WIQAR AHMAD. J. Through instant civil revision petition filed under Section 115 CPC, petitioners have challenged impugned judgment and decree dated 27.05.2009 rendered by learned Additional District Judge-V, Kohat, whereby appeal of respondents against impugned Judgment & decree dated 03.07.2008 of learned Civil Judge-III, Kohat was allowed, thereby setting aside the judgment and decree of learned civil Court.
2. Syed Hussain and LRs of one of his brother namely Hijab Gul had brought a suit against LRs of their third brother namely Akbar Hussain, claiming therein that defendants (respondents) had got no rights in the property described fully in the heading of the plaint and that name of their predecessor namely Akbar Hussain had wrongly been shown as co-owner therein. Beside declaration of their title to the exclusion of Akbar Hussain or his LRs, plaintiffs had also prayed for perpetual injunction against defendants for restraining them from interfering in their ownership and possession or asserting any right of ownership in respect of the property in dispute.
Defendants were summoned. The suit was contested by defendants No.1 to 8 by submitting their written statement denying therein the claim of plaintiffs by raising various legal and factual objections. From pleadings of parties relevant issues were framed. After recording some evidence, learned Civil Court dismissed suit of plaintiffs by invoking Order XVII Rule 3 CPC due to non production of evidence. Aggrieved from same, petitioners filed civil revision before learned revisional Court, where they also filed application for condonation of delay. During pendency of same, they filed another application for withdrawal of suit with permission to bring fresh one, which was resisted by answering respondents. After hearing parties, said application as well as main suit of petitioners was dismissed vide judgment dated 06.02.2006. Dissatisfied from same, petitioners approached this Court by filing Writ Petition No.300/2006, which was allowed vide judgment dated 5.7.2006, thereby remanding case to the learned civil Court for decision afresh. Learned civil Court after hearing the parties decreed the suit vide judgment and decree dated 3.7.2008. Aggrieved from same, defendants filed appeal before learned Additional District Judge-V, Kohat, which was allowed by learned appellate Court vide judgment dated 27.05.2009, thereby setting aside judgment and decree of learned trial Court dated 03.07.2008, hence instant revision petition.
3. I have heard learned counsel for the parties and record gone through.
4. Perusal of record reveals that dispute before learned Civil Court was amongst Syed Hussain and LRs of his brother Hijab Gul on one side and LRs of their third brother namely Akbar Hussain on the other side. It is important to be noted here that the disputed property had not been inherited by Syed Hussain, Hijab Gul and Akbar Hussain. Both the sides had purchased properties through two separate mutations i.e Mutation No.10522 attested on 19.01.1963 and Mutation No.12127 attested on 11.05.1967, in the revenue estate Moza Garhi Mawaz Khan. Syed Hussain and Hijab Gul had purchased an area measuring 13 kanal, 16 marlas, through the mutation which was brought in evidence as Ex.PW.2/4. It is again relevant to note that their third brother (predecessor in interest of respondent No.1 namely Akbar Hussain) had not purchased any property through this mutation nor had such right been transferred in his favour. The mutation had the effect of transfer of ownership in favour of Hijab Gul and Syed Hussain (predecessor in interest of petitioners). Predecessor in interest of defendants had also purchased certain property rights through another mutation No.10522 attested on 29.01.1963 (Ex. PW 2/3) alongwith his brothers Hijab Gul and Syed Hussain. So far as the rights acquired through mutation Ex.PW.2/3 are concerned, these have been jointly acquired by three brothers in Khasra No.149 vide mutation No.10522 attested on 29.01.1963. This dispute has its genesis in the mistake which had occurred at time of settlement in the year 1973-74.
The old Khasra numbers were substituted with new Khasra numbers and three brothers i.e, Hijab Gul, Syed Hassan and Akbar Hussain have all been shown co-owners in the entire property purchased vide above mentioned two mutations. The property acquired through mutation No.12127 attested on 11.05.1967, had exclusively been purchased by Hijab Gul and Syed Hussain (to the exclusion of Akbar Hussain) but same was also shown owned by the three brothers including Akbar Hussain in 1973-74. From then onward said mistake has consistently been replicated in subsequent Jamabandies in same manner. Here reference is also important to be made to extract from record of rights brought in evidence as Ex.PW.1/1, wherein old Khasra numbers have been shown as 4421/4067/150, 4423/4065/150, 150/1/2 and new Khasra numbers shown as 995, 996, 998, 1002 and 1004 and in the whole of property three brothers namely Hijab Gul, Syed Hussain and Akbar Hussain sons of Alam Gul, have been shown as owners in column of ownership. It is again mentioned at the cost of repetition that this was the property which had been purchased by Hijab Gul and Syed Hussain exclusively. Name of Akbar Hussain has wrongly been inserted in column of ownership in respect of this particular property which is also property in dispute in case in hand. Neither in the pleadings nor in entire evidence, respondents/defendants have produced any other evidence or instrument whereupon entries of Akbar Hussain in the column of ownership in respect of property in dispute could be justified. No such documents could be brought in statements of PW.1 (Patwari Halqa) and PW.2 (ADK). One of plaintiff Shabbir Ahmad has deposed as PW.3 in support of plaint.
He could not be confronted with any such document or reliable fact where upon insertion of name of Akbar Hussain in column of ownership of property in dispute could have been justified. It is also important to note that in cross examination it was suggested to him that defendants had obtained possession of suit property through process of execution in revenue forum i.e, Deputy District Officer Judicial (DDOJ). Same was case with Muhammad Javed respondent No.2 when he was deposing on his behalf as well as Special Attorney for rest of respondents as DW.1. In his examination in chief also he could not produce any such instrument where upon the entry of Akbar Hussain could have been justified in column of ownership in record of rights of 1973-74. When asked in cross examination specifically, he was not in a position to give details of mutation vide which his father might have effected any purchase in disputed property. At the end, he also admitted it correct that they had obtained possession of property in dispute during pendency of suit in hand, and during the process of execution of order of partition separately made by revenue forum.
5. Dispute between the parties was ignited by fact that respondents had filed an application for partition before revenue Court in the year 1992. The suit had been filed on 13.04.1992 before court of learned Senior Civil Judge, Kohat. It was during pendency of suit that the partition proceedings had been conducted and finalized where upon possession had also been delivered to respondents/defendants in respect of property in dispute. Learned counsel for respondents has forcefully raised the plea of limitation and also relied upon judgments of Hon'ble Supreme Court of Pakistan rendered in cases of "Muhammad Rustam and another VS Mst.Makhan Jan and others" reported as 2013 SCMR 299 and "Mushtaq ul Aarifin and others Vs Mumtaz Ahmad and others" reported as 2022 SCMR 55. In this respect it is important to be noted that although wrong entries had been made in course of Jamabandi for the year 1973-74 but proprietary rights of petitioners/ plaintiffs had not been disturbed practically. Except wrong entries in revenue record and its repetition, no further steps had been taken by respondents/defendants which could have been treated as actual invasion of their rights till the year 1992. When on 02.09.1992 such an actual threat emerged with filing an application for partition by respondents/defendant, the plaintiff/petitioner brought a suit before civil Court on 13.04.1992. In Paras 4 & 5 of plaint, the plaintiff had specifically mentioned as follows:- Hon'ble Supreme Court of Pakistan while giving its judgment in case of "Haji Muhammad Yunis (deceased) through legal heirs and another Vs. Mst. Farukh Sultan and others" reported as 2022 SCMR 1282 has held:- "On careful reading of the above, it is evident that this court has explained the distinction between an "actual denial of right" and an "apprehended or threatened denial of right" in relation to applicability of the law of limitation in cases seeking declaration of proprietary rights in immovable property. It has held that every new adverse entry in the revenue record being a mere "apprehended or threaten denial" relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person a fresh cause of action to institute the suit for declaration. It has, however, further clarified that the situation is different in a case, where the beneficiary of an entry in the revenue record actually takes over physical possession of the land on the basis of sale or gift mutation.
In such a case, the alleged wrong entry in the revenue record coupled with the very act of taking over possession of the land by the alleged buyer or done, in pursuance of the purported sale or gift, is an "actual denial of the proprietary rights" of the alleged seller or donor and thus, the time period to challenge the said disputed transaction of sale or gill by the aggrieved seller or donor would commence from the date of such actual denial. Therefore, in such a case, if the purported seller or donor does not challenge that action of "actual denial of his right" within the prescribed limitation period, despite having knowledge thereof, his right to do so becomes barred by the law of limitation, and the repetition of the alleged wrong entry in the subsequent revenue record (Jamabandi) does not give rise to a fresh cause of action."
6. In case in hand also, the wrong entries in revenue record could safely be treated threatened denial. When actual denial of rights of petitioners/plaintiffs had been made, they had brought a suit immediately thereafter and facts of accruing cause of action narrated in Para 4 & 5 of plaint, could not be rebutted by defendants through any confidence inspiring evidence in this regard. The suit had therefore, been found well within time and in this case every repetition of wrong entries in revenue record would be deemed to have been clothing the petitioners/ plaintiffs with a fresh cause of action.
7. Learned counsel for respondents also relied on the presumption of correctness of revenue record. He contended that predecessor in interest of petitioners has been alive and present in locality but they had not raised any objection in respect of entries made in course of first settlement. He also relied upon an earlier judgment of this Court rendered in case of "Allah Dad Versus Government of Pakistan etc" reported as NLR 1989 CLC 497 and contended that a very strong presumption was attached to entries made in revenue record during course of settlement.
There is no doubt about the fact that entries in course of settlement carry with it a strong presumption of correctness but presumption is always presumption. When an entry made in course of settlement is proved by a party to be wrong then presumption may not be banked upon.
Presumption vanishes, the moment a fact is affirmatively proved in evidence before a civil Court.
The proposition relating to presumption of correctness to entries made in the Court of settlement would also be of no help to respondents/defendants.
8. Now coming to the impugned judgment, it is important to be noted that the learned Civil Court has decreed the suit of plaintiffs/ petitioners vide a very well reasoned judgment dated 03.07.2008.
Said judgment has been set aside by learned appellate Court vide judgment dated 27.05.2009.
Learned appellate Court while setting aside a well reasoned judgment of civil Court has given a single reason of bar of jurisdiction of civil Court under Section 172 of Land Revenue Act. Judgment of learned Appellate Court was not based on correct appreciation of law on the subject. Conducting of partition proceedings particularly during pendency of a civil suit wherein substantial question of title had also been raised, would not divest a civil Court of its jurisdiction to decide question of title.
Deciding disputed question of title is the primary job of civil Court. Powers of revenue authorities under Section 135 of the West Pakistan Land Revenue Act 1967 (hereinafter referred to as Revenue Act) have not been provided for deciding question of title. If a question of title crops up incidentally, then limited powers has been given to Revenue Officer under Sections 141 of Revenue Act to decide such ancillary question but said power cannot be used to take away the powers of a civil Court which is specifically established for the particular purpose. The question of title or wrong entries in the revenue record had not been decided or determined by the revenue forum at the time of conducting partition proceedings. Even otherwise such a question was supposed to have been decided by civil Court under Section 53 of the Land Revenue Act. This Court in its earlier judgment rendered in case of "Mian Shehzada Jan and others Vs Muhammad Israr and others" reported as PLD 2022 Peshawar 147 while dealing such like question has held that determination of question of title was too serious a question to be left to determination of a revenue officer. Relevant observations given in Para 8 of the judgment are also reproduced hereunder for ready reference:-
8. Determination of a question as wherefrom property of a particular person or persons starts and where it ends, in such a situation as described above, would be a pure question of title, which can even otherwise not be allowed to be adjudicated upon by a revenue officer exercising powers under the Revenue Act. These are purely judicial functions and cannot be left at the hands of a revenue officer. Right to hold property is a fundamental right guaranteed under Article 23 of the Constitution. Article 24 of the Constitution also provides for protection of property rights. Question of title of a property is a serious question and requires well defined mechanism for adjudication thereupon. The mechanism should also be such that parties have right to a full-fledged hearing at a well defined judicial proceedings. It should also include proper rights of appeal to such forums which exercises full independence. The Revenue Act has not been enacted for providing such forum or system of adjudication for determination of questions of rights. Purpose of the Revenue Act has mainly been providing for laws relating to documentation of revenue record for the purpose of generation of land revenue. It is a special law and the forums established therein cannot be deemed to have been established for the purpose of adjudicating upon proprietary rights of the parties including disputes of title. By now Article 10-A also stands inserted in the Constitution by way of the Constitution (18th Amendment) Act 2010, which requires that for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process. Hon'ble Supreme Court of Pakistan while rendering its judgment in the case of Al- Jehad Trust through Raeesul Milahideen Habib-ul-Wahabb-ul-Khairi and others vs. Federation of Pakistan and others reported as PLD 1996 Supreme Court 324 has observed that the right to have access to justice through an independent judiciary was a fundamental right, and without an independent judiciary the right would be meaningless and would not have efficacy and beneficial value for the public at large. Same view had also been reiterated in the case of Al- Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others vs Federation of Pakistan reported as PLD 1997 Supreme Court 84 as well as in the case of All Pakistan Newspapers Society and others vs. Federation of Pakistan and others reported as PLD 2012 Supreme Court 1. In the case of Sh. Riaz-ul-Haq and another vs. Federation of Pakistan Throuh Ministdothers reported as PLD 2013 Supreme court 501, the Hon'ble Supreme Court of Pakistan had observed that determination of a question of rights cannot be left at the discretion of persons who had not been having knowledge and experience in the legal field. It was further held in para-45 of the judgment; "The Principle of separation and independence of judiciary as envisaged in Article 175 of the Constitution is also applicable to the lower judiciary as it is the part of the judicial hierarchy.
Thus, its separation and independence has to be secured and preserved as that of superior judiciary. In terms of Article 175 read with Article 203 of the Constitution, the lower judiciary should be separated from the Executive and the High Court shall supervise and control all courts subordinate to it. Reference may be made to the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105). In the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) it has been held that the Legislature is competent to legislate but such legislation would not be sustainable if it is contrary to the principle of independence of judiciary as mentioned in Article 2A of the Constitution, which provides that independence of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme for the establishment of the Courts, including the superior Courts and such other Courts as may be established by law. As it has been held that Service Tribunal discharges judicial functions, thus falls within the definition of a "Court' in view of the above discussion, therefore, the Tribunals have to be separated from Executive following the principle of independence of judiciary in view of Article 175(3) of the Constitution."
It was further clarified in said judgment that wherever a Court makes determination of rights of parties, the function would be judicial in nature and such Court or Tribunal should be manned, controlled and regulated in accordance with judicial principles.
Although appellate Court has not re-appreciated rest of evidence but this Court would not like to remand this case to appellate Court for reason that instant revision petition has been filed on 25.09.2009 and decided today i.e, 20.06.2023. Besides case in hand is quite clear and this Court on reappraisal of entire evidence has reached to a conclusion that judgment and decree of learned civil court had been based upon proper appreciation of evidence brought before it.
9. In light of what has been discussed above, instant civil revision is allowed to the effect that impugned judgment dated 27.05.2009 of learned Additional District Judge-V, Kohat is set aside and judgment and decree of learned civil Judge-III, Kohat is hereby restored.