Ch. Muhammad Masood Jahangir, J:- By filing the instant civil revision Muhammad Iqbal, petitioner, (hereinafter to be referred as plaintiff) challenged judgment and decree dated 06.09.2005 passed by learned Addl. District Judge, Chakwal whereby appeal filed by respondents No.1 and 2 (hereinafter to be referred as contesting defendants) was allowed, judgment and decree dated 02.02.2005 passed by learned trial court, Chakwal was set aside and suit for declaration filed by the plaintiff was dismissed.
2. The synopsis of the case are that the plaintiff brought a suit for declaration along with possession against the defendants before the learned trial court with the assertion that land measuring 123-kanals 01-marla was owned by Sultan Khan and Habib Khan and the same was in cultivating possession of Sharf, Mehra and Dulla sons of Samand under section 6 of tenancy Act, 1887. The parties are successors of said tenants. It is further pleaded in the plaint that land was jointly partitioned among his grand father Mohammad, Mehra grand father of defendants No.10 to 12 and Noor, the predecessors of defendants No. 8 and 9 and the same was given effect in mutation No. 756 dated 25.6.1915; that in pursuance of said partition and as per above referred mutation, Mohammad s/o Dulla, Mehra s/o Samand, Noor and Toora sons of Sharaf got the land to the extent of 1/3 share each and the entries remained intact for a considerable time. It is also pleaded in the plaint that the predecessors of defendants No. 8 to 12 in connivance with the revenue field staff, got recorded entries in the revenue record to the extent of entire property in their names according to Bandobast for the year 1939-40. Noor and Toora sons of Sharaf were shown as tenants and the name of plaintiff was deleted from the revenue record. It is further pleaded in the plaint that in 1952, permanent tenancy of occupancy was extinguished and under section 114 of the Punjab Tenancy Act, 1887, the plaintiff along with defendants had become absolute owner of the suit land and that predecessor of defendants No.8 and 9 by way of gift deed dated 05.03.1977 (Exh.D/1) transferred half of the disputed property to defendants No. 8 and 9. It is also pleaded in the plaint that plaintiff used to reside in Quetta and he could not gain the knowledge of the wrong entries in the revenue record, which came into his knowledge five months prior to the filing of the suit, wherein it was prayed by him that he be declared as owner in possession of the disputed property according to his share and correction in revenue record was also prayed for along with cancellation of gift deed (Exh.D/1). The suit was resisted by the contesting defendants with the assertions that the entries in the revenue record were correctly affected and that defendants had become absolute owners as the predecessor-in-interest of the plaintiff had surrendered his rights in favour of the defendants and the entries were maintained by the revenue field staff in favour of the defendants as the property was relinquished in their favour.
The learned trial court captured the disputed area of facts by framing the following issues:-
1. Whether the suit is barred by law? OPP
2. Whether the suit is devoid of cause of action? OPD
3. Whether the plaintiff are estopped by their act and conduct to file the suit? OPD
4. Whether the entries in the Revenue Record regarding shares are void, illegal and collusive? OPP
5. Whether the plaintiff is entitled to the declaration prayed for?OPP 5A
6. Whether the suit is within time? OPP
7. Relief.
3. The learned trial court collected the stock of evidence led by the parties and after appreciating the same, decreed the suit filed by the plaintiff vide judgment dated 07.11.2000 passed by learned trial court, however, in appeal the same was set aside by the learned lower appellate court and suit was remanded to the learned trial court vide judgment and decree dated 10.07.2003 and the learned trial court in pursuance of said remand order re-framed issues Nos. 4 and 5, which are as under:-
4. Whether Mohammad son of Dulla, Mehra son of Samand and Noor, Tora sons of Sharf were the occupancy tenants over the property in dispute to the extentof 1/3 share each? OPP
5. Whether the entries in Misl-e-Haqqiat Bandoobast 1939-40 in the names of Noor and Tora sons of Sharf showing occupancy tenants over the property in dispute are illegal; against facts and ineffective as against the rights of the plaintiff? OPP If reframed issues Nos.4 & 5 mentioned above are proved, whether the plaintiff as being successor of Mohammad has become owner of the property in dispute to the extentof 1/3 of % share and the predecessor of defendants Nos. 10 to 12 to the extent of 1/3 of % share, Rehmat s/o Tora to the extent of 1/3 of % share, after the extinguishments of occupancy rights in 1952, under section 114 of the Tenancy Act?
And issue No.5-B and 5-C were also framed, which read as under:- 5-B Whether the predecessor of plaintiff and defendants have consented the entries in favour of the predecessor of the defendants Nos. 6, 7 and 8 and the entries were made with their consent, If so its effect?
5-C. If reframed issues Nos. 4 & 5 are proved, whether the registered gift deed dated 5.2.1977 by Rehmat in favour of the defendants Nos. 8 & 9 is ineffective as against the rights of the plaintiff?
In post remand proceedings, the suit was decreed, however, in appeal the same was dismissed vide judgments and decrees passed by the learned courts below referred in para No.1-ante.
4. Learned counsel for the plaintiff has argued that findings were recorded by the learned lower appellate court against the law while ignoring the basic principle that every entry in Jamabandi gives a fresh cause of action in case of illegal entry. It is also argued on his behalf that no limitation is prescribed for a co-sharer for filing a suit for declaration. He further submitted that the impugned judgment is a result of misreading and non-reading of evidence.
5. Conversely, learned counsel for the respondents while referring to section 38 of the Punjab Tenancy Act, 1887 argued that the rights of occupancy of the plaintiff had been extinguished as he or his predecessor-in-interest failed to cultivate his tenancy for more than one year. He further argued that the suit was badly time barred and the learned lower appellate court rightly passed the impugned judgment and decree while answering issue No.5-A against the plaintiff.
6. Arguments heard and record perused.
7. The pivotal issues in the instant case are issues No. 4, 5, 5-B & 5-C and to discharge the onus of said issues plaintiff himself appeared as PW/1 and presented copy of register Haqdaran Zamin for the year 1908-1909 (Exh.P/4), which proves the stance of the plaintiff that the predecessors of the parties were occupancy tenants under section 6 of the Tenancy Act, 1887. Even to this extent the stance of the plaintiff was conceded by the defendants in para No.3 of the written statement. The pedigree table drawn by the plaintiff in his plaint has not been disputed by the defendants. The said admission of the defendants and perusal of copy of register Haqdaran Zamin (Exh.P/4) fully prove that 1/3rd occupancy rights in the disputed property were conferred upon the predecessor of the plaintiff. Whereas copy of mutation No. 756 dated 25.6.1915 Exh.P/3 reveals that disputed property remained as a joint holding between the predecessors of the parties. However, the perusal of copy of register Haqdaran Zamin (Exh.P/5) reveals that the names of Mehra and Mohammad have been deleted and names of Toora and Noor sons of Sharf were mentioned therein against all the disputed khasra numbers as occupancy tenants. The other entries reflected in subsequent Jamabandi Exh.P/8 further prove that the name of predecessorin-interest of the plaintiff was not shown thereafter against the relevant columns of the said entries. The revenue record produced by the parties did not reflect that mutation No. 756 dated 25.6.1915 (Exh.P/3) was ever cancelled by the revenue hierarchy and this fact has been conceded by the learned counsel for the respondents. It is settled principal of law that a previous entry in the revenue record cannot be changed/altered without any order passed by competent authority and, if any change in the revenue record is incorporated by the revenue official of its own accord, the same has no value in the eyes of law. The deeper appreciation of revenue record adduced by both the parties and available on the file reveals that the entries through which the name of the predecessor-in-interest of the plaintiff was omitted had been made without any order of the competent authority. Once it is established that any such entry was made by the revenue official without any order passed by competent authority, then the same is illegal and the previous entry, which showed the name of predecessor-in-interest of the plaintiff as one of the sharer of the suit land, is deemed to be existed till a new entry is lawfully substituted. In this regard, reliance can be placed upon the judgments reported as ALLAH DAD VS. MUHAMMAD ALI AND OTHERS (PLD 1956 LAHORE 245), MISRI THROUGH LEGAL HEIRS AND OTHERS VS. MUAHMMAD SHARIF AND OTHERS (1997 SCMR 338) and AZAM KHAN VS. AZAD KHAN AND 6 OTHERS (PLD 1986 LAHORE 275). In Azam Khan's case, this court while discussing the interpretation made by superior courts observed as under :- It is well-established proposition of law that once an entry in the revenue record is proved to be illegal, the previous entry is deemed to stand, for an entry subsists till a new one is lawfully substituted for it. See Allah Dad v. Muhammad Ali and others (PLD 1956 Lah. 245). It is also well- settled that a co-sharer in exclusive possession of a parcel of joint land, is entitled to maintain his Hissadari possession till the joint property was partitioned by actual metes and bounds and no person including a co-sharer can dispossess him except through the media of a partition suit. A co-sharer dispossessed by another in the Mehal where lands are held in severalty is entitled to recover separate possession even apart from the provisions of Specific Relief Act. See Ganesha Mal v. Ibrahim and others (AIR 1919 Lah. 237), where Scott Smith, J. Observed :- " In the case of a joint Khata of agricultural land out co-sharer ordinarily cultivates one field and other co-sharers cultivate other fields, and it is certainly not the law that one sharer can dispossess the other against his will from the field of which he has possession. In Jhangi v. Ramzan (1910) 13 P R 1910 it was stated that in accordance with well-known law and custom as to possession of plots of Shamilat by individual co-sharers the defendants in forcibly dispossessing were qua plaintiff mere trespassers. In accordance with this principle I hold that plaintiff/appellant': peaceful possession was a substantive right, the infringement of which gave rise to a cause of action. As pointed out, in that case also the plaintiff might have sued under section 9, Specific Relief Act, but he was not bound to do so. Plaintiff cultivated Cheri to the land in Kharif 1916 and it may very possibly have been lying vacant in the succeeding Rabi. That fact alone would not however entitle defendant to take possession without the plaintiff's consent. I hold that the plaintiff is entitled to recovery of possession .....
In Panna and Giriraj v. Madanlal (AIR 1955 Raj, 173), Ranawat, J. Observed in the following manner:- Coming to the second point, it may be pointed out that though the entire village is owned by the village community as Shamlat Deh, all the co-sharers possess separate pieces of land for their cultivation and the plaintiff's father according to the practice of the village could remain into the possession of the land which was in his occupation at that time until partition. The point urged on behalf of the appellant is that the title to the suit land vested only in the village community and the plaintiff could not, therefore, claim exclusive possession of the suit land. The decree for possession however in the present case does not take away or prejudice any rights of the co-sharers in Shamlat Deh and the apprehension of the appellant in this behalf is without any basis. The tenure of the land prevalent in the area of the former Alwar State was on the lines of the tenure system of the Punjab and the authority cited by the learned counsel of the respondent in Karam Chand v. Dr. Karamdad Khan AIR 1938 Lah. 465 applies with equal force to this case. The defendant if he so chooses to do has got a right to claim partition and his rights of Shamlat Deh as has been observed above would not be affected in any manner by this decree."
The ratio deducible from the above referred case law is that once an entry in revenue record is proved to be illegal or without any lawful authority, the previous is deemed to stand, inasmuch as, an entry subsists till a new one is lawfully substituted for it.
8. The contention of the learned counsel for the contesting defendants that as the predecessor-in- interest of the plaintiff despite having a right of occupancy failed to cultivate it for more than one year without sufficient cause and, therefore, his right of occupancy stood extinguished at the end of that year, is also misconceived. No doubt, section 38 of the Punjab Tenancy Act, 1887 envisages that the right of occupancy of tenant can be extinguished, if he fails to cultivate his tenancy or omits to make payment of the rent, but this was not the case of the contesting defendants as averred in their written statement, which is silent in this regard. Even otherwise, if it is admitted for the sake of arguments that predecessor-in-interest of the plaintiff had failed to cultivate the land or make payment of the rent of his tenancy, then his rights could be extinguished, but there is no provision in the Punjab Tenancy Act, 1887 that ipso facto the rights of such a tenant, who failed to cultivate or omitted to pay the rent would be transferred to the other tenant, who cultivated the same. Moreover, the contesting defendants cannot argue their case beyond the pleadings. The defence put forwarded by the contesting defendants as per para No.5 of their written statement is that the entries were affected in their favour in the bandobast for the year 1939-1940 with the consent of the parties, but neither any such counsensual statement alleged to have been made by the predecessor-in-interest of the plaintiff before any authority nor copy of any order in this regard made by the competent authority was presented by them. So, the findings on issues No. 4, 5, 5-B and 5-C rendered by the learned lower appellate court are not found to be in accordance with law and based on evidence available on file, which are reversed and the findings of learned trial court on the said issues are affirmed.
9. As discussed supra, the mutation No. 756 dated 25.06.1915 (Exh.P/3) attested by the revenue hierarchy is still intact, which reflects that predecessor-in-interest of the plaintiff was a sharer in the joint holding along with the predecessors-in-interest of the defendants and under Article 120 of the Limitation Act, 1908, the time for filing of a suit for declaration would start when the right to sue accrued to the plaintiff and the same was refused by the defendants. The plaintiff categorically alleged in his plaint that right to sue accrued to him five months prior to the filing of the suit when his right was denied by the defendants. Even, otherwise it is settled principal of law that every new entry in the revenue record is denial of the right of the plaintiff and he has notion to file suit for declaration on every denial, which would furnish the plaintiff a fresh cause of action. Reliance can be placed upon JUMMA KHAN & OTHERS VS. MUHAMMAD KHAN & OTHERS (1973 SCMR 289), AKHBAR ULLAH VS. HASSAN ALI KHAN & OTHERS (AIR 1937 PESHAWAR 94) and NAZER DIN VS. MUHAMMAD SHAH & OTHERS (AIR 1936 LAHORE 92), SALEEM AKHTER VS. NISAR AHMED (PLD 2000 LAHORE 385) and WALI & 10 OTHERS VS. AKBAR & 5 OTHERS (1995 SCMR 284). In Saleem Akhter's case, this Court while dealing with such like proposition observed in para No.6 as under :-
6. Article 120 of the Limitation Act has provided limitation for filing a suit4for declaration six years only from the date of right to sue. The right to sue would accrue to the plaintiff when his right was denied by the defendant/respondent. The right of the plaintiff is a continuous tight. There can be no right to sue until there is an accrual of right asserted in the suit and its infringement or its clear unequivocal threat to infringe that right by the defendant against whom the suit is instituted. "In paragraph No. 8 of the plaint, it is stated that the plaintiff/petitioner has been asking through the respectables of the area to the respondent to get cancel the mutation in dispute, but the respondent had refused after beating about the bush fifteen days prior to the institution of the suit.
Therefore, the right to sue accrued to the petitioner when the respondent had refused to cancel the mutation of sale. The plaintiff/petitioner had prayed for declaring the mutation in dispute as illegal.
The entries of the mutation have been entered in the record of right. The entries in the record of rights afforded fresh cause of action to the plaintiff and adverse entries in the record of rights even if allowed to remain unchallenged does not necessarily extinguish the rights of the party against e whom such entry had been made. Every entry in the record of rights is denial of right of plaintiff and the plaintiff has the option to file suit for declaration on every denial of his rights. Every denial of right would furnish the plaintiff a fresh cause of action. Reliance can be placed in this respect to the cases of Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; Atta Muhammad v. Nasiruddin PLD 1993 Pesh. 127 and Muhammad Yousaf v. Noor Din and others 1993 MLD 763. The learned Appellate Court has not adverted to this legal aspect of this case and overlooked from its judicious consideration.
This view has already been authoritatively laid down by the apex Court in Wali's case in the following terms:- There can be no two opinions that a suit for declaration with prayer for the consequential relief will be governed by Article 120 of the Schedule to the Limitation Act. Under this Article, the starting point of limitation is the date when the right to sue accrues. The question, when a right to sue will accrue in a suit for declaration will, to a certain extent, depend upon the facts and circumstances of each case. A suit for declaration of title of the plaintiffs to a particular property is a subsisting right and the right to bring a declaratory suit is a continuing right, so long as the right to the property itself is subsisting. The right to sue accrues when the right in respect of which the declaration is sought is denied or challenged by the defendants. The time starts running only when the rights are actually interfered with. In such cases, a fresh cause of action would arise from the date of the last attack on the plaintiffs' right or denial thereof. Where the plaintiff is in possession, more particularly as a co-sharer in the joint Khata, he is not bound to sue on every denial of his right. He can file a declaratory suit at his option, because every denial or invasion of his right will furnish him a fresh cause of action.
So, on the touch stone of above discussion and references, the findings of the learned lower appellate court on issues No. 3 and 5-A are also reversed and the same are answered in favour of the plaintiff. The findings of rest of the issues answered by the learned trial court are also affirmed.
10. The last submission of the learned counsel for the respondents that the judgment of the learned lower appellate court should be given preference may have some weight in appropriate cases where the said court reached to just conclusion after appreciating evidence and thrashing the law, but it cannot be declared as a rule of thumb in each and every case. Consequently, the instant civil revision is accepted, impugned judgment and decree dated 06.09.2005 delivered by learned lower appellate court is hereby set aside and the judgment and decree dated 02.02.2005 passed by learned trial court, Chakwal by virtue of which suit filed by the plaintiff was decreed is restored. 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.