This revision petition is directed against the judgment and decree passed by the learned District Judge, Rahimyar Khan, dated 22-5-1975 whereby he rejected the appeal of the petitioner against the judgment and decree passed by the learned Civil Judge, Liaqatpur on 5-10-1970, decreeing the suit of the plaintiffs/respondents.
2.The brief facts of the case are that the plaintiffs/respondents had filed a suit for declaration to the effect that mutation No.916 attested on 18-3-1937 was collusive, fictitious and inoperative qua the rights of the plaintiffs and was liable to be cancelled. They had also prayed for a perpetual injunction for the protection of their possession. The said suit was decreed by the learned Civil Judge for the declaration sought and permanent injunction prayed for. The present petitioners went in appeal but were unsuccessful as the same was dismissed by the learned District Judge, Rahimyar Khan, on 22-5-1975. This revision petition has been filed for setting aside both the aforementioned judgments and decrees.
3. Initially a controversy arose as to whether the revision was maintainable or a regular second appeal should have been preferred. Therefore, the case was referred to Division Bench of this Court for an authoritative pronouncement on this point. The same was resolved by the decision of the Division Bench of this Court vide its order dated 28-11-1987 whereby it was held that Civil Revision had rightly been instituted and regular second appeal was not preferable in this case, It was further ordered that this revision be placed before the Single Bench for disposal. Hence the present revision petition.
4. The following issues were framed by the learned lower Court out of the pleadings of the parties:- (1)Whether the plaintiffs are in possession of the suit land and suit can proceed in the present form? OPP (2)Whether the plaint is correctly valued for the purposes of court-fee and jurisdiction ? OPP (3)Whether the defendants Nos.1 to 9 (according to the original plaint) obtained the suit land on Adhlappi terms from the plaintiffs and the conditions of Adhlappi have been fulfilled? OPD (4)Whether the plaintiffs' suit is within time ? OPP (5)Whether the defendants have become the owners of the suit land by adverse possession by more than 12 years'? OPD (6)Relief.
Later on another issue No.5-A was added:- 5-A. Whether the plaintiffs are estopped to challenge the mutation by their conduct? OPD Issues Nos.1, 2 and 4 were decided in favour of the plaintiff. Issues Nos.3, 5 and 5-A were decided against the defendant. And the relief prayed for was granted.
5.The learned counsel for the petitioners based his case on the following three points:- (i)That the learned Courts below had committed an irregularity by holding that the Mutation N6.916 dated 18-3-37 was fictitious and, therefore, inoperative against the rights of the plaintiffs/respondents.
(ii)That the suit has been illegally held to be within time.
(iii)That the decision of the lower Courts on the issue of adverse possession against the petitioners was due to misreading and non-reading of the evidence.
6. To support his contentions the learned 'counsel for the petitioners referred to Exh.D-3 and urged that although., the mutation No. 916 dated 18-3-1937 has been entered at the behest of two of the four transferees namely, Ghulam Rasool and Ahmad Yar sons of Jan Muhammad, yet the statements of two of three transferors namely, Khan Muhammad and Karim Bakhsh were also recorded on 14-11-1936 i.e. Before the date of the sanction of the said mutation, and that the learned Courts below had committed a material irregularity in not adverting to this important aspect of the case.
7. He further argued that the learned Courts below had been under the misconception that the transferors themselves were the plaintiffs in the suit and appeared as PWs whereas in fact plaintiffs and the PWs are the legal heris of the original transferors and that thus the Courts below have misread the evidence.
8. His next argument was that the learned Courts below had relied on the principle of possession by co-sharers in respect of the point of limitation which in fact does not apply to the present case as the petitioners/defendants were not the co-sharers before sanction of the impugned mutation No.916 dated 18-3-1937 Exh.D3. Therefore, the limitation starts from the date they were put into possession which is the attestation date of the impugned mutation i.e. 18-3-1937 and that, therefore, the suit was time-barred under Article 120 of the Limitation Act as it was filed much after six years from the said date
9. He further submitted that both the Courts below had mis-read the Jamabandis Exh.D2 to Exh.D7, pertaining to the year 1939-40 to 1959-60 and Exh.D15 to Exh.D18 being the copies of Khasra Girdawaris. According to which some of the land was under cultivation and thus supported the plea of adverse possession of the petitioners/defendants but same had been brushed aside arbitrarily.
10. The learned counsel for the petitioners cited the following authorities to support his contention:- (i)PLD 1985 SC page 41.-This case relates to the oral evidence of Patwari getting corroboration from a document contemporaneously prepared in discharge of his official duties and who had recorded reports and proved admissions of vendor and vendee and also the sale transaction.
This is not relevant to the present case.
(ii)1985 SCMR 2029.--In this case it was held that High Court was justified in interfering with concurrent finding of fact (sic) documents by Courts below.
(iii)1986 SCMR 270: -This authority is also to the same effect as one cited above.
(iv)1986 SCMR 1018.--In this case it was held that High Court could pass any order deemed fit on discovery that material evidence had been ignored or misread.
The same principle has been enunciated in 1986 SCMR 1950.
There is no argument with the well-established principles laid down by the above-stated authorities. But these will apply only if it is established that in the present case the Courts below had misread or non-read the evidence.
(v)1985 SCMR page 497.--In this case the leave was granted on ground inter alia that Courts below had ignored Jamabandis exhibited in the case.
This is not true in the case of the present petitioners. It was held herein that burden to produce evidence was on the person claiming adverse possession based on entries in column of Lagan.
Therefore, in fact, it goes against the petitioners.
(vi)PLD 1971 SC 762.--has been relied upon to prove that the suit of the plaintiffs/respondents was time-barred under Article 120 of the Limitation Act.
This has no relevance to the case in hand. Herein it was held that the plaintiffs could not exclude the time spent in prosecuting time-barred appeal while computing period of limitation under Article 120, therefore, it has nothing in common with the facts of the present case.
(vii) 1986 CLC 233.--This case also deals with limitation and herein it was held that inaction, omission, negligence and not filing legal proceedings within prescribed period would create night in favour of opposite parties which could not be snatched away fightly by extending period under Limitation Act.
Once again this too is not relevant to the facts and circumstances of the case in hand.
(viii) PLD 1987 Lah. 771.--Herein as the plaintiffs had knowledge of the will proved by the compromise deed, therefore, the suit was held to be time--barred.
But in the present case there is no such documentary proof against the respondents/plaintiffs.
Hence this authority is not applicable hereto.
(ix)PLD 1986 Quetta 198.--This authority was cited to support the contention of adverse possession by the petitioners/defendants but in fact goes against them because herein:- (a)it was held that mutation entries would raise rebuttable presumption in favour of their correctness and could be rebutted by person challenging such entries by producing evidence contrary to them, and (b)it was further held in this authority that licensee could not claim adverse possession against licensor unless such licensee hands over vacant possession of the premises and subsequently enters upon the same under hostile title.
This is, however, not the position in the present case.
11. On the other hand, the learned counsel for the respondents states that case of the respondents was that the decisions of the learned lower Courts were based on concurrent findings of tact and law, and that the points raised by the learned counsel for the petitioners had been exhaustively dealt with in the said judgments. That Exh.D3, the impugned Mutation No.916 dated 18-3-1937 was held to be collusive, fictitious and inoperative qua the rights of the respondents/plaintiffs. He further pointed out that the entries in the impugned mutation were made on behalf of two of the petitioners/plaintiffs namely, Ghulam Rasool and Ahmad Yar, on the basis of their statements that they had sunk a well in the suit land and brought it under cultivation but such was not the case as established by the evidence, specially with reference to the Jamabandis Exh.D2 to Exh.D7 and Khasra Girdawaris Exh.D15 to Exh.D18, documents relied upon by the petitioners/defendants themselves. For it was brought out by these exhibits that the suit land was Banjar Qadeem and there was no well dug therein.
12. He further contended that the impugned mutation carried the thumb---impressions of Khan Muhammad, Ghulam Rasool and Ahmad Yar but it is not explained as to how the alleged thumb impression of Khan Muhammad came to be under the said report; and that there is no explanation or identification as to who Karim Bakhsh is, and in what capacity hits statement has been recorded in the impugned mutation because he was nether alleged to be a transferor nor a transferee and has neither been petitioner nor a respondent at any stage of the present litigation. It was also pointed out that although there are three transferees namely Khan Muhammad son of Obbel, Fareed Bakhsh son of Karima and Fa71 son of Wasaya, yet only statement of Khan Muhammad is recorded and that too is without any identification thereof He submitted that the Revenue official had illegally transferred the share of Fazili in his absence, and to have followed a procedure of advertisement etc. Of which there is no proof and evidence whatsoever. To support his contention he has also relied upon Exh.C-1 which is a report by the learned Local Commissioner Abdul Rehman who appeared as PW.3 and confirmed his report to the effect that there was no well in the disputed Khata.
13. He further relied upon PW.1 Fareed Bakhsh one of the plaintiffs now represented by his legal representatives who in his testimony had clearly stated that he had never made any statement before the Revenue Officer nor had he handed over the possession of the suit land to the petitioners/defendants. He also referred to the statement of DW.1 Ahmad Yar who had admitted that Fareed Bakhsh son of Karima plaintiff No.2 was around 36 years of age. As the statement of DW.1 was recorded on 6-6-1966, therefore, obviously Fareed Bakhsh plaintiff No.2 could not be a major at the time of attestation of the mutation. It was also minted out that in his testimony DW.1 had said that the land in dispute was transferred by Khan Muhammad father of Rasool Bakhsh and by Karim Bakhsh son of Fareed Bakhsh whereas Karim Bakhsh is not mentioned as a transferor in the impugned mutation.
14. Learned counsel for the respondents relied on the following authorities to support his contentions:- On point of limitation he relied on (i)1973 SCMR 248.-which is to the effect that the time under Article 120, which is six years, begins to run from the date right to sue accrues.
(ii)1983 SCMR 626. Wherein it was held that mere fact that mutation was attested in 1907 and 1908 does not place sanctity to transaction in such mutations conferred no right in property.
(iii)1983 SCMR 988.--This authority is to the effect that entries in Jamabandi do not provide foundation of title in property but are mere items of evidence to prove title and that such entries carry a rebuttable presumption of correctness.
(iv)1983 SCMR 1187.--It was held in this judgment that judgment and decree maintained in first and second appeals in respect of suit for possession arising out of breach of terms of Adhlappi Mustajari agreement, was not fit case for interference as points raised were basically on fact.
(v)1982 SCMR 284.--It was held in this case that whether relevant mutation was genuine or fictitious, was clear on the question of fact, and that finding recorded on the issue by the learned trial Court and concurred by learned District Judge, being final High Court rightly dismissed the second appeal on the ground of matter having been concluded by a finding on fact.
(vi)1987 CLC 115.--Herein it was held that mere fact of findings of Courts below being wrong on point of fact or on point of law unrelatable to exercise of jurisdiction was not to bring the case within four corners of section 115 of C.P.C.
(vii) 1987 CLC 2485.--According to this authority the exercise of revisional jurisdiction being limited only to correction of errors of jurisdiction committed by Courts below, such jurisdiction not to get attracted to case of mere wrong decisions on questions of fact or even of law.
(viii) PLD 1987 Lah. 663.--It was held that as no illegality or error of jurisdiction was pointed out to have been committed by Courts below in passing their decrees, therefore, no case at all for interference under section 115 C.P.C.
15. The learned counsel for the respondents also pleaded for rejecting civil revision petition on the ground that a necessary party namely Mst. Noor Khatoon, appellant No.6, before the lower Appellate Court was not made a party to this civil revision petition as one of the revisional petitioners. To support his contention the learned counsel also relied upon the following authorities:- (i)PLD 1974 SC 322.
(ii)PLD 1982 SC 46.
(iii)PLD 1987 Lah. 387.
(iv)PLD 1987 Lah. 232.
(v)1982 CLC 313.
All these cases, however, deal with appeals and not revision petitions. The learned counsel for the petitioners met this objection by asserting that a revision petition does not have to strictly comply with the technical requirements of the C.P.C. As the revision petition is being disposed of for the reasons recorded herein, therefore, at this stage I do not find it necessary to deal with this point.
16. A perusal of the judgments of the learned lower Courts shows that the contentions of the learned counsel for the petitioners are misconceived and are not supported by the record of the case. In the first instance the learned trial Court has dealt with every documentary piece of evidence. Every such Exhibit has been taken into consideration by the said Court in coming to the conclusion. The finding on every issue is very comprehensively discussed and no piece of evidence recorded or document exhibited has been ignored.
It would be of advantage to refer to the judgment dated 5-10-1970 of the learned trial Court on the issues framed in the suit.
Issue No.1.--This issue was decided in favour of the plaintiffs on the ground that the Jamabandis Exh.D.2 to Exh.D.7 clearly indicate that the suit land is Banjar Oadeem and as it is an admitted principle of law that in case of barren land the possession is considered to be that of the true owners. This finding is based on the evidence of the petitioners/defendants themselves and no exception has been taken to it by them.
Issue No.2.--This issue was also decided in favour of the plaintiff and it was held that the suit was correctly valued for the purposes of court-fee and jurisdiction. No exception was taken against these findings either.
Issue No.3.--This issue was considered very material to the determination of the whole case and it was held that the petitioners/defendants had miserably failed to discharge the burden of proof of this issue and it was decided against them. The learned trial Court has dealt exhaustively with this issue and has referred to and taken into consideration all the documentary and oral evidence relevant to it. And in support of the finding reliance was placed on the following precedents:-
(i) PLD 1968 Pesh. 148.
(ii) PLD 1970 Pesh. 141.
(iii) PLD 1964 Pesh.159 and
(iv) PLD 1965 Lah. 472.
The combined effect of these rulings is that the records of rights do not create or extinguish the title but are merely evidence thereof. In PLD 1970 Pesh. 141 it was laid down by His Lordship Mr. Justice Sardar Muhammad Iqbal, J., that-- "the mutation and for the matter of that the subsequent entries in the Record of Rights do not create any title in favour of any person. These documents are not the deeds of title. The validity or otherwise of a transaction depends not on the mutation or entries in Record of Rights but on the fact whether there was a valid transaction in existence which was given effect to in the revenue papers."
This ruling squarely fits in the frame of the present suit. In PLD 1964 Pesh. 159, it was held by his Lordship Mr. Justice Feroze Nana Ghulamally that:- Entries based on mutation proceedings are not proof by themselves of title. Burden of proof lies on parties in whose favour entries exist and not on the parties challenging correctness of such entries.
Issue No.4.--This issue was also decided in favour of the plaintiffs and it was held that as Article 120 of the Limitation Act is applicable to the suit, and as it was in 1961 when the defendants interfered with the possession of the plaintiffs by asserting their title to the property, and as the suit was initiated in 1964, which is within six years of the first date of 1961, therefore, the suit was within time.
Issue No.5.--The onus to prove this issue of ownership by adverse possession was on the petitioners/defendants themselves. They had based their case on Exh.D1 to Exh.D7 and Exs.D 15 to Exh.D18 and the impugned mutation. After taking all these Exhibits into consideration, the trial Court came to the conclusion that the defendants have not succeeded in establishing their plea of adverse possession. The learned trial Court specifically referred to the statement of D.W.1, Ahmad Yar and pointed out that he had not asserted his right of adverse possession to the suit land in his testimony.
Issue NO.5.A. ---This issue was also held against the petitioners/defendants as there was no Adhlappi agreement between the parties therefore, no estoppel operated against the plaintiffs.
Issue No.6 (Relief).--The relief prayed was granted and it was held that the plaintiffs are declared to be the owners in possession of the suit land. A perpetual injunction was also issued against the defendants and they were restrained from denying the title of the plaintiffs to the suit land or from interfering with their possession of the said land. The parties were left to beat their own costs.
Thereafter on appeal by the petitioners/defedants, the learned District Judge has also thoroughly evaluated the evidence and has discussed the findings on all the issues between the parties framed by the learned trial Court and has B dismissed the appeal after a detailed and thorough appreciation of all the evidence in the case.
17. After having heard the parties and perused the record and discussed the lower Courts' judgments the conclusion is that, firstly there was no Adhlappi agreement between the parties for the same has not been proved in any manner whatsoever, that if it is conceded for arguments sake that there was one, then the same agreement was not fulfilled as no well was sunk nor land made cultivable; secondly, that there was no evidence to establish the possession of the suit land by the petitioners/defendants to establish their case of adverse possession. On the contrary the documents relied upon by the said party i.e. Exh.D.2 to Exh.D.7 and Exh.D.10 to Exh.D.18 itself states that land was Banjar Oadeem, therefore, the presumption in law and fact is that the original owners namely plaintiffs/respondents were in possession. Thirdly, that the entries in the impugned mutation Exh.D.3 themselves give rise to grave doubts about its validity and genuineness and in any case the said mutation entries have not been proved or corroborated by any evidence.
Fourthly, that the limitation in the present case starts from the date when the petitioners/defendants threatened to interfere with the ownership and possession of respondents/plaintiffs and, therefore, the suit was within time and it was rightly so held by the concurrent judgments of the learned lower Courts.
18. It shall be pertinent to point out here that the learned counsel for the petitioners could not show any misreading or non-reading of the evidence nor did he refer to any of the two judgments of the learned lower Courts to point out any material irregularity or illegality committed. He further more did not challenge any of the authorities relied upon by the learned Courts below to support their findings and his contention that none of the plaintiffs had appeared is belied by C the testimony of PW.1 plaintiff No.2. The case-law cited by him is either irrelevant or fails to support his contention as discussed and pointed out earlier. Whereas the authorities cited by the learned counsel for the respondents are relevant, to the point and fully support his plea that no case is made out for interference under the revisional jurisdiction in the present case.
19. In view of the discussion herein and the reasons stated above this Civil Revision fails and is hereby dismissed with costs.