' This Revision is directed against the judgment dated 28-2-1973 passed by the learned District Judge, Dadu in Civil Appeal No. 3 of 1972, whereby he set aside the judgment and decree passed by the learned Civil Judge, Kotri.
2. The facts which give rise to this Revision are that the applicants were the defendants in Suit No. 17 of 1961 filed by the respondents 5 to 7 for declaration and permanent injunction in respect of agricultural land bearing Survey numbers 1, 5, 6, 8, 9, 10 and 11 measuring 52-15 Acres situated in Deh Dhebari, Taluka Kotri, District Dadu. The respondents who were the plaintiffs claimed the above-mentioned agricultural lands as owned by their grandfather and from whom their father and ultimately they temselves inherited inasmuch as their grand father having died in 1918 ownership devolved on their father who died in 1962 whereafter they became the owners by virtue of inheritance from their father. On the assumption that they were the owners, the respondents in their suit described the applicants as their tenants because of the possession of the applicants of the land in dispute. In order to explain and avoid the consequences of the period of limitation running against them, they further claimed having received the Zamindari share from the applicants from time to time and on the ultimate refusal of the applicants giving them the Zemindari share of the produce and stopping them from raising Bund on the land, they stretched the cause of action in their favour from 1926 to 1967 and filed the said suit. The applicants on their part claimed to be the owners of the land in dispute on the strength of ownership right of their ancestors recorded in the revenue record from 1926-27 onwards which progressively by the process of inheritance on account of deaths of the ancestors got mutated in their names and stands in their names till date. The defendants/applicants in their written statement also claimed alternatively the right of ownership by adverse possession which admittedly was extended over 40 years and was fully supported not only by the revenue record but also by the declared exclusive enjoyment of the property in dispute by the applicants.
3. The learned trial Court on the pleadings of the parties framed thirteen issues on 18-2-1969 and amended issues were framed on 22-1-1970.
4. The respondents examined P.W. No. 1 Ghulam Mehdi, P.W. No. 2 Punhonn, P.W. No. 3 Muhammad Iqbal, P.W. No. 4 Ghulam Rasool, P.W. No. 5 Chhappar Khan and P.W. No. 6 Ghulam Muhammad. The applicants/defendants examined D.W. No. 1 Rustam, D.W. No. 2 Mahkumuddin and D.W. No. 3 Ghulam Ali Khan.
5. The learned Civil Judge after recording the evidence and taking into consideration the arguments of the learned counsel for the parties held on issues Nos. 1, 2 and 4 that the suit is within time and maintainable and properly valued and stamped. On issue No. 3 he maintained that the plaintiffs/respondents are agriculturists but the decision of this issue is immaterial. On issues Nos. 5 and 6 he has held that the applicants are not owners of the suit land nor some of the respondents their tenants. As to issue No. 7 he held in negative. On issue No. 8 also he held that the entries in the Record-of-Rights are not forged. On issue No. 9 his finding is that this issue is not necessary and is dropped.
6. On Issues Nos. 10 and 11, he has held in affirmative. On issue No. 12 he has come to the conclusion that the respondents are out of possession of the suit land and on issue No. 13 he held that the suit be dismissed with costs.
7. The respondents/plaintiffs filed an appeal being Appeal No. 3 of 1972 before the District Judge, Dadu, who allowed the same by judgment dated 15-2-1973 with costs and set aside the judgment and decree passed by the learned Civil Judge, Kotri.
8. The applicants/defendants being aggrieved have preferred this Revision against the said judgment and decree on the grounds mentioned in the memo. of Revision.
9. I have heard Mr. Ghulam Hussain Abbasi, the learned counsel for the applicants and Mr. Syed Inayat Ali, the learned counsel for the respondents Nos. 5 to 7. The respondents Nos. 1 to 4 have no interest whatsoever in the lands and as such they do not have any grievance to agitate. It is for this reason they are cited on the opposite side in the aforesaid Revision by the applicants and they were not represented by any counsel.
10. Mr. G.H. Abbasi, the learned counsel for the applicants, has urged the following points:
(i) That the mutation of the names recorded in the Record-of-Rights in the years 1926-27.
(ii) The applicants have acquired the suit land by adverse possession.
(iii) The suit is barred by limitation.
Mr. Abbasi, the learned counsel for the applicants, has relied on the following decisions in support of his arguments:-
(1) PLD 1971 SC 762,
(2) PLD 1970 Lah. 614,
(3) AIR 1927 Cal. 117,
(4) AIR 1945 Lah. 17,
(5) I L R 3 Bom. 173,
(6) PLD 1962 Kar. 746,
(7) PLD 1963 W.P.(Rev.) 16
(8) PLD 1963 Pesh. 65,
(9) AIR 1930 P C 93,
(10) AIR 1940 P C 193,
(11) AIR 1949 P C 87,
(12) AIR 1927 Lah. 607,
(13) AIR 18 I C 218,
(14) AIR 1929 Lah. 93,
(15) AIR 1934 Lah. 472,
(16) 1980 CLC 273,
(17) PLD 1981 Kar. 339,
(18) AIR 1951 Est. Punjab 126,
(19) AIR 1936 P C 253,
(20) PLD 1964 SC 538 and
(21) AIR 1949 P C 59.
11. On the other hand Mr. Syed Inayat Ali, learned counsel for the respondents 5 to 7 has urged that the Revision is not competent. He has relied on the following decisions in support of his arguments:
(1) AIR 1949 P C 156,
(2) PLD 1983 SC 53,
(3) PLD 1964 Kar. 149 and
(4) AIR 1917 P C 71.
12. The record of the case and the judgment of the the learned Courts below have been perused by me with the assistance of the learned counsel for the applicants as well as respondents 5 to 7. I have considered the said points in the light of the record but I find myself unable to subscribe to any one of these three points.
13. The findings of the District Judge that entries Exh. 48 and the evidence of the plaintiff/respondent are supported by an independent witness P.W. 3 Muhammad Iqbal who was Tapedar of the beat. He had brought the original register of D Form III of the suit land from Taluka Office of the year 1907-08 and he had supported the entry incorporated in Exh.
48. The said Iqbal stated in his deposition that the suit land Barani which was not cultivated from year 1938 to 1948 and again from 1949 to 1959. On the side of the respondents/applicants no official from the Revenue Department was produced to say something about the mutation of the Revenue Record changed in their favour and they had based their claim on the record produced by P.W. 3 Muhammad Iqbal. The said witness stated that in the old record the name of Bajhi Khan and Chhutto and two other Khosas appeared to be the owners of the suit land and again in Record-of- Rights of the year 1926-27. These entries were cancelled and the names of the applicants were incorporated without any reason being assigned and enquiries being held by Revenue authorities as contemplated by the Sind Revenue Code. He further admitted that the mutation in the Record- of-Rights is always to be done on the basis of some statements or proper order by the authority concerned and the entries are maintained in the register of disputed documents and then in D- Form No. VII and further that page containing entry regarding serial number 1 is missing from D- Form VI and the entries regarding Survey numbers 5, 6, 8, 10 and 11 have been scored off and names of other persons namely Laloo, Motio, Saleh, Sajjan, Abdullah and Rustam had been substituted and these alterations bore no signature or initial of any official. Column No. 13 of the register which is meant, for the entries in D-Form VII has been left blank. These registers of D-Forms Nos. III and VI have been produced as Exhs. 67 and 68. These findings of the learned District Judge are findings of facts which are duly supported by evidence on record. The said entries, therefore, were not reliable and had rightly been excluded from consideration. There was no jurisdictional defect in the act of District Judge in not relying upon these entries in deciding the question as to whether the respondents had been able to prove their title or proprietary interest in the agricultural lands.
14. It is advantageous to reproduce section 135-J of the Sind Land Revenue Code which reads as follows:- "An entry in the record-of-rights, and a certified entry in the register of mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor."
15. The learned counsel for the applicants has contended that the lands standing in the name of applicants predecessors-in-interest since 1926. Under section 135 of the said Land Revenue Code, these entries were an important piece of evidence in the applicant's predecessors and after their death in favour of applicants but all this section lays down is that an entry in the Record-of-Rights shall be presumed to be true until the contrary is proved it does not raise any presumption as to the ownership of the land.
16. In the case of Nirman Singh and others v. Lal Rudhra Partab Narain Singh and others reported in 1925/26 (Vol. 53) L R I A 220 at page 227 the Privy Council held:- "The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh leads, their Lordships to think that it is to a great degree based on the mischievous but persistent error that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with the greater confidence that the revenue for it will be paid.
' It is a little less than a travesty of judicial proceeding to regard the two orders above referred to as judicial determinations expelling proprio vigore any individual from any proprietary right or interest he claims in immovable property".
'Lord Macnaghten, in Corea v. Appuhamy reported in 1912 A C 230 said to the effect that "possession is never considered adverse if it can be referred to a lawful title. Their Lordships of Privy Council in 53 L R I A 220 held that "the entry deleting names of predecessor-in interest of respondents did not affect and were not intended or designed to affect proprio vigore an exclusion of the plaintiffs on all interest in the property".
17. Birdwood, J. in Bhagoji and another v. Bapuji 1888 I L R 13 Born. 75 said as follows:- "At the hearing the lower Appellate Court should have its attention directed to the ruling in Fatma v.
Darya Saheb 1873, 1,0 B.H.G. 187 in which it was held that the Collector's book is kept for purposes of revenue, not for purposes of title. The fact of a person's name being entered in the Collector's book as occupant of land does not necessarily of itself establish that persons title or defeat the title of any other person."
' In Gangabai and others v. Fakirgowla AIR 1930 P C 93 their Lordships of Privy Council considered the question of the evidentiary value and presumption of correctness to be attached to, entries made in the Record-of-Rights under section 7 of the Bombay Act IV of 1903. In that case, Sir Binod Mitter speaking for the Privy Council stated as under:- "Their Lordships do not hold that the entries made under the Bombay Act 4 of 1903 are in any way conclusive, but they are evidence of the facts recorded therein. The pronouncement of Lord Shaw that the importance of revenue records varies with circumstances applies directly to the present case. Their Lordships have already pointed out the manner in which entries under the Bombay Act 4 of 1903 were made and the strict scrutiny to which they must have been subjected. The entries exhibited in this case spread over a series of years. The Act, as has been pointed out, contains careful provisions for the entries being checked from time to time, and in the circumstances of this case the entries are in their Lordships opinion cogent, though not conclusive, evidence of the facts recorded therein."
' In the case of Kasim Kamdar v. Chanderbhan Wadhumal PLD 1962 Kar. 253 Waheeduddin, J. while reiterating his earlier view that under section 135-J of the Land Revenue Code an entry in the Record-of Rights, and a certified entry in the Register of mutations, is to be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor, held that such presumption did not apply to entries made in ex parte proceedings and stated:- "No doubt in this case a new entry was substituted but it is quite plain to us that this was done in an ex parte proceeding in the absence of the respondents and no importance can be attached to such an entry."
17. I am in respectful agreement with the view expressed in the above decision, which is based on the Privy Council's decisions in Fakirgowa's case reported in 41 I A 51. In the instant case, as in Kasim Kamdar's case, the entries in the Record-of-Rights, on which Mr. G.H. Abbasi has relied upon was admittedly made ex parte and in the absence of the predecessors of the respondents Nos. 5 to 7.
18. The circumstances in which the said entries have been made also do not inspire confidence. I have already referred to the fact that the orders of the competent authorities on the basis of which the said entries purported to have been made, are not forthcoming. As such it is not possible to place any reliance on the entries of Record-of-Rights for the purpose of holding that the disputed land was actually transferred in the names of the predecessors of applicants. In the circumstances of the case I do not find any force in this contention and the same is rejected.
19. As regards contention No. 2, the learned counsel for the applicants has contended that the applicants have acquired the suit land on the basis of adverse possession. Over and above all the respondents Nos. 1 to 4 have given no evidence to show that they had ever set up title over the suit land adverse to the owners. They have not established any overt act on their part giving a notice or even indicating to the owners Bajhi Khan and later his son or the respondents 1 to 4 that the applicants are denying their title over the suit land. The said evidence does not disclose that their claim to the suit land was open, overt and hostile to the owners.
20. The applicants had alleged in thir written-statement that, firstly, they had become owners by adverse possession and, secondly, their ancestors were owners of the property by virtue of entries in the Record-of-Rights and they inherited it from them. So far as the contention is concerned, then it means that if a person alleges adverse possession over property, then it- means that they are not actually its owners but have come to occupy it by some overt act and then set up a hostile title claim against the actual owners. As such it was imperative upon the applicants to have disclosed as to who were the actual owners of the suit land against whom they were setting up a hostile title and whose right to obtain possession thereof had extinguished under section 28 of the Limitation Act, 1908. The applicants have not brought an iota of evidence, oral or documentary, on this point.
21. The learned counsel for the applicants has urged that the suit is barred by limitation and it is the duty of the appellate Court to consider the question of limitation.
22. The trial Court has held that the suit is within time. The applicants did not prefer any cross- appeal against the decision on this issue as such the learned District Judge did not consider the arguments on this point in view of the facts that no cross-appeal or cross-objections had been filed by the applicants.
23. On the other hand Mr. Syed Inayat Ali, learned counsel for the respondent, has contended that section 115 of Civil Procedure Code is not directed against conclusions of law or facts in which the question of jurisdiction is not involved. The learned counsel has contended that the suit was filed within time.
24. The learned counsel for the applicants has drawn my attention to provisions of section 3 of the Limitation Act. Section 3 requires that whether the plea of limitation was raised or not, it is a duty of the Court to have noticed this point and decide it in accordance with law. In the case of Khairati and 4 others v. Aleemuddin and another PLD 1973 SC 295 the Hon'ble Supreme Court laid down the following dictum:- "The next contention of the learned counsel appearing in support of this review petition is that it is, in any event, the duty of the Court to consider the question of limitation. This is also correct to the extent it goes, but it does not mean that where a trial Court has given a finding on the question of limitation against a particular party, he can still, without filing an appeal or cross-objections, challenge that finding in the higher Court of appeal.
' The appellate Court is certainly bound to consider whether the appeal is within time or not, but it is not called upon to consider whether the suit has been rightly held to be within time, if no appeal or cross-objection is filed."
' In the case of Ghulam Muhammad and others v. Mian Abdul Qadir Khan and others PLD 1983 SC 68 the Hon'ble Supreme Court laid down the following dictum:- "It is not necessary to go into the question whether the suit was not time-barred beacuse this point was not urged on behalf of the petitioners during the hearing of the revision petition in the High Court. Learned counsel has argued that even though it is not conceded by him that the point was not pressed in the High Court, it was also the duty of the learned Judge in the High Court himself to examine the question of limitation. Firstly because it is so required by section 3 of the Limitation Act and secondly because the plea was raised before the trial Court, the appellate Court and also in the grounds of revision petition. No doubt one trend in old authority was that every point relatable to limitation could be urged in the higher forum even if not pressed earlier but this Court finally resolved the controversy in Khairati and 4 others v. Aleem-ud-Din and another. The ratio of this decision is that although it would be necessary for the appellate Court (here the High Court) to examine whether the proceedings instituted before it are within limitation, it will not be under any legal obligation to do so if the plea of limitation related to the institution of the suit/proceedings before the trial Court. Learned counsel tried to distinguish this authority on the ground that it applied only when no appeal/revision was filed by the party (relying on the point of limitation) and not when the point is not pressed at the time of the argument. The distinction is too technical to be given any importance. If the party having raised a point in the memorandum of appeal or revision does not press the same at the time of the hearing normal presumption is that the same was not intended to be pressed and thus was given up."
' In the case of Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 the Hon'ble Supreme Court of Pakistan has held as follows:- "The ruling, as is apparent, is not on all fours with the present case, because here, the High Court has interfered not because the evidence on record admitted of the possibility of another view, but because the trial Court had reached a finding not sustainable in law and the appellate Court had omitted to examine the correctness of that finding for the reason of the defendants having chosen to abandon their objection to it. It was held in Tara Sankar Ghosh and others v. Basiruddin and others, that a wrong decision on limitation will not debar the High Court from revising such decision. The waiver by the respondents before the appellate Court and the omission on the part of that Court to decide the question, will, therefore, not deprive the High Court of its power under section 115, C.P.C. to suo motu go into the question if the material already on record was sufficient to establish that the suit was beyond time. This is supported by the dictum of this Court in Manager, Jammu and Kashmir State Property v. Khuda Yar.
' The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is neverthe less very vast and corresponds to a remedy or certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and secondly, the Court may make such order in the case it thinks fit."
25. The respondents Nos. 5 to 7 in para. 21 of their plaint stated that the applicants started interfering with their legitimate rights of ownership over the disputed land. The applicants filed written-statement and stated therein that the suit is time-barred.
26. The respondents 5 to 7 examined P.W. 1 Ghulam Mehdi who stated in his examination-in-chief:- "About 3 years ago.; we decided to construct a Bund for storing the water. We, therefore, started construction work. Defendants who are Khaskhelis raised objection over the construction of the Bund. We, therefore, went to Punhoon Khan Nekmard for settling the dispute. He persuaded the defendants not to disturb the construction work, but the defendants did not listen him on the pretext that the land belonged to them."
' The said witness to a question in cross-examination stated that he came to know about the changes of record only three years ago. The learned trial Court on the basis of evidence held that the suit is within time. It is the case of the applicants that the rights to sue accrued to the respondents 5 to 7 in 1926-27 as the revenue record in that year stood in the name of the applicants and their ancestors and the respondents/plaintiffs have mainly attacked the genuineness of such entries. I have already held earlier that the entries which were recorded in the year 1926-27 were not to be relied upon and the same were recorded ex parte and the entries were based unauthoratively. I am of the view that the suit is within time.
27. I am of the opinion that this Court under section 115, C.P.C. cannot constitute itself a Court of appeal and that it has no right to reverse the judgment on question of fact or law unless the learned lower Court has given a perverse judgment or has overlooked essential evidence in the case.
28. After careful and thorough study of the evidence led by the parties in support of their rival contentions, I have come to the conclusion that the findings of the appellate Court are in accordance with law. I am not prepared to interfere.
29. In the result I dismiss the above revision application but under the circumstances without costs.