MUHAMMAD EJAZ SWATI, J.-- Civil Revision Petitions Nos.78 and 79 of 2015 are arising out of the same subject matter, therefore, are being disposed of through this common judgment.
2. Facts arising out of the Civil Revision Petition No.78 of 2015 are that the private respondents (plaintiffs) filed suit No.14 of 2013 against the petitioner (defendant) for declaration, cancellation of mutation entry No.28, possession and permanent injunction with the averments that they are owners of the property bearing Khasra Nos.304 and 305, measuring 7 Rod, 4 Pole, situated in Mahal Karez Mubarak Shah, whereas, the petitioner (defendant) is their bazgar for whom a house comprising on an area of 1 rod, 8 pole was constructed and was given in Khasra Nos.304 and 305, but he with the connivance of revenue authorities, mutated the same on his namevide mutation entry No.28 in revenue record in the year 1987. The respondents further averred that they were not aware about the said illegal and unlawful mutation and when the petitioner filed a suit, they came to know about the same.
Facts arising out of the Civil Revision Petition No.79 of 2015 are that the petitioner (plaintiff) filed suit No.14 of 2012 against the private respondents (defendants) for declaration and permanent injunction on the ground that he had purchased the aforesaid disputed property from the predecessor-in-interest of the private respondents vide mutation No.28 dated 18th April 1987. It was the case of petitioner that the land purchased by him was joint and same had not been separated, therefore, on 21st October 2011, he filed an application for demarcation andidentification of his land before the revenue authorities, but the respondents did not come for separation of the petitioner's land, however, when the private respondents dumped construction material over the land in dispute, the petitioner refrained them on the ground that first demarcation/ separation of the purchased land of the petitioner is to be settled, which was declined.
3. The private respondents filed their joint written statement and contested the suit.
4. Divergent pleadings of the parties in Suit No.14 of 2012 necessitated the following issues:- "(1) Whether plaintiff has no legal character, entitlement or vested right under section 42 of the Specific Relief Act to institute instant suit?
(2) Whether no cause of action accrued to the plaintiff to .File instant suit against the private defendants?
(3) Whether suit of plaintiff is not maintainable under section 172 of the West Pakistan Land Revenue Act, 1967?
(4) Whether the suit of plaintiff is not properly valued for the purpose of court fee and jurisdiction?
(5) Whether predecessor-in-interest of defendants Nos. 1 to 4 sold out about 1 rod 8 pole (48 shares) property under Khasra Nos. 304 and 305 Karez Mubarak Shah Mouza Sheikh Manda Tappa Baleli, Quetta upon plaintiff vide mutation No.28 dated 18th April, 1987 and plaintiff is lawful owner and in joint possession of such property?
(6) Whether plaintiff is entitled for the relief claimed for?
(7) Relief?
' Whereas, in Suit No.14 of 2013, following issues were framed:-- "(1) Whether the suit of plaintiffs is hopelessly time barred?
(2) Whether plaintiffs have no legal right, character or entitlement under Section 42 of the Specific Relief Act, 1877 to institute instant suit.
(3) Whether plaintiffs have no cause of action to file instant suit?
(4) Whether the suit of plaintiffs is not properly valued and requisite court fee is not affixed on the memo of plaint?
(5) Whether mutation No.28 dated 18.04.1987 is the product of fraud having been attested after the death of predecessor-in-interest of plaintiffs?
(6) Whether plaintiffs are entitled for the relief claimed for?
(7) Relief?
5. Petitioner produced PW-1 Muhammad Yousuf, PW-2 Muhammad Hanif Patwari and recorded his statement.
6. During this, the private respondents filed Civil Suit No.14 of 2013 against the petitioner in respect of cancellation of mutation entry No.28.
7. Both the suits were consolidated with consent of the parties.
8. The private respondents produced DW-1 Abdul Hannan and recorded their statements through attorney i.e. Respondent No.1 .
9. The Civil Judge-IV, Quetta (hereinafter referred to as "the trial Court") vide judgment dated 25th October, 2013 decreed the suit of the petitioner in his favour, whereas, dismissed the Suit No.14 of 2013 filed by the private respondents.
10. The private respondents assailed the judgment and decree of the trial Court by filing two separate appeals bearing Nos.107 and 108 of 2013. After notice and hearing the parties, the learned Additional District Judge-I, Quetta (hereinafter referred to as "the appellate Court") vide orders and decrees dated 26th March 2015 (hereinafter referred to as "the impugned orders and decrees") accepted both the appeals, and dismissed the suit filed by the petitioner and decreed the suit filed by the private respondents, which have been assailed by the petitioner in the aforesaid Civil Revision Petitions.
11. Learned counsel for the petitioner contended that the petitioner had purchased the property in dispute vide mutation No.28 dated 18th April 1987, whereas, the respondents had filed the suit on 28th February 2013, after 13 years of mutation, which was hopelessly time barred; that the property in dispute was purchased from the father of the private respondents, namely, Abdul Qadoos, who in his lifetime had neither challenged the said mutation, nor objected the right of the petitioner; that the private respondents alleged fraud in respect of mutation No.28, and the sole ground of fraud and misrepresentation was that at the time of mutation entry i.e. 1987 their father was not alive as according to them he was died in the year 1984, but instead of substantiating the same, they withdrawn their sole ground of alleged fraud by seeking amendment to the effect that their father died in the year 1992 instead of 1984; that longstanding mutation entry in favour of the petitioner, which had also been incorporated in the Jamabandi, creates a vested right in his favour and same cannot be cancelled unless rebutted through strong and exceptional grounds; that the appellate Court while passing the impugned orders and decrees has misread the evidence and on wrong premises decided the issues, which reflects material illegalities and irregularities; that the petitioner had purchased the property from joint Khata, therefore, soon after its purchase, he became the co-sharer and had sought relief for separation of his share by way of filing suit, therefore, question of limitation in this respect was to be considered when the right of the petitioner was declined by the private respondents, but the appellate Court hasfailed to consider this material aspect of the case, and thus, non-suited the petitioner; that the appeal filed by the private respondents against the judgment and decree of the trial Court was hopelessly barred by time.
Lastly, the learned counsel for the petitioner relied upon the cases reported in PLD 2015 SC 58, PLD 1994 SC 245, 1990 SCM R 725 and 2002 SCMR 54.
12. Learned counsel for the private respondents contended that the suit filed by the petitioner was based on mutation alone, which do not create title; that the disputed mutation entry No.28 was attested contrary to the provisions of Section 42 of the West Pakistan Land Revenue Act; that the petitioner has failed to substantiate the mutation through any evidence, nor the attesting witness was produced to authenticate its attestation; that the trial Court had failed to consider the above aspects of the matter and the appellate Court while considering the same in its true perspective passed the impugned orders and decrees, which are based on sound reasoning; that the suit filed by the petitioner was hopelessly barred by time, as the property in dispute was purchased in the year 1987, whereas, the suit was filed in the year 2012.
13. Heard the learned counsel for the parties and gone through the record of the case. Petitioner in his suit No.14/2012 claimed demarcation / separation of his land from the joint Khata of Khasra Nos.304 and 305 on the basis of mutation entry Ex.P/1-A recorded on 18th April 1987, whereby, 1 rod 8 pole out of joint Khata had been purchased by him from one Abdul Qadoos son of Atta Muhammad (father of the private respondents). The claim of the petitioner was contested by theprivate respondents by their joint written statement and subsequently by filing Suit No.14 of 2013 for cancellation of mutation entry No.28 in question. The petitioner in his written statement raised objection of limitation in respect of Suit No.14 of 2013 filed by the private respondents. On the other hand the private respondents also raised point of limitation in respect of Suit No.14 of 2012. Besides limitation, the question of maintainability of suit on the ground of locus standi and jurisdiction under Section 172 of the West Pakistan Land Revenue Act, was also raised by the private respondents. As far as the legal objection related to locus standi is concerned, in this respect the petitioner being joint recorded owner in the property in dispute has every right to seek relief from the competent Court of law pertaining to his right arising out of the said mutation entry and this question, as held by the trial Court while deciding the said issue, which A is based on sound reasoning. Whereas, the issue related to Section 172 of the Land Revenue Act, is concerned, though the petitioner initially filed an application for demarcation of his land in the hierarchy of revenue and this fact has also not been disputed by the private respondents, however, when the private respondents dumped construction material on the property in dispute, the petitioner prevented them on the ground that unless his portion of the property has been separated, the private respondents declined the request of the petitioner, he filed a suit, regarding which Civil Court had jurisdiction, thus the determination of issues Nos.1, 2 and 3 had rightly been decided by the trial Court. The appellate Court erred in holding that mutation in question is result of fraud and misrepresentation. The appellate Court has failed to consider that the private respondents initially in their joint written statement and subsequently by filing suit challenged the mutation entry in question on the ground that father of the private respondents died in the year 1984, therefore, mutation in favour of the petitioner in the year 1987 is based on fraud and misrepresentation.
Admittedly the private respondents subsequently withdrawn the said ground by way of filing an application for amending their pleadings to the extent of correction of date of death of their father as 1992 instead of 1984, which was allowed by the trial Court vide order dated 18th June 2013 and passed the following order:-- {{URDU TEXT}}
14. The aforesaid order reveals that the only ground of fraud, forgery and misrepresentation pursuant to mutation in question pleaded by the private respondents had been withdrawn and further asserted that the father of the petitioner died in the year 1992 instead of 1984. The private respondents also challenged the mutation in question on the ground that Abdul Kareem had neither attested nor signed the mutation in question and cited him in the list of witnesses, but subsequently through an application abandoned the said witness, whereupon, the trial Court vide order dated 23rd July 2013 passed the following order, which is reproduced herein below:-- {{URDU TEXT}} 2013/7/31 16(sic) The aforesaid order further reveals that the best evidence which could be produced by the private respondents, but was not produced and intentionally withheld, therefore, adverse inference is to be taken against the respondent under Article 129 (g) of the Qanun-e-Shahadat, Order 1984.
Reference in this respect is to be made to the case reported titled Dilshad Begum v. Mst. Nisar Akhtar 2012 SCM R 1106, wherein, the Hon,ble Supreme COurt of Pakistan held as under: "The case of the respondent/ plaintiff would be squarely hit by Article I29(g) of the Qanun- eShahadat Order referred to above as without assigning any reason, the best evidence was withheld and not produced. In Abdullah Khan v. Nisar Muhammad Khan and others (PLD 1959 (W.
P) Peshawar 81), a Division Bench of the said Court observed as follows:- "It is, therefore, positively proved that so far as Fateh Muhammad Khan is concerned, he purchased the property with the notice that it had already been agreed to be sold to the plaintiffs.
So far as the other defendant-appellants are concerned, none of them appeared in the witness- box except Mr. AfzalKhan. It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf and to submit to cross- examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. By non-appearance, therefore, thedefendant-appellants except Mir Afzal Khan failed to discharge the onus or shift the onus on to the plaintiffs."
17. Adverting to the mutation entry No.28 in favour of the petitioner is concerned, the Ex.P/1 and Fard P/2 indicate that Khasra Nos. 304 and 305 measuring 7 rod 4 pole had been recorded on the name of Abdul Qadoos. Said Abdul Qadoos vide mutation entry No.28 has transferred I rod 8 pole out of Khasra Nos.304 and 305 in favour of the petitioner on 18th April 1987. The private respondents in their joint written statement and in Suit No.14 of 2013 averred that they came to know about the said entry, when the suit was filed by the petitioner. This contention on the part of the private respondents does not inspire confidence, because, in the year 1993 after death of their father, namely, Abdul Qadoos mutation of inheritance was recorded in their favour and they were well aware about the entries in favour of the petitioner, therefore, in the pleadings the contention of private respondents to say that they were not aware of the aforesaid mutation entry, does not to be a reason. Secondly, the private respondents had not mentioned the date when they came to know about the mutation entry. Admittedly, the mutation in question in favour of the petitioner had also been appeared in the Jamabandi carried out in the revenue record. It would be pertinent to note here that under West Pakistan Land Revenue Act, 1967, a complete mechanism has been provided, thus, on account of this elaborated procedure, the presumption of truth had been attached to the revenue record in terms of Section 52 of the West Pakistan Land Revenue Act, 1967 and the same is rebuttable. The private respondents though asserted in their pleadings that said mutation entry is result of fraud and misrepresentation, but they have failed to elaborate the alleged forgery/ misrepresentation either in their pleadings or through evidence, therefore, it is obvious from record that no rebuttal whatsoever in nature has been produced by them to substantiate their contention, therefore, within a view that presumption of truth is attached to the mutation in question, the private respondents did not lead any evidence to prove the allegation of D fraud against any revenue official and that the entry was forged. In case of Hakim Khan v. Nazir Ahmed Rogmani, 1992 SCM R 1832, the claim made on the basis of entries entered in revenue record was upheld by the Hon'ble Supreme Court of Pakistan, as no evidence was led to prove that those entries were collusive or fraudulent. In case of Mazloom Hussain v. Abid Hussain, PLD 2008 SC 571, the Hon'ble Supreme Court of Pakistan held as under: "Where a presumption of truth is attached to a document, it cannot be discarded unless proved otherwise by convincing and cogent evidence and the burden of proof that the entries in the record of rights are wrong, is on the party who alleges it. Reliance can be placed in this context on the casesof Sundar Singh v. Chhaiju Khan AIR 1934 Lahore 309 and The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others 1990 SCMR 725."
' In case of Nawab Khan v. Said Karim Khan, 1997 SCM R 1840, the entries recorded in revenue record were not interfered as the presumption of truth was attached to those entries and no strong evidence was led in rebuttal to warrant interference to those entries, the Hon'ble Supreme Court in this view held as under:-- "The contents of the record of rights which also includes the settlement record used to be followed with more or less exactness by the Settlement Officers, which included Wajib-ulArz, Jamabandi and the portion of the Shajra-nasb or genealogical tree of the properties.
' The presumption of truth is attached to the record of rights generally but to the first ever settlement record in particular. Very strong evidence is required to rebut the presumption of correctness attached to the first settlement record of an area."
18. In view of the above dictum/ principle laid down by the Hon'ble Supreme Court of Pakistan, upon the authenticity of the entry of revenue, the instant case had been considered on the aforesaid touchstone. Admittedly, the entries in favour of the petitioner had appeared in Jamabandi, which is strong evidence in favour of the petitioner and requires rebuttal, but the private respondents had failed to do so and mere onverbal assertion their such contention cannot be taken as rebuttal to the entries in favour of the petitioner. The appellate Court has unnoticed the aforesaid principles lay down in respect of evaluating the mutation as presumption of truth attached to the entries. The appellate Court has also failed to decide the issue of limitation in respect of filing of suit by the petitioner as well as private respondents, whereas, limitation in respect of the suit filed by the petitioner is concerned, admittedly, the petitioner had purchased 1 rod 8 pole out of Khasra Nos.304 and 305, which is joint holding and thus has taken step into the shoes of predecessor-in-interest of the private respondents and became co-sharer in the property. In this respect reference is to be made to the case of Jan Muhammad v. Abdul Rashid, 1993 SCM R 1463, wherein, the Hon'ble Apex Court held as under:-- 'Needless to emphasise that the possession of one co-sharer in law is the possession of all and that any alienation made by the co-sharer in possession cannot put an end to the joint ownership/possession of the property and the transferee co-sharer steps in to the shoes of the transferor qua his ownership rights in the joint property no more no less, as held by this Court in case Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC (Pak) 9."
19. The limitation for demarcation of land arises when the right of the petitioner in this regard has been declined by the private respondents. The pleadings as well as of evidence on record indicate that during the year 2012 an application was filed by the petitioner for separation of his land before the revenue authorities,however, same could not be proceeded, as another dispute regarding demarcation of share of the parties arose, therefore, the suit filed by the petitioner was a remedy, which was not vested to the revenue authorities. Therefore, in such view of the matter, the suit filed by the petitioner was within time and in this respect the appellate Court has failed to consider the issue of limitation in its true perspective and decided the same on wrong premises. As far as the limitation for cancellation of mutation, as alleged by the private respondents is concerned, admittedly, the mutation in question in view of petitioner was recorded in the year 1987, which had been challenged in the year 2013 by the F private respondent by way of filing suit No.14 of 2013.
Limitation for cancellation is provided under Article 91 of the Limitation Act, which provides period of limitation as under:-- Description of suitPeriod of limitationTime from which period begins to run
91. ToThree yearsWhen the cancel or facts entitling set aside an the plaintiff instrument to have the not instrument otherwise cancelled or provided set aside for. became known to him.
20. In the instant suit the private respondents alleged that they were not aware about the mutation in favour of the petitioner. The evidence on record particularly mutation of inheritance recorded in favour of the private respondents in the year 1993 reflects that the private respondents were well aware about the portion of the property i.e. 1 rod8 pole, which was recorded in favour of the petitioner, thus, the suit filed by the private respondents was time barred, therefore, the findings of the appellate Court in this respect cannot be maintained and reversed accordingly.
21. The other aspect of the matter due to which the impugned orders and decrees cannot be sustained is that the private respondents had assailed the judgment and decree of the trial Court dated 25th October 2013 by way of filing two Appeals Nos.107 and 108 of 2013 after considerable delay and in this respect an application for condonation of delay was also filed, which was objected by the petitioner by way of filing counter affidavit. The finding of the appellate Court with regard to condonation of delay in filing appeals is also not based on reasoning. Condonation of delay in filing appeal requires sufficient reasons. The word "sufficient cause" means adequate reasons. Enough as much as may be necessary to answer the purpose intended, it should be such as would persuade the Court in exercise of its judicial discretion to treat the delay as an excusable one. The party should show that beside acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to set whether it could heve been worded by the party be exercise of due care and attention. The law of limitation is substantive law and has definite consequence on the right and obligation of party to arise. Once a valuable right has accrued in favour of one party, as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on mere asking of an application, particularly when the delay is directly or result of negligence, default or inaction of that party. Section 5 of the Limitation Act, confer power to condone delay if the applicant is successfully in showing that he was prevented from preferring the appeal / revision for sufficient cause. Normally, after the expiry of the period right to sue extinguish and after said acquire right which normally should not be disturbed, only in case of providing good cause. In the instant case, the delay was condoned by the appellate Court. To explain this delay, the private respondents filed one page application stating that they were prevented by certain unexplained circumstances. In order to examine the reliability and worthiness of the alleged cause neither private respondents put- forth any sufficient reasons nor, acted bonafidely. The application for condonation of delay filed by the private respondents contained vague averments, were accepted by the appellate Court without assigning cogent reasons. Besides on merits, the private respondents had also not been able to make out a case for condonation of delay before the appellate Court.
22. The other aspects of the case, which rendered the findings of the appellate Court reverse are that, admittedly, the impugned mutation entry No.28 was never challenged by the father of the private respondents during his life time, as he remained alive till 1991 and in this respect no reason is reflected in plaint of Suit No.14 of 2013, nor in evidence led to indicate as to why he did not challenge the mutation in question. In the afore referred circumstances, the judgment and decree passed by the trial Court in both suits are unexceptionable and impugned orders and decrees passed by the appellate Court are not sustainable. In case of Abdul Haq v. Mst. Surrya Begum, 2002 SCM R 1330, theHon'ble Supreme Court of 'Pakistan observed as under:-- "Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime."
' In view of the above, the Civil Revision Petitions Nos.78 and 79 of 2015 are allowed and the impugned orders and decrees dated 26th March 2015 respectively, passed by the Additional District Judge-I, Quetta are set aside, consequently, the judgments and decrees passed by the trial Court shall hold the field.