The petitioner/plaintiff assailed judgment and decree dated 22nd November, 2011 (impugned judgment and decree) passed by Additional District Judge-V, Quetta, (appellate Courts), whereby the appeal filed by the respondents/defendants was allowed and judgment and decree dated 28th August, 2008 passed by Civil Judge-I, Quetta was set aside and suit of the petitioner/plaintiff was dismissed.
2. Precise facts of the case are that the petitioner/plaintiff filed a suit for declaration and permanent injunction against the respondents/defendants before Civil Judge-I, Quetta (trial Court), wherein it was stated that on 23rd August, 1990 the petitioner/plaintiff purchased land measuring 15000 square feet from one Inayatullah by means of written agreement. After purchase the petitioner/plaintiff constructed four rooms alongwith boundary over the property baring khasra No. 1000/318 situated at Chashma Habib Mouza Habib Tappa Saddar Tehsil and District Quetta. It was contended that in 1994 the Deputy Commissioner, Quetta started claiming himself to be the owner of the suit land and in such circumstances the petitioner/ plaintiff filed Suit No. 235 of 1994 which was decreed on 29th June, 1995. It was contended that few days back the respondent/Defendant. No. 1 came at the site and started claiming ownership of the property' in pursuance of revenue record. The respondent/Defendant No. 2 was approached and it revealed. that the disputed property has been entered in the name of respondent/ Defendant No. 1. in a secret manner, whereas the respondent/ Defendant No.. 1 has no concern with the same. The petitioner/plaintiff is in possession of the same since 1980. The petitioner/plaintiff approached respondent/Defendant No. 1 for correction of entries but the petitioner/plaintiff was threatened for dispossession, as such Suit No. 169 of 1996 was flied.
3. The respondent/Defendant No. 1 tiled written statement on 26.4.1997 contesting the suit of the petitioner/plaintiff. Surprisingly this contesting written statement was withdrawn on 22.5.1997 and amended written statement was filed by respondent/Defendant No. 1 stating therein that at the time of demarcation and construction of boundary wall of Government Official Residence (GOR)
Colony excessive area of land was covered in the colony by officer. It was contended that the petitioner/plaintiff is in possession of stamp paper according to which he has purchased the same property in the same area prior to construction of GOR Colony. In pursuance of this written statement the suit of the petitioner/plaintiff was decreed by the trial Court (Civil Judge-II, Quetta) on 20th August, 1997, The appeal was filed which met with the same fate vide judgment and decree dated 29th November, 1997.
4. The respondent/Defendant No. 1 filed civil revision No. 356 of 1998 before this Court wherein the counsel for the petitioner/ plaintiff contended that suit could not be decreed on the basis of amended written statement and counsel for the petitioner/ plaintiff expressed no objection on setting aside of the judgments/decrees of the Courts blow and conceded for remand of the case to the trial Court for its disposal afresh on the basis of earlier contesting written statement dated 26th April, 1994.
5. In view of above circumstances the judgments of both the Courts below were set aside and Suit No. 169 of 1996 was remanded to the trial Court for adjudicating afresh after affording opportunity to the respondents/defendants for filing fresh written statement, if so desired.
6. After remand the Respondent No. 1 filed amended written statement whereby the suit as contested on merit as well as on legal objections.
7. The trial Court framed issues on which the parties to the lis produced their respective pro and contra evidence. On culmination of trial the trial Court vide judgment and decree dated 28th August, 2008 decreed the suit of the petitioner/plaintiff, against which the respondent Defendant No. 1 preferred appeal before Additional District Judge-V, Quetta. The appellate Court vide judgment and decree dated 28th April, 2009 allowed the appeal and after setting aside the judgment and decree dated 28th August. 2008 of trial Court dismissed the suit. The petitioner/plaintiff filed civil revision No. 242 of 2009 before this Court which was accepted vide judgment and decree dated 29th August, 2011 and set aside the judgment and decree of the appellate Court and remanded the matter to the appellate Court for deciding the appeal afresh on merit.
8. After remand the learned appellate Court heard arguments of the parties and thereafter vide judgment and decree dated 22nd November, 2011 allowed the appeal, set aside the judgment and decree of the trial Court dated 28th August, 2008 and dismissed the suit of the petitioner/plaintiff, hence the petitioner/plaintiff filed instant civil revision petition.
9. Learned counsel for the petitioner contended that the judgment of the appellate Court is contrary to law and facts; based on mis-appreciation of evidence. The respondents in written statement and witnesses in their deposition admitted the ownership of the petitioner. It is settled proposition of law that admitted facts needed not to be proved. This Court remanded the matter to appellate Court to discuss the evidence of PW-4 and PW-5 as well as exhibited documents but the appellate Court has not considered the direction of this Court. PW-4 and PW-5 in their deposition stated that the suit property is owned by the petitioner. Learned counsel further stated that the learned appellate Court re-settled the issue No. 2 without notice to the petitioner. The petitioner/plaintiff had purchased the property from one Inayatullah. The government had also purchased the property measuring 40 rods 30 poles & subsequently constructed Government Officer Colony. At the time of construction the government has taken into possession excess land from the purchased property.
10. Conversely the learned AAG controverted the contention of the petitioner/plaintiff by stating that the petitioner/plaintiff has no right over the property. The petitioner/plaintiff has to prove its case on the strength of his own evidence. The petitioner/plaintiff stated that he has purchased the property from one Inayatullah. No land even mutated in the name of said Inayatullah in the said Mouza, without having right such sale has no legal value in the eye of law.
11. Heard and perused the record. The petitioner/plaintiff stated that he purchased the suit property in the year 1990 from one Inayatullah and constructed four rooms and boundary wall. In support of his contention the petitioner/plaintiff produced witnesses and got recorded his statement. PW-1 Matiullah (age 26 years), PW-2 Muhammad Jamil (age 35 years), PW-3 Ghulam Abbas Junior clerk of trial Court produced record as Ex: P/1-A in respect of civil Suit No. 235 of 1994 decreed on 29th June, 1995, PW-4 Abdul Sattar Qanoongo representative of Tehsildar City Quetta produced transfer Mutation No. 1520 as Ex: P/2-A, PW-5 Umar Farooq produced letter No. 1286 as Ex: P/3. The petitioner/plaintiff got recorded his statement on 3rd October, 2007 and produced Iqrar Nama dated 23.8.1980 as Ex: P/3-A and Iqrar Nama dated 30.8.1980 as Ex: P/4-A. Muhammad Qasim recorded statement as DW-1, Din Muhammad as DW-2, Shabbir Ahmed Engineer as DW-3, Noor Zaman Kakar EDO Mastung as DW-4, Jehan Khan Patwari as DW-5, Sardar Ali representative of XEN Project-II Division as DW-6, Noor Ahmed representative of C&W as DW-7, Muhammad Sadiq representative of State Office as DW-8.
12. So far contention of learned counsel for the petitioner/ plaintiff that the appellate Court was under legal obligation while re-determining the issue should notice to the parties has no legal backing. It would be appropriate to reproduce Order XLI Rule 24 CPC for ready reference: "Order XLI Rule 24 CPC: Where evidence on record sufficient, Appellate Court may determine case finally. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than on which the Appellate Court proceeds."
From the above referred rule it revealed that where the evidence on record is sufficient to enable the appellate Court to pronounce the judgment, the appellate Court after resettling the issues, if necessary, may finally determine the suit. In case Rozi Khan v Nasir, 1997 SCMR 1849 the Honorable Apex Court held: "10. It may also be pointed out that when evidence has been adduced by the parties and sufficient material exists for the Court to finally decide controversy, in such eventuality instead of remanding the case it is desirable to settle issues and pronounce judgment on merits, as contemplated by Order XLI. Rule 24 C.P.C., which is reproduced below: "24. Where evidence on record sufficient, Appellate Court may determine case finally. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
Reliance is also made on case Chairman, WAPDA, Lahore v. Gulbat Khan, 1996 SCMR 230 and Manzoor Ahmad v. Government of Balochistan, 1995 SCMR 221.
13. As per contention of petitioner/plaintiff that he purchased the suit land on 23.8.1990 from one Inayatullah alongwith its possession, constructed rooms and boundary wall. PW-1 Matiullah (age 26 years) recorded his statement on 14.4.2005, narrated that the petitioner/plaintiff purchased the property from Inayatullah in the year 1980 on consideration of Rs. 50,000/-. The witness in cross- examination stated as under: PW-2 Muhammad Jamil (age 35 years) deposed on 25.5.2005 that the petitioner/plaintiff purchased the property in the year 1980 from one Inayatullah. The witness in cross-examination stated as under:
14. Both the oral witnesses were never present at the time of transaction i.e. 1980. The age of PW-1 Matiullah at the time of transaction was one year and PW-2 Muhammad Jamil was eleven years.
PW-2 stated that he was not witness of sale purchase meaning thereby that he is not marginal witness of deed agreement. The petitioner/plaintiff cannot take benefit from oral statement of two witnesses rather the statements of the witnesses have damaged the case of petitioner/plaintiff.
15. The petitioner/plaintiff appeared in witness box on 29th November, 2005 and deposed that the suit property is in his possession for the last 20/25 years. He constructed four rooms and boundary wall.
The property in question is adjacent to the ancestral property of petitioner/plaintiff. The petitioner/plaintiff again recorded his statement on 03rd October, 2007 and produced Iqrar Nama dated 23rd August, 1980 as Ex: P/3 and Iqrar Mama. dated 30th August, 1980 as Ex: P/4-A. He further stated that he purchased the property from Inayatullah, whereafter he went to Rahim Dad Razgar (employee) of petitioner/plaintiff who stated that he should transferred the land, meanwhile Rahim Dad expired. On inquiry he came to know that the suit property is transferred in the name of C&W Department. In cross-examination he stated as under: The petitioner/plaintiff produced sale deed Ex:P/3-A. Inayatullah (buyer) sold property consisting of four rooms and boundary wall to the petitioner/plaintiff on 23rd August, 1980. The relevant clauses of agreement are reproduced hereunder:
16. The petitioner/plaintiff produced another agreement as Ex: P/4 executed on 30th August, 1980.
As per Ex: P/4 the relevant portion of agreement reads as under:
17. It appeared from the record that neither Inayatullah nor Rahim Dad were owners of the property.
The petitioner/plaintiff himself admitted that the suit property is mutated in the name of one Patel in the record of right. Even Rahim Dad was not ostensible owner of the property. It is settled principle of law that no one can transfer title greater then which has possessed. Neither Inayatullah nor Rahim Dad were recorded owners. Even Inayatullah did not state that Rahim Dad was attorney of real owner. The beneficiary of transaction is under legal obligation to inquire the status of property, check the revenue record in order to confirm whether the alleged buyer is owner of property or not. The petitioner/plaintiff has to establish that he had taken all reason care before entering into transaction. There is no evidence on record that the petitioner/plaintiff was not in knowledge of the fact that the property in question belong to one Patel rather he purchased the property from Inayatullah who had no concern with the property in question. The stranger cannot sell out the property of other without consent or permission of real owner.
18. The petitioner/plaintiff has taken plea in the plaint stating that he purchased the property in the year 1990, while in his deposition and exhibited documents it appeared that the alleged sale took place in the year 1980, meaning thereby that the petitioner/plaintiff took inconsistent stand. In this regard reliance is placed on case Asif Mowjee v Zaheer Abbas, 2015 CLC 877, wherein it was held: "52. The stand taken by learned counsel for the Applicant is not only self-destructive but also self- clashing. Not only this the applicant is also guilty of approbation and reprobation by taking in- consistent pleas. Of course, which leads to the conclusion that the applicant [Defendant No. 1- judgment debtor] does not have any genuine case. In this regard reliance can be placed on the case of Dr. Aftab Shah v. Pakistan Employees Cooperative Housing Society Ltd. and 5 others [2006 CLC 342] wherein it was held as under: "15 .... When one stand is taken at one point of time and a different stand at another, and both stands do not reconcile with each other, then this act by itself lead to the presumption that such person does not have a genuine cause of action. The conflicting stands amount to destroying ones own cause of action and, therefore, the entire foundation of plaintiffs claim is to be treated as false."
19. Admittedly the suit land is mutated in the name of one Patel in the record of right before 1980.
The petitioner/plaintiff alleged that he purchased the property in the year 1980 but did not bother to transfer the land to his name in the revenue record, filed suit for correction of revenue entries in the year 1995. Under Article 120 of the Limitation Act 1908 (Act 1908) the limitation provided for correction of mutation entries is six years. It is settled law that the relief which a party is held entitled is subject to law of limitation. Every litigant is to be vigilant in claiming his/her right within the prescribed period of limitation. The petitioner/plaintiff was not vigilant to pursue his right. There is no evidence on record that the petitioner/plaintiff was not in knowledge of mutation entries. The petitioner/plaintiff filed suit after fifteen (15) years of alleged transaction. The suit was hopelessly barred by time. Reliance is placed on case Azam Ali (Late) through legal heirs v. Alam Sher, 2019 YLR 401, wherein it was held: "8. There is other defect that the transaction through which Chiragh has sold remaining property in favour of Lal-Defendant No. 2 has also not been challenged through the suit, therefore, the suit was not competent and the learned trial Court has rightly dismissed the same. The findings recorded by the learned first appellate Court are not only against the evidence available on the record as discussed supra but the same are against the principle of law settled by the superior Courts."
20. The record reveals that the suit property is mutated property. The entry in the record of right carries eight. It is settled that presumption of truth attached to the mutation entries. There is no evidence on record to rebut the entries in the record. Where a party challenged the mutation the beneficiary has to prove the transaction.
Reliance is placed on case Bakhtiar v Nasrullah, 2015 CLC 395. It was held therein: "13. The learned counsel for the appellants laid much stress that mere the mutation entries in favour of the Respondents Nos. 1 to 53 does not create any right and on that strength, the mutation entries produced by the respondents confer no right. This contention of the learned counsel for the appellants is not tenable. It is a well-settled that presumption of truth is attached to mutation. The appellants did not lead any evidence to rebut the said entries in any manner. In the case of Hakim Khan v. Nazar Ahmed Lughmani, 1992 SCMR 1832, the claim made on the basis of revenue entries was upheld and concurrent judgments and decrees of the Courts below were set aside because no evidence was led to prove that those entries were collusive or fraudulent. In the case of Mazloom Hussain v. Abid Hussain, PLD 2008 SC 571, the afore referred view was reiterated and it was observed as under: "The High Court has observed that the entries in the Revenue Record in favour of the appellants were not made in accordance with the prescribed procedure provided in law. The answer to the foregoing objection is that the said entries emerged in the record of rights for the year 1965-66 have not been challenged by the plaintiff-Respondents Nos. 1 and 2 before the Revenue functionaries or through a civil suit. As provided in section 52 of the West Pakistan Land Revenue Act; 1967, the presumption of truth is attached to the revenue entries which has also been upheld by this Court in the case of Hakim Khan v. Aurangzeb and another 1979 SCMR 625."
In the case of Nawab Khan v. Said Karim Khan, 1997 SCMR 1840, the entries made in the revenue record were not interfered with as presumption of truth was attached to those entries and no strong evidence was led in rebuttal to warrant interference with those entries. The Hon'ble Supreme Court in the said judgment at page 1844 held as under: "The contents of the record of rights which also includes the settlement record used to be followed with more or less exactness by the Settlement Officers, which included Wajib-ul-Arz, Jamabandi and the portion of the Shajra-e-nasb or genealogical of the proprietors.
The presumption of truth is attached to the record of rights generally but to the first ever settlement record in particular. Very strong evidence is required to rebut the presumption of correctness attached to the first settlement record of an area."
21. The petitioner/plaintiff alleged that he purchased the property from Inayatullah, produced sale deed/Iqrar Nama Ex: P/3-A. The petitioner/plaintiff has to prove the alleged sale deed by producing two attesting witnesses. The petitioner/plaintiff neither produced the alleged seller nor produced attesting witnesses; rather he himself exhibited the alleged sale deed. Under Article 79 of the Qanun-e-Shahadat Order, 1984 the document is required by law to be attested. It shall not be used as evidence until two attesting witnesses have been called for the purpose of proving its execution.
The above referred article is mandatory in nature. The non compliance renders the document inadmissible in evidence without producing two witnesses, if alive. The Court cannot rely on such document. Even mere production of marginal witnesses is not enough. The witnesses in their deposition show signing of the document in their presence. Reliance is placed on case Sheikh Muhammad Muneer v Mst. Feezan, PLD 2021 SC 538, wherein it was held: "14. As regards the scribe he was not shown or described as a witness in the said agreement, therefore, he could not be categorised as an attesting witness. The cited verse of the Holy Qur'an mentions three times the word scribe (katib) and five times the witness/es (shahid) but does not use these words interchangeably, instead separately and distinctively. Therefore, a scribe and a witness cannot be the same. In Tassaduq Hussain v Muhammad Din this Court considered Article 17 of the Qanun-e-Shahadat and held that:
7. the provisions of Article 17(2)(a) encompasses in its scope twofold objects (i) regarding the validity of the instruments, meaning thereby, that if it is not attested by the required number of witnesses the instrument shall be invalid and therefore if not admitted by the executant or otherwise contested by him, it shall not be enforceable in law (ii) it is relatable to the proof of such instruments in term of mandatory spirit of Article 79 of The Order, 1984 when it is read with the later. Because the said Article in very clear terms prescribes "If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence.
8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witness, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete' prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document.... And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.
9. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for the attesting witnesses ... It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above.
And, in an earlier case. Nazir Ahmad v. Muzaffar Hussain, it was held, that: Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984, provides that "in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men; or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly ".'
15. The petitioner presumably was not able to locate a witness (Allah Ditta). The burden to produce or summon him lay upon the petitioner, which is not alleviated merely by saying he could not be found. Article 80 of the Qanun-e-Shahadat provides, that:
80. Proof where no attesting witness found. If no such attesting witness can be found, it must be proved that the witnesses have either died or cannot be found and that the document was executed by the person who purports to have done SO.
The Article-Mates that it must be proved that the witness had either died or could not be found.
Simply alleging that a witness cannot be found did not assuage the burden to locate and produce him. The petitioner did not lead evidence either to establish his death or disappearance, let alone seek permission to lead secondary evidence."
22. It is settled proposition of law that the petitioner/plaintiff must prove the case with cogent, trustworthy and consistent evidence and cannot take advantage of shortcoming (if any) of the defendant's side. Under Article 117 of the Order 1984 the person who alleged a particular fact and desire the Court to believe that such fact exists he shall be required to prove the existence of such fact. The Honorable Supreme Court of Pakistan in case Mushtaq-ul-Haq Aarifin (2022 SCMR 55) held: "4. As far as the contention of learned counsel for the respondents plaintiffs that the appellants- defendants have not succeeded in proving their claim is concerned, it is a well settled principle of law that the plaintiffs cannot get benefit from the weaknesses of the defendants alone, rather they have to prove their case on their own strength. The initial burden of proof was upon the respondents plaintiffs' which they did not discharge, but the learned High Court has burdened the appellants-defendants for proving their stance which is not a correct approach."
23. The record further transpires that the petitioner/plaintiff filed CMA No. 1103 of 2017 for direction to revenue authorities for measurement of disputed area of GOR Colony and submission of report.
The petitioner/plaintiff filed suit in the year 1995, till date no such application has been filed for measurement of area. The petitioner/plaintiff has filed instant CMA after more than two decades.
The parties led their respective evidence. There is sufficient material on the record to decide the matter on merit. The petitioner/plaintiff has never taken such plea in the plaint nor filed any application before the Courts below. The petitioner/plaintiff has not taken plea that respondent/defendant has encroached excess area from his purchased property. It is settled proposition of law that the plea was not taken in the plaint cannot be permitted to agitate subsequently. The parties are bound by the averments made in the pleadings. Departure from the pleading cannot be allowed. The CMA No. 1103 of 2017 is accordingly dismissed.
24. Now adverting to the application under Order XIII Rule 2 CPC filed by the petitioner/plaintiff on 20.4.2022 for placing on record following documents:-- i. Application to Deputy Commissioner Quetta in regard of demarcation of land between applicant (petitioner) and C&W Department on 7.2.2022; ii. Letter of Tehsildar City Quetta dated 8.2.2022 from Assistant Commissioner City Quetta regarding demarcation of land. iii. Report of Halqa Patwari-III City Quetta dated 15.4.2022.
25. The record indicates that the petitioner/plaintiff filed civil suit before trial Court more than two decades before. During pendency of instant revision petition the petitioner filed an application for site inspection, meanwhile the petitioner filed application to Deputy Commissioner Quetta for demarcation of suit land.
26. It is pertinent to mention here that the petitioner/plaintiff filed suit for declaration and injunction which was decreed by the trial Court. On appeal the appellate Court accepted the appeal, dismissed the suit. During the intervening period the petitioner cannot agitate the question of demarcation. The petitioner sought declaration of ownership of the property in question. Under the law where the ownership has been disputed, without deciding the question of ownership the demarcation would not be permissible. The instant revision petition was filed in the year 2011. The petitioner filed application to Deputy Commissioner for demarcation in the month of February, 2022. The pendency of civil revision whereby the petitioner/plaintiff has challenged the impugned judgment of the appellate Court how the petitioner filed certain documents which have not been pleaded or never agitated before subordinate Court. It is settled preposition of law that the document has not been pleaded in plaint cannot be considered at subsequent stage. The documents were neither pleaded nor part of pleading could be allowed to be introduced during revision petition. Such documents were' to be excluded while evaluating evidence. In Muhammad Iqbal's ease 2015 SCMR 21, it was held by their lordship: "............. it is also settled that no litigant can be allowed to built and prove his case beyond the scope of his pleadings.--"
Reliance is also placed on case Moiz Abbas v Mrs. Latifa, 2019 SCMR 74.
In view of above the application filed by the petitioner/plaintiff under Order XIII Rule 2 CPC being misconceived is dismissed.
The petitioner/plaintiff has failed to point out any illegality and irregularity in the judgment and decree dated 22nd November, 2011 passed by Additional District Judge-V, Quetta, as such the same is maintained/upheld and petition being devoid of any merit is hereby dismissed with no orders as to costs.