WIQAR AHMAD, J.- This single judgment shall decide instant (C.R.No.50-A/2007) and connected C.R.No. 54-A/2007 titled Noor Muhammad Vs. Sarwar Khan & 42 others as both these civil revisions have been filed against same impugned judgment and decree dated 10.11.2006 passed by learned Additional District Judge-II Haripur whereby appeal of the respondents / plaintiffs against judgment dated 27.01.2005 delivered by learned Civil Judge-IV Haripur has been allowed.
2. Succinctly stated facts of the cases are that respondents / plaintiffs had filed a declaratory suit against the petitioners / defendants, seeking therein perpetual injunction and in alternative possession of the suit property through correction of revenue record fully described in heading of the plaint. On being summoned, the petitioners / defendants No.1 & 2 contested the suit by filing their written statements. Out of divergent pleadings of the parties, the learned trial court had framed as many as fifteen (15) issues by directing the parties to produce their respective evidence.
The learned trial court after recording pro and contra evidence and hearing learned counsel for the parties, dismissed the suit vide judgment dated 27.01.2005. Respondents/Plaintiffs, being aggrieved from the ibid judgment had preferred an appeal before learned District Judge Haripur, which was entrusted to learned Additional District Judge-II Haripur for disposal. The learned appellate court after perusing evidence, so furnished by the parties, and hearing learned counsel for the parties accepted the appeal vide impugned judgment and decree dated 10.11.2006, whereagainst the petitioners had filed two separate civil revisions before this court, which were accepted vide judgment and decree dated 12.09.2014. Felt aggrieved from findings of this court, the respondents / plaintiffs went before Hon'ble Supreme Court of Pakistan by filing civil appeals bearing No. 1471 and 1472 of 2016, which were partially allowed vide judgment dated 03.10.2022 and the matter was remanded back to this court for decision afresh in the civil revisions.
3. I have heard arguments of learned counsel for the parties and gone through record.
4. Perusal of record reveals that predecessor-in-interest of petitioners (defendants No.1 & 2) namely Abdul Jabbar Khan, was co-owner with predecessor-in- interest of respondents (plaintiffs).
He had been recorded as owner in the earlier Jamabandi till the year 1954 when his name got out therefrom through mutation No. 1932 attested on 19.02.1954 in Mauza Sarai Saleh whereby he had sold his ownership rights in favour of predecessor-in-interest of plaintiffs in the suit i.e. Abdul Ghafoor Khan and others. It was through mutation No. 1578 attested on 03.11.1960 in same Mauza (by which the transaction of Tark Dakhalkar had been shown incorporated) when name of Abdul Jabbar Khan predecessor-in-interest of defendants No.1 & 2 resurfaced in the revenue record as owners. Said entry in the name of predecessor-in-interest of defendants No.1 & 2 had continued till his death, whereafter his inheritance mutation No. 7732 was entered and attested in the revenue record on 27.03.1984 and his legal heirs i.e. defendants No.1 & 2 (in the suit) replaced him. Entry of this mutation may be found in the remarks column of Jamabandi for the year 1985-1986, brought on record as Ex PVV-1/6. It was case of plaintiffs before civil court that mutation No. 1578 attested on 13.04.1960 had the legal effect of making predecessor-in-interest of the plaintiffs as complete owners in possession of the property in dispute due to relinquishment of rights by the defendants vide abovementioned mutation but name of predecessor-in-interest of defendants No.1 & 2 had wrongly been restored as full owners in the column of cultivation, whose name had not been existing in said column by that time. The plaintiffs have also produced evidence regarding cancellation of said mutation No. 1578 attested on 13.04.1960 in the proceedings of appeal, in respect whereof, they have brought on record a memo reflecting such decision as Ex.PW-2/3. In said respect, they have also recorded statement of SOK as PW-02 and Mushtaq Ahmad, Incharge Record Room as PW-03 but the original record of such proceedings could not be found and only a memo reflecting such decision could be made part of the evidence.
5. Coming back to the original question that predecessor-in-interest of defendants in the suit i.e. Abdul Jabbar Khan had been ousted from his capacity as owner in the ownership column of record of rights (Jamabandi), it is evident from the Jamabandi for 1947-1948 (Ex.PVV-1/3) that his name had been conspicuous for his absence. Certain persons have, however, been shown in possessory column as occupancy tenants while others have also been shown as un -occupancy tenants. Copy of said Jamabandi also contains entry of mutation No. 1935 attested on 19.02.1954 in the column of remarks whereby Abdul Jabbar Khan (predecessor-in-interest of defendants No.1 & 2) had been shown alienating his ownership rights in favour of Muhammad Khan and Abdur Rehman Khan (predecessor-in-interest of plaintiffs). Reference here is made to the original parties in the plaint so as to avoid confusion because this court is seized with two separate suits arising from same impugned judgment. It was also the situation in subsequent Jamabandi for year 1953- 1954 (brought on record as Ex.PVV-1/2) that name of Abdul Jabbar Khan has not been shown in column of cultivation. Same was the situation in Jamabandi for the year 1958-1959 (E PVV 1/3). In the Jamabandi for the year 1963-1964 (Ex.PVV-1/4) name of Abdul Jabbar Khan resurfaced in the revenue record. The fact that his name had been re-incorporated in the revenue record particularly (Ex.PVV-1/4) in pursuance to attestation of mutation No. 1578 attested on 13.04.1960 in revenue record (incorporating transaction of relinquishment of possessory rights) stood admitted in Para-2 of the written statement partially. While admitting this fact, defendants No.1 & 2 had also claimed that their predecessor-in-interest had also been owner earlier but his re-introduction through said mutation was also admitted. Mutation No.1578 was exhibited in the statement of Abdur Razzaq SOK while being examined as PW-2. He has also exhibited the memo (Parwana)
Ex.PVV-2/3 in his statement but had added that the original file had not been found annexed with Parwana (memo) and that he would search same. Said statement had been recorded on 15.10.1996 and kept continued. On 29.04.2000 he again stated that the original file of proceedings No.27 had not been found on the basis of which memo Ex.PVV-2/3 had been issued. Then lncharge Record Room (Mushtaq Ahmad) was also examined as PW-03 but he could not produce the record of the decision in file No.27 and also stated that same had been discarded or destroyed. Attorney of plaintiff (Muhammad Ilyas) was examined as PW-04, who had given the already discussed facts about revenue record and had added that plaintiffs have been owners in possession of the property in dispute till the date of recording his statement. He had been cross-examined in respect of the developments that had been incorporated in the revenue record from time to time and his statement had been challenged on the ground that he had been of the age of one year in the year 1954 not being privy to the developments in respect of which he had testified but his statement regarding physical possession on the property in dispute could not be shattered during the course of his cross-examination. In reply to the question, asked regarding physical possession at the property in dispute during the course of cross-examination and knowledge of the impugned transaction he had answered in the following manner;
6. Physical possession is also of great significance in context of present controversy where case of plaintiffs before the civil court was that entries in the revenue record had wrongly been showing names of predecessor- in-interest of defendants No.1 & 2 incorporated therein which had got no basis. It is also apparent that in Para-2 of the plaint, plaintiffs have specifically claimed that they have been in exclusive possession of the property in dispute. In sub-para (iii) of Para-2 they had made specific assertion that plaintiffs 1 to 3 had not been in possession of the property in dispute.
Such specific assertions in the plaint have not been specifically denied in the written statement by defendants No.1 & 2. In the revenue record i.e. in column of possession of the Fard Jamabandies. possession of the plaintiffs have continuously been running. The only exclusion therefrom may be found in Khasra Girdawari (Ex.PW-1/8) where in the column of change of possession in Khareef 1985 and onwards name of Abdul Jabbar Khan may be found but it is strange that such entries could not be shown to have ever been incorporated in column of possession of the Jamabandies. Keeping this piece of evidence aside, plaintiffs' claimed in the written statement, have not been rebutted specifically in respect of physical possession in the written statement. Testimony of the attorney of the plaintiffs has also gone un-shattered in his cross-examination and on the basis of preponderance of evidence it can be held that plaintiffs have proved to be in physical possession of the property in dispute. One of the points agitated by learned counsel for petitioners was that plaintiffs have prayed for possession in their plaint, in which respect learned counsel representing plaintiffs explained that said relief had only been made for correcting entries respecting possession in the record. The prayer in plaint also shows that the word has been written.
7. Possession of the plaintiffs on the property in dispute was established and the factum of exclusion of Abdul Jabbar Khan (predecessor-in-interest of defendants No.1 & 2) through sale mutation No. 1932 attested on 19.02.1954 also stood established. The fact of his re-introduction in the column of ownership by way of mutation No. 1578 attested on 03.11.1960 also got established.
The burden of proof then got shifted to defendants No.1 & 2 as well as defendant No.3, who had been claiming under defendants No.1 & 2, to have established the validity of re-introduction of Abdul Jabbar Khan in the column of ownership through the impugned entry and his continuation thereafter in the revenue record.
8. If a tenant relinquishes his possessory right in a property, same would naturally be construed to the effect that the owners in the ownership column have become owners in possession of such property. A person who has earlier been recorded as owner in the property in dispute and who happened to have relinquished his ownership rights cannot be restored to its possession by the act of relinquishment of occupancy tenants. Even if an occupancy tenant sells his right to him, it would be at the most a right of possession (for the sake of reasoning) but the occupancy tenant cannot make such person owner in the property in dispute unless the occupancy tenant had perfected his title under the law. There is no evidence that occupancy tenants in the case in hand had either deposited compensation under the relevant provision of NWFP Tenancy Act, 1950 or they had got any rights of ownership under said law. In the case in hand, the benefit of relinquishment would go to predecessor-in-interest of plaintiffs and in this perspective a memo showing decision of the revenue appeal forum in respect of modification of mutation No. 1578 also becomes believable.
Otherwise, there has been no basis of incorporation of late Abdul Jabbar Khan in the capacity of owner. When there has been no basis of such re-entry in the revenue record then reemergence of his name in the ownership column and his continuation subsequently can well be dubbed as wrong entries in the revenue record. When possession of the property in dispute was also found with the plaintiffs then such wrong entries in the revenue record in Favour of predecessor-in- interest of defendants No.1 & 2 and its subsequent continuation in favour of legal heirs cannot be sanctified. The learned appellate court has rightly appreciated evidence in this respect. Preference is also supposed to be given to findings of appellate court when such court forms a different opinion than the court of first instance in respect of a factual controversy.
Reliance in this respect may be made on the judgment of Hon'ble Supreme Court of Pakistan rendered in the case of "Bahar Shah & others Vs. Manzoor Ahmad" reported as 2022 SCMR 284 where it has been held that in case of inconsistency between the trial court and the appellate court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary. Further reliance in this respect may also be placed on the judgments of Hon'ble Supreme Court of Pakistan delivered in the case of "Madan Gopal Vs. Maran Bepari" reported as PLD 1969 SC 617 as well as in the case of "Amjad lkram Vs. Mst. Asiya Kausar" reported as 2015 SCMR 01.
9. One of the question that required determination before the courts below was extending benefit of Section 41 of the Transfer of Property Act, 1982 in favour of defendant No.3, who is petitioner in C.R.No. 54-A/2007. His right of acquisition as bonafide purchaser was based on impugned mutation No. 9636 attested on 25.01.1991. Section 41 of the Act ibid has provided as; "41. Transfer by ostensible owner:- Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it.
Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
10. One of the essential ingredients required for giving benefit of Section 41 of the Act was that when the original owner gives any express or implied consent or similar representative to the buyer or purchaser. It was also found that the person from whom defendant No.3 had purchased the property had not been in physical possession of the property in dispute. Their entry as ostensible owner have no doubt been existing in the revenue record but in a case where express or implied consent of the other person interested in such property had not been available and such persons have also been in physical possession of the property in dispute then transfer by the ostensible owners cannot be dealt protected under Section 41 of the Act ibid. Defendant No.3 could not exhibit reasonable care at the time of purchase, therefore, benefit of Section 41 of the Act ibid have rightly been denied to him by the learned appellate court wherein also this court does not find any reason to interfere.
11. Another related question was that of limitation. When the plaintiffs have been found in possession of the property in dispute then wrong entries in the revenue record per se cannot be dealt to have caused actual denial of their rights wherefrom limitation should be commenced. It was impugned mutation through which the property had been sold to defendant No.3 which have been dealt with by the learned appellate court as actual denial of rights wherefrom limitation should have been counted. After a year of said mutation, suit had been instituted on 27.04.1993 and in this case limitation should be counted therefrom. In respect of the earlier wrong entries in the revenue record the already established principles that such successive wrong entries would be deemed as reviving cause of action for the plaintiffs, would be considered. Such principle and the earlier law existing thereon have been categorically explained in a recent judgment by Hon'ble Supreme Court of Pakistan while delivering 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 where it has been 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.
12. Since possession of plaintiffs in the case in hand had not been disturbed therefore, entries in the case would be treated as "apprehended or threatened denial of right" and not the "actual denial of right". Suit of the respondents / plaintiffs cannot, therefore, be defeated, on the plea of limitation.
13. In light of what has been discussed above, both the civil revisions were found divested of merits and same are accordingly dismissed.