' KHALID MAHMOOD MALIK, J. --- Brief facts necessary for disposal of the instant revision petition are that Soba was owner of land bearing holding No. 457, while Shairan and Ghulam Rasool (father of plaintiffs) succeeded to the estate bearing 74 Kanals, 02 Marlas, vide inheritance mutation No. 1495, dated 30.12.1950. Ghulam Rasool s/o Shairan, sold land measuring 50 Kanals, 02 Marlas for consideration of Rs. 690/- vide registered sale No. 34, dated 18.1.1951 to Ameer Muhammad, predecessor-in-interest of defendants and he remained owner of land ineasuring 14 Kanals. The defendants continued to pay share of produce of suit land to the plaintiffs, but before a year prior to the `filing of the suit, the defendants denied their title, whereupon the plaintiffs came to know about the transfer of suit land in favour of predecessor-in-interest of the defendants and filed a suit for declaration and possession of the suit land and also made prayer that the entries made in the revenue record may be declared void and illegal. The said suit was contested by the defendants, who raised preliminary objections as to valuation of the suit, limitation point, bar under Section 42 of the Specific Relief Act, adverse possession laches, waiver, mis-description of the suit land and non-accrual of cause of action to the plaintiffs. Out of the pleadings of the parties, the following issues were framed:---
(1) Whether the plaintiffs are owners in possession of the suit land, adverse revenue entries are outcome of fraud, as such, void and non-operative against the rights of the plaintiffs? OPP.
(2) Whether the plaintiffs are entitled to perpetual injunction as consequential relief? OPP.
(3) Whether the plaintiffs are entitled to the possession of the suit land, in case their possession is not proved over the suit land: OPP
(4) Whether the suit has been improperly valued for the purposes of Court-fees and jurisdiction?
OPD
(5) Whether the suit is time-barred? OPD
(6) Whether the suit is hit by Section 42 of Specific Relief Act? OPD
(7) Whether the defendants have become owners of the suit land by maturity of their adverse possession for more than 12 years? OPD
(8) Whether the defendants are entitled to take the benefits of the doctrine of 'waiver' and laches'?
OPD
(9) Whether the description of the suit land is incorrect, if so, its effect? OPD
(10) Whether the plaintiff has got no cause of action to bring this suit? OPD
(11) Relief.
2. The parties led their respective oral as well as documentary evidence in order to prove their contentions. Consequently, the learned Civil Judge, D.G. Khan, dismissed the suit of the plaintiffs vide judgment and decree dated 26.5.1991. Learned Addl. District Judge D.G. Khan dismissed the appeal of the petitioner vide judgment and decree, dated 06.11.1991. The above judgments and decrees have ben impugned through this revision petition.
3. Learned counsel for the petitioners argued that impugned judgments and decrees are against law and facts of the case; that both the Courts below acted in exercise of jurisdiction illegally and with material irregularities; that petitioners have proved their case through oral as well as documentary evidence; that the Courts below have not appreciated the evidence and relevant law on the subject. Learned counsel further pleaded that Apex Appellate Bench of Supreme Court of Pakistan has declared Section 28 of Limitation Act against injunctions of Islam, thus the findings of both the learned Courts below are liable to be set aside.
4. Conversely, learned counsel for the respondents supported the impugned judgment and decrees and argued that no illegality and material irregularity has been committed by the learned Courts below while passing the impugned judgments and decrees which are well-reasoned, therefore, same be upheld.
5. After hearing arguments of learned counsel for parties and survey of record with the assistance of learned counsel for parties, it appears that learned both Courts below have not appreciated evidence produced by the parties in its true perspective. The impugned judgments and decrees are based on misreading and non-reading of evidence. The learned Courts below have failed to exercise their jurisdiction properly. The case of plaintiff was that Soba was owner in Khata No. 547 and upon his death, Shairan, Ghulam Rasool, predecessor of plaintiffs was declared owner of land measuring 74 kanals, 2 marlas vide mutation No. 1495, Ex.P5. This fact is supported by Manzoor Hussain, Moharrar Patwari (PW1) through interrogatories (Band Sawalat) Exh.P/1 and Exh.P/2. It is established from record that Ghulam Rasool sold out land measuring 50 kanals, 2 marlas for consideration of Rs. 690/- vide registered sale-deed No. 34, dated 18.1.1951 (Ex.P4). From Jamabandi for the year 1984 (Exh.P/7), it is reflected that Soba Khan father of Mir .Muhammad, predecessor-in- interest of respondents was mortgagee of land measuring 84 kanals, 14- marlas in disputed Khata No. 547/513. Mir Muhammad, predecessor of defendants/respondents was also incorporated in Jamabandi in respect of Khata No. 568/547. The names of the plaintiffs/petitioners being legal heirs were there and Exh.P/9 reveals the same position. In Paragraph No. 1 & 2 of the plaint, the plaintiff categorically mentioned pedigree of their fore-fathers and narrated that Soba Khan predecessor-in-interest of plaintiffs was owner in Khata No. 547 and after his death, Shairan and Ghulam Rasool father of plaintiffs were declared owners of properties measuring 74 Kanals, 02 Marlas vide inheritance mutation No. 1495. Ghulam Rasool transferred land measuring 50 kanals 2 marlas vide registered sale-deed No. 34, dated 18.1.1951 in favour of Mir Muhammad predecessor of the respondents. In written statement, defendants/respondents denied paragraph No. 2, due to want of knowledge while to the extent of paragraph No. 3, it is alleged that defendants are owners of the disputed property by way of inheritance mutation. As the respondents denied the ownership of Ghulam Rasool, Predecessor of petitioner due to want of knowledge, meaning thereby, they have no knowledge about the ownership of said Ghulam Rasool. Manzoor Ahmad, Moharrir Patwari(PW1) in cross- examination stated that entries in jamabandi for the year 1991-92 are incorrect. Wahid Bukhsh one of the plaintiffs, PW2 categorically stated in his examination in chief that Soba was owner in possession of land measuring 76 Kanals 02 Marlas, after his death, his father was declared owner of properties and in the year 1950-51, he transferred land measuring 50 Kanals, 02 Marlas. The property in dispute is in joint khata. Both the PWs were briefly cross-examined by respondents' side and afore-mentioned portion of examination-in-chief of PWs was not cross-examined. It is a settled principle of law that if a portion of statement in-chief is not cross-examined, then such portion deemed to be admitted by other side. In this regard, reliance is placed on the dictum laid down by learned Apex Court in case titled "Hafiz Tasadduq Hussain v. Lal Khan and others"(PLD 2011 SC 296).
6. From the respondents' side, Muhammad Qasim, Gehna and one of defendants Mir Bukhsh appeared as DW-1 to DW-3 respectively. They did not utter any word about the ownership of Soba Khan and predecessor of both the parties in their examination-in-chief. In cross-examination, they showed their ignorance about transfer of land measuring 50 kanals, 2 marlas by Ghulam Rasool in favour of Mir Muhammad predecessor-in-interest of respondents vide sale-deed dated 18.1.1951. In cross-examination, all the DWs admitted that the suit property is joint between the parties.
Therefore, as the parties are co-sharer in disputed land and incorrect and illegal change in revenue record would not make period of limitation running against plaintiffs. Question of limitation does not arise in case of controversy relating to inheritance. Reliance may be placed upon case-law titled "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi"(PLD 1990 SC 1).
7. There is no iota of evidence on the file, which shows that Ghulam Rasool, predecessor of petitioners has sold out his total land measuring 74 kanals, 2 marlas. Mere oral assertion of respondents in presence of documentary evidence has no value as now it is settled principle of law that oral evidence cannot be excluded documentary evidence. Reliance can be placed upon case-law titled "Elahi Bakhsh through legal heirs and others v. Muhammad lqbal and another"
(2014 SCM R 1217). The respondents have also failed to establish exclusive possession over the disputed land. Though the plea of adverse possession has been declared against the injunctions of Islam by the judgment of Hon'ble Shariat Appellate Bench in case titled as "Maqbool Ahmad v.
Govt. Of Pakistan" (1991 SCM R 2063), but the Hon'ble apex Court has pleaded to hold in the judgment that decision shall take effect from 31st August, 1991 and on the said date Section 28 of Limitation Act shall also cease to have effect while impugned judgment and decree of learned Civil Judge was passed on 26.5.1991. Therefore, the judgment of Hon'ble Shariat Appellate Bench, Supreme Court of Pakistan is not applicable in the case of plaintiffs. As stated above, respondents have failed to prove their exclusive possession. Their plea of ownership on the basis of adverse possession is without any substance.
8. In view of above discussed facts, this civil revision is accepted and impugned judgments and decrees passed by learned below Courts are hereby set aside. As a consequence whereof, suit of the plaintiffs is decreed to the extent that Ghulam Rasool predecessor of plaintiffs was owner of land measuring 24 kanals, 2 marlas in disputed Khata and after his death, his property was devolved upon the petitioners/plaintiffs. Plaintiffs are co-sharers in disputed property, therefore, suit to the extent of possession of suit property is not maintainable. Petitioners/plaintiffs are at liberty to file suit for, partition in accordance with law, if so advised. There shall be no order as to costs. Civil revision .