This Regular Second Appeal was preferred against judgment and decree dated 03.06.1991 of Additional District Judge, Layyah, whereby appeal filed on behalf of Respondents No. 1 to 9 plaintif fs was allowed, judgment of the learned trial Court of 13.6.1989 was set aside, and their suit was decreed as prayed for .
2. Precisely , facts of the case were that initially the plaintif fs instituted suit for declaring them to be owners of the subject land having been purchased from Allah Bukhsh, the ascendant of Proforma respondents/Defendants No. 10 to 14, vide registered sale-deed dated 29.06.1954 (Exh. P-1) as well as for the cancellation of inheritance Mutation No. 353 dated 01.07.1981 attested in favour of the latters, sale-deed dated 17.08.1981, whereby they further transferred it in favour of proforma Respondent No. 15 and sale-deed dated 10.01.1982 executed on latter's behalf in favour of appellants, besides order dated 06.10.1981 passed by EACO whereby the suit land was adjusted as a right of return in favour of descendants of Allah Bukhsh/Respondents No. 10 to 14 and the order dated 29.05.1984 of the Additional Commissioner (Revenue) Dera Ghazi Khan by Virtue of which appeal of the plaintif fs was dismissed were also called in question, however , the suit was subsequently amended and a decree for restoration of possession was also claimed.
Obviously the suit was contested by the descendants of Allah Bukhsh, Asghar Ali and the appellants to support the inheritance mutation as well as instruments of sale whereby suit land was subsequently transferred to them.
After receiving and appreciating the evide nce so led by the contesting parties initially the suit was dismissed by the Court of first instance, however , finally it was decreed by his appellate Court vide impugned judgment as referred in Para 1 ante.
Mr. Muhammad Faisal Bashir , learned counsel for the appellants emphasized with great vehemence that suit was instituted after decades, which was badly time barred and the learned trial Court was perfect in dismissing it on the said score; that the plaintif fs earlier approached the revenue hierarchy and after their failure before said forum, the suit was not maintainable, but learned appellate Court without determining whether civil Court had the jurisdiction to entertain and decide the suit erroneously decreed it; that property purchased by the plaintif fs-respondents through sale deed from Allah Bukhsh was not similar to the area for which declaration was sought for and that the impugned decree being tainted with misreading and non-reading of evidence could not be sustained, whereas the comprehensive judgment rendered by the learned trial Court should be restored. In support of his contentions, he has placed reliance upon the judgments reported as Khaleel and 2 others vs. Karamat Ali through LRs and another (2016 CLC 714), Muhammad Moosa alias Niaz Ali Moosa vs. Province of Punjab and others (2017 Law Notes 358), Barkat Ali versus Muhammad Nawaz (PLD 2004 SC 489) and Allah Ditta versus Amina Bibi (2011 SCMR 1483 ) and prayed for acceptance of appeal, setting aside of the impugned decree and restoration of the judgment of the learned trial Court.
In contra, it was accentuated by learned counsel for contesting respondents that Allah Bakhsh predecessor-in- interest of proforma respondents along with two others was owner of land in disput e besides some other area, who jointly transferred its title to the plaintif fs vide sale deed (Exh.P-1) and vires thereof had never been challenged by him despite that' he survived for years; that even the present appellants and the descendants of Allah Bakhsh had also not disputed the said instrument either , by filing independent suit or through the defence raised in the present litigation,' as such the undisputed register ed instrument having been executed and attested more than thirty years and much prior to promulgation of. Qanun-e-Shahadat Order , 1984 attained strong presumption of correctness, therefore, the learned appellate Court was perfect in relying upon the same; that although the land referred in afore-noted sale deed (Exh. P1) was different to the suit land, but by bringing on record copy of adjustment order and revenue record, it was proved without any doubt that the land referred in Exh.P-1 had been acquired by Thal Development Authority on 04.04.1951, which was adjusted against the suit land.
3. Arguments heard. Record perused.
4. In fact, the case of the plaintif fs-Respon dents No. 1 to 9 rested on sale deed (Exh.P1) whereby they had not only purchased the share of Allah Bakhsh, ascendant of Respondents No. 10 to 14, but his mother , Mst. Zohran and brother , Khuda Bakhsh also alienated their shares to them. Surprisingly despite the fact that descendants of Allah Bakhsh as well as their transferees Asghar Ali and the appellants to whom the property was finally alienated, filed independent written statements, but none out of them either denied the execution of Exh.P1 or challenged its legality , as such having been admitted by their own conduct and act, there left nothing for the plaintif fs to prove their deal as well as construction of Exh.P1 any further . The emphasis of Mr. Muhammad Faisal Bashir Chaudhry , Advocate for the appellants that Allah Wasaya (DW1) in his statement-in-chief explicitly claimed it to be forged and collusive, as such it was sine qua non for the beneficiaries of Exh.P1 not only to prove its genuineness rather the transaction couched therein, was fallacious. As per principle of secundum allegata et probata, any evidence led to prove a fact, which was omitted to be first explained in the pleadings is liable to be ignored. This principle has also been enunciated by Order VI Rule 2 as well as Order VIII Rule 2 of the Code, 1908 and further affirmed by the apex Court in the judgment reported as Pakistan vs. Abdul Ghani (PLD 1964 SC 68), Muhammad Wali Khan and another vs. Gul Sarwar Khan and another (PLD 2010 SC 965) and Haider Ali Bhimji vs. Vith Additional District Judge, Karachi (South) and another (2012 SCMR 254). So, this lacuna was fatal for the appellants as well as their co-defendants. Moreover , Exh.P1 was a registered instrument aged more than thirty years, which having not been questioned by the executants or afterward s by their descendants as well as subsequent transferees attained strong presumption of correctness and has to be given preference over the oral statements recorded on behalf of defendants. It is also proved on record that for the implementation of Exh.P1 dated 29.06.1954 in revenue record, Mutation No. 157 (Exh.P3) was promptly entered on 23.07.1954 by the concerned Revenue Officer, but subsequently it was rejected on the sole ground that land referred therein stood acquired by Thal Development Authority . The cancellation of Exh.P3 did not mean that alienation made in favour of the plaintif fs also stood terminated. There is no cavil that mutation per se is not deed of title, as such its cancellation was not enough to annul the ownership of the rightful owners structured on a valid title document. Above all, according to para 7.32 of the Land Record Manual, which are statutory instructions having force of law and binding upon the revenue authorities, it is imperative upon registrar and sub-registrar to send monthly reports to the revenue official/of ficer. particulars of all registered deeds with regard to transfer of agricultural land for entries in their mutation register for making an appropriate order for change in the revenue record in, accordance therewith and any omission by beneficiary to report registered deed to the patwari/revenue officer was not such an act to invalidate his original instrument until and unless his basic document is cancelled by the Court of ultimate jurisdiction. The plaintif fs by bringing on record copies of khasra girdawaris also proved that after the sale through Exh.P1, possession of the property referred therein was delivered to them, as such the sale in their favour was not only perfect and matured for all intents and purposes, rather it is intact till, today .
5. There is no doubt that land referred in Exh.P1 was entirely different than that for which decree for possession was prayed. The learned appellate Court through impugned judgment digged out the relevant record to elucidate the truth and to crosscheck the same this Court with the able assistance of learned counsel for the parties has also gone through the original suit record. As per contents of Exh.P1 chunk of land situa ted in Mouza Ladhana Thal had been purchased by the plaintif fs, where as legacy of Allah Bakhsh on his death was opened in favour of his successors-in-interest vide inheritance Mutation No.' 353 (Exh.P2) and its pictorial view affirmed that land falling in khewat No. 1 of mouza Ladhana was mutated to them. The adjustment order (Exh.P4) also clarified that this particular land was adjusted, hence there left no ambiguity that land of Allah Bakhsh, originally transferred to the plaintif fs, had been subsequently acquired and adjusted against the suit propert y. Had it not been so, then the appellants as well as co-defendants must have brought on record, some documentary proof that the property actually purchased by plaintif fs was either still occupied/owned by them or transferred to someone else. Moreover , there was no need to dispute the attestation of Exh.P1 as did by Allah Wasaya (DW1) in his deposition, whereas it has been consistently held that mere adverse entries in the revenue record do not create or extinguish title of the property . In this regard, reference may be made to the precedent of the apex Court reported in cases Mian Ghulam Ahmad vs. Muhammad Sarwar and others (1968 SCMR 573), Lal and others vs. Mian Dad and another (1968 SCMR 842) and Muhammad Lehrasab Khan vs. Mst. Aqeel-un-Nisa , etc. (NLR 2001 Civ.65). On the other hand case-law referred by learned counsel for the appellants and relied by learned trial Court being distinguishable is not applicable.
6. The argument of learned counsel for the appellants that suit having been instituted after much delay of the attestation of Exh.P1 was badly time barred, is not well founded. The cause of action to its beneficiaries firstly accrued when their land was acquired and subsequently adjusted to the defendants, but despite their approach to the concerned hierarchy the relief was denied on lame excuses. The ascendant of defendants Nos. 1 to 5 had already transferred his title, hence nothin g more was left to be inherited by the latters for its transfer to Asghar Ali Respondent No. 15 or the appellants. The entire superstructure raised in their favour without any title or legal backing Could not be perpetuated and every fresh entry in the revenue record based on inheritance mutation of Allah Bakhsh or subsequent sale deeds accrued fresh cause of action to the plaintif fs to institute suit in hand, which was well within time. See Wali and 10 others vs. Akbar and 5 others (1995 SCMR 284 ).
7. So far as argument of learned couns el for the appellants that civil Court had no jurisdiction to try the suit is concerned, suffice it to say that in this regard Issue No. 2 was framed by the learned civil Court but having not pressed the same was answered and its said findings were never assailed before the learned appellate Court by means of separate appeal or cross objection, hence at this stage it cannot be agitated afresh.
8. Learned counsel for appellants despite his best was not able to bring the case within the mischief of Section 100 of the Code, 1908. The decree impugned herein is well reasoned and based on material available on suit file, which otherwise has to be given preference over the judgment of his subordinate, hence is maintained and instant appeal being devoid of merit and force stands dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.