' MUHAMMAD ALAM, J.--- Order dated 31-05-2014, passed by the learned District Judge Skardu that the said court passed in CFA No.66/2013, has been challenged through this petition. The learned first appellate court upheld the judgment/order dated 25-10-2013 of the learned trial court that the learned trial court passed in Civil Suit Nos . 43/2007-56/2008.
2. Petitioners/plaintiffs filed a suit (Civil Suit No.43/2007- 56/2008), in the trial court, who after completing trial proceedings, passed judgment/order dated 25-10-2013, whereby, suit of the petitioners/plaintiffs was dismissed holding that:- Issue No.09/Relief
14. "The upshot of the above discussion is that the plaintiffs have filed a suit on the basis of mutation No.901 which was attested on the basis of hibba but neither the plaintiffs have produced the registered hibba nama nor the marginal witnesses to proof the hibba nama, hence the plaintiffs failed to prove their case/transaction as such the suit of plaintiff is dismissed holding meritless. Parties to bear their own cost.
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16. Announced 25-10-2013 Sd/xxx Civil Judge 1st Class Skardu ' From ex-facie perusal of plaint, it is evident that petitioners/plaintiffs have described the suit land in two parts. As to first part of the suit land, petitioners/plaintiffs have prayed for declaration and as to the second part of the suit land, petitioners/plaintiffs have prayed for possession thereof, after declaring the same as their ownership. Petitioners/plaintiffs have specifically prayed for cancellation of mutations Nos.353, 542 and 730. Respondents/defendants Nos.1 to 10 contested the suit and pleaded that they have purchased the suit land from Mohammad Taqi, father of the petitioners/plaintiffs. Learned trial court dismissed the suit, and on appeal (CFA No.66/2013), the learned first appellate court dismissed the appeal holding that the same is meritless, hence, this revision petition.
3. I have heard learned counsel for parties at length and have gone through the material available on file. The case in hand has very interesting peculiar circumstances of its own. I had to go through the relevant law on my own, although obtained assistance also from the arguments of the learned counsel for parties. It is an admitted fact that Mr. Mohammad Taqi was the real owner of the suit land and is father of the petitioners/plaintiffs. Respondents Nos.11 and 12 have not contested the suit and have submitted written statement dated 15-03-2008, whereby, averred that they are the tenants of respondents/ defendants Nos.1 to 10. So the contesting defendants of the case are respondents/ defendants Nos.1 to 10. Respondents Nos.1 to 10 have very specifically averred in para No.1 of their written statement that they have purchased the suit land in the years 1964 and 1970.
This plea of the respondents has obviously made the case in hand a very simple case because through A the said plea, the burden of proof shifted to respondents. Both the learned courts below have badly failed to appreciate this aspect of the case. While holding so, I feel supported from the precedent reported in SCMR 2010 page 13 and PLD 2003 Supreme Court 688. I have noted that learned trial court has not framed issues in the light of pleadings of parties although parties have produced evidence in the light of their B conflicting pleas in the averments of their pleadings.
Learned trial court omitted to frame the issue of sale of suit land by the father of petitioners/plaintiffs to the respondents Nos.1 to 10. Nor the trial court has framed any issue regarding the handing over of suit land to the respondents Nos.11 and 12 on tenancy. So the issues are wrong.
4. Learned trial court has dismissed the suit holding that the same is time barred. It is not disputed that respondents did not challenge ExhP/1, which is copy of mutation No.902, anywhere and the same is still intact. Moreover, it is not disputed that petitioners/plaintiffs are the legal heirs of Muhammad Taqi. Learned trial court has declared the suit as time barred on the basis of copies of mutations attested in the name of respondents. In my opinion, in the peculiar circumstances of the case, mere mutation on the basis of any sale are never sufficient to declare a suit time barred, particularly, where the petitioners/plaintiffs are admittedly legal heirs of Mohammad Taqi and are claiming to be in possession of suit land. So another aspect of the case is that the proof of possession of either of the parties on the suit land has obtained very importance as respondents also are claiming to be in possession of the suit land as vendees of the suit land from Mr. Taqi.
5. Parties did not produce any oral evidence in proof of possession of the suit land, therefore, I had to appraise the documentary evidence of the parties on this particular issue. I am now taking up the evidence of parties in proof and rebuttal of the issue of possession of the parties on the suit land. In this connection, Exh-P/1 and Exh-D/1 are the copies of same document, and column No.4 of the said document shows Mr. Taqi as owner of the land described in the said documents. In column, named Surat Jadeed of the said two documents, name of Taqi is written as owner of the lands described in the said documents. Exh-P/4 shows transfer of the land described in the said document through gift to the sons of Mr. Taqi. Exh-P/3 is the challenged document and is copy of mutation. In column No.4 of the said column, name of Taqi appears as owner of the land described in the said mutation. Exh-P/4 is also copy of mutation of the land described in the said document which also shows name of Taqi in column No.4 as owner of the land described in the said mutation.
Columns Nos.13 and 23 shows transfer of the suit land described in the said document to sons of Mr. Taqi.
6. Exh-D/1 to Exh-D/4 are the documents which respondents/ defendants Nos.1 to 10 have filed as sufficient proof of their possession on the suit land. It is very important to note that respondents/defendants Nos.1 to 10 did not claim possession on the suit land through respondents/defendants Nos.11 and 12. Through written statement dated 15-03-2008, respondents/defendants Nos.11 and 12 have claimed their possession on a part of suit land but opted not to contest the suit although the contesting parties to the suit claimed their possession on the suit land. So the claim of petitioners/plaintiffs regarding possession on the suit land is clearly conflicting plea with the similar pleas of defendants/respondents Nos.1 to 10 and defendants/respondents Nos.11 and 12. Thus heavy onus laid on respondents/defendants to prove their title as well as their possession on the suit land. Now I am taking the D documents Exh-D/1 to Exh-D/4 one by one. In columns Nos.4, 5 and 10 of Exh-D/1, I find mention of name of Taqi as owner of the suit land as well as in possession of the same. So this document is against the plea of respondents/defendants regarding possession. The entries on the reverse of Exh-D/1 are worth perusal and are important, wherein, I find no mention of possession of either of the parties nor I find any signature of Mr. Taqi. So, this document is a false document, particularly, when we read this document with Exh-P/1, Exh-P/3, Exh-D/1 and Exh-D/4. As I find no mention of respondents/defendants Nos.11 and 12 in Exh-P/2 and Exh-D/1, but I find mention of said two respondents in Exh-D/3 and Exh-D/4. Similarly, columns Nos.4. 5 and 9 of Exh-D/2 also belie plea of possession of respondents/defendants on the suit land. Exh-D/3 is a vague document regarding possession of all respondents on the suit land. Exh-D/4 is copy of Jima Bandi of the year 1998 and columns Nos.4 and 5 of the same also belie the plea of possession of respondents/defendants on the suit land. In this connection, findings of the learned trial court on issue No.8 are very important which are based on the averments of written statement of respondents Nos.11 and 12. In the said averments, the said defendants have claimed that they are tenants of contesting respondents Nos.1 to 10. In my opinion, in the peculiar circumstances of the case in hand, basing findings on an issue on mere averments of a defendants Nos.11 and 12 in their written statement is very wrong. In my opinion, in such circumstances as are in the case in hand, the learned trial court must had framed an issue in the light of averments of the written statement of defendants Nos.11 and 12 and defendants Nos.11 and 12 were bound to prove the same.
7. I have gone through the case law reported in MLD 2006 Lahore page 279, which is regarding possession and I am referring the same in this case after fully agreeing with the principle laid down in the said precedent law. In my opinion, the said principle is applicable to the circumstances of the case in hand.
8. Another important aspect of the case is the correctness or otherwise of the document of Exh-P/3, which is copy of mutation and is challenged document. Column No.4 of this document shows Mr. Taqi as owner of the land described in this document, and it is not disputed that then Mr. Taqi was leaving. Column No.5 shows respondents/defendants Nos.1 to 10 as tenants of the land described in this document. Entries of column No.14 of this document are more important as the same are showing respondents/defendants Nos.11 and 12 as tenants of the land described in this document, on behalf of tenants shown in column No.5. So the unanswered question is that whether a tenant can give the lands in his tenancy to another person on tenancy? It is very important to note that Exh-P/3 is the bases of defense of respondents/defendants Nos.1 to 10 and contents of the same clearly belie the version of respondents/ defendants Nos.1 to 10 regarding their possession on the land, particularly, described in Exh-P/3. Learned counsel for defendants Nos.1 to 10 stated at bar that they are in possession of suit land through respondents/defendants Nos.11 and 12 while defendants Nos.11 and 12 did not contest the suit and their possession on the suit land is neither proved nor admitted. So, another unanswered question is, who would suffer, petitioners or respondents Nos.1 to 10, if possession of respondents Nos.1 and 12 is not proved on any part of the suit land? In my opinion, in such a situation respondents Nos.1 to 10 will have to face the blunt.
9. Moreover, there is no evidence showing any sale of the suit land by Mr. Taqi to the respondents Nos.1 to 10. In his statement, attorney E for respondents Nos.1 to 10 has very clearly stated that respondents Nos.1 to 10 have no sale deed in proof of any sale of suit land or any part thereof in the name of respondents Nos.1 to 10. I find mention of sale of suit land by Mr. Taqi in the name of respondents Nos.1 to 10 only in revenue papers which in my opinion is no forum to attest any sale or gift etc. Nor such entries are any kind of evidence in proof of F transfer of any immovable property by any person to another. The second question is whether limitation for filing a suit can be computed from any entrief in any revenue paper, showing transfer of immovable properties through sale or gift. Both the courts below have done so, and in my opinion, it is a very wrong appreciation of relevant law. In this regard, learned counsel for respondents failed to show any precedent law. Learned two courts below did not frame any issue burdening the IG defendants Nos.1 to 10 to prove sale of suit land in their name.
10. Learned trial court has framed eight issues in all. Burden of proof of issues Nos.1 to 7 is on petitioners/plaintiffs while issue No.8 is on respondents/defendants. Respondents/defendants did not produce any evidence in proof of issue No.8 and learned trial court has given findings on issue No.8 in favour of respondents/defendants only on the basis of averments of the written statement of respondents/defendants Nos.11 and 12.
11. In the sequel of above discussion, I am of the opinion that in the case in hand, burden of proof has shifted to respondents who failed to discharge the same. Impugned judgments are result of framing of wrong H issues and misreading of evidence of parties, which in my opinion are material irregularities and flouting defects, therefore, interference of this Court is indispensible. Impugned judgment as well as judgment/order dated 25-10-2013 of the trial court are set aside and suit of petitioners/plaintiffs decreed throughout but with direction of partition of suit land as well as any other property of Mr. Taqi among his all legal heirs in accordance with the Fiqqah to which petitioners/plaintiffs belong. Respondents/defendants to bear costs. This file be consigned to record.