ANWAAR HUSSAIN, J. Essential facts forming the core of the controversy are that the petitioner, initially on 26.06.2002, instituted a suit for declaration along with permanent injunction ("the Prior Suit") wherein it was claimed that she is the owner in possession of total land measuring 98-K, 07- M out of which 07-M in Khasra No.50/18/4 ("the suit property"), more particularly described in the plaint of the said suit is the bone of contention between the parties. The suit property is adjacent to the abadi deh . Prayer for declaration to the effect that the petitioner is owner of the suit property was made in the Prior Suit as well as permanent injunction that the respondents be restrained from forcibly taking over the possession of the same. The Prior Suit was contested by the respondents on the ground that the possession of the suit property had been with the respondents as their predecessor-in-interest was in possession of the suit property since 1964. In the Prior Suit, the trial court appointed a local commission who visited the suit property on 27.07.2002 and submitted. his report wherein it was reported that the respondents are in possession of the suit property and the name of the grandfather of respondents Nos.1 and 2 (namely, Khushi Muhammad) is engraved on the front wall. However, during his period on 25.04.2003, another suit for mandatory injunction and eviction ("the Suit") was instituted with the averments that the petitioner is owner of the suit property on the basis of revenue record for the year 2001-2002 and the same was given by the petitioner to the grandfather of the respondents Nos.1 and 2, some 30 years ago for tethering the horse and cattle. After the grandfather of respondents Nos.1 and 2 breathed his last breath, the respondents continued to use the suit property for the same purpose and told the petitioner that the suit property shall be vacated on the demand by the latter as and when such demand is made. However, when such demand was made, the same met with an outright denial. It is pertinent to point out that the Prior Suit was withdrawn on 23.05.2003 after the filing of the Suit.
Written statement was filed by the respondent with the contention that they are owners in possession by virtue of adverse possession and the Suit is barred by law as the same was filed during the pendency of the Prior Suit, which was later withdrawn. The instant Civil Revision arises out of the Suit, instituted by the petitioner before the Civil Judge 1st Class, Chicha Watni, which stood dismissed by the learned trial court, vide judgment and decree dated 28.07.2010 that was assailed by way of appeal before the Additional District Judge, Chicha Watni. The appellate court upheld the findings of the trial court and dismissed the appeal, vide judgment and decree dated 10.12.2010.
2. Learned counsel for the petitioner submits that learned courts below have been erroneously swa yed by misreading and non-reading of evidence as well as wrong application of law inasmuch as the Suit has been dismissed on the basis of Order II, Rule 2 of the Code of Civil Procedure, 1908 ("the Code"). Adds that the Prior Suit instituted by the petitioner was withdrawn during the pendency of the Suit as the bar contained in Order XXIII, Rule 1 of the Code does not attract where the second suit is filed during the pendency of the first suit and the first suit is withdrawn subsequently. Similarly, the impugned judgments and decrees were also subjected to frontal attack on the ground that the learned courts below fell in error in dismissing the Suit of the petitioner when the petitioner is owner of the suit property and the respondents are merely possessing the suit property under the permission of the petitioner, without any title document.
3. Conversely, learned counsel for the respondents contends that the petitioner filed the Prior Suit against the same respondents wherein it had been alleged that the petitioner is owner in possession of the suit property and be declared as such and the respondents be restrained from interfering into the possession of the petitioner and hence, the second suit is not maintainable on same cause of action particularly when the first suit was withdrawn without permission to file the second suit. Further contends that the petitioner has merely produced revenue record for the year 2001-2002, which is neither sufficient to establish the title of the petitioner as owner nor reveals or delineates the chain from where the petitioner derives her title. Therefore, the Suit of the petitioner has rightly been dismissed.
4. Arguments heard and record perused.
5. Perusal of record reveals that contesting written statement was filed by the respondents and following issues were framed in the Suit:
1. Whether the plaintiff is entitled to get a decree for possession along with permanent injunction as prayed for? OPP
2. Whether the plaintiff has no cause of action? OPD
3. Whether the plaint is liable to be rejected u/o VII Rule 11 of CPC? OPD
4. Whether the Suit is hit by Section 11 of CPC? OPD
5. Relief?
6. Issue No. 1 has been decided in favour of the respondents on the basis of appraisal of evidence; however, at the same time, the learned trial court has also held the Suit of the petitioner to be not maintainable on the ground that the said suit is hit by Order II, Rule 2 of the Code. The same prevailed with the appellate court as well. Both the courts below also proceeded on wrong premises while dismissing the Suit and appeal of the petitioner, respectively on the basis that the same was barred in terms of Order II, Rule 2 of the Code. It is settled law that where first suit is withdrawn and not decided on merits, the bar contained in Order II, Rule 2 shall not attract. Case law reported as Khairat Masih through LRs v. Aziz Sadiq (2004 MLD 943 Lahore) is referred in this regard. Similarly, arguments of the learned counsel for the respondents that after withdrawal of the Prior Suit, the fresh suit was not maintainable in terms of Order XXIII, Rule 1 of the Code is not convincing. The Prior Suit had been withdrawn after the filling of the Suit and not before and hence, the bar contained in Order XXIII, Rule 1 of the Code against filing the fresh suit after withdrawal of the first suit without permission of the court for filing afresh suit does not attract. In this regard, cases reported as Ghulam Nabi and others v. Seth Muhammad Yaqoob and others (PLD 1983 SC 344) as well as Liaqat Ali v. Muhammad Ashraf and others (2016 YLR 551) are referred.
7. It is borne from the record that both the courts below also dismissed the Suit on merits after analyzing the evidence on the record. The Suit was instituted seeking eviction from the suit property with the averment that the petitioner handed over the possession to the grandfather of the respondents for use. After his death, the respondents continued to use the suit property and promised to hand over vacant possession as and when demanded, however, the respondents subsequently refused to hand over the possession. The petitioner has filed the Suit for possession under Section 8 of the Specific Relief Act, 1877, which states as under: "8. Recovery of specific immovable property: A person entitled to the possession of specific immovable property may recover it in the manner prescribed by the. Code of Civil Procedure."
The words "entitled to the possession" presupposes that in order to obtain a decree for possession, the plaintiff of such a case is entitled to the possession. In other words,' it implies an inbuilt declaration as to entitlement of a plaintiff of such suit qua the property in dispute. In case reported as Hazratullah and others v. Rahim Gul and others (PLD 2014 SC 380), the Hon'ble apex Court held as under: "........... it may be held that in a suit under section 8 of the Specific Relief Act, 1877, the declaration of the entitlement is an inbuilt relief claimed by the plaintiff of such a case. Once the plaintiff is found to be entitled to the possession, it means that he/she has been declared to be entitled, which includes the declaration of the plaintiff qua the property........."
Hazratullah case supra was later referred and relied in the recent judgment of the Hon'ble apex Court cited as Taj Wali Shah v. Bakhti Zaman (2019 SCMR 84) wherein the above referred exposition of law has been reiterated and cited with approval. In the instant case, the possession is claimed on the basis of the revenue record reflecting the petitioner to be owner of the suit property.
In this regard, issue No. 1 was formulated by the trial court. The petitioner entered the witness box as PW-1 and produced Record of Right for the year 2001-2002 as Exh-P1 to prove her ownership. On the other hand, the respondents in their written statement merely denied the ownership of the petitioner through verbal assertion without proving their possession on the basis of some title and also admitting that the name of their grandfather or father is not reflected anywhere in the revenue record. It is also admitted position on part of the respondents that the name of the petitioner is reflected in the Record of Rights with the revenue department. DW-1 while being cross-examined stated as under: Similarly, DW-2 during the cross-examination deposed as under: Moreover, it is also not denied by DW-1 in cross-examination that the petitioner is owner of the land measuring 97 Kanal and 15 Marlas around and in the vicinity rather surrounding the suit property.
Though there is no cavil to the preposition of law that revenue record is not a conclusive evidence of the ownership, however, mutation of the suit property is admittedly in favour of the petitioner, which though perse is not a title deed but it is sanctioned under Section 42 of the Land Revenue Act, 1967 (hereinafter 'the Act 1967') by the officer concerned, in revenue hierarchy, in discharge of his official duties. It is also settled law that in terms of Section 52 of the Act, 1967, the entries of record of revenue carry presumption of truth until the contrary is proved or a new entry is incorporated in place of the existing one in accordance with law. I am fortified by the dicta laid down in Abdul Ahad and others v. Roshan Din and 36 others (PLD 1979 SC 890), The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others (1990 SCMR 725), Mazoloom Hussain v. Abid Hussain and 4 others (PLD 2008 SC 571) and Muhammad Riaz v. Government of Punjab through Collector and others (PLD 2021 Lah. 33). It is also imperative to point out that under Article 150 of the Constitution of Islamic Republic of Pakistan, 1973, full faith and credit shall be given throughout Pakistan to public acts and records. Record of Rights is public record and the production of the revenue record as Exh-P1 by the petitioner carrying presumption of truth coupled with the failure of the respondents to dispel such presumption through preponderance of evidence is sufficient to propel me to the conclusion that the petitioner has proved her entitlement to the possession, which the learned courts below have failed to take notice and hence, committed misreading and non-reading of the evidence. This factum alone when put in juxtaposition with the fact that the respondents failed to produce any entitlement to possession except the possession itself reveals that through concurrent findings of the facts, the learned courts below have committed a material irregularity in preferring persons (respondents) having no basis of their possession to continue with such possession qua the suit property over the petitioner who has revenue record to support her claim in relation to the said property. It is also settled position of law that in civil cases, facts are to be proved on the basis of preponderance of evidence adduced by the parties. Taj Wali Shah supra is referred in this regard. In the instant case, the petitioner sufficiently discharged that burden but still she has been non-suited on the basis of the observation by the learned trial court that complete revenue record for the last thirty years should have been brought on record by the petitioner and not just the copy of Record of Rights for the years 2001-2002 to establish her title to the suit property, without appreciating the presumption of truth attached to the record produced before it. The learned trial court also erred in not appreciating that the name of the petitioner, which is duly reflected in the Record of Rights as owner of the suit property has never been challenged by the respondents in order to assert themselves as the owner thereof. In this view of the fact, demanding the revenue record for the last thirty years prior to filing of the suit by the petitioner is nothing but to put the petitioner under onus higher than what is required under the law to be discharged in civil cases. Moreover, a careful analysis of the peculiar facts of the case will reveal that the respondents are actually claiming a right to occupy the suit property on the basis of adverse possession, which is not permissible under the law in vogue inasmuch as adverse possession has been declared as un-Islamic in case reported as Maqbool Ahmed v. Hakoomat-e-Pakistan (1991 SCMR 2063). In this manner both the courts below have committed material irregularity while exercising their jurisdiction.
8. Though the pleadings in both suits instituted by the petitioner paint a contradictory picture inasmuch as that in the Prior Suit, the petitioner had asserted herself to be owner in possession of the suit property whereas in the Suit, she had sought the possession of the suit property; in my considered opinion, the same does not undermine the status of the petitioner as owner of the suit property, which is duly reflected in the revenue record carrying presumption of truth,. which has neither been challenged by the respondents ever nor the respondents have even made any attempt to establish themselves as the owner of the suit property. Dismissal of the Suit of the petitioner on the ground of having taken contradictory pleas in both suits alone would amount to putting premium on the unlawful possession or perpetuation thereof by the respondents. There is yet another interesting angle of the case inasmuch as learned courts below have erred in not appreciating the contradictory stance taken by the respondents in this case. In the Prior Suit instituted by the petitioner for declaration and permanent injunction, the respondents took following position by way of taking preliminary objection: Contrary to the above mentioned defence in the written statement made by the respondents in the Prior Suit, following assertion has been made in the Suit:- When the above referred pleadings of the respondents are put in juxtaposition it prima facie indicates that the respondents are trying to continue their possession over the suit property by taking contradictory pleas, without any lawful basis, whereas the petitioner whose name is admittedly recorded in revenue record as owner of the suit property has been deprived of the suit property. In short, the respondents have not been able to justify the basis of their possession, which raises an adverse inference against them as well. When case of the parties is put in juxtaposition, the petitioner being title holder is in a better position per available record as compared to the respondents. These factual aspects of the case have also been ignored by the learned courts below.
9. In view of the above referred discussion, the instant Civil. Revision is allowed and the impugned judgments and decrees of the courts below are set aside and the Suit of the petitioner is decreed.