Ch. Muhammad Iqbal, J:- Through this Regular First Appeal, the appellants have challenged the validity of the judgment & decree dated 16.03.2019 passed by the learned Civil Judge, Mandi Bahauddin who dismissed the suit for possession, declaration, permanent and mandatory injunction filed by the appellants.
2. Brief facts of the case as contended by learned counsel for the appellants are that the appellants/plaintiffs filed a suit for possession, declaration, permanent and mandatory injunction against the respondent/defendant and contended that Abdul Karim and Khushi Muhammad predecessor of the appellant/ plaintiff were owners of land measuring 160 Murabba situated in Moza Bosal Lyia Rakh, Tehsil Bhera, District Shahpur as per Jamabandi for the year 1894-1895 and presently the said land is spread over three villages of Tehsil Malakwal, District Mandi Bahauddin as under:
1. Chak No.43 : 55 Square 21 Acres 1 Kanal & 19 Marla
2. Chak No.44 : 59 Squares 18 Acres & 09 Marla
3. Chak No.45 : 37 Squares 17 Acres & 16 Marla That the said forefathers of the appellants/plaintiffs were teenagers and their land was hit by plague and cholera on which basis they migrated to Khumb Kohna, District Shahpur [presently District Sargodha]. The Then Colonization Officer, Jhelum Canal submitted a report to the Deputy Commissioner, District Shahpur through letter dated 11.09.1902 stating therein that the land was lying vacant and the owners/or their legal heirs were not traceable as such it may declared as state land. The Deputy Commissioner, Shahpur District vide letter dated 06.03.1903 treated the said land as state land. The predecessor-in-interest of the appellants/plaintiffs filed different applications but their grievance remaining un-redressed. The petitioners/plaintiffs made following prayer in the plaint: "Under the circumstances it is therefore respectfully prayed that a decree for the declaration, possession, mandatory and permanent injunction may kindly be passed in favour of the plaintiffs and against the defendants with costs to the effect:-
(a) That the predecessor-in-interests of the plaintiffs namely Abdul Karim and Khushi Muhammad be declared owners in possession of 160 squares agricultural land in Bosal Layia Rakh Tehsil Bhera, District Shahpur and present plaintiffs are legal heirs of Abdul Karim and Khushi Muhammad and being legal heirs the plaintiffs are entitled to obtain the estate (land in question) of their predecessors-in-interest.
(b) That the letter dated 11.9.1902 written by Colonization Officer Jhelum Canal and letter/order dated 06.3.1903 written by Extra Assistant Commissioner Shahpur be declared illegal, void, ab initio, without lawful authority, without jurisdiction, malafide, against the law as well as inoperative qua the valuable rights of the plaintiffs and have no legal effect.
(c) That vacant possession of land measuring 4611 Kanals and 4 Marlas (716 Kanalas 1 Marla in Chak No.45, 1104 Kanals 3 Marlas in Chak No.44 and 2791 Kanals in Chak No.43) from the land in question stands in the name of Provincial Government be delivered to the plaintiffs.
(d) That in lieu of remaining land in question possession of about 137 square agriculture land be delivered to the plaintiffs in any irrigated area of Punjab or value thereof be paid to the plaintiffs according to the market value of the land in question.(e) That the defendants be permanently restrained from alienating the ownership and possessory rights of land in question in favour of any other person which at present stand in the name of Provincial Government under any scheme in any manner whatsoever in the interest of justice."
The respondent/defendant filed contesting written statement and contended that the appellants/plaintiffs unauthorizedly filed suit. That no evidence is appended with plaint to prima facie establish that they are successors of Abdul Karim and Khushi Muhammad. The copy of Register Haqdaran Zamin 1894-1895 appended with the plaint on which basis the appellants/plaintiffs claim their right, is seemingly a bogus document. That the said proforma was neither introduced nor available for preparation of the Register Haqdaran Zamin at the relevant time as such it is a forged document. Moreover, on the said document of Misal Miadi for the year 1894-95signature of DLR or any Patwari concerned are missing which proves that the document is forged. Further stated that the appellants/ plaintiffs have not appended any valid document in support of their claim. That the Shajra Nasab claimed by the appellant/ plaintiff is also false. As per divergent pleadings of the parties the trial Court framed following issues: i. "Whether the plaintiffs are entitled to decree for declaration to the effect that they being legal heirs of deceased Abdul Kareem and Khushi Muhammad are owners of the suit property? OPP ii. Whether the letter dated 11.09.1902 of the Colony Officer Jhelum Canal and order dated 06.03.1903 of Extra Commissioner passed on behalf of Deputy Commissioner Shahpur are illegal, void abinitio, without lawful authority, without jurisdiction, against law, hence are inoperative qua rights of the plaintiffs and have no legal effect? OPP iii. Whether the plaintiffs are entitled to decree for possession of the suit property as prayed for in the plaint, if so what is the market value of land in question per acre? OPP iv. Whether the plaintiffs are entitled to decree for permanent injunction to the effect that the defendants be permanently restrained from alienating the ownership of the suit property in favour of any other person in any manner whatsoever? OPP v. Whether the plaintiffs have no cause of action to file the instant suit? OPD vi. Whether the plaintiffs have no locus standi to file the instant suit? OPD vii. Whether the suit is hopelessly time barred, hence the suit merits dismissal? OPD viii. Whether the suit is not proceedable as per law? OPD ix. Whether the plaintiffs are estopped by their words and conduct to file the instant suit? OPD x. Whether the suit is bad due to mis-joinder and non-joinder of the necessary parties? OPD xi. Whether this court lacks jurisdiction to entertain the instant suit? OPD xii. Whether the suit is barred by law, hence it merits dismissal? OPD xiii. Whether the instant suit has been instituted just to harass and blackmail the answering defendant, hence it is liable to be dismissed with special cost? OPD xiv. Whether the plaintiffs have not approached this court with clean hands and the suit is barred in view of Order 2 Rule 2 and Order 23 Rule 1 & 2 of Code of Civil Procedure? OPD xv. Whether the plaintiffs have suppressed material facts from the court, hence the suit is liable to be dismissed? OPD xv-A. Whether the plaint of plaintiff is liable to be rejected under order 7 rule 11 CPC? OPD xv-B Whether the Fard Jamabandi tendered on record by the side of plaintiff regarding his ownership is forged and bogus and the relevant record does not exist in any concerned revenue department? OPD xvi. Relief?" and recorded evidence of the parties and dismissed the suit vide judgment & decree dated 16.03.2019. Hence, this appeal.
3. Arguments heard. Record perused.
4. The controversy involved in this case revolves around issues No.1 to 4 and onus whereof was upon the plaintiff. As per contents of the plaint, the appellants/plaintiffs claim that their predecessors Abdul Karim and Khushi Muhammad were owners in equal share of agricultural land measuring 160 Murabba situated in Moza Bosal Lyia Rakh, Tehsil Bhera, District Shahpur as per Register Haqdaran Zamin for the year 1894-1895. The said Register Haqdaran Zamin was produced by the appellants/plaintiffs in documentary evidence as Exh.P.3 which is scanned as under: In rebuttal, the respondents/defendants produced the revenue record/Jamabandi Proforma as Exh.D.8 which was in use in 1891-1892 and the same is scanned as under: For maintaining the Record of Rights, the document used for it was called Jamabandi and the respondents/defendants has produced in evidence a proforma (Exh.D.8) of Jamabandi for the year 1891-1892 which document was published by. As per Land Revenue Rule 72 framed under the Punjab Land Revenue Act, 1887, a Form of Jamabandi was prepared at that time as prescribed by clause (a) of sub-section (2) of Section 31 of the Act ibid, which Form is reproduced as under: The same is position with the Jamabandi for the year 1894-1895 (Ex.D9) and Copy of Jamabandi (Exh.D.10)for the year 1918-1919 of District Gujrat. Copy of Jamabandi ( Exh.D.11) for the year 1961 1962 shows proforma of Revenue record of Form No.32/30 of record of Patwari which are blatantly at variance with the record produced by the appellant. The aforesaid proforma was changed by the Board of Revenue, Punjab vide notification No.1750-88/281-LR-II dated 02.04.1989 and thereafter it is called as Register Haqdaran Zamin. For ready reference, the said proforma is reproduced as under: The copy of Register Haqdaran Zamin (Exh.D.12) shows that it was printed by the Pakistan Printing Press. The aforesaid entries in record proforma (Exh.D.8) remained in field till the year 1962 1963. It shows that the Jamabandi Proforma for used in year 1894-95 has fourteen (14) columns whereas the petitioner produced proforma (Exh.P.3) which shows that it has ten (10) columns. The wording of both the proformas is also totally different. The proforma/Exh.P.3 was not in use by the revenue authorities in 1894-95 rather the proformas (Exh.D.9 to Exh.D.17) produced by the respondents/defendants were in use for maintaining the periodical record. Further, it was not published by any government printing press or its authorized press. The petitioners/plaintiffs did not prove that said proforma/Exh.P.3 was in use of the revenue department at that time. The entire claim of the petitioners/ plaintiffs is based upon proforma (Exh.P.3) a forged, fabricated and unauthorized document prepared by the petitioners/plaintiffs on the basis of fraud. The respondent/defendant has produced documentary evidence (Exh.D.9 to Exh.D.17) in support of the said stance which has not been controverted by the petitioner. Later on, the said proforma was changed. The copy of Jamabandi produced by the appellant/ plaintiff is neither signed nor bear any number rather the said proforma was not in use by the revenue officials in the year 1894-95. It shows that the said document is a product of fraud, forgery and fabrication. It is settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction, that stand automatically dismantled and any ill-gotten gain achieved by fraudster cannot be validated under any norms of laws. Reliance in this regard is placed on cases cited as Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236), Lahore Development Authority Vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097) and Mst. Nazeeran and others Vs. Ali Bux and others (2024 SCMR 1271).
5. Furthermore, the petitioners/plaintiffs claim that presently the suit land comprising three villages [Chak No.43, 44 & 45] in Tehsil Malakwal, District Mandi Bahauddin. As per the record, the land of the aforesaid Chaks is owned and possessed by the general public who has been residing there since long. The petitioners/plaintiffs neither challenged the ownership of those persons nor impleaded them as party in the instant case. Further, the petitioners/plaintiffs have mere made oral assertions and they have not produced any cogent and trustworthy documentary evidence in support of their claim.
6. The appellants/plaintiffs claim that they are the legal heirs of Abdul Karim and Khushi Muhammad but they did not produce any believable oral as well as documentary evidence to prove their claimed pedigree table. It is well settled that pedigree table alone by itself is not a conclusive proof of relationship unless relationship is proved through other corroborative, affirmative and trustworthy evidence as enunciated under Article 64 of Qanun-i-Shahadat Order, 1984. Reliance in this regard is placed on a recent pronouncement of the Hon'ble Supreme Court of Pakistan titled as Rustam and others Vs. Jehangir (Deceased) through LRs. (2023 SCMR 730).
7. Even otherwise, the respondents filed applications/Forms for obtaining copies of Jamabandis (Exh.D.2 to Exh.D7) of Moza Bosal Liya Rakh, Tehsil Bhera, District Shahpur which were produced in evidence by the respondent/defendant. On application [Exh.D.2] for obtaining attested copy of the consolidation proceedings (bandobast) of the said Moza, it was reported by the concerned official that aforesaid Moza did not exist in the record of Sargodha and its bandobast record is also not available. On the application [Exh.D.3] for obtaining attested copy of Misal Masavi, the concerned staff reported that the aforesaid Moza did not exist in the record of Sargodha and Masavi is not available. On application [Exh.D.4] for obtaining attested copy of Jamabandi for the year 1890-1891 of the said Moza, it was reported that said record is not available. On application [Exh.D.5] for obtaining attested copy of Jamabandi for the year 1898-1899 of the said Moza, it was reported that said record is not available in District Sargodha. On application [Exh.D.6] for obtaining notification whereby Chak No.43, 44 & 45 of said Moza were included in District Mandi Bahauddin and it was also reported that no such notification is available in the record. On application [Exh.D.7] for obtaining notification regarding Mozajats of Tehsil Rai and notification whereby District Shahpur was renamed as District Gujrat, the concerned staff reported that no record of Moza Bosal Liay Rakh Sial is available in the record. The respondents/defendants produced letter dated 30.8.2018 (Exh.D.15) issued by the Directorate of Land Record, Punjab which shows that the Form of Register Haqdaran Zamin was modified in year 1989.
8. Another aspect of the matter is that the appellants/plaintiffs challenged the letter dated 11.09.1902 issued by the then Colonization Officer, Jhelum Canal and letter dated 06.03.1903 issued by the Deputy Commissioner, Shahpur District by filing instant suit on 13.07.2012 i.e. after lapse of about 110 years whereas Article 120 of the Limitation Act, 1908, prescribed a period of six (6) year for filing suit for declaration as such the suit of the appellants/ plaintiffs is badly time barred. The appellants/plaintiffs were under legal obligation to explain the reasons of delay of each and every day but no such convincing reason/explanation has been furnished for delayed filing of the suit and non-furnishing of the convincing explanation of delay disentitled the suitor for condonation of the delay. Reliance is placed on the case titled as Agha Syed Mustaque Ali Shah Vs Mst. Bibi Gul Jan & Others (2016 SCMR 910), the relevant portion is as under:- "17. The suit was also rightly found to be patently barred by limitation. The declaration sought was with regard to a purported gift, allegedly made on 10.04.1971. The suit, in terms of Article 120 of the Limitation Act, under which Article a suit for a declaration of the nature sought, falls, ought to have been filed within six years of the said gift deed, but was filed on 24.08.2010, after a lapse of more than, thirty eight years. Whereas the mutation sought to be cancelled has been effected on 11.04.1990, twenty years prior to the filing of the suit, although limitation for such relief also was/is six years from the date of the cause of action."
Reliance is also placed on the cases titled as Mst. Rabia Gula & Others Vs Muhammad Janan & Others (2022 SCMR 1009) & Salamat Ali & Others Vs Muhammad Din & Others (PLD 2022 SC 353).
9. Learned counsel for the appellants has not pointed out any illegality or material irregularity or jurisdictional defect in the impugned judgment & decree of the trial Court which does not call for any interference by this Court in its appellate jurisdiction.
10. As regard the application (C.M. No.1/2024) under Order XLI Rule 27 C.P.C of the appellants/plaintiffs for bringing on record different documents as additional evidence is concerned, suffice it to say that the appellants/plaintiffs have not pointed out any ground whereby the documents attached with this application may be considered vital for decision of instant case.
Further, these documents were available to the appellants/plaintiffs but they neither mentioned the same in the plaint, nor placed reliance or appended the same with plaint or produced in evidence before trial court as such at this belated stage it cannot be permitted to bring on record these documents. The appellants/plaintiffs intend to patch up weak portions of their case which cannot be allowed at this belated stage. Therefore, instant application being devoid of any merits is hereby rejected. Reliance is placed on judgments titled as Muhammad Yousaf v. Mst.
Maqsooda Anjum and others (2004 SCMR 1049), Rana Abdul Aleem Khan Vs. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative for Liquidation, Lahore and another (2016 SCMR 2067), Shamshad Bibi & Others Vs Riasat Ali & Others (PLD 2023 SC 643) and Shakoor Vs. Province of Punjab through Collector and others (PLD 2013 Lahore 17).
11. Resultantly, this appeal having no merits is hereby dismissed with cost throughout. However, it is observed that the appellants have dragged the respondent/state functionaries in futile and frivolous litigation without having any sort of valid title of the suit land. Thus by relying on the dicta of the Hon'ble Apex Court rendered in Capital Development Authority, CDA through Chairman, CDA, Islamabad Vs. Ahmed Murtaza and another (2023 SCMR 61), Province of Punjab through the Deputy Commissioner, Collector District Gujranwala and others Vs. Zulfiqar Ali and another (2024 SCMR 22) and Javed Hameed and others Vs. Aman Ullah and others (2024 SCMR 89) the appellants/plaintiffs are burdened with special cost of Rs.10,00,000/- which should be recovered as arrears of land revenue in favour of the respondent/ defendant.