' AMIN-UD-DIN KHAN, J.---This appeal has been filed by the defendants-appellants against the judgment and decree dated 13-10-2004 passed by learned lower appellate court whereby appeal filed by the plaintiffs-respondents was accepted and judgment and decree dated 18-2-1996 passed by learned trial court dismissing the suit, was set aside.
2. Brief facts of the case are that plaintiffs-respondents on 16-6-1991 filed a suit for possession of plot, detail of which is fully mentioned in the head-note of the plaint. Written statement was filed, suit was contested. Learned trial court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. After completion of trial vide judgment and decree dated 18-2-1996 learned trial court dismissed the suit. Appeal was preferred, which was accepted by the learned first appellate court vide judgment and decree dated 13-10-2004. Hence, this second appeal before this Court.
3. Learned counsel for the appellants states that he has filed C.M.No,1 of 2007 for asking respondent No,1-plaintiff to place on record copy of NIC, School Certificate and matriculation certification.
Learned counsel states that as the plaintiff-respondent No, 1 has pleaded his minority, therefore, it is necessary that he be directed to produce the said record on the file of this case.
4. Learned counsel for the respondent states that he will not press defence of minority of the plaintiff/respondent, therefore, there is no need to ask respondent No, 1/plaintiff to place on record the said documents. At this stage learned counsel for the appellants states that he is satisfied with the statement of learned counsel and does not press this application anymore. C.M.No,1 of 2007 stands disposed of as not pressed.
5. Learned counsel for the appellants argues that the suit was clearly time barred as case of the plaintiff-respondent that defendants Nos. 2 to 4 purchased plot No, 6 from the Provincial Government in the year 1969 whereas Plot No, 7 was purchased by Mehr Muhammad Yar defendant No, 1 on the same date i,e, 25-8-1969 from the Government of Punjab and defendant No,1 sold his plot to the plaintiff through registered sale deed on 23-7-1971 and Mutation No, 1576 was also sanctioned on 30-9-1975 in his favour and plaintiff was put in possession of the land equivalent to the land sold in his favour but subsequently on the move of Raza Shah etc. The purchasers of Plot No, 8 the land equivalent to the land for which the plaintiff has claimed the possession from defendants Nos. 2 to 4 in accordance with demarcation report, plaintiff was declared in possession of the property owned by Raza Shah etc owner of Plot No,
8. When the said portion was given to Raza Shah etc., therefore, plaintiff claim equal to the land he has surrendered possession in favour of Riaz Hussain Shah etc. Learned counsel argues that according to plaintiff he filed an application before the Assistant Commissioner for delivery of possession of suit land on the basis of demarcation report but on appeal by the present appellant the Additional Commission (Revenue) vide order dated 14-2-1981 (Exh.P.32) accepted the appeal and observed that civil court has jurisdiction in the matter. The order of Additional Commissioner was challenged before the Board of Revenue, Punjab, Lahore and on failure plaintiff filed Writ Petition No, 4075 of 1983 which was dismissed and Civil Appeal No, 441 of 1987 was also dismissed by the august Supreme Court of Pakistan on 29-1-1991 and the suit in hand was filed on 16-6-1991 against defendant Nos. 2 to 4 for possession of land equivalent to the land which was given to Raza Shah etc. Learned counsel argues that each day's delay was to be explained by the plaintiff for filing the suit as the limitation for filing a suit for possession is 12 years under Article 136 of the Limitation Act, 1908. Learned counsel further argues that with regard to the encroachment no evidence has been produced by the plaintiff nor any Local Commission was got appointed by the court nor there is any such report. Learned counsel argues that the proceedings of demarcation conducted against the plaintiff by the revenue authorities have also been exhibited in this case which have no evidentiary value and the same cannot be used against the appellants-defendants; that suit has been filed after 22 years and even the plaintiff cannot be given benefit of section 14 of the Limitation Act, 1908. Further while referring Volume-I Part-M, Chapter 1 Rules 1 and 4 argues that even the "Hud-Barari" has not been conducted in accordance with the High Court Rules and Orders. While referring "Muhammad Nawaz and 2 others v. Zafar Saeed and 14 others" (2006 CLC 1488) states that the procedure provided under High Court Rules and Orders is mandatory for conducting "Hud Barari" proceedings.
6. On the other hand, learned counsel for the respondent-plaintiff has referred that in the preliminary objection No, 5 of the written statement filed by the legal heirs of defendant No, 1 they have stated that some portion of the land owned by the original owner defendant No, 1 was gifted to defendants Nos. 2 to 4 and states that same is the position of the written statement filed by defendants Nos. 2 to 4 but no specific gift has been mentioned nor the same has been proved.
Refers Exh.P.18 to argue that this Court has held that revenue authorities had the jurisdiction for demarcation. Argues that from the date of dispossession plaintiff has a cause of action and further that even the plaintiff was pursuing the matter before the other forums bonafidely and when this Court in Writ Petition filed by the respondent-plaintiff asked him to go to the Civil Court, he has filed the suit in hand, therefore, states that the suit has been filed within limitation and further that there was no need to appoint Local Commission in this case as the case of the plaintiff was Established through demarcation proceedings.
7. When questioned to the learned counsel for the respondent/plaintiff that whether the present appellants were party to the demarcation proceedings, learned counsel states that they were not party to the said demarcation proceedings and further learned counsel was asked whether the person conducting the demarcation and preparing the report appeared before the learned trial court to prove the demarcation proceedings, the answer was in the negative. Learned counsel argues that these points are of technical nature, when the defendants have claimed a gift, therefore, they were bound to prove the gift in their favour.
8. I am afraid this argument is not in accordance with law as it is established principle that when a person comes to the A court with a prayer to grant a decree, it is his primary duty to prove the case pleaded by him and in some cases, shifting of onus to prove the facts to the other party is also recognized by the law but even then the primary duty is of the plaintiff to bring the evidence in support of his claim, if his claim has not been admitted by the other side in the pleadings. In this case in the pleadings the claim of the plaintiff has not been admitted by the defendants though the defendants have introduced some other facts, the fact of gift in their favour even if they failed to prove the gift pleaded by them their failure cannot entitle the plaintiff to get a decree as prayed in the suit. Further the plaintiff-respondent produced Muhammad Hanif P.W.1 as his Attorney only in the oral evidence and also produced documentary evidence, copy of the registered Sale Deed of urban area in the Canal Colonies by the Government of Punjab in favour of Muhammad Yar has been produced as Exh.P.2. Through this sale deed for consideration of Rs,40100 land measuring 2111 square yard was sold by the Government of the Punjab to Muhammad Yar for Bungalow. In the specification column Plot No, 7 Block No, 11 Civil Station Sargodha has been written. No boundaries have been mentioned and there is also mentioned that no plan has been attached with this sale deed. It was registered on 25-8-1969 as document No, 1536. Exh.P.3 is "Aks Shajra Parcha" prepared by the Patwari. There is a note by the Patwari in the document that this has been prepared on the desire of Muhammad Hanif son of Haji Muhammad Siddique. Exh.P.4 is also "Aks Shajra Parcha" prepared by the Patwari and Exh.P.6 is copy of the Sale Deed in favour of plaintiff by Muhammad Yar for sale consideration of Rs,20,000 for the land measuring (100X190) i,e, 3 kanals 10 marlas on the basis of sale deed Exh.P.2. The other documentary evidence relates to the demarcation proceedings in between plaintiff and Syed Raza Hussain etc. Whereas some original applications filed by the plaintiff with the reports of the revenue officials have also been produced in documentary evidence and further the copy of the Writ Petition No, 4075 of 1983 as well as order passed by this Court whereby writ petition was dismissed on 23-11-1985. Copy of Writ Petition has been produced as Exh.P.14 and order of this Court as Exh.P.15. Order of august, Supreme Court of Pakistan dated 29-1-1991, against the dismissal of his writ petition plaintiff has produced as Exh.P.16 whereby the appeal filed by the plaintiff was dismissed. Exh.P.17 is Writ Petition No, 4792 of 1981 filed against Syed Raza Hussain etc. And Exh.P.18 is order passed by this Court whereby writ petition was dismissed on 22-5-1982. Exh. P.19 is the Sale Deed by the Government of Punjab of Urban Area in the Canal Colonies with regard to the sale of land measuring 3 kanals 9 marlas and 231 square feet Plot No, 3 Block No, 11 Civil Station Sargodha registered as Document No, 1571 with the Sub-Registrar on 2nd of September 1969 in favour of Muhammad Azam defendant.
9. In this view of the matter the documentary evidence which consists upon demarcation report as well as copies from the record prepared by the Patwari as well as reports of the revenue officials are not per se admissible, therefore, when the defendants-appellants were not associated at the time of demarcation proceedings and the author of the demarcation proceedings as well as author of the other documents which consists upon reports have not been produced before the court to prove these documents, same have no evidentiary value and cannot be read in evidence against the defendants. So far as, certified copies from the judicial record are concerned, those have been produced in order to show that the suit be presumed to have been filed within the period of limitation provided under the law. I am afraid judgments of this court as well as august Supreme Court of Pakistan are also not helpful to the plaintiff-respondent for presuming his suit within the prescribed period of limitation as it is settled law that no court can extend or enhance the period of limitation prescribed by the law for filing any other proceeding before the proper forum if the proceedings have been filed in the wrong forum and further taking light from the judgment reported as Muhammad Nawaz and 2 others v. Zafar Saeed and 14 others" (2006 CLC 1488) demarcation proceedings have not been conducted in accordance with High Court Rules and Orders referred supra. I have been further guided by (PLD 1999 Lahore 31) "Pervez Ahmad Khan Burki and 3 others v. Assistant Commissioner, Lahore Cant and 2 others" as it is held by this Court that the revenue authorities have no jurisdiction to conduct the demarcation proceedings in the building site or such land on which permanent structures have been raised as according to section 3 of the West, Pakistan Land Revenue Act, 1967 except for certain fiscal purposes, nothing in the Act applies to those lands.
10. The argument of learned counsel for the appellant that while relying upon "Hari BhusanHaider v.
Sheikh Abdul and others" (AIR 1927 Calcutta 54) land was given by the Government under the sale deed to the appellants, they have constructed the Bungalow admittedly and the plaintiff- respondent never raised any objection on raising of construction, therefore, he is estopped by his conduct.
' Relevant para from the judgment is quoted hereunder:-- "Where a person in bona fide belief that a certain property belongs to him spends money upon it and the true owner stands by and allows him to spend money and make improvements upon his land, the true owner is estopped from asserting his title to the land as against the person making.
Improvements in such bona fide belief, but where the owner gives notice to the person making improvements to desist from building any structure, but does not take legal proceedings at once he is not estopped."
' In my view for the suit in hand the provision applicable is Article 136 of the Limitation Act, 1908, which is reproduced for ready reference:--- () (2) ()
By a [TwelveWhen the purchaser atyears]vendor is a private sale first entitled for possession to of immovable property sold when the ven- dor was out of possession at the date of the sale. ' possession.
' According to this Article time from which period begins to run when the vendor is first entitled to possession. In this case the vendor was entitled to possession on the date when the sale took place in his favour, therefore, in the above circumstances suit was clearly time barred.
11. The protracted proceedings of the litigation and the rounds which the plaintiff-respondent has undergone except the sympathy with the plaintiff-respondent this Court under the law cannot give anything to him as on the basis of sympathy with any party rights of the other parties cannot be taken from the other party. Resultantly, this appeal is allowed. Judgment and decree passed by the learned first appellate court is set aside and that of learned trial court is restored. No order as to costs.
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