WIQAR AHMAD. J. This single judgment shall dispose of instant petition (CR No.1717-P/2011) and CR No.892-P/2012, filed by petitioners Muhammad Ikram etc and Muhammad Amin etc, against Fazlur Rehman and others, as both these petitions, have been filed against same judgment dated 2911.2011, passed by learned Additional District Judge-III, Swabi, whereby appeal of respondents against petitioners was allowed thereby setting aside judgment and decree dated 28.05.2010, of learned Senior Civil Judge, Peshawar passed in Civil Suit No.184/1 of 2008.
2. Brief facts as stated in instant petition are that respondents/plaintiffs had filed a suit for declaration cum perpetual injunction in respect of suit property mentioned in the heading of plaint to the effect that suit property had been purchased by their predecessor namely Ali Khan from predecessor in interest of petitioners/ defendants No.2 to 8 in lieu of Rs. 180/- as per resolution dated 06.10.1952. That defendant No.1 had directed plaintiffs for vacation of suit property, which in revenue record had been entered in name of defendants as owners and plaintiffs had been shown to be in possession in the column of cultivation with the note Aggrieved from wrong entries in revenue record, petitioners filed above suit before learned Senior Civil Judge, Swabi, which was contested by defendants/petitioners through filing written statements denying claim of respondents/plaintiffs by raising various legal and factual objections. From pleadings of parties, relevant issues were framed. After recording pro & contra evidence as well as hearing the parties, learned civil Court below dismissed suit of respondents/plaintiffs vide impugned judgment and decree dated 28.05.2010. Appeal filed by respondents/plaintiffs was allowed by learned appellate Court vide impugned judgment and decree dated 29.11.2011. Aggrieved from impugned judgment and decree, petitioners/defendants have filed these two petitions against similar judgment, which are to be disposed through this single judgment.
3. Arguments of learned counsel for parties heard and available record perused.
4. Perusal of record reveals that there were sufficient evidence before learned appellate Court whereupon it has rightly been concluded that the property had been purchased by predecessor in interest of respondents/plaintiffs namely Ali Khan. The property had been purchased by him from predecessor in interest of defendants. The transaction of sale had taken place at a time when the consolidation proceedings were in progress in the concerned Moza. The society established for matters in connection with consolidation proceedings had passed a resolution on the basis of said sale on 06.10.1952. Said resolution had been brought in evidence as Ex.PW.3/2. Entry of said resolution as well as underlying transaction may also be found in the field book prepared during course of consolidation. A copy of said field book was also brought in evidence as Ex.PW.3/3.
Record of rights have also been consistently been reflecting entry of predecessor in interest of plaintiffs and thereafter his successor being in possession of property in dispute. In the column showing nature of their possession or their legal capacity, it has also been mentioned that they had been having possession due to sale (,,t.ic)04). The fact that petitioners have been having physical possession of property have also been sufficiently proved in evidence and also admitted by witness of defendant i.e, Aziz ur Lehman while appearing as DW.1. Learned civil Court had not been able to appreciate the evidence in its true perspective while learned appellate Court has appreciated evidence in appropriate manner and on the basis of preponderance of evidence, earlier purchase of predecessor in interest of petitioners have rightly been believed by learned appellate Court and judgment and decree has appropriately been granted in their favour.
However, certain aspects of the matter, requires reconsideration. Through mutation No.310 attested on 08.06.1997 mutation No.513 attested on 25.05.1998 in revenue estate Topi, a large portion of property had been mutated which mutations had been challenged through suit filed before Court below for the reason that same also included property which had earlier been acquired through sale by predecessor in interest of plaintiffs namely Ali Khan. Perusal of said mutation reveals that mutation was no doubt having affect of transferring property in dispute but besides property in dispute other properties had also been transferred, which part of mutations had not been related to controversy in hand.
5. The mutation so long as it had been intended to transfer property in dispute in suit hand was not having legal affect as vendees of the case had lost legal capacity because of earlier sale. No one can transfer a better title than he himself possess therefore, same would be invalid to the extent of transfer of title in respect of property in dispute. DW.2 has also stated in his examination in chief regarding part of property acquired through mutation. He had also received compensation for some of the area acquired in Ghazi Barotha Project. The mutation itself shows that petitioners in said Writ Petition have received more area than the one brought under challenge in suit in hand.
Learned appellate Court has declared the mutation to be unlawful in toto and thereafter it had traveled beyond scope of controversy before it. When learned counsel for contesting respondents i.e, LRs of Ali Khan was confronted with this situation, he frankly conceded that his clients have got no concern with the rest of property acquired through impugned mutation. According to the learned counsel, plaintiffs had sought declaration in respect of their own rights of ownership and challenged the mutation to said extent through suit in hand. Judgment of learned appellate Court therefore requires modification to the effect that impugned mutation shall not have any effect of transfer of property fully described in heading of in instant case to said extent. However, such declaration shall not affect rights of petitioners acquired through same mutation in respect of other properties.
6. So far as question of limitation is concerned, it is admitted fact that plaintiffs of the suit had been running in possession of property in dispute since long. Their possession had never been disturbed in any manner. There had not been any actual denial of their rights except through impugned mutation. One of the mutations had been attested on 28.06.1997 while other mutation had been attested on 25.05.1998. Suit has been instituted on 23.09.2000 i.e, within six years of attestation of mutation and when actual denial of rights took place. Hon'ble Supreme Court of Pakistan while giving its judgment in the 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 gift 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."
In light of what has been discussed above, Civil Revision No.1717-P/2011 is disposed of to the effect that judgment of learned appellate Court is maintained to the extent of property in dispute. It is however clarified that the impugned mutations shall remain valid to the extent that it had transferred property more than or different from property in dispute. Same shall not be having any affect on property in dispute in respect of which a declaration has rightly been made in favour of contesting respondents who had been plaintiffs before learned civil Court.
7. So far as CR No.892-P/2012 is concerned, it has been filed beyond the period of limitation but keeping in view the principle enshrined by Hon'ble Supreme Court of Pakistan in its judgment rendered in case of "Muhammad Ashraf and others v/s United Bank Limited and others" reported as "2019 SCMR 1004" limitation is condoned for the reason that other CR 1717-P/2020 filed against same impugned judgment, had been filed within time and same is also sought to be disposed of through this single judgment on merits. Relevant observations of above judgment of Hon'ble Supreme Court of Pakistan are reproduced hereunder for ready reference:- "It is settled law that where an order or judgment is challenged through separate proceedings be it appeals or petitions, some of which are within time, while the others have been filed beyond the period of limitation, all such appeals or petitions ought to be decided on merit especially when an orders in one appeal or petition (within time) would apply to the other appeal or petition, which may be barred by limitation. Consequently, it is appropriate to decide all three Civil Petitions on merits."
This civil revision has been filed by LRs of Muhammad Amin. He was brother of Abdul Raziq deceased. Through resolution dated 06.10.1952 Abdul Raziq had transferred two kanals, 17 marlas land in favour of Ali Khan, predecessor in interest of plaintiffs in suit filed before learned civil Court.
In said suit Muhammad Amin had also been arrayed as defendant. It was conspicuous in the resolution itself that Muhammad Amin had not been party; however Abdur Rauf had undertaken before the Committee that he would be responsible for his brother namely Muhammad Amin and had claimed that he had been having full authorization from him. It is however clear that Muhammad Amin was riot signatory to the resolution therefore same would not have the affect of transferring ownership from Muhammad Amin but problems of petitioners of instant petition are more complicated and not that much simple. They have a separate and more complicated grievance for the reason that name of Muhammad Amin had though been reflected in earlier Jamabandi but his name could not be found in Jamabandi for the year 1980-81 onwards. It was not abovementioned resolution through which his name has been removed from ownership but there may be certain other reasons not discoverable from available record. Besides, said issue had not been deemed to be part of controversy in suit in hand. Suit in hand had been brought by legal heirs of Ali Khan on the basis of earlier purchase by their predecessor in the year 1952 and when their subsequent rights had been invaded through mutations No.310 and 513, they had sought declaration to the extent of their ownership of 2 kanals, 17 marlas land. The issue of Muhammad Amin or his LRs has been of a larger spectrum in respect of larger chunks of properties earlier co- owned by Muhammad Amin alongwith his brother Abdul Rauf. If LRs of Muhammad Amin had got any grievance, they would be at liberty to file a fresh suit (if not already filed and decided) and resolution of case in suit in hand would not affect their rights adversely. Since sale in case in hand had been made by Abdur Rauf who had also been co-owner in substantial chunks of properties as evident from mutation and other revenue record, therefore, the entire sold property i.e, 2 kanals, 17 marlas in favour of Ali Khan deceased shall be deducted from share of Abdul Rauf deceased and his LRs. This 2 kanals, 17 marlas land and every part thereof shall not be debited from account of Muhammad Amin or his LRs. CR No.892-P/2012 is accordingly disposed of.