land, these proceedings bear the signatures of Revenue official. Exhs.P.36 and P.37 show that statement (Exh.P-6) was finally entered in the Revenue Record but the mutations were not attested on the statement of predecessor in interest of petitioners which they got recorded before the Revenue Officers/ Tehsildar/Sub- Registrar. The claim of petitioners is that a number of residents of the village have gone abroad and it was decided that after War is ended, the mutations will be attested. From the above said proceedings, one issue is absolutely clear that 4 persons were owner of land along with other owners, they made the statement without any reservation and consideration for making the said statement was also available in the statement Exh.P.6. Consideration for recording the statement is shown to avoid litigation. Learned trial court has disbelieved or rejected this document which is admittedly more than 69-years old. The question is from where the document was produced before the Court and in whose custody the same was. Admittedly, the said documents were in the custody of Revenue official who produce the same and admittedly these are more than 69-years old. Learned trial court has detracked from the fact that P.W.2 when admitted in his cross- examination as under--{{URDU TEXT}}
13. P.W.2 who made the above admission is Deputy Record Keeper. Now the question arose, how a person who was not present at the time of execution of document or affixation of thumb- impression can recognize the signature and thumb-impression available on the document which came into existence more than 69-years ago. The affixation of stamp on court's order, the Revenue Officers being a quasi judicial, court is not so important, when signature of the Revenue Officer specifically in English language is available on each and every legal proceedings conducted by the Revenue Officer. The most important fact which has been ignored by the learned trial court and their authenticity is beyond any challenge Exhs.P6, P7, P8, P36 and P37, these documents admittedly were available on record when the P.W.2 appeared in witness box, he made statement that the copy of amended statement dated 14-4-1938 is correct according to record, report of Revenue Officer dated 8-5-1938 Exh.P7 is correct according to record. Judgments of Divisional Officer Exh.P- 8, Exh.P-9 dated 29-12-1938 and 1-2-1940 are correct according to his record. Learned trial court has disbelieved the official documents which were the part of record even before the creation of Pakistan, on the reply of P.W.2 in cross-examination. That he does not recognize the signature on the documents. The reply of custodian was misconstrued by learned courts below, how a witness can confirm that fact which does not come into existence in his presence. Surprisingly no question was asked to said witness about these documents that these are forged and were planted in the record, not asking this question shows that respondents themselves are sure about the genuineness of said documents. In these circumstances, the documents produced from the official record are protected under Article 100 of the Qanun-e-Shahadat Order.
14. Now the question arose, what is effect of these documents? DWs have not challenged the ownership of 4 persons who surrendered their; rights in favour of predecessor-in-interest of petitioners. Their case is that they were the owners of their respective share in Shamlat Deh but they were not authorized to make the statement for surrendering their share in favour of predecessor-in-interest of petitioners on behalf of other co-sharers of Shamlat Deh. In case the respondents objection is admitted for a moment, the net effect of the said statement is that their statement will be binding against their unpartitioned share and for that the 4 persons were not required to get permission from other co-sharers, and the maximum effect of the objection is that unpartitioned share of 4 persons become the ownership of predecessor-in-interest of the petitioners, hence the objection of respondents has no legal footing. The next objection of respondents is that petitioners' earlier suit for the same land of adverse possession has been dismissed, hence the present suit is not maintainable. It is proven fact on record that predecessors-in-interest of petitioners were in possession of suit property and were claiming their adverse possession against land in their possession and to avoid litigation, the 4 owners recorded their statement by relinquishing their ownership in favour of the occupants of the suit-land. No doubt the petitioners filed a suit on the basis of adverse possession, the plaint of said suit was rejected vide Ex.D4. The operative part of order of rejection of plaint dated 15-4-1992 is reproduced as under:-- "During the arguments, learned counsel for respondents admitted the plea of petitioners except that suit cannot be dismissed rather the plaint should be rejected. As the suit is barred by law, I agree full with the version of counsel of respondents and keeping in view the judgment of Federal Shariat Court, according to which the ownership on the basis of adverse possession has been declared as repugnant to injunction of Islam, the application is hereby accepted and the plaint is rejected accordingly under Order VII, rule 11, ' C.P. C. Along with costs."
16. The perusal of above order will show that plaint of earlier suit was rejected under Order VII, rule 11, C.P.C. On the basis of judgment of Federal Shariat Court and as such the said rejection of plaint could not operate as res judicata for the reasons that suit was not decided on merits, the right of adverse possession was declared by the court not enforceable in law and as such the petitioners became remediless. The very perusal of statement, subject-matter of the entire dispute, shows that the adverse possession of the petitioners' predecessor-in-interest was admitted by the actual owners. The petitioners rightly filed the suit asserting their right of adverse possession but when by operation of law, their right came to an end, they filed a suit for declaration on the basis of statement of 4 persons from where the petitioners are deriving title to the suit-land and as such argument of learned counsel for respondents is of|B no avail.
17. As far as question of molded relief of petitioners is concerned, the learned trial court came to the conclusion that it can be allowed only after amendment in the plaint and refused the said prayer/relief only on the ground that amendment in the plaint at the final stage of suit could not be allowed. This finding of learned trial court is against law. It is an established principle of law that amendment in the pleadings can be allowed even at the final appellate stage i,e, before the Supreme Court of Pakistan.
18. The most interesting fact in this case is that respondents have not denied the genuineness of the document sought to be implemented by the petitioners through the suit. They have not alleged that these documents are fake, forged and planted in the Revenue Record only to get benefit.
However, one objection of respondents which stands proved in evidence is that P.Ws. Admitted that village Shawala was separated from village Khushab and the petitioners have not made party to the owners of Shamlat Deh of village Shawala. The perusal of Exh.P6, the statement of 4 persons shows that it pertains to village Khushab only and it has been specifically mentioned in the said statement as: ' The P.W. Has given explanation of this fact that at that time when the statement was recorded only the village Khushab was in existence but admittedly at the time of institution of suit the village Shawala was separated from village Khushab, this fact is admitted by P.W.8, one of the petitioners, he in cross-examination admits as under:---{{URDU TEXT}}
19. From the admission of P.W.8 it is clear that it was in the knowledge of petitioners that Shawala is a different village and is not part of Khushab. Admittedly the owners of village Shawala were not party to the suit and as such the decree in the suit will not be operative against their rights. The claim of P.W.8, that in 1934 when statement was recorded by the 4 persons, Shawala was the part of village Khushab but P.W.8 admits that at the time of institution of suit, village Shawala was separated from Khushab and as such it was obligatory for the petitioners to agitate their claim by impleading the owners of Shawala village if their claim is extended to land of village Shawala.
Hence this objection of respondent is upheld.
20. The upshot of above said discussion is that the plaintiffs have proved their case and as such the judgments of both the courts below are set aside and the suit is decreed to the extent of village Khushab. The revision petition is allowed, in the above said terms.