' AMIN-UD-DIN KHAN, J.---Through this civil revision, the petitioners-plaintiffs have challenged the judgment and decree dated 22-9-2001 passed by learned Addl: District Judge, Sargodha, whereby the appeal filed by them was dismissed, and the judgment and decree dated 16-2-1999 passed by learned Civil Judge 1st Class, Sargodha, whereby the suit for declaration filed by the petitioners- plaintiffs was dismissed.
2. Briefly, the facts as leading to this civil revision are that the petitioners-plaintiffs on 2-12-1993 filed a suit for declaration, the head note of which is very lengthy which consists upon more than three pages. The plaintiffs sought a decree for declaration of title of suit land in their favour and also challenged allotment and conferment of rights about the disputed property in favour of defendant No,5.
' A joint written statement was filed by official defendants Nos.1 to 4 and defendant No,5 also filed his separate written statement. The suit was contested. In the written statement filed by defendants Nos.1 to 4 it was mentioned that in the sale deed inadvertently by mistake instead of Killa Nos.6-min and 7-min of Square No,60, it was written as Killa Nos.6 and 7 of Square No,60. It was stated that Mutation No,263 has rightly been attested and the plaintiffs cannot take benefit of said mistake, whereas it was stated that payment of land measuring 78-1/4 Kanals has been made and same was transferred in favour of plaintiffs. Learned trial court framed issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the closing of trial, learned trial court vide judgment and decree dated 16-2-1999 dismissed the suit. Feeling aggrieved thereby, an appeal was preferred before the learned first appellate court which also met with the same fate vide judgment and decree dated 22-9-2001. Hence, this civil revision.
3. Learned counsel for the petitioners-plaintiffs argues that the predecessor of petitioners was entitled for transfer of land measuring 93-1/4-Kanals, as in the sale deed there is mention of Killa Nos.6 and 7 of Square No,60; that there is no mention of 'min' of these Killa numbers, therefore Mutation No,263 was wrongly attested by the Patwari; that in the mutation, 'min' has been mentioned against Killa Nos.6 and 7 referred above. While referring "2004 SCM R 1530 (Muhammad Munir v. Muhammad Saleem and others)" learned counsel argues that revenue authorities may be able to rescind and revoke the mutation entries wrongly entered but they are not empowered in law to annul and set aside a registered sale .Deed, which has far greater value and weight. While relying upon "2007 SCM R 1773 (Muhammad Ishaq v. Muhammad Shafiq and 9 others)" argues that mutation was not a deed of title, "if such mutation stood cancelled, the real and genuine deed of title existed in favour of vendee in shape of registered sale deed on the strength of which he remained owner of land and vendor had no right to sell same to other." Further states that in Shajra-Parcha' copy of which has been produced as Exh.P-3, Killa Nos.6 and 7 of Square No,60 are mentioned as a whole{{URDU TEXT}} (ill.) 'min' or bifurcation is not mentioned therein, therefore if there was any mistake in the sale deed, it was to be corrected and Patwari has no right to bifurcate these Killa numbers. With regard to limitation learned counsel argues that as the petitioners- plaintiffs are in possession of suit land, therefore suit is within time. Learned counsel prays for acceptance of instant civil revision and decree of the suit by setting aside the judgments and decrees passed by both the courts below.
4. On the other hand, learned counsel appearing on behalf of respondent/defendant No,5 argues that there are concurrent findings of facts in favour of said respondent/defendant recorded by two courts below. Learned counsel further raised preliminary objection that the civil revision is not competent, as most of the documentary evidence produced by the petitioners-plaintiffs themselves i,e, Exh.P-7 to Exh.P-9, Exh.P-16 to Exh.P-28 has not been appended with the civil revision and even the documentary evidence led by the respondent in shape of Exh.D-1 to Exh.D-6, Exh.D-10 to Exh.D-15 has not been appended with this civil revision, therefore for non-compliance of mandatory provisions of section 115 of the C.P.C., this civil revision is liable to be dismissed on this score only. He relied upon "1994 CLC 1207 (Muhammad Bashir and others v. Muhammad Hussain)".
' It has been further argued by learned counsel for respondent No,5 that the suit was time barred and it has rightly been dismissed on merits; that admittedly in the sale deed (Exh.P-1) in favour of petitioners the land has been mentioned 78-1/4 - Kanals. While referring Exh.P-4 states that the predecessor of petitioners admitted that he is claimant of 78-1/4-Kanals of land, for which the price has been assessed and he agreed to pay the same and to this effect there is an affidavit of predecessor of petitioners-plaintiffs; that even there is an order dated 21-7-1961 passed by the Collector Sargodha, which shows that the predecessor of petitioners has applied for allotment of land measuring 78-1/4-Kanals; that the petitioners-plaintiffs themselves have produced copy of Khasra-Girdawari as Exh.P-10 for the year Khareef 1955-Rabee 1956, wherein Killa No,6/1 land measuring 4-1/2-Kanals and Killa No,6/2 land measuring 4-1/2- Kanals of Square No,60 is mentioned and same is the position of Killa No,7/1 land measuring 4-1/2- Kanals and Killa No,7/2 land measuring 4-1/2-Kanals of Square No,60; that when the petitioners themselves have produced the documents pertaining to the year 1955-56, therefore they cannot now take any other stance against their own, documentary evidence. Learned counsel further states that the petitioners previously filed a suit on 9-9-1985, which was withdrawn at appellate stage but the present suit has been filed on 2-12-1993, therefore it is clearly time barred and even if the cause of action and date of knowledge is presumed first filing of suit i,e, 9-9-1985, second suit could have been filed within six years; that under section 42 of the Specific Relief Act, 1877 a declaratory suit cannot create new right but only declares a pre-existing right; that the suit land was owned by the Provincial Government and it was within the competent jurisdiction of Provincial Government to transfer the same to any person; that the disputed land has been transferred in favour of the answering respondent No,5, therefore the petitioners have no right to challenge the same in view of bar contained under section 36 of the Colonization of Government Lands (Punjab)
Act, 1912; that when both the courts below came to the conclusion that the Civil Court has no jurisdiction to adjudicate upon such like matters, therefore the civil revision in hand is not competent. Reliance is placed upon "2000 SCM R 1083 (Muhammad Ishaq v. Abdul Ghani and 3 others) and 1998 SCM R 468 (Alam Sher through L.Rs, v. Muhammad Sharif and 2 others)".
5. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
6. So far as the case of petitioners that complete Killa Nos.6 and 7 of Square No,60 have been mentioned in the sale deed and as such they be declared owners in possession of suit property, is concerned, against this one endorsement in the sale deed there are consecutive entries of bifurcation about both the Killa numbers, as has been referred even in Khasra-Girdawari for the years 1955-1956 produced by the petitioners-plaintiffs themselves. Even the other parts of these bifurcated Khasra numbers have been allotted and proprietary rights have been given to defendant No,5 according to the written statement filed by official defendants Nos.1-4. In whole of the previous litigation as mentioned in written statement filed by respondents-defendants Nos.1 to 4 in lieu of reply of Para 3 of the plaint, as the petitioners have admitted in Para 3 of the plaint that the price of land measuring 78 1/4-Kanals has been deposited and they have offered that they are ready to deposit the price of other land claimed by them, it has been stated that defendants Nos.1- 4 are bound to receive the same. In these circumstance, the case-law referred to by learned counsel for the petitioners-plaintiffs is not applicable to the facts of this case, as the revenue authorities have not cancelled the sale deed in favour of petitioners, which is admittedly of land measuring 78 1/4-Kanals. I find that the total land mentioned in a sale deed is to be considered as transferred in favour of vendee by the vendor because in clear words the total quantum of property is ever mentioned in the sale deed. If there is any contradiction in the detail of property as well as in total of the property, the presumption is attached to the figure of total property mentioned in the document and detail of property is mentioned just for the identification thereof. In this eventuality, in case in hand there is clear mention in the sale deed that 78 1/4-Kanals of land has been transferred through sale deed (Exh.P-1) in favour of predecessor of petitioners-plaintiffs by the Province of Punjab, which has been admitted in clear words in Para 3 of the plaint that for the same property the amount has been paid and it has been transferred in their favour, therefore it is clear that the property measuring 78 1/4-Kanals was sold to the predecessor of petitioners- plaintiffs.
7. So far as any ambiguity in the detail of property is concerned, at the time of implementation of sale deed by consultation of revenue record Patwari has implemented the sale deed. In this view of the matter, no illegality has been committed by the revenue officials while implementing the sale deed. Further when the petitioners-plaintiffs failed to establish their right of ownership but they have tried through this suit that right of ownership be created in their favour, I am afraid that it is not permissible under section 42 of the Specific Relief Act, 1877, as under this Section a declaration of title already inexistence in favour of plaintiff can be granted but no new right can be created through a declaratory decree. In this view of the matter, the findings of facts recorded by both the courts below are absolutely in accordance with law.
8. So far as bar of section 36 of the Colonization of Government Lands (Punjab) Act, 1912 as pressed by learned counsel for respondent-defendant No,5 is concerned, there were two limbs of this case.
One is the sale deed in favour of plaintiffs-petitioners and the other is conferment of proprietary rights in favour of defendant No,5. The argument of learned counsel for the petitioners that after conferment of proprietary rights in favour of predecessor of petitioners the application of Colonization of Government Lands (Punjab) Act, 1912 no more remains in the field and as "such bar of section 36 of said Act vanishes, has no substance. If the argument above noted advanced by learned counsel for the petitioners is admitted, even then there is another limb of the case that there are conferment of proprietary rights in favour of defendant No,5, which has also been challenged. For challenging that transfer in favour of defendant No,5 the plaintiffs were required to show that the transfer in favour of defendant No,5 is without jurisdiction, as for determination of jurisdiction it is the fundamental principle for considering a bar contained in a legislation the simple test is if the authority has exercised jurisdiction vested in it under the statute, then certainly the bar of jurisdiction mentioned in the statute is applicable and the civil court will not have jurisdiction to entertain and try a suit. If the authority has exercised jurisdiction vested in it by law, then the bar is applicable and if the authority has exercised jurisdiction not vested in it by the statute, then the bar contained in the statute is not applicable. In this case, the plaintiffs-petitioners failed to show that the jurisdiction exercised by official defendants Nos.1-4 while transferring the rights in favour of defendant No,5 was not vested, in them by law. In this view of the matter, bar of jurisdiction in this case was applicable and the suit was not competent.
9. The objection of limitation raised by learned counsel for the respondent is concerned, ignoring all the other facts and point that the sale deed was registered on 17-2-1971 which contains thumb mark of the predecessor of petitioners-plaintiffs and that the first suit was filed on 9-9-1985 and present suit has been filed on 2-12-1993, even according to learned counsel for the petitioners with the permission of court previously suit was withdrawn. Even if it is true, the permission to file fresh suit cannot enhance the limitation for filing a suit. In this view of the matter, as under Article 120 of the Limitation Act, 1908, for filing a F declaratory suit the limitation is six years. The present suit was filed even after six years of filing of earlier suit, therefore certainly the suit was time barred.
10. The objection of learned counsel for the respondent that the petitioners have not appended with this revision petition the documentary evidence in shape of Exh.P-7 to Exh.P-9, Exh.P-16 to Exh.P-28, Exh.D-1 to Exh.D-6 and Exh.D-10 to Exh.D-15 is concerned, certainly for invoking jurisdiction of this Court under section 115 of the C.P.C. a party is bound to annex with the certified copies of pleadings, complete evidence, orders and judgments/decrees passed by the courts below. For non filing of said documents the revision petition is not competent.
11. In the light of what has been discussed above, I see no force in this civil revision. The same is hereby dismissed.