MUJAHID MUST AQEEM AHMED, J: While discussing agony of litigants and malady prevalent in our judicial system for the last more than hundred and thirty years, the Hon'ble Supreme Court of Pakistan in case "Muhammad Abdullah versus Yatim Khana Khalqia, Sargodha through its Manager and others " (2004 SCMR 471) observed that plight of a decree-holder starts after he succeeds in getting a decree from court of law and wants to execute it, for execution proceedings are contested like a suit and take years to finalize. However as observed by this Court at times it happens as in the present case that time is consumed because parties are barking up the wrong tree.
2. The pithy and admitted facts of the case are that suit for specific performance of contract filed by Khizar Iqbal Malik-respondent No.3 (decree-holder/respondent) against Shaukat Hussain-respondent No.4 (respondent) in respect of 04-Kanal land, detailed in plaint, after contest was decreed in his favour by the learned Civil Judge 1st Class, Bahawalpur vide judgment and decree dated 18.07.1994. Thereafter in execution petition warrant for possession was successfully executed in favour of the decree-holder vide report dated 27.10.1997. However just two days thereafter Munir Ahmad, predecessor-in-interest of the present petitioners (objector) filed an objection petition under Order XXI Rules 100 & 101 C.P.C. before the learned Executing Court with the version that the plot decreed in favour of the decree-holder was actually in his possession and physical possession of the land was wrongly and illegally delivered by officials of the Court to decree-holder/respondent. He further claimed that the disputed plot was part of joint "khata" and he being co-owner of joint "khata" was in possession of the disputed plot, so under the law only symbolic possession and not physical possession of the plot could be delivered to the decree- holder. The objection petition was allowed by the learned Executing Court vide order dated 17.11.1998. However the Civil Revision No.462 of 1998 titled as "Khizar Iqbal Malik vs. Government of Punjab, etc."was allowed by this Court vide order dated 20.12.2006 and the matter was remanded to learned Executing Court with the following observations:- "4. After considering the arguments of both the learned counsels and from the perusal of the record, I have found that objection petition filed by Munir Ahmad claiming possession of the plot in dispute was to be adjudicated upon by the learned Executing Court. The parties were to be granted opportunity to prove their respective possessions upon the land/plot in dispute with their entitlement to retain/obtain that possession. All these questions require decision after eliciting evidence from both the parties. Without investigation of this claim and counter claim as directed by Order XXI Rules 58 and 103 of the CPC, the question could not be determined. Therefore, I accept this civil revision and remand the case to the learned Executing Court who shall grant opportunity of hearing to both the parties. Parties shall be at liberty to produce their respective evidence to prove physical possession upon the plot in dispute at the time of sale in favour of Khizar Iqbal Malik. The learned Executing Court shall pass an appropriate order, in accordance with law for the delivery of physical possession/or symbolic possession of the plot in dispute to decree holder and/or restitution of possession to objector."
In pursuance of above order of this Court, in post remand proceedings the learned Civil Judge 1st Class, Bahawalpur framed proper issues, recorded evidence of the parties and vide order dated 12.12.2011 the objection petition was dismissed and the decree-holder/respondent was held entitled to get physical possession of the disputed plot. The petitioners/objectors assailed said order in revision jurisdiction, but could not succeed and the same was dismissed vide order dated 09.05.2012 passed by learned Addl. District Judge, Bahawalpur. Hence this constitutional petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following supplication:- "...the instant petition may very graciously be accepted and the impugned orders dated 09.05.2012 passed by the learned respondent No.1 whereby the revision petition filed by the petitioners has been dismissed and the order dated 12.12.201 1 passed by the learned respondent No.1 whereby the objection petition filed by the petitioners has been dismissed be declared null, void, corrum non judice, against the law and facts and without lawful authority and as such be set aside/quashed in the supreme interest of justice ."
3. Arguments heard. Record perused.
4. The only moot point (as per order dated 20.12.2006 of this Court passed in the above referred civil revision) is that as to which of the parties was in physical possession of the plot at the time of sale in favour of the decree-holder. To determine this fact, I have examined the evidence on record with the assistance of learned counsel for the parties. Copy of agreement to sell dated 09.04.1991 entered between the decree-holder and the respondent is available on record, wherein abuttal of plot was given, but description of said plot i.e. situated in rectangle No.101/11 killa No.10 (said Khasra number) is not mentioned. Similarly neither in plaint nor in decree or warrant of possession any "Khasra number" of the disputed plot has been mentioned. The revenue Patwari, who executed the warrant for possession in his report dated 27.10.1997 has observed that Shoukat Hussain-respondent (judgment debtor) was owner of 05-Kanal land in Khata No.90/86, as per register "girdawari", said Shoukat Hussain was in possession of 05-Kanal 03-Marla land situated in said Khasra No.101/11/10, whereas Munir Ahmad (predecessor-in-interest of the present petitioners) was informed at the spot to be co-sharer and tenant of this Khasra number. This report of revenue Patwari, even before arising of controversy between the objector and the decree-holder, is of vital importance and indicates that in fact Munir Ahmad was in physical possession of the plot in dispute, but due to his absence from the spot the revenue staff succeeded to execute the warrant for possession. This report of revenue field staff is even supported by the testimony of Muhammad Younas, revenue Patwari (RW-1), who has conceded during course of cross-examination that Munir Ahmad was alone shown in possession of rectangle No.101/11 "killa" No.10 measuring 03 Kanal 05-Marla vide Jamabandi for the year 1985-86. In his volunteer statement he deposed that the respondent/judgment debtor was in possession of this plot in "Kharif" 1986.
In cross-examination he admitted that in the current Jamabandi the petitioners were shown in possession of the aforementioned "killa" number. He conceded that in case of making any change in entries of "Khasra Girdawari" permission is sought from the senior revenue officer. He further conceded that till Rabi 1986 as per copy of "Khasra Girdawari" Exh.R-1 said Munir Ahmad was in possession of the aforementioned plot. To justify unauthorized change in "Khasra Girdawari" in favour of the respondent/judgment debtor he claimed that in the year 1986 there was no rule for seeking permission for making any change in "Khasra Girdawari". In the last lines of his cross-examination he conceded that up-till the date of recording his statement the petitioners were in possession of 05-Kanal 03- Marla land situated in rectangle No.101/11 "killa" No.10. Copy of Jamabandi for the year 1985-86 Exh.R-7 and for the year 2002-03 Exh.A-1 depict that Munir Ahmad, predecessor-in interest of the petitioners was in physical possession of the aforesaid Khasra number.
5. Learned counsel for the decree-holder/respondent tried to develop his arguments that from the copy of "Khasra Girdawari" Exh.R-I for the crop "Rabi" 1997 and onward, it is established that Shoukat Hussain (respondent) was in possession of the said "Khasra". But I am not convinced by these submissions as in case "Ghulam Muhammad vs. Ellahi Bux" (PLD 2002 Lahore 48), it has been laid down that if there is any conflict in the entries in the "Khasra Girdawari" and the record of rights, the latter will prevail. Thus, from the above referred copies of "Jamabandi", it is established that Munir Ahmad in his life time and after his death his legal heirs (petitioners) were in continuous possession of the land situated in said "Khasra" number and entries in "Khasra Girdawari" showing Shoukat Hussain (respondent) in possession have been maneuvered unauthorizedly in violation of the Rule 40 of The Punjab Land Revenue Rules, 1968, which reads as under:- "40. Correction of entries in the Crop Inspection Register.- No alteration shall be made in the Register Girdawari after the Dhal Bachh of respective harvest has been drawn up, except with the sanction of the Collector. If at the time of preparation of Register Haqdaran Zamin, an entry in the Register Girdawari is found to be incorrect, it shall nevertheless be retained unaltered and the correct entry shall be noted in red ink, in the remarks column and shall be attested by the Kanungo."
Moreover Chapter 9 Para No.9.9 of Land Records Manual by Bashir Tariq (Revised and Enlarged Edition) prescribes following "procedure for preventing errors in khasra (Register Girdawari)":- "9.9. Procedure for preventing erros in the khasra (Register Girdawari).--The following subsidiary instructions should be observed for preventing errors, etc., in the [khasra girdawari]:-
(a) The Patwari must enter in his diary a list of all field numbers in which any change of cultivating occupancy or rent has occurred in the following forms:- changes in rent-field number so and so; changes in cultivating occupancy--field numbers so and so; and place this list before the field Kanung o at his next visit for verification. [The numbers so entered will be verified by the Kanungo and totalled under his signature]. But if the change is such as to necessitate an entry in the register of mutations it need not be entered in the diary as well.
(b) A Register Taghayyurat Qabza Kasht-wa-Laghan will be maintained by the Patwari for each revenue estate for the same quadrennium for which a Register Girdawari is maintained in the following proforma, in which also he will enter harvestwise all changes of cultivating possession, rent etc., which are undisputed, and will place before the field Kanungo and circle revenue officer , for crop inspection, for their attestation:- REGISTER TAGHAYYURAT QABZA KASHT-WA-LAGAN Revenue Estate Name of HarvestTehsil Date of crop inspectionDistrict Field number with area under chargeFormer entry 1 2 3 4 Present entry Signature of patwari with dateAttestation by the Field Kanungo with dateAttestation by Revenue Officer with date 5 6 7 8 Remarks 9
(c) Whenever a Patwari has to alter an entry once made in the khasra girdawari he must enter it in his diary. But no such alteration should be made after the bachh papers of the harvest have been drawn up or corrected, except with the sanction of the Collector which may be given for the correction of clerical or patent mistakes only. The field Kanungo is bound to inspect the alternations which have been made in the [khasra girdawari] very carefully. If at the time of preparation of the [jamabandi] an entry in the [khasra girdawari] is found to be incorrect, it will nevertheless be retained unaltered, but the correct entry will be noted in red ink and will be attested by the Kanungo."
As noticed supra, detailed procedure for correction in "Khasra Girdawari" has been provided, but admittedly in this case no such procedure has been adopted and as such the 'Khasra Girdawri' cannot be preferred to an authentic revenue record/Jamabandi. In case "Muhammad Nawaz alias Nawaza and others vs. Member Judicial Board of Revenue and others" (2014 SCMR 914) it was approved by the Hon'ble Supreme Court of Pakistan that where entries in the revenue record have not been substituted lawfully, the original will hold the field. Similar view was taken by this Court in case "Azam Khan vs. Azad Khan and 6 others" (PLD 1986 Lahore 275) and "Muhammad Javed Iqbal vs. Member (Judicial- II) Board of Revenue Punjab, Lahore and others" (2010 YLR 2526 Lahore).
6. Learned counsel for the decree-holder/respondent has maintained that as per earlier order of this Court only date/period relevant for resolving the controversy is date of sale agreement dated 09.04.1991 and from copy of "Khasra Girdawari" and oral evidence it is established that respondent/judgment debtor was in possession of the property . To my view for ascertaining the possession of the property all the relevant documents prior and after the sale transaction can be looked into and have to be read in juxtaposition. The entries in "khasra girdawari" only for relevant period cannot be read in isolation to dispense the complete justice.
7. As such it can be safely gathered from the record that the respondent was not in possession of the land situated in said "Khasra number" and for that very reason inspite of receiving huge earnest money the possession of not even an inch of land was delivered to the decree-holder under agreement to sell, whereas as per business custom and usage, at the time of execution of agreement to sell and payment of huge earnest money, as in the case in hand, possession is delivered at the spot. It is also to be noticed that after passing of decree, firstly the decree-holder moved execution petition and thereafter one Abdul Ghafoor filed an objection petition, which was allowed by learned Civil Judge 1st Class, Bahawalpur vide order dated 04.06.1996 and none of the respondents including decree-holder assailed that order before appellate/revisional forum and thus admitted its legality. This circumstance also indicates that till that time the decree- holder/respondent was not even aware of the exact location of the plot decreed in his favour.
8. The report of revenue Patwari (noticed supra) regarding execution of warrant of possession in favour of the decree-holder/respondent also affirms petitioner's possession over the land situated in said "Khasra number". The learned courts below have not properly appreciated the documentary evidence on record. It is well settled that civil cases are to be decided on the basis of preponderance of evidence and where there is any conflict in oral and documentary evidence, latter will prevail. The learned lower fora has blatantly ignored the long standing entries in "Jamabandi" and "Khasra Girdawari" in favour of the petitioners, whereas under the legal maxim "Men can tell a lie but documents cannot" the documentary evidence led by the petitioners inspire confidence and belies the case of decree-holder/respondent, as such the impugned orders based on mis-reading and non-reading of evidence have resulted in grave mis-carriage of justice, so the same are not sustainable.
Consequently , the instant writ petition is allowed, impugned orders passed without jurisdiction and lawful authority are set aside and the objection petition filed by the petitioners is allowed. The decree-holder/respondent will be entitled only for "symbolic possession" and thereafter he may approach the Court of competent jurisdiction for partition of joint property as per law .
9. Before parting with this judgment, it may be observed that problems of decree holder in some cases are result of his own omissions/commissions i.e. incorrect description of the property by meets and bounds, survey numbers in case of urban property or non-appending of scaled site plan/rough site plan etc. or description contrary to revenue record [latest "Jama Bandi", (Record of Rights), "Khasra Gardawari", (Crop Inspection Register), "Shajra Khistwar"/"Massavi", etc.] as such to eliminate the problems cropping up at the time of execution of a decree it is desired that while drafting plaints/petitions etc. proper description of suit property be given and in this regard detailed procedure provided in Order VII Rule 3 of the Code of Civil Procedure, 1908 and Rule 9, Chapter 1-C, Volume I of Rules and Orders of the Lahore High Court, Lahore (Instructions to Civil Courts) be meticulously followed, which read as under:- Order VII Rule 3 C.P.C.
"Where the subject-matter of the suit is immovable property .--Where the subject-matter of the suit is immovable property , the plaint shall contain a description of the property sufficient to identify it, in case such property can be identified by boundaries or numbers in a record of settlement of survey , the plaint shall specify such boundaries or numbers ."
Rule 9, Chapter 1-C, Volume I of Rules and Orders of the Lahore High Court, Lahore (Instructions to Civil Courts)
"Land suits.--If the plaint relates to agricultural land and the plaintiff is illiterate, it should be scrutinised with special care, according to the following directions:-
(i) The Presiding Officer shall ascertain by careful examination of the plaintiff or his agent, whether the prayer in the plaint corresponds in all particulars with the exact relief which the plaintiff orally describes himself as seeking. If the oral statements of the plaintiff or his agen t are at variance with the written descrip tion of his claim, the plaint shall, in his or his agent' s presence, be returned for amendment, and no amended plaint should be accepted until the Court is satisfied that it correctly expresses the claim which the plaintiff desires to establish.
(ii) Every such plaint shall be accompanied by a statement in the prescribed form setting forth the particulars relating thereof recorded in the Settlement record and in the last Jamabandi. This statement shall be verified by the signature of the Patwari of the Circle in which the land concerned is situated. Where, by reason of partition, river action or other cause the entries in the Settlement record and in the last Jamabandi do not accord, a brief explanation of the reason should be given in the column of remarks. Where the suit is for a specific plot with definite boundaries, it shall also be accompanied by a map, drawn to scale, showing clearly the specific plot claimed, or in relation to which the decree is to be made, and so much of the fields adjoining it, also drawn to scale, as may be sufficient to facilitate identification.
The specific plot and adjoining fields shall be numbered in accordance with the statement and the map shall be certified as correct by the Patwari or other person who prepared it. Where, however, the suit is for the whole of one or more khasra numbers as shown in the Settlement map, or a share in such numbers, and not for a specific portion thereof no map will be required unless it is necessary for other reasons to show the boundaries of such khasra numbers."
It is expected that the advocates/pleaders and the parties to lis will strictly adhe re to the said provisions in the interest of justice. Whereas if any court, due to above pointed out lacunas feels handicapped to exactly locate the suit property it at an appropriate stage of lis, can appoint some seasoned, experienced and honest revenue officer (in case of agriculture land revenue officer is suitable for this job) or any such advocate as local commission to visit the site and identify/demarcate exact location of property in presence of parties or itself inspect the spot or make a local inquiry under Rule (I)(i) of Chapter 1-M, Volume I of Rules and Orders of the Lahore High Court, Lahore (Instructions to Civil Courts). For facility of reference said provision may be reproduced hereunder:- "1. Local Inquiry .--In "Hadd-Shikni" suits and other suits of boundary disputed of land, falling within the jurisdiction of a Civil Court, it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways:-
(a) by suggesting that one party or the other should apply to the Revenue Officer to fix the limits under section [117(1) of the Punjab Land Revenue Act 1967 (XVII of 1967]. Time for such purpose should be granted under Order XVII, Rule 3, of the Code of Civil Procedure;
(b) by appointing a local commissioner, and
(c) by the Court itself making a local enquiry ."
Even under Order XVIII Rule 18 of the Code of Civil Procedure, 1908 the court can make inspection of any property regarding which any such question arises. In this regard reliance may be placed on case "Abdul Rashid through Legal Heirs and 6 others vs. Mahmood Ali Khan " (1994 SCMR 2163 ). Needless to mention that inspection of location by a Court or local commission can be helpful in arriving at above noticed goal.
The above guidelines and adherence thereto on one hand can minimize miseries/hardships of decree-holder/ successful party to the lis and on the other hand reduce heavy workload of court and curtail legal complications.