' SALAHUDDIN PANHW AR, J.- --Applicants Principal Government Mumtaz College, Khairpur and another have challenged the impugned Judgment dated 11th November 2011 and Decree dated 22nd November, 2011, passed by the learned 3rd Additional District Judge, Khairpur in a Civil Appeal No,129 of 2010 (Badaruddin and others v. Principal, Government Mumtaz College, Khairpur and another).
2. Succinctly, the facts of the subject matter are that the agricultural land bearing Survey Nos.49 (1- 38), 226 (0-30), 227 (0-01) and 228 (1-09) total admeasuring 3.34 acres, situated in Deh Bhurgari, Taluka and District Khairpur (herein after be referred to "the suit land") is ancestral property of the plaintiffs, originally belonged to their ancestors namely Ali Nawaz and Karim Bakhsh, both sons of Muhammad Faazil Moghul, Karim Bakhsh died issueless and his share came in the name of Ali Nawaz, Ali Nawaz died and the suit land was mutated in the names of his legal heirs, namely Fateh Ali, Muhammad Ibrahim, Muhammad Bakhsh, sons of Ali Nawaz, Mst.Kaneez Bano alias Kazul, Mst.Allah Nawazi, both daughters of Ali Nawaz. All the above named legal heirs of Ali Nawaz died except Mst. Kaneez Bano alias Kazul (the present plaintiff No,17). The data in the Revenue Record has continued in their names since Number Shumari of 1952 till today. The possession of the suit land continued with the plaintiffs since their forefathers. About 3 years back, the defendant No, 1 has illegally occupied the suit land. The plaintiffs approached the defendant No, 1 to vacate the suit land but he avoided. The plaintiffs approached the Mukhtiarkar (Revenue) Khairpur, who issued notice to the defendant No, 1, but the defendant No,1 or his representative did not appear. On 14-4- 2009 the plaintiffs applied for supply of previous record of KHASRA and DAKHAL KHARIJ to the Mukhtiarkar (Revenue) Khairpur, but Mukhtiarkar (Revenue), Khairpur, refused to supply the same on the basis of report of Tapedar, that such record is not available but only DEH FORM-VII, is available. The suit land is in illegal possession of the defendant No,1, who is liable to vacate the same and to hand over the suit land to the plaintiffs and to pay mesne profits to them.
3. The suit of the plaintiffs was admitted. Defendant No,1 appeared and filed his written statement, stating therein, that the plaintiffs have not come with clean hands; plaintiffs have concealed the actual fact; the fact is that the ancestors of the plaintiffs sold/donated the suit land to the Government of Sindh, Education and Literacy Department long time ago; plaintiffs are not the actual owners of the suit land; defendants Nos.1 and 2 are the legal owners of the land; they are in peaceful possession of the same since 50/55 years; the documents produced by the plaintiffs' are not authentic documents of ownership; plaintiffs suit is hopelessly time barred.
4. Learned counsel for the applicants has inter alia argued that the plaintiffs suit was dismissed by judgment and Decree by the trial Court but by the impugned judgment the Appellate Court allowed the Appeal and decreed the suit; impugned judgment is illegal and not maintainable under the law; the Appellate Court has not appreciated that the plaintiffs' suit was bad on the mis- joinder and non-joinder of the parties; plaintiffs have failed to prove the title/ownership and in fact this was a collusive suit, therefore the impugned judgment is liable to be set aside. He has filed some documents through statement.
5. Conversely the learned counsel for the respondents has supported the impugned Judgment and Decree and argued that para-2 of Plaint which is regarding title-ship of suit land, is admitted by the defendant in their written statement; there is no denial, therefore the Appellate Court's Judgment is very much legal and proper. He has further argued that the trial Court wrongly assumed the suo moto jurisdiction and passed the Judgment on the grounds Which were not the part of the pleadings that the lease deed produced by the defendants does not show the Survey Numbers of the land; plaintiffs have proved ownership by producing the Number Shurnari documents, in which it is specifically mentioned that Kareem Bux ancestors of the plaintiffs is owner; the applicants have failed to produce any record regarding the ownership of subject land; the additional documents produced by the applicants counsel at the stage of revision, cannot be considered. He relied upon the case-law reported as Messrs Muhammad Amin Muhammad Bashir limited and another v. Pakistan through Secretary and 5. Others reported in 2000 CLC 1550, Zafar Mirza v. Mst Naushina Amir Ai reported in PLD 1993 Kar. 775, Mrs. Uzma Aziz v. Mst Maryam and others reported in PLD 2006 Kar.
58.
6. It is worth to add here that the learned counsel for the applicant has sought poduction of number of documents through statement but since there is no such provision to allow production of such documents at revisional stage, therefore, documents need not be looked into.
7. I have heard the learned counsel for respective parties and have also assessed the available material carefully. It is now well settled principle of law that where the judgments of both the courts below are varying to each other, therefore, it would be just and essential for the revisional court to examine the same by reappraisal of the evidence that the judgment of which court is correct.
Reference, if any, can well be given to the case-laws reported as Ghulam Shabir v. Mst Bakht Khatoon reported in 2009 SCM R 644 Rel. Page 648/A, and Mst. Nooran Bibi v. Rajab Ali reported in 2007 CLC 1840 Rel. P-1884/13.
8. The pivotal points of determination in the matter would be:-- ' Whether the plaintiffs had a legal character to bring the suit of ownership in respect of the subject property?
9. What I found from perusal of the available material has made me to endorse, even before discussing the material, that the Court (s) are the ultimate guardians of the rights of the individuals therefore, it has never been the object and intent of law that a judge should not apply his mind independently and should go blindly on a dotted- line. I am conscious that though the court(s) are to decide, the matter(s) within the documents (evidence), brought on record yet the decision should be result of independent application of the judicial mind because the court (s) are not supposed to be made a tool to derive what the law doesn't permit or what legally can be achieved.
This proposition seems to be of no other reasons but to eliminate all chances of collusively initiated suit(s)/petitions etc. This has been the back ground of well settled principle of law of appreciation of evidence which insists that one should not be benefited for the weakness of opposite party and even emphasis has been made that even in ex parte matter the courts has to see whether the plaintiff is entitled for the relief claimed or otherwise.
10. Having said so, now I revert to the point, involved in the matter and examines the material brought onto record by either side in order to prove their respective claim of ownership in respect of subject property. In order to prove the title the plaintiffs have produced, village Farm-VII and shall receipts. Village farm-VII(Exh.30/B) which contains the names of Fateh Ali Mughal, Muhammad Ibrahim, Mohammad Bux, Mst. Ghazal and Mst. Allah Nawazi in the column-IV.
Relevant column--5 of Ex.30/B shows the kind of claim as "number shumari year 1952". It needs not be mentioned here that number shumari is not a title document. Record further shows that witness of the plaintiffs Tapedar produced Deh Farm-IV at Ex.28/B & C of the suit land and the relevant column of status of suit land in such documents (Exh.28/B and C) show the suit land to be government land. Plaintiffs themselves have produced the documents through their own official witness which prove the suit land to be government land. These documents (Exh.28/B and C) are also the record from that of village Farm-VII (Exh.28-A), thus it becomes obvious that earlier status of the suit land was government land which also find support from the claimed title document (Exh.
30/B) of the plaintiffs which also shows claim under 'Number Shumari'. Now I can safely say that there can be no denial to the legal position that no government land/property could be transferred in name of private person without resorting to certain procedures and policies, as framed by competent authorities time to time. Hence it would be quite safe to endorse here that the subsequent entries must show/prove the manner in which the property was received by ancestors of the plaintiffs and mere entry in the village Farm-VII without proving manner of its transfer would not be sufficient to decide title/ownership because it is a settled principle of law that simple entry in a mutation without manner of its transfer had no sanctity in the eye of law nor it creates any right or interest whatsoever may be.
11. The record further reflects that the defendant No,1 specifically claimed that the property in question has been in possession of the College since its creation and even the college remained leasing out the same to different person which even was leased out to the husband of the plaintiff No,14. Such specific statement has neither been denied by the plaintiffs nor was even any suggestion put to contradict such a statement. Thus, it is safe to say that such statement/claim went unchallenged hence legal presumption would, otherwise, be that it was admitted. The attorney of the plaintiffs admitted in his cross-examination that "The defendant No,1 is given the land on lease by occasion. The different persons including my caste fellows have been taking the suit land on lease". This admission on part of the attorney of the plaintiffs has supported the plea of the defendant No,1 that Mumtaz College remained leasing out the suit land to different persons.
12. These have been material which convinced the learned trial court to reach a conclusion that property belonged to Mumtaz College while such conclusion of the learned trial court judge was reversed by learned appellate court referring to the admission of the defendant No,1 to the effect that he admitted that property in questioned belonged to ancestors of the plaintiffs. Since I have already Opened that one cannot be benefited by the weakness of the opposite party therefore, the learned appellate court ought to have examined such an admission keeping in view the material available / brought on record. Since the plaintiffs never succeeded in establishing their title hence mere admission of defendant No,1 in written statement was not sufficient to hold the property to be of the plaintiffs, thereby, plaintiffs failed to shift the onus upon defendant. It is well settled that a fact is to be proved by the party which pleads its existence, simply because a factual proposition is affirmed or denied in a written statement, does not necessarily means that it has been legally proved. Another aspect is also important to specify here that the plaintiffs did not sue the Mumtaz College directly but sued the principal whereof.
13. The record further reveals that though the plaintiffs claimed to have been dispossessed from the suit property three years before filing the suit yet admittedly the plaintiffs neither made any complaint to any authority regarding their dispossession nor brought any suit in any court of law regarding their dispossession. The attorney of the plaintiffs claimed to have made an application to the Mukhtiarkar but neither produced the same no examined the Mukhtiarkar or any of his officials to produce such application/complaint. On the other hand the plaintiffs' attorney admitted in his cross-examination that the defendant No,1 leased . Out the suit land on lease at different occasion to different persons, including caste fellows of the plaintiffs. Such admissions, lead to nothing but that the defendant No,1 was not only in possession of the suit land within notice and knowledge of all but the act of the defendant No,1 leasing out the land was also within notice and knowledge of all including the plaintiffs which was patently not questioned. Further the documents of lease produced by the defendant No,1 pertain to year 1991, which document was not even suggested to be false by plaintiffs. All the above facts material and documents, lead me to the conclusion that plaintiffs failed in proving the ownership of their ancestors; nor succeeded in establishing the manner in which the admitted government property i,e, subject property was claimed to be there and were rather they admitted possession the admission of plaintiffs to the effect that within their notice and knowledge the Mumtaz College remained leasing out the property in question. Such conduct and attitude of the plaintiffs also brings the principle of acquiescence into operation and legally estopped them to claim such property.
14. Accordingly in view of above discussion I am of the view that the plaintiffs never succeeded in establishing their legal character and claim in respect of the property in question, therefore, I answered the point in negation.
15. However, before parting, I would like to add here that principal Mumtaz College also brought nothing on record to prove the title of Government Mumtaz College over the property in question except the documents of leasing the property. The factum of leasing the property by one can, at the most, prove its possession over the property in question and would not be sufficient to prove title which requires to be proved / established hence observation of the learned Trial Court Judge in this respect would be of no help for the Mumtaz College to claim ownership. However, it is worth to add here that since the Government Mumtaz College was not properly made a party to the proceedings therefore, findings on this point would not prejudice its interests, claims and rights, if any, which are to be proved/established by the Government Mumtaz College as required under the law.
16. The upshot of the above discussion is that the revision petition is hereby allowed and the impugned judgment and decree of the learned appellate Court is hereby set aside whilst that of learned trial court judgment is restored but with modification in respect of issue of ownership i,e, Issue No,2, benign well-reasoned. 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.