ABDUL HAMEED BALOCH, J. The petitioner/defendant through instant petition assailed judgments and decrees dated 12th March, 2015 and 21st October, 2015 (impugned judgments and decrees) passed by Senior Civil Judge, Gawadar and Additional District Judge, Gawadar (trial and appellate court), whereby the suit filed by the respondents/plaintiffs was decreed and appeal filed by the petitioner/defendant against the same was dismissed.
2. Precise facts of the case are that the respondents/plaintiffs filed amended suit for declaration, permanent injunction, cancellation and correction of khewat/khatooni No. 122/122 of khasras Nos. 5, 9, 223 and 224 in respect of property situated at Kohsar Gharbi Tehsil Jiwani against the petitioner/defendant before the trial court with the prayer: "It is accordingly prayed that this Hon'ble Court may kindly be pleased to pass a judgment and decree in favour of the plaintiffs and against the defendants with effect that the plaintiffs are lawful and recorded owner of the suit land bearing kh/kh 122/122 out of khasra Nos.5, 9, 223 and 224 situated at Kohsar Gharbi Tehsil Jiwani. Subsequent mutation in favor of the defendant No. 1 herein is illegal, void, unjustifiable and liable to be cancelled. The defendant No. 2 Tehsildar Revenue Jiwani may kindly be directed to cancel the mutation and enter the same in the name of plaintiffs. The defendants further be directed not make any interference sale mutation allotment and crating third party interest. Any other relief which this Hon'ble Court deems fit may kindly be awarded to the plaintiffs in the best interest of justice and fair play.
3. The petitioner/defendant No. 1 filed written statement and controverted the contention of the respondent/plaintiffs and prayed for dismissal of the suit. The trial court framed issues. The parties led evidence in pro and contra. On conclusion the trial court vide impugned judgment and decree dated 28th August, 2014 decreed the suit. On appeal vide judgment and decree dated 13th October, 2014 the suit was remanded to the trial court by the appellate court with the direction to provide opportunity to the parties to produce additional evidence. After remand the trial court vide judgment and decree dated 12th March, 2015 decreed the suit. The petitioner/defendant being aggrieved filed appeal before appellate court, but same was dismissed vide judgment and decree dated 21st October, 2015, hence this revision petition.
4. Heard learned counsel for the respondents/plaintiffs and learned Additional Advocate General as well as perused the available record. The record transpires that in the plaint the respondents/plaintiffs contended that the land was owned by the predecessors of respondents/plaintiffs. The suit land actually a piece of purchased land of respondents/plaintiffs which is natural sand band of respondents/plaintiffs and cultivated the land in question known as Nawabzada Sheikh Umar Band which was owned by late Faiz Muhammad who sold out one half to predecessor of respondents/plaintiffs Nos. 1-A to 1-J (Dad Rahim) in the year 1981 and slae deed was executed between buyer and purchaser. After demise of predecessor of respondents/plaintiffs the suit land devolved on respondents/plaintiffs. During settlement the land bearing kh/kh 50/50 different khasra numbers were .mentioned in the name of predecessors of respondents/plaintiffs.
The petitioner/defendant No. 1 fraudulently with collaboration mutated the suit land in his name in the record of right.
5. Admittedly the predecessors in interest of respondents/plaintiffs were present at the time of final attestation of said Mouza. The respondents/plaintiffs produced the copy of khatooni as Ex: P16, which transpires that the land bearing kh/kh 50/50 having different khasra numbers in Mouza Kohsar Gharbi. As per record the mutation entries recorded in the name of petitioner/defendant in the year 2001, meaning thereby that the predecessors of respondents/plaintiffs did not challenge the mutation entries in their life time. The record further reveals that the predecessor of respondent/plaintiffs Nos. 1-A to 1-J (Dad Rahim) filed Civil Suits Nos. 41 and 42 of 2001 in the court of Qazi Gawadar against different persons in respect of the land bearing khatooni No. 3 khasra No. 192 and kh/kh 24/24 khasra No. 191, situated at Mouza Kohsar Gharbi, wherein the plaintiff (Dad Rahim) alleged that the suit lands are purchased properties. Both the suits were decreed on 29th October, 2001, meaning thereby that the predecessors of the respondents/plaintiffs were well aware of final attestation which was conducted in the year 2001. The question is why the predecessors did not challenge the suit either before civil or revenue authority. From the above fact it is crystal clear that the predecessors of the respondents/plaintiffs have knowledge of mutation entries as they were so vigilant, immediately of final attestation the predecessor of respondent/plaintiff Nos. 1-A to 1-J filed two suits before Qazi Gawadar but did not assailed the impugned entries in his life time. The party has to prove that the suit was within time through trustworthy and reliable evidence. It appears from the record that none of the plaintiffs witnesses stated that the plaintiffs had no knowledge of impugned mutation entries.
6. As per record the respondents/plaintiffs have assailed the impugned mutation entries after twelve (12) years. Under Article 120 of the Limitation Act, 1908 (Act, 1908), the limitation provides for declaration is six years, which reads as under: 120 Suit for which no period of limitation is provided elsewhere in this scheduleSix yearsWhen the right to sue accrues
7. The respondents/plaintiffs were duty bound to prove that they had no knowledge of mutation entries through evidence. Mere assertion in the plaint is no ground to condone the delay. It would be relevant to reproduce Article 3 of the Act, 1908 which reads as under: "Article-3. Dismissal of suit, etc., instituted etc., after period of limitation. Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed, although limitation has not been set up as a defence."
8. The word "shall" used in the referred to Article is mandatory in nature. Every suit filed after period of limitation is to be dismissed subjection to sections 4 to 25 of the Act, 1908. If it appears that suit is barred by limitation the same is to be rejected. It is settled proposition of law that limitation being matter of statute and being mandatory which cannot be waived. Even the parties cannot raise the question of limitation in the pleading. The court should take it. The court is under legal obligation to look into the question of limitation without there being objection of any party. Disposal of suit on merit alone is not sufficient to condone the delay. There is no evidence on record to substantiate the stand of respondents/plaintiffs that the suit is within time. Both the courts below erred in concluding that the suit is within time.
9. The record depicts that the final attestation was held in the year 2001. The final attestation of the Mouza was conducted in presence of the predecessors in interest of the respondents/plaintiffs, but they did not raise any objection at the time of final attestation. Under Section 52 of the Balochistan Land Revenue Act, 1967 (Act, 1967) the record of right carries presumption of truth. Strong evidence requires to rebut the allegation. There is no evidence on record that mutation entries were made in the name of the petitioner/defendant with collaboration of Revenue, staff. There is no evidence brought on record that the mutation entries conducted is not in accordance with law. The courts below erred to draw the conclusion that the burden of proof lies on beneficiary of mutation on whose name the entries are made. This conclusion is against the provision of Section 52 of the Act, 1967. The mutation entries carries presumption of correctness cannot be lightly reversed in absence of strong evidence in rebuttal. In this regard reliance is placed on the case of Haji Wajdad v. Provencal Government through Secretary Board of Revenue, 2020 SCMR 2046, wherein it was held: "9. We also note that there is a triple presumption of correctness attached to the Impugned mutation: firstly, it was the result of the first settlement (Bundubast) of the area; secondly, the recording of ownership was based on long standing mutations; and finally, the recording was in favour of the provincial government that was protected under section 52 of the Land Revenue Act, 1967. This presumption of correctness attached to such entries in the Revenue Record, is, however, rebuttable. The judicial consensus that has developed over time is that the said presumption cannot be controverted by mere oral evidence. To rebut the said presumption of correctness, sufficient and convincing evidence must be produced.
10. We note that the appellant, in the present case, failed to bring on record, a single supportive entry reflecting his possession in the official revenue record or any other reliable piece of evidence. Moreover, the appellant also failed to bring any positive assertion confirming his possession or any other finding in his favour during the cross-examination of the official witness produced by the respondents. Instead, .the appellant only produced two private persons, whose standing in the area and credence of their testimony did not come up to the required threshold to dispel the presumption of correctness attached to the impugned long standing mutation."
10. Mutation is a document and documentary evidence cannot be belied by oral evidence. It is settled principle of law that men tell lie but document cannot. Mere verbal assertion is not enough to rebut the entries in the record of right. The plaintiffs' case is based on oral evidence. They failed to produce any documentary evidence in rebuttal. Reliance is placed on case Mazloom Hussain v.
Abid Hussain, PLD 2008 SC 571, in which it was held: "11. Where a presumption of truth is attached to a document, it cannot be discarded unless proved otherwise by convincing and cogent evidence and the burden of proof that the entries in the record of rights are wrong, is or the party who alleges it. Reliance can be placed in this context on the cases of Sundar Singh v. Chhajju Khan AIR 1934 Lahore 309 and The Evacuee Trust Property Board and others v. Haji Ghulam Rand Khokhar and others 1990 SCMR 725."
11. Under Articles 117 and 118 of the Qanun-e-Shahadat Order, 1984 (Order, 1984) the burden of proof was on the party claiming the title and possession of property. The party who desire a judgment from the court of competent jurisdiction in his/their favour must discharge the burden on truthful and consistent evidence. The plaintiff has to prove their case on the strength of his/their own evidence. Whoever alleges existence of a particular fact must prove the same by positive evidence. Reliance is placed on the case of Bakhat Ali v. Shah Nawaz PLD 2006 Karachi 497 and Badar-uz-Zaman case's 1996 CLC 202. The plaintiff(s) is/are duty bound to prove the case on the strength of his/their own evidence and cannot benefit on the shortcoming of defendant evidence.
12. Under Article 79 of the Order, 1984 if the document required by the law is to be attested, it should not be used as evidence unless two attesting witnesses have been called for the purpose of proving its existence. The word "shall" used in the referred to Article, the plaintiffs have neither produced seller nor any attesting witness. The sale deed was produced by the attorney of the plaintiffs who was not present at the time of preparation of document nor attesting witnesses.
None of the plaintiffs narrated in regard of sale purchase document. The party, who claimed owner from the document, must prove the document. Mere placing on record the document cannot be treated as proof of document. There is no evidence on record that the attesting witnesses of the sale deed are not alive.
13. As regard the question of presumption of execution of document under Article 100 of the Order, 1984 is concerned. Mere old document being thirty, years old cannot be a ground to consider gospel truth. Mere age of the document is not a yardstick of its proof. It should also be established that the same was signed or written' by the person whose signatures appeared on it. Such presumption is rebutable and would not extend to disputed document. The document produced and exhibited by attorney of plaintiffs is not registered. The party claimed right from unregistered document has to prove the document. In case of Mst. Zakia Begum, 2014 YLR 1378, it was held: "----Such type of document could not be seen within the parameters of Article 100 of Qanun-e- Shahadat and the contents therein certainly would require evidence for proof ---
14. There is difference between admissibility of a document and its evidentiary value. In order to consider the evidentiary value of a document it must be proved as required under the Qanun-e- Shahadat Order, 1984. It is not essential for the courts to attach the presumption of execution of a document more than thirty years sold without attending to the other relevant facts, circumstances of the case before raising such presumption. The attachment of presumption in execution of document was a matter of care and caution involving the right of the parties to the property.
Reliance is placed on case Nazir Ahmed deceased through legal heirs v. Karim Bakhsh 2017 SCMR 1934, wherein it was held: "5. We have heard learned counsel for the petitioners and examined the record with his assistance.
We find that the argument that a presumption of truth was attached to the document in question because it was allegedly more than 30 years old is misconceived. It is settled law that the condition precedent for grant of benefit of presumption of truth to a document which is more than 30 years old is that there is no doubt about the valid execution of the same. It is clear from the record that the Respondents had categorically stated in their written statement that the alleged agreement to sell was a forged document. In these circumstances, onus was on the petitioners to prove execution of the document in accordance with law. Having failed to do so, the petitioners were not entitled to rely on the age of the document to claim the benefit of a presumption of truth in terms of Article 100 of the Qanun-e-Shahadat Order, 1984."
15. The High Court while exercising revisional jurisdiction has empowered to re-evaluate the entire evidence where finding are based on misreading and non reading of evidence, non consideration of material evidence, erroneous assumption of facts. Where the courts below misread the evidence on record, failed to take notice of the fact. The concurrent finding of facts is not sacrosanct. The High Court can interference in the below are perverse and against the law. Reliance is placed on case Mubarik Ali concurrent finding of courts below if found that the judgments of the courts through L.Rs. v. Amroo Khan through L.Rs, 2007 SCMR 1714, wherein it was held: "---The judgments which have been cited by the learned counsel for the appellant with regard to noninterference by the High Court with the concurrent findings of the Courts below i.e. Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din 1996 SCMR 813, Abdul Hakeem v.
Habibullh and 11 others 1997 SCMR 1139 and Roazi Khan and others v. Nasir and others 1997 SCMR 1849, in the circumstances of the case may not be of any help to the appellant firstly that the High Court has given cogent reasons for interference and also according to the aforesaid referred judgment Roazi Khan and others (supra), if is not only the misreading or non-reading of evidence, which justify the interference but even if the same suggests perversity whereby such findings can be interfered with or where approach of Courts below to evidence was perverse as held in the case of Abdul Hakeem (supra) or so perverse that rave injustice would result therefrom as held in the case of Sheikh Muhammad Bashir Ali and others (supra) or the Court fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court as held in the case of Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568. This Court in the case of Sheikh Muhammad v. Hashmat Sultana 1989 SCMR 34 has held that every finding of fact is not immune from interference in revision jurisdiction as possessed by the High Courts to be exercised" when the Courts below commit jurisdictional illegality and this concept i.e., of jurisdictional illegality has been considered by this Court in the case of Kanwal Nain PLD 1983 SC 53, to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result Applying this test, if the reasons advanced by the High Court are correct on the legal plane, then the two Courts deciding the controverted question of fact, cannot be said to have acted with jurisdiction, if the evidence has been misread or the conclusions drawn are perverse. In the case of Muhammad Bakhsh v. Ellalsi Bakhsh and others 2003 SCMR 286, while placing reliance on a judgment of this Court Maj. Rashid Beg v. Rehmat Ullah Khan and 4 others PLD 2001 SC 443, the interference in the judgments of the Courts below in exercise of revisional jurisdiction was held to be justified when the findings are based on conjectural presumptions, erroneous assumptions of facts and wrong proposition of law and where unreasonable view on evidence has beets taken. While relying on the principles as laid down by this Court in the afore referred judgments, it can be safely said that no injustice could be done greater than the one in the present case if the suit of the appellant succeeds by defeating the lawful process, of obtaining the possession by the respondent through execution, in roundabout manner through a collusion.
In view of above the judgments of both the courts below are based on misreading and non reading of evidence on record.
In such circumstances the instant petition is accepted. The judgments and decrees dated 12th March, 2015 and 21st October, 2015 passed by Senior Civil Judge, Gawadar and Additional District Judge, Gawadar respectively are set aside and the suit of the plaintiffs is dismissed. The parties are left to bear their own costs. Decree sheet be drawn up.
These are the reasons of short order made on 24th December, 2021.