ABDUL HAMEED BALOCH J.----Through this judgment I intends to dispose of above titled revision petitions filed by the petitioners against the judgments and decrees dated 28th September , 2011 (impugned judgments and decrees) passed by learned District Judg e (Adhoc), Quetta (appellate court), wher eby the judgments and decrees dated 30th December , 2006 passed by learned Senior Civil Judge-II, Quetta (trial court) were set aside and the suits filed by the petitioners were dismissed.
2. Precise facts of the case are that the petitioners/ plaintif fs filed suits for decla ration and permanent injunction respect of land vide mutation No. 2 bearing khewat No. 4, Khatooni No. 31, khasra Nos.314, 316/1, 322, 352, 316, measuring 12 rods 13 poles, Khewat No. 3, Khatooni No. 21, bearing khasra No. 9 measuring 11 rods 31 poles, Khewat No. 3 Khatooni No. 27, khasra No. 78 measuring 29 rods 31 poles, khewat No. 4 Khatooni No. 34, Khasra Nos. 75 and 13 measuring 2 rods 0 pole, Khewat No. 3 Khatooni No. 16, khasra Nos. 14, 99, 115, 120, 121, 135, 136, 363, 472 measuring 29 rods 31 poles, khewat No. 4, khatooni No. 16, khasra Nos. 314, 316/1, 322, 353, 316, measuring 12 rods 13 poles, khewat No. 4, Khatooni No. 31, khasra No. 359/4, measuring 0 rods 13 poles, Khewat No. 18, Khatooni No. nil, khasra Nos. 486, 486/1, 182 measuring 1 rod 17 poles, khewat No. 4 Khatooni No. 28, khasra Nos. 96, 97, 103, 114, 298/1, 359, 359/2, 359/3 and 315, measuring 23 rods, 34 poles, Khewat No. 3 Khatooni No. 17, khasra No. 13 measuring 2 rods 12 poles, and khewat No. 4, khatooni No. 13, khasra No. 359/1 measuring 0 rod 18 poles situated at Mohal Karez Almas, Killi Gul Muhammad, Mouza Circle Durrani, Tehsil and District Quetta, against he respondents/ defendants with the following prayer: "i. That the plaintiffs are owners of the property mentioned in paragraph No. 3 of the plaint and enjoy the occupation of the said property thereof; ii. To declare that the plaintiffs both owners and occupants of the aforementioned property . The defendants being in unlawful possession, needed to be ousted; iii. To cancel the entries effected illegally and unlawfully in column of Buzgar in the name of defendants Nos. 1 and 2, and to direct the defendant No. 3 to insert the names of plaintiffs in the said column; iv. To permanently restrain the defendants , to not disturb the possession and title both physically at the spot and in Revenue record and to further restrain the defendants to not transfer the said illegal entries in column of Buzgar to any other person; v. To direct the defendants to handover the vacant possession of the land and property of the suit, to the plaintiffs as mentioned in the statement of Local Commissioner as consequential relief to the plaintiffs; vi. Any other order as deemed fit and proper in the circumstances of the case, by this honourable Court, may also be passed; vii. Cost of the suit may also be awarded."
3. The respondents/ defendants contested the suits on legal as well as factual grounds by filing written statements and prayed for dismissal of the suits.
4. Out of the pleadings of the parties the learned trial court framed following issues in all the suits: i. Whether no cause of action accrued to the plaintiff against the defendants? ii. Whether the suit is not maintainable as the property has not been valued? iii. Whether the plaintiffs are entitled for the relief claimed for? iv. Relief?
5. After framing of issues the parties to the lis produced their respective evidence and thereafter , the trial court dismissed the suits vide judgments and decrees dated 28th August, 2003, against which appeals were filed. The appellate court i.e. Additional District Judge-III, Quetta after framing of following two additional issues remanded the matters to the trial court vide judgments dated and decrees dated 30th October , 2004 with direction to decide the same on merit according to law: i. Whether Khuda-e-Rahim, predecessor in interest of plaintiffs was given half of property of land in dispute by predecessor of defendants in lieu of claiming of Karez in capacity of Khat Kash? ii. Whether the defendant No. 1 with collusion of Settlement Officer , fraudulen tly and surreptitiously changed mutation entries of land in dispute during the settlement of 1991?
6. After remand the parties produced further evidence and on conclusion the learned trial court heard arguments and thereafter decreed the suits of the petitioners/ plaintif fs vide judgments and decrees dated 20th December , 2006. Being aggrieved of the same the private respondents/defendants filed appeals before District Judge, Quetta, which were marked to the. files of Additional District Judge-IV , Quetta. The learned appellate court after hearing the parties allowed the appeals, set aside the judgments and decrees of the trial court dated 30th December , 2006 and dismissed the suits of the petitioners/ plaintif fs vide judgments and decrees dated 10th July, 2007. Thereafter the petitioners/plaintif fs filed applications within the meaning of Order XLI, Rule 21 read with Section 151, Civil Procedure Code (C.P.C.) before the appe llate court with the prayer to restore the appeals by setting aside ex-parte order and judgments dated 10th July, 2007, but the same applications were dismissed by Additional District Judge- IV, Quetta vide orders dated 22nd October , 2007. The petitioners/plaintif fs challenged the orders dated 22nd October , 2007 and judgments dated 10th July, 2007 before this Court in revision. This court after hearing the parties vide judgment dated 14th Septe mber , 2010 set aside the orders dated 22nd October , 2007 as well as judgments dated 10th July, 2007 and remanded the matters to the appellate court. After remand the learned appellate court heard arguments and thereafter , vide impugned judgments and decrees dated 28th September , 2011 allowed the appeals, set aside the judgments and decrees of the trial court dated 30th December , 2006 and dismissed the suit of the petitioners/ plaintif fs, hence the petitioners/ plaintif fs are before this court.
7. Learned counsel for the petitioners contended that the issues have not properly been framed and without properly framing issues the lis could not be decided. The respondents/ defendants failed to produce any evidence with regard to ownership. The respondents/defendants neither have any title, nor in occupation of the suit land. The suit properties owned by the petitioners/plaintif fs' ancestral. The suit land was mutated in the names of the petitioners/plaintif f. On cancellation of settlement and re-settlement in 1991-92 the respondents were shown occupier . The appellate court has altogether ignored the statements of witnesses of the petitioners/plaintif fs. In the end the learned counsel for the petitioners/plaintif fs prayed for remand of the case.
8. The learned counsel for private respondents/ defendants stated that the respondents/defendants are rightful owners of the suit land and they are in occupation; as such the suit land was mutated in their names. The petitioners/plaintif f were present at the time of settlement/mutation in 1991-92 but raised no objection. After lapse of more than six years the petitioners/ plaintif fs filed suit malafidely in order to pressurize them. The counsel for the respondents/ defendants prayed for dismissal of the revision petitions.
9. The learned Additional Advocate General supported the settlement carried out by the Settlement Authorities.
Further stated that the petitioners filed appeal before the Settlement Officer which was dismissed. The settlement of the Mouza was conducted according to law .
10. Heard learned counsel for the parties and perused the record with their assistance. The record transpires that the petitioners/ plaintif fs filed as many as eleven suits, thereafter , filed amended plaint seeking declaration, permanent injunction and possession. The trial court framed three issues. Parties produced evidence; whereafter the trial court i.e. Senior Civil Judge-I, Quetta vide judgment and decree dated 28th August, 2003 dismissed the suits. The petitioners/plaintif fs filed appeals before the appellate court which were accepted. The appellate court framed two additional issues as mentioned supra and remanded the cases to the trial court for decision afresh. The trial court i.e. Senior Civil Judge-II, Quetta vide judgments and decrees dated 30th December , 2006 decreed the suits. The appellate court i.e. Additional District Judge-1V , Quetta vide judgments dated 10th July, 2007 accepted the appeals and dismissed the suits of the petitioners/plaintif fs. The petitioners/ plaintif fs filed applications under Order XLI, Rule 21, C.P.C. for rehearing of the appeals which were also dismissed by the appellate court vide order dated 22nd Court October , 2007. The petitioners filed civil revision petitions before this Court on 14th September , 2010. The petitions were accepted and matters were remanded to the appellate court for decision of the appeals afresh. Whereafter , the appellate court passed the impugned judgments and decrees.
11. Before dilating upon merit of the case it would be appropriate to discuss the point raised by the learned counsel for the petitioners that the court has not framed proper issues. Where the evidence is sufficient the appellate court may re-settle the issues, decide the appeal on merit instead of remanding the case. It would be relevant to reproduce the Rule 24 of Order XLI, C.P .C: "Order XLI, Rule 24, C.P.C. Where evidence on the record is sufficient, the Appellate Court may determine case finally ,-- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary , finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
12. If the court proceed with the matter and found it fit, may decide the same on merit without remanding the case to the trial court. The remanding of case caused prolongation of the agony of the parties. The purpose of above referred rule is to minimize hardships of litigants and unnecessary delay in disposal of cases. The honorable Supreme Court of Pakistan in case Ashiq. Ali v. Mst. Zamir Fatima PLD 2004 SC 10 held: "7. We have also adverted to the conten tion as agitated on behalf of petitioner that the case should have been remanded which appears to be fallacious one as only those cases should have been remanded which could not be decided on the basis of available record as it would be in the interest of justice. We are of the firm view that if a controversy can be resolved on the basis of available evidence then the question of its remand I does not arise. It is well settled by now that where the evidence on record is sufficient for the Court concerned do decide the matter itself, remand should not be ordered and moreso, a Court will not remand a case where the defect is due to the negligence and the default of the party desiring remand. In the case in hand the petitioners could have very conveniently taken appropriate steps to get the ex parte order set aside which was never done. In this regard we are fortified by the dictum as laid down in Pramatha Nath Chowdhury v. Kamir Mondal (PLD 1965 SC 434), Muhammad Saghir Bhatti v . Federation of Pakistan (PLD 1958 SC (Pak) 221)."
13. Now adverting to point from which the material issues framed. It would be appropriate to reproduce Order XIV, Rules 1 and 3 C . P . C.
"Order XIV, Rule 1, C.P.C: Framing of issues. -- Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other .
Order XIV, Rule 3, C. P. C: Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue."
14. The perusal of above Rule 1 of Order XIV, C.P.C. reflects that the issues framed on the basis of material which a plaintif f alleged or defendant must alleged in order to constitute his defence, meaning thereby that the issues must be framed on the basis of pleadings which one party alleged And other denied. The material propositions are those propositions of facts and law which a plaintif f must alleged to show right of sue or defendant must allege in his defence. As per above referred to Rules the issues framed on the basis of material which one party alleged in plaint and other denied. The appellate court while remanding the matters to the trial court framed two additional issues as under: i. Whether Khuda-e-Rahim, predecessor in interest of plaintiffs was given half of property of land in dispute by predecessor of defendants in lieu of claiming of Karez in capacity of Khat Kash? ii. Whether the defendant No. 1 with collusion of Settlement Officer , fraudulen tly and surreptitiously changed mutation entries of land in dispute during the settlement of 1991?
15. The plain reading of the plaint show s that none of the parties alleged that Khuda-e-Rahim predecessor in interest of petitioners/plaintif fs was given land in dispute by predecessor of respondents/ defendants in lieu of cleaning Karez in capacity of Khat Kash. When none of the parties contended such contention in the pleading, from which material the appellate court framed such additional issue. Therefore, the above additional issue is struck of f.
16. Both the courts below dilated upon the evidence of the parties while deciding the issues have overstepped/ignored the settled principle that the evidence beyond the pleadings cannot be considered. It would be appropriate to reproduce the relevant provision of Civil Procedure Code: "Order VI, Rule 7, C.P.C. Departure. -- No pleading shall, except by way of amen dment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same."
17. It is settled principle that a party cannot be allowed to lead evidence on the plea which is not raised in pleading.
The evidence produced by the parties contrary to the pleadings could not be' considered. The civil case depends upon the pleading of the parties and they had to be confirmed within four corne rs of the pleadings. Where no specific plea taken by either party evidence with regard to such plea even was brought on record it could not be considered. The honorable Supreme Court of Pakistan in Abrar Ahmed's case PLD 2014 SC 331 held: "---- no one can be allowed to set out a new case beyond the scope of his pleadings.----"
Reliance is also placed on Tahseen Asghar v. Additional District Judg e, Burewala , 2018 MLD 617. There is no cavil of this proposition that none of the parties in civil suit could be allowed to adduce evidence which was never pleaded and decision of the case could not rest on such evidence. Reference is made to the case of Combined Investment (Pvt.) v. Wali Bhai PLD 2016 SC 730. Where any evidence beyond the pleadings is adduced, no party on the basis of such evidence could be allowed to set up altogether a new case at his caprice and press the same for getting decision. Reliance is made on the case of Essa Engineering Company (Pvt.) Ltd. v. Pakistan Telecommunication Company Limited 2014 SCMR 922. It was in the case of Muhammad Nawaz alias Nawaza v.
Member Judicial Board of Revenue, 2014 SCMR 914 that anything stated outside the scope of pleadings could not be looked into and no decision could be based on such evidence.
18. The record transpires that the trial court framed three issues. The petitioners/plaintif fs produced five witnesses as well as attorneys of petitioners/plaintif fs Nos.6 to 12 and Nos. 1, 3 and 5 got recorded their statement. While the respondents/ defendants got recorded statements of two witnesses, produced Muhammad Siddique Qanungo as DW-3 and Ahmed Ali representative of Sub-Registrar as DW-4. The attorney Muhammad Qasim recorded his statement. It is pertinent to mention here that in all the petitions the evidence is the same.
19. Now discuss the evidence of petitioners/plaintif fs. PW-1 Fazal-ur-Rehman stated that the plaintif fs are owners of the land in dispute. In the year 1991-92 the Settlement Authorities with collusion of private defendants had prepared the settlement record. The witness neither stated the boundaries of the land in dispute nor the mutation number . The witness further stated that the defendants are residing on the disputed land for the last 40/50 years, constructed houses over there. The witness showed his ignorance that fruit gardens/ orchards are over the land for the last 30/40 years. He further stated that he had no knowledge whether Tehsildar had given notice to the plaintif fs or not.
20. PW-2 Abdul Sadiq stated that in previous record of the settlement the property in dispute was in the names of the plaintif fs and they were in possession, but in 1991-92 settlement the defendants managed to enter the same in their names in the revenue record being bazgars. On getting knowledge they filed an appeal before Settlement Officer which was dismissed. The witness admitted that garden/ orchard of defendants is there for the last approximate 20/25 years. The witness stated that he is acquaintance with the defendants for the last 20/25 years.
The witness also did not state the mutation number of the land in dispute.
21. PW-3 Hayatullah stated that the disputed land is about 40 acres. The disputed land was in possession of the plaintif fs prior to settlement of 1991-92. The larger portion of the disputed land is in possession of defendants. The witness stated that he born in Afghanistan and came to Pakistan twenty years ago. The witness admitted that the larger portion of land is in possession of the defendants. The witness further stated that one orchard/garden of defendants is in the suit land. There is tube well on the disputed land. The witness further stated that only one garden is in possession of the defendants. The remaining land is in possession of the plaintif fs. The witness also did not tell khewat/khatooni of the land in dispute.
22. PW-4 Haji Shamsullah stated that the total land is 30/35 acres which is in possession of the plaintif fs. The witness stated that he is Afghan refugee.
23. PW-4 Shams-ud-Din stated that the suit land is approximately 30/40 acres. Some portion of the land is in possession of the plaintif fs and some in possession of the defendants.
24. The attorney Muhammad Amir stated that the suit land consists of 30/40 acres. There is garden/orchard almost on major part of the land. The attorney further stated that the suit land was in their possession but during pendency of suit the defendants have taken possession. He admitted that during settlement of 1991-92 they were present at Quetta. There is a tube well and orchard/garden of the defendants.
25. The attorney Ali Jan admitted that they were present in Quetta during settlement of 1991-92 and also admitted that they have not raised objection when in 1981-82 the defendants fixed/installed tube well.
26. It appears from the evidence of the plaintif fs' attorney Ahmed Ali that the defend ants fixed tube well in 1981-82.
As per PW-3 the father of the plaintif fs died in 1984, thereafter , the defendants fixed the tube well. All the PWs and attorneys of plaintif fs admitted the possession and garden/ orchard over the suit land. They attorney Ali Jan admitted that the defendants are in possession prior to the settlement of 1991-92. It means that the Settlement Authorities have rightly recorded the names of the defendants in the record of settlement.
27. The statements of the plaintif fs' witnesses are contradictory to each other . PW-1 stated that the defendants are in possession for the last 30/40 years, while PW-2 stated that the defendants are in possession for the last 20/25 years. The witnesses have admitted the peaceful possession of the defendants. The plaintif fs did not produce any document in support of their contention, only produced five oral witnesses. The witnesses of the plaintif fs mostly replied for want of knowledge. The witnesses of the petitioners/plaintif f have not stated mutation number in their statements. The boundaries of the suit property was not mentioned in the plaint. In reported judgment of this Court Inspector General of Police Balochistan Quetta v . Ghulam Rasool 2012 CLC 1645 it was held: "9. In order to prove the case, the statement of plaintiff must conform and verify the contents of plaint in its totality .
Any repugnancy , inconsistency or conflict in the statement and the plaint is sufficient to damage the case and the claim. On this sole ground, the findings of the appellate Court qua Issue No. 3 are without any substance, untenable and unsustainable, as such; the same are reversed and the findings recorded by trial Court are maintained.
10. As far as Issue No.4 is concerned, the plaintiff has failed to prove his possession over the property . All the P.
Ws. produced by the respondent/plaintiff have not stated the boundaries correctly , therefore, their statement qua the possession is of no avail."
Reliance is also placed on the case of Gohram alias Ali Gohar v. Mst. Zar Bano alias Zero through legal heirs 2014 CLC 1 126 wherein it was held: "14. In rebuttal the defendants Nos. 1 to 4 (contesting respondents) claimed their ownership in respect of the first part of the suit-land, and described their status as tenants of respondents Nos.2 to 9 (defendants Nos. 5 to 12), the owners of the second part of the suit property . They further claimed their physical possession in respect of whole of the suit-land with an assertion to have cultivated the land from last several decades.
15. The courts, trial and appellate, decided that the suit was filed beyond the stipula ted period and the plaintiffs had failed to establish their right and title in the suit-land, with an order for dismissal of the suit. In view of the pleadings of the parties the initial onus was on the petitioners (plaintiffs) to establish a clear title in their favour and if they succeeded the burden shifted to the contested respondents to establish the contrary , therefore, the evidence produced by both of them to be assessed in the same context."
28. The attorneys of the plaintif fs admitted that they were present in Quetta at the time of settlement of 1991-92.
The plaintif fs filed appeal before the Settlement Authority , which was dismissed. The relevant portion of the same is reproduced hereunder: {{URDU TEXT}}
29. The plaintif fs filed suit for possession. The period provided under Article 144 of Limitation Act, 1908 is twelve
(12) years. The suit was filed in 1998; therefore, the suit is within fink
30. The plaintif fs contended that the defendants with collaboration of Settlement Authorities mutated the disputed land in their names in the record of rights as Bazgar and possession. The plaintif fs failed to produce any document or oral evidence in regard of collaboration of defendants with Revenue Authorities, rather the possession of the defendants was admitted by the witnesses and attorneys of the plaintif fs.
31. Admittedly the suit land is in possession of the defendants and in settlement of 1991-92 the defendants were in possession as Bazgar of the land. Under Section 52 of the West Pakistan Land Revenue Act, 1967 entries of mutation in the record of rights carry presumption of truth. It would be appropriate to reproduce Section 52 of the Land Revenue Act, 1967:
32. "Presumption in favour of entries in record-of-rights and periodical records. Any entry made in the record-of- rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder , shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted thereof"
32. The revenue record had proved that the defendants/respondents are the Bazgar of the disputed property and fixed tube well over the land prior to settlement of 1991-92 and have orchard/ garden over the suit land. In reported judgment of this Court Bakhtiar v . Nasrullah 2015 CLC 385 it was held: "13. The learned counsel for the appellant laid much stress that mere the mutation entries in favour of the respondents Nos. 1 to 53 does not create any right and on that strength, the mutation entries produced by the respondents confer no right. This conten tion of the learned counsel for the appellants is not tenable. It is a well- settled that presumption of truth is attached to mutation. The appellants did not lead any evidence to rebut the said entries in any manner . In the case of Hakim Khan v. Nazar Ahmed Lughmani, 1992 SCMR 1832 , the claim made on the basis of revenue entries was upheld and concurrent judgments and decrees of the Courts below were set aside because no evidence was led to prove that those entries were collusive or fraudulent. In the case of Mazloom Hussain v . Abid Hussain, PLD 2008 SC 571 , the after refined view was reiterated and it was observed as under:-- "The High Court has observed that the entries in the Revenue Record in favour of the appellants were not made in accordance with the prescribed procedure provided in law. The answer to the foregoing objection is that the said entries emerged in the record of rights for the year 1965-66 have not been challenged by the plaintiff-respondents Nos. 1 and 2 before the Revenue functionaries or through a civil suit. As provided in section 52 of the West Pakistan Land Revenue Act, 1967, the presumption of truth is attached. to the revenue entries which has also been upheld by this Coin in the case of Hakim Khan v . Aurangzeb and another 1979 SCMR 625 ."
In the case of Nawab Khan v. Said Karim Khan, 1997 SCMR 1840 , the entries matte-in the revenue record were not interfered with as presumption of truth was attached to those entries and no strong evidence was--led the rebuttal to warrant interference with those entries. The Hon'ble Supreme Court in the said judgment at page 1844 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-ul-Arz, Jamabandi and the portion of the Shajra-e- Nasb or genealogical of the proprietors.
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."
33. It is settled proposition of law that when a party alleged a fact must prove it on strength of his own evidence.
The statements of the witnesses of the plaintif fs are contradictory with each other . For proving the case there must be consistency in the statements of the witnesses and plaintif f. When there is any ambiguity or inconsistency in the statements of the witnesses and plaintif f, then he must fail. The plaintif f cannot take advantage of shortcoming of the case of the defendants. Reliance is placed on the case of Mst. Khalida Bibi v. Muhammad Naeem 2019 CLC 1204 wherein it was held: "5. Moreover , it is well settled that plaintiff is to prove and establish his case on the strength of his own evidence and he cannot get any benefit from the short comings and weakness of the case of the defendant."
Reliance is also placed on the case of Badar Zaman v . Sultan 1996 CLC 202 wherein it was held: "----It is well-settled law that the plaintiff must prove his case on the strength of his own evidence and cannot take advantage of the shortcomings of the defendant's case: Onus in this case heavily laid on the plaintiff which he has not been able to discharge satisfactorily , so the consequence would be that he must fail. There is a well-known maxim 'dubio secundum reum potius quam secundum actorem litom dorti opertert', which means that where the case is doubtful, the decision should be given for the defendant rather than for the plaintiff. "
The petitioners have failed to point out any illegality and irregularity in the impugned judgments-decrees of the appellate court. The revisional jurisdiction cannot be invoked unless excess of authority or mis-exercise of jurisdiction or material irregularity or arbitrary , therefore, no interference is warranted by this court.
In view of the above the Civil Revisio n Petitions Nos. 419/201 1, 420/201 1, 421/201 1, 422/201 1, 423/201 1, 424/201 1, 425/201 1, 426/201 1, 427/201 1, 428/201 1 and 429/201 1 are dismissed. The judgments and decrees of the appellate court i.e. District Judge (Ad hoc), Quetta dated 28th September , 2011 are upheld. The parties bear their own cost.