MOHSIN AKHTAR KAYANI, J. Through this R.F.A., the appellant has assailed the judgment and decree dated 24.02.20211, passed by learned Civil Judge, 1st class (East), Islamabad, whereby suit filed by respondent for declaration, possession mandatory and permanent injunction has been decreed.
2. Brief facts referred in the instant appeal are that respondent Muhammad Ashfaq filed suit for declaration, possession, mandatory and permanent injunction that he purchased a plot measuring 10 marlas falling Khasras Nos. 44, 45 and 69, situated in village Khadrepar, Tehil and District Islamabad from one Abid Yasin/PW-4 vide registered sale deed No. 13897, dated 19.12.2007, registered before joint Sub-Registrar, Islamabad Ex.P-3 with specific description of property.
Respondent has alleged in the plaint that he constructed boundary wall and installed main gate on the subject property. Respondent was living in village Kurri, District Rawalpindi and in his absence defendant/appellant trespassed into his plot and constructed kacha room without any lawful authority. The act of defendant/appellant came into the knowledge of plaintiff/respondent in january 2008, who confronted the appellant on his illegal act, whereby appellant has referred his registered sale deed No.778, dated 26.0.1.2004 (Ex.D-1) and mutation, No.1561. As per the claim of respondent, appellant has nothing to do with the suit land as per his own sale deed which falls within Khasras Nos. 555 and 618, measuring 07 marla, situated at the distance of one km away from suit plot. Respondent filed an application before PS Korai, Islamabad for taking legal action against defendant/appellant and after initial inquiry qalandra under section 145 Cr.P.C. was sent to Illaqa Magistrate. Matter was also sent to revenue authorities who submitted report dated 08.02.2.008, Ex.P-8, which confirms the status of land in favour of respondent. Illaqa Magistrate passed the order for attachment on 13.03.2008 till further orders as dispute was likely to lead to breach of peace. Appellant in order to avoid legal action titled suit titled Sabir Hussain v.
Muhammad Ashfaq and others seeking declaration and permanent injunction. During the pendency of civil suit, appellant filed application before the Assistant Commissioner Rural on 14.11.2009 in pending proceedings under section 145 Cr.P.C. to discharge the qalandra as matter is pending in the civil court. Proceedings under section 145 Cr.P.C. and its report have been placed on record as Ex.D-2. All these actions persuaded the. respondent to file civil suit which has been contested by the appellant by filing written statement by mentioning description of his purchased plot of 07 Marla, situated in Khasras Nos.555 and 618 through mutation No. 1561, Mouza Khadereper, Islamabad and claimed that he purchased the said plot and installed electricity meter as well as gas connection on the suit property, also referred proceedings under section 145 Cr.P.C. Trial Court framed the initial issues on 14.02.2019 and additionally framed more issues on 06.02.2021, recorded evidence of four plaintiff's witnesses whereas defendant/appellant appeared himself as DW-1. The documentary evidence Ex.P-1 .to Ex.P-11 and Ex.D-1 to Ex.D-3 was appreciated and there-after trial court passed the decree in favour of plaintiff/respondent through impugned judgment. Hence, this appeal.
3. Learned counsel for the appellant contends that appellant filed suit earlier to the skit of respondent in which respondent/plaintiff recorded his statement that he has nothing to do with the land claimed by the appellant situated in Khasras Nos. 555 and 618, Mouza Khaderepar, Islamabad.
However, the suit of appellant was dismissed on 22.02.2010 and also claims that during the proceedings of civil suit a revenue official/Naib Tehsildar was appointed as local commission to ascertain the facts relating to controversy between the parties, who submitted report on 09.03.2011 but said report has not been appreciated by the trial court rather trial court relied upon the other report brought on record as Ex.P-8, which was procured during criminal proceedings under section 145 Cr.P.C., which was consigned due to pendency of matter in civil court; that trial court without summoning the revenue officials approved the report against settled principles of law; that trial court has not given any weightage to the appellant's sale deed which was executed earlier in the year 2004 as compared to the subsequent sale deed of respondent dated 19.12.2007.
4. Conversely, learned counsel for the respondent contends that entire revenue record confirms the status of respondent's land which is in possession of appellant without any lawful justification and trial court has rightly decided the matter based upon the revenue reports and record; that appellant has not discharged the burden to prove his claim that he is in possession of right property in accordance with the description provided in his sale deed.
5. Arguments heard, record perused.
6, Perusal of record reveals that entire controversy between the parties revolves around two different sets of sale deeds as well as mutations claimed by the appellant and the respondent referred as Ex.D-1 versus Ex.P-3, whereby description of suit plots are as under:- Appellant's claim.
Ex.D-1Respondent's claim, Ex.P-3 Sale deed dated 26.01.2003, registered at S.No.778, before Registrar, Islamabad, measuring 07 Marla, situated in Khewet No. 24, Khatooni Nos. 58,Sale deed dated 19.12.2007, registered at S.No.1 3897, before Sub Registrar, Islamabad, measuring 10 Marla, situated in Khewet No. 12, Khatooni No. 39, Khasra No. 69 (total land 01 08 59, Khasra No. 555 (total land 10 kanal, 14 marla) and 618 (total land 09 kanal, kanal, 09 marla) (02 qitaat measuring 20 kanal, 03 marla, share 7/403) through mutation No. 1561, revenue estate Mouza Khaderepar, Tehsil and District Islamabad.
Last vendor/Owner Sarwar Khan.
Description of Land:- On East: plot of Muhammad Rasheed; On West: plot of Haji Muhammad Siddiq; On North: Land of Sufi Lal; On South: Street 12 feet marla, share 7/28, 07 marla), Khewet No. 25, Khatooni No. 60, Khasra Nos. 44, 45 (total land 01 kanal, 14 marla, share 3/34, 03 marla) total 10 marla through mutation No. 2568, revenue estate Mouza Khaderepar, Tehsil and District Islamabad.
Last vendor/owner Abid Yasin.
Description of Land On East: House of Riaz;- On West: House of Arshad; On North: Land of Sufi Lal; On South: Street.
7. While comparing these two primary sets of documents brought on record without objection from either side respondent/plaintiff PW-1 claims that he purchased this land from one Abid Yasin/PW-4 and then subsequently mutated the land through Mutation No. 2568, Ex.-4 and reiterated his Stance referred in the plaint that he constructed boundary wall and also installed gate which was locked and in the year 2008, he came to know that his lock was broken and someone is constructing within the compound of respondent, where-after appellant has been identified as trespasser though his land falls within the Khasras Nos. 555 and 618 with 07 marla of land. As per PW-1:-
8. Respondent/PW-1 also highlighted that he filed application to the SHO PS Koral, whereby proceedings under section 145 Cr.P.C. were initiated and report was requisitioned by the Assistant Commissioner Rural/Illaqa Magistrate:-
9. The appellant in order to avoid legal proceedings filed civil suit for declaration, permanent injunction in which he has referred his ownership of land in Khasras Nos. 555 and 618. Counsel for respondent/plaintiff recorded his statement in the civil court on 22.02.2010 that respondent has nothing to do with the land situated in Khasras Nos. 555 and 618, claimed by the appellant, resultantly, suit was dismissed. PW-1 also highlighted that separate local commission was also appointed.
10. Initial onus is upon the respondent to prove that his plot is entirely different with the plot claimed by the appellant in terms of Article 117 of the Qanun-e-Shahadat Order, 1984. He was cross- examined at length but nothing fruitful has been achieved. Even in order to discharge the burden respondent has produced PW-2 Mukhtar-ul-Haq, who confirms the purchase of plot as well as construction of boundary wall and installation of main gate by respondent. Even PW-2 also participated in the previous negotiations and inquiry qua the claim of appellant and proceedings before police. The additional witness Yasir Mehmood/PW-3 is properly dealer who confirms that Ashfaq/plaintiff/respondent has purchased the plot in Mouza Khaderepar through him from one Abid Yasin, measuring 10 marla, situated in Khasras Nos. 44, 45 and 69, which has been transferred in the name of respondent through registered sale deed and possession was handed over to him, who raised boundary wall and installed gate but later on came to know that Sabir Hussain started construction, which resulted into litigation. Nothing fruitful has been achieved through his cross- examination. Respondent further produced PW-4/Abid Yasin, who confirmed the sale of plot to the respondent measuring 10 marla and also confirmed that plot was purchased from S.M. Rizvi through sale deed and reconfirmed the description of land with the claim that on north side land of Sufi Lai, on west side house of Arshad, on south street, even he confirmed that when he sold out the land boundary wall has been constructed upto two feet and remaining height of boundary wall measuring 5 to 6 feet and installation of gate was completed by the plaintiff/respondent after complete wall construction. He confirmed that suit land falls within Khasras Nos. 44, 45 and 69. He also confirmed that demarcation was also carried out.
11. While comparing the evidence of respondent in juxtaposition with the claim of appellant Sabir Hussain/DW-1, who confirmed that he is owner of 07 Marla land, purchased from one Sarwar Khan son of Muhammad Tufail in Khasras Nos. 555 and 618, Mouza Khaderepar and produced sale deed Ex.D-1. During the course of cross-examination, he also confirmed that land was purchased through property dealer and his total land claim is 07 marla.
12. Now adverting towards the documentary evidence brought on record in shape of sale deed Ex.P-3 and Ex.D-1, I have also attended the record of rights as well as application addressed to SHO PS Korai. Report of Tehsildar has been placed on record as Ex.P-8 in which revenue official issued report dated 08.02.2008 to the SHO in terms of proceedings under section 145 Cr.P.C. in the following manner:-
13. The above mentioned report has further been clarified with report Ex.P-9 dated 13.03.2008, prepared by Illaqa, Magistrate on the direction of Assistant Commissioner Rural in the proceedings under section 145 Cr.P.C., whereby following has been recorded:-
14. These two reports, if seen in context of entire claim of the parties, it appears that the said revenue reports have been issued on the direction of lawful authorities in the proceedings under section 145 Cr.P.C., which are judicial proceedings, even otherwise, these reports have not been objected to by the appellant during the course of its submission, therefore, trial court has rightly observed the authenticity of these reports on the principles highlighted in judgment reported as Mst. Zainab v. Muhammad Iqbal 2005 YLR 2129, wherein it was held that documents forming part of judicial record are public documents.
15. In addition to above facts judicially noticeable need not to be proved in terms of Article 111 of the Qanun-e-Shahadat Order, 1984 if read in conjunction with Article 113 of the Qanun-e-Shahadat Order, 1984 the court shall take judicial notice of the judicial proceedings of Section 145 Cr.P.C. which facts have not been denied by the appellant. The term "judicial notice" means expression which has been recognized without proving of something as existing or being true.
Respondent/PW-1 in his plaint especially in paragraphs Nos. 4, 5, 6, 7, 8 and 11 reiterated the proceedings under section 145 Cr.P.C. as well as revenue reports whereby these judicial proceedings have not been denied in para-7 of the written statement on facts, even appellant being DW-1 relied upon the proceedings including the qalandra, police report and report of Illaqa Magistrate. In such eventuality, admissions made in pleadings, not require any further proof as held in Saeed Ahmed v. Haji Abdul Hameed 2017 CLC Note 184, Muhammad Imran v. Ghulam Mustafa and 6 others 2015 YLR 2683. All these aspects have rightly been appreciated by the trial court in collective findings of issues Nos. 1, 2, 2-A and 2-B respectively, even presumption of truth is attached with the judicial proceedings of Section 145 Cr.P.C. in terms of Article 91 of the Qanun-e- Shahadat Order, 1984 and has rightly been declared in the impugned judgment, therefore, in this scenario, one cannot wriggle out from the two separate reports prepared in proceedings under section 145 Cr.P.C. which is admitted phenomena in pleadings as well as in evidence.
16. The reports which were not objected to by the appellant referred in Ex. P-8 and Ex. P-9 confirm the common features that the claim of appellant is regarding land measuring 07 marla situated in Khasras Nos. 555 and 618, Mouza Khaderepar in comparison of 10 Marla land of the plaintiff/respondent in Khasras Nos. 44, 45 and 69, Monza Khaderepar. Similarly, land of appellant is far away from the land of respondent. In this backdrop the principle of preponderance has truly been applied by the trial court; no illegality has been committed appreciation of record, especially when the previous owner of land Abid Yasin/PW-4 confirmed the entire transaction.
17. In presence of above discussion and overwhelming evidence, including the revenue reports, appellant could not justify his case, especially when he has not produced any evidence to rebut the claim of respondent except his own testimony being DW-I, which is insufficient qua the technical reports of Ex.P-8 and Ex.P-9. Resultantly, instant appeal stands dismissed. However, in this backdrop, this court is inclined to issue certain parameters and direction to the Registrar, I.C.T. as well as to the Chief Commissioner, I.C.T., Member Board of Revenue, Collector to observe the following principle in letter and spirit in order to avoid any further litigation within I.C.T:- i. Halqa Patwari before issuance of any periodical record of rights for the purpose of sale he 'should ask the vendor/owner qua the possession of property and record this aspect in the daily diary while incorporating mutation in the register; Halqa Patwari shall verify the possession of property and may prepare a report confirming the actual possession by inspection or through girdawri iii. The Revenue officer/Tehsildar at the time of sanctioning mutation shall ensure the delivery of possession in jalsa-e-aam based upon report prepared by Halqa Patwari; iv. At the time of sanctioning mutation, if the land falls within the abadi deh Collector/Revenue officer is under legal obligation to requisition a report of physical inspection from subordinate revenue officials including Qanungo, Naib Tehsildar, Halqa Patwari, etc. and shall refer the surrounding containing the description of plot/land; v. The Member Board of Revenue/Chief Commissioner; I.C.T, Collector/Deputy Commissioner are under legal obligation to notify the abadi deh through notification under section 3 of the Land Revenue Act, 1967 in each Mouza, however, in case such notification was not issued then they should give certificate subject to verification through a circular directing sub-ordinate officials, Registrar, Joint Sub-Registrar, etc. to refer the land in abadi deh to avoid the future litigation; vi. No Registrar, Joint Sub-Registrar are authorized to register any sale deed of land meant for construction of house or built up property unless a physical verification with reference to possession through inquiry has been made and duly recorded in the record and till such time, sale deed shall be kept pending for its authorize execution, vii. Registrar, Joint Sub-Registrar or the Revenue Officer or Tehsildar may issue local commission through any official for verification of possession of property in abadi deh before sanctioning any mutation or sale deed; viii. Registrar, Joint Sub-Registrar, Tehsildar or the Revenue officer, who issue direction for verification/inspection of land under transfer, must maintain a separate register in sequence to maintain reports in their office as a public record, which must be used for any purpose required under the law in any trial, proceedings inquiry, etc; ix. Chief Commissioner shall issue these instructions through circular to his sub-ordinate officials and non-compliance of such direction may render departmental action against the officials. The circular must contain the timeline of inspection report, local commission report for verification of possession on site of any land which must receive before the Registrar or the Revenue officer within period of seven (07) days by all means so that general public should not be deprived from their transfer of immovable property rights; x. Chief Commissioner shall also call the joint survey before issuance of notification under section 3 of the Land Revenue Act, 1967 from the office of Surveyor General of Pakistan and may use modern devices including but not limited Google mapping, coordinate in land and if possible may also pass a direction to notify the coordinate i.e. longitude and latitude of any property or any particular point of reference for the purpose of identification of land in the sale deeds; xi. Chief Commissioner may also issue necessary directions to the MCI. Administrator or Mayor of the local government to issue identification number to the abadi deh \which could be used in the sale deed, gift deed, etc. in future; xii. Halqa Patwari, once notification under section 3 of the Land Revenue Act, 1967 issued declaring abadi deh and survey numbers have been marked, shall not record any mutation rather only sale deed, gift deed, etc. used as mode of transfer of immovable property; xiii. Sale deed must contain photographic evidence of vendor, vendee, seller, purchaser, as the case may be, along with witnesses to avoid any untoward claim of fraud in future;