ABDUL HAMEED BALOCH, J. The petitioner/ plaintiff assailed judgments and decrees dated 9th April, 2014 and 11th August, 2014 (impugned judgments and decrees) passed by Qazi Sorab and Majlis-e-Shoora Kalat (trial and appellate courts), whereby the suit filed by the petitioner/plaintiff was dismissed and appeal filed by the petitioner/ plaintiff also met with the same fate.
2. Precise facts of the case are that the petitioner/ plaintiff filed a suit for declaration, permanent injunction, correction of entries and partition against the respondents/ defendants in the court of Qazi Sorab which was initially decreed ex-parte vide judgment and decree dated 24th April, 2010.
However, on application under Order IX, Rule 13, C.P.C. the ex-parte order was set aside by the trial court vide order date 25th October, 2010. The respondents/defendants Nos. 1, 2 and 6 to 11 and 15 contested the suit on legal as well as factual grounds by filing written statement. After framing of issues, the parties produced pro and contra evidence. On conclusion the trial court vide judgment and decree dated 9th April, 2014 dismissed the suit. Being aggrieved the petitioner/plaintiff filed appeal before appellate court, but same also met with the same fate vide judgment and decree dated 11th August, 2014, hence this petition.
3. Heard and perused the record. The record transpires that the petitioner/plaintiff filed a suit for declaration, permanent injunction, correction of entries in revenue record and partition of property situated at Mouza Dasht Siraj Tehsil Sorab before trial court. On non-appearance of respondents/ defendants the trial court recorded ex-parte evidence and on 24th April, 2010 passed ex-parte decree. On application under Order IX, Rule 13, C.P.C. the trial court vide order dated 25th October, 2010 set aside the ex-parte decree. The respondents Nos. 1, 2 and 6 to 11 and 15 filed written statement controverting the contention of petitioner/ plaintiff and prayed for dismissal of the plaint. On divergent of pleadings the trial court formulated issues. The parties led pro and contra evidence. On conclusion of the trial court vide judgment and decree dated 9th April, 2014 dismissed the suit. Being aggrieved the petitioner/ plaintiff filed appeal before Majlis-e-Shoora Kalat which was also met with the same fate vide judgment and decree dated 11th August, 2014. The petitioner/plaintiff has claimed share in joint ancestral property from respondents/defendants while stating that the suit land is joint inherited property which is still unpartitioned. The record reveals that the entries in the record of rights is also effected in the name of the petitioner/plaintiff.
The petitioner/plaintiff admitted that he is working in Revenue Department since his appointment in the year 1992. The record reflects that the settlement of Mouza was conducted in 1984. The petitioner/ plaintiff filed suit in the year 2010 meaning thereby that the petitioner/plaintiff filed suit after twenty-six (26) years of settlement. As per revenue record the petitioner/plaintiff himself working in revenue department of concerned District since 1992 has not challenged the disputed mutation. The plaintiff has pleaded in the plaint that the suit land is inherited property. The question is if the property is still unpartitioned how the entries were effected in the name of petitioner/ plaintiff. It appears that the petitioner/plaintiff has tried to cover up the question of limitation. Under Article 120 of the Limitation Act, 1908 (Act, 1908) the period for declaratory suit is six years. Mere bald assertion is not enough that he come to know about settlement in the year 2008. The petitioner/plaintiff is under legal obligation to prove his contention through evidence, but the petitioner/ plaintiff has failed to do so. The question of limitation is question of law and fact, where a party alleged that the suit is within time, he/ they should prove the same. The petitioner/ plaintiff cannot be allowed to frustrate the question of limitation in the garb of inheritance. The petitioner/plaintiff has challenged the disputed entries after 26 years despite being employee of revenue department from 1992 without any justification, hence the suit of the petitioner/ plaintiff is barred by law.
4. Now adverting to another point. The petitioner/plaintiff produced four witnesses before the trial court on ex-parte proceeding and got ex-parte decree which was set aside by the trial court on application under Order IX, Rule 13, C.P.C. vide order dated 25th October, 2010. The defendants tiled written statement despite repeated directions by the trial court for production of the witnesses whose statements were recorded during ex-parte proceeding bur the petitioner failed to comply the order. No doubt the opposite party has right to cross-examine the witnesses for extracting the truth. The court cannot force the party to produce the witnesses for cross-examination. The petitioner/plaintiff despite order of the trial court failed to produce the witnesses whose statements had already been recorded. On failure to produce witnesses for cross-examination the court can only draw an adverse inference against the party, from their such conduct. In case Mst. Sakina Bibi Kausar v. Mst. Robina Kausar, it was held: "Statement of a party, unless substantiated by evidence of a party in witness box, could not be treated as evidence against opposite, party who had no opportunity to cross-examine, his opponent who made the statement "
Reliance is also placed on case Dogar Mal-Amir Chand v. P, a Pleader AIR 1930 Lah. 947.
5. Admittedly the settlement of the suit land was completed in the year 1984. The petitioner/plaintiff has challenged the mutation entries in 2010. Under Section 52 of the Land Revenue Act, 1967 (Act 1967) the record of right carries presumption of truth strong evidence required to rebut the attestation. Mere verbal assertion is not enough to rebut the entries in the record of right. Reliance is placed on reported case of this court Bakhtiar v. Nasrullah, 2015 CLC 385, wherein it was held: "Presumption of truth attached to the mutation."
As per dictum of apex court in case Muhammad Amir v. Mst. Beevi, 2007 SCMR 614, when the mutation entries are incorporated in the record of right, same would carry presumption of truth.
Reliance is placed on case Hakim Ali v. Nazir Ahmed Lughmani, 1992 SCMR 1832.
6. The record transpires that the statement of petitioner/plaintiff on oath is not in consonant with the pleading. It is settled principal that the statement beyond pleading cannot be taken into consideration. The party is bound by its pleading. Party could not be permitted to make departure from its pleading. Reliance is placed on case Musarrat Begum v. Syed Iftikhar Hussain Gillani, 2016 CLC 1042, wherein it was held: "7. The word pleading has been defined in Order VI, Rule 1 and means plaint or written statement.
Sub-Rule (II) provides that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defense, as the case may be. The purpose of pleading is to let the other party know what case it has to meet, and accordingly the terms material facts refers to such facts which the parties have to prove or to establish the cause of action or the defendants to establish their defense. Even the judgments cannot be placed upon pleas not raised in the pleading. Likewise, Order VIII, Rule II provides that the defendants must raise by their pleadings all matters, which shows the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defense as, if not raised, would be likely to take the opposite party by surprise. In the instant case the written statement so filed by the present respondents/defendants is totally silent regarding the gift in their favour nor anything, in this regard has slightly been indicated. There is nothing on record to show that respondents/ defendants asked for any permission for amendment in this respect. The parties are bound by the averments made in the pleadings and in this respect courts are directed not to take into consideration the deviation in the evidence, therefore, judgments cannot be based upon pleas not raised in the pleadings. Under Order-VI, Rule-V respondents/defendants had the opportunity for better statement, which has not been availed. What is not pleaded cannot be pressed and departure from pleading cannot be allowed.
In the case of Mehboob Alam and 2 others v. Province of the Punjab reported in 2007 MLD 1496(d) it has been held as under: "---O. VI, R.2---Written statement---Fact not pleaded-- Effect-- Question of fact not pleaded / mentioned in written statement unless amended with permission, cannot be allowed to be argued."
Likewise, in the case of Rafique Wadood and 4 others v. Messrs Haji Suleman Gowa Wala and Sons reported in 2009 CLC 1070(c) it has been held that: "----O. VI, R.I---Pleading---Evidence beyond scope of pleadings could not be led or considered by Court while decide a controversy-Principles."
9. Plea could not be raised in evidence for not having been raised in written statement; reliance in this respect is placed on 2005 SCMR 1174. The principle of secundum allegata et-probata was applicable as it meant that a fact had to be alleged by party before it was allowed to be proved and no party was allowed to lead evidence in respect of plea which was not taken in pleadings and even if evidence was led, the same could not be considered as evidence in the case.
In the case of Binyameen and 6 others v. Chaudhry Hakim and another reported in 1996 SCMR 336(c) it has been held that: "---Practice and procedure---No evidence can be led or looked in support of a plea which had not been taken in pleadings."
7. The purpose of framing issues is that the parties were fully aware of the subject matter in controversy and evidence is to be led by the parties. It was held in case Province of East Pakistan v. Major Nawab Khawaja Hassan Askari, PLD 1971 SC 82 that "issues not framed but allegations made in plaint challenged in written statement. Court competent to allow parties to lead evidence on such point and give decision on it without framing issue."
Reliance is also placed on case Amjad Ikram v. Mst. Asiya Kausar 2015 SCMR 1, wherein it was held: "8. ----The learned trial Court has framed a composite issue regarding merits of the case, which has been reproduced hereinabove and when the said issue is examined in the context of the pleadings of the parties, more particularly, Para No.2 of the written statement on merits, there can be no manner of doubt, as to the real matter in controversy, which required adjudication by the Court. Throughout the trial, the parties were fully cognizant of the real matter in controversy and the facts, which were required to be proved by them in support of their perspective stands and led evidence accordingly. In such an eventuality, the contention of the learned counsel qua the non- framing of issues pales into insignificance. Such is not only settled law but also has been consistently held by this Court, including the judgment, reported as Mehr Din (represented by his Legal Heirs) v. Dr. Bashir Ahmed Khan and 2 others (1985 SCMR 1).
It is an equally settled principle of law that it is the duty and obligation of the beneficiary of a transaction or a document to prove the same. Reference in this behalf may be made from the judgments of this Court, reported as Akhtar Ali v. The University of the Punjab (1979 SCMR 549), Haji Muhammad Khan and others v. Islamic Republic of Pakistan and 2 others (1992 SCMR 2439) and Khan Muhammad v. Muhammad Din through LRs. (2010 SCMR 1351). Thus, the contention of the learned counsel regarding non-framing of a specific issue qua fraud looses all significance, as no prejudice appears to have been caused to the appellant. Even otherwise, during the course of proceedings before the learned trial Court, neither any effort was ever made by the appellant to claim any further issue nor such contention was raised before the learned High Court. Thus, such contention cannot be entertained at this belated stage before this Court.
13. No doubt, by virtue of Order XLI, Rule 33, C.P.C., the learned Appellate Court has been conferred the powers to grant relief to an appellant, who had not filed an appeal or the respondent, who had failed to file cross-objection. The said provisions of law i.e. Order XLI, Rule 33, C.P.C., came up for interpretation before this Court in the case, reported as Province of Punjab through Collector Bahawalpur, District Bahawalpur and others v. Cot Abdul Majeed and others (1997 SCMR 1692).
This Court, while reiterating amplitude of the powers of the Appellate Court, also laid down the guidelines for the exercise of the jurisdiction conferred by Order XLI, Rule 33, C.P.C. and, in this behalf it was observed as follows: "... However in granting relief in such cases the appellate Court will be guided by principles of equity, justice and good conscience and the fact that withholding of relief would result in a contradictory, unworkable or impossible order/decree. Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to a non-appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result to it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of power under Order XLI, Rule 33, C.P.C. to grant appropriate relief to a non-appealing respondent or to a respondent who omitted to file cross-objection in the appeal."
8. This court while exercising revisional jurisdiction is not permitted to re-open or dilate upon merit of the case. This court has to confine itself to the law point involved in the matter or any specific portion of evidence if omitted by the courts below. It is settled principle that concurrent findings of fact could not be interfered with by the High Court until and unless grave or material illegality is proved. Reliance is placed on case Mst. Hussan Bano v. Mst. Asia Khatoon, 2021 CLC 855, wherein it was held: "12. There are concurrent findings of the Courts below without any misreading and non-reading of evidence, recently in Cantonment. Board's case (2014 SCMR 161) the apex Court ruled that: The scope of revision is narrow and requires the High Court to examine whether the courts below have failed to exercise jurisdiction so vested in them or have acted in exercise of its jurisdiction illegally or with material irregularity and have misread the evidence brought on record by the parties. In other words, the provisions of section 115, C.P.C. under which a High Court exercises its revisional jurisdiction, confer an exceptional and necessary power intended to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities.
The revisional jurisdiction of the High Court cannot be invoked against conclusions of law or fact, which do not, in any way, affect the jurisdiction of the court which could only be set at naught when any misreading and non-reading would have been pointed out, which is lacking in the instant petition."
In view of above discussion, the instant revision petition is dismissed and the judgments and decrees dated 9th April, 2014 and 11th August, 2014 passed by Qazi Sorab and Majlis-e-Shoora Kalat, respectively are upheld. No order as to cost.