1. SAEEDUZZAMAN SIDDIQUI, J.---The above appeal, with leave of this Court, is directed against the judgment of a learned Judge in Chambers of Lahore High Court, Multan Bench, dated 19-5-1991. By the impugned judgment the learned Judge declined to interfere with the judgment and decree dated 11-4-1991, passed by the 1st Appellate Court in Appeal No.138/13 .Of 1987 after reversing the judgment and decree of trial Court dated 19-4-1987, passed in Suit No.289 of 1983. Leave was granted in the case to consider the following legal issues arising in the appeal:-- "(1)Whether the resumption of the grant or a part of it ordered by the Collector vide order dated 5- 4-1938 was assailable in Civil Court for the first time in 1983?
2. (2)Whether the conferment of proprietary rights having taken place by registered deed in the year 1966 could be challenged?
(3) Whether the suit filed was within time?"
3. Land measuring 202 kanals and 6 marlas situated in District Vehari, hereinafter to be referred to as "the suit land" only, was allotted jointly to three brothers, Muhammad Ibrahim, Shadi and Farid Bakhsh sons of Pir Bakhsh in equal shares on 7-6-1934. `Dakheelkari' rights in respect of the suit land were conferred on them through Mutation No. 15 dated 15-6-1937. Subsequently, allotment in favour of Farid Bakhsh (predecessor of respondents) to the extent of his 1%3 share in the suit land, was cancelled on 5-4-1938 and the cancelled land was resumed by the Government. The resumed land was later allotted in equal shares to Muhammad Ibrahim and Shadi. Mutations Nos.34 and 36 in the Revenue Record dated 29-5-1938 contain entries regarding resumption of land by the Government pursuant to order dated 5-4-1938 and the allotment of resumed land in favour of Muhammad Ibrahim and Shadi. Muhammad Ibrahim and Shadi thus became joint allottees in equal shares in respect of the suit land. Muhammad Ibrahim died on or about 1956 and on his death his 1/2 share in the suit land was mutated in favour of his legal heirs on 25-12-1957 vide Mutation No. 252. One of the legal heirs of Ibrahim, Rahim Bakhsh died subsequently and his share in the land was entered in favour of his legal heirs on 28-3-1971 vide Mutation No.77. The other co- allottee of the suit land, Shadi, died on or about 1971 and his 1/2 share in the land was entered in the Revenue Record in favour of his legal heirs through Mutation No.88 dated 2-1-1972. One of the legal heirs of Shadi, Umer Din, also died subsequently and his share in the land was entered in favour of his legal heirs vide Mutation No. 106 dated 3-6-1974. The suit land in the meantime, was also conveyed by the Government in favour of legal heirs of Ibrahim and Shadi through a registered sale-deed in 1966. Farid Bakhsh, predecessor of respondents died in the year 1978. On 30-1-1983, the respondents as successors of Farid Bakhsh, instituted Suit No.289 of 1983 before the Senior Civil Judge, Vehari, for declaration that they as legal heirs of Farid Bakhsh were entitled to 1/3 share in the suit land, impleading legal heirs of Ibrahim and Shadi and Government of Punjab as defendants in the suit. The trial Court framed the following issues in the case:-- . "(1)Whether the plaintiffs are owners of the disputed property and are in joint possession of the same?
4. (2)Whether the order dated 5-4-1938 and mutation of resumption No. 34 dated 29-5-1938 in favour of the Government and Mutation No.36 dated 29-5-1938 and Mutation No. 252 dated 25-12- 1957 and Mutation No. 77 dated 28-3-1971 and Mutation No. 106 dated 3-6-1974 were illegal, void and inoperative on the rights of the plaintiffs?
5. (3)Whether the suit is not maintainable in the present form?
6. (4)Whether the plaintiffs have no locus standi or cause of action to file this suit?
7. (5)Whether the suit is barred by time?
8. (6)Whether the plaintiffs are estopped to file this suit?
9. (7)Whether the suit has been wrongly valued for court-fee and jurisdiction purposes?
10. (8)Whether the suit is frivolous and vexatious and defendants Nos. 1 to 13 are entitled to special costs.
11. (9)Relief."
12. Issues Nos.1 and 2, which were the crucial issues in the case, were decided in favour of the appellants/defendants. The trial Court held that the share of respondents' predecessor, Farid Bakhsh, in the suit land was resumed by the Government by order dated 5-4-1938, and as a result of subsequent allotment of the. Resumed land to Ibrahim and Shadi, they became the owners of the suit land in equal shares. As a result of these findings on issues Nos.1 and 2, issues 5 and 6 were also held in favour of appellants. Consequently, the suit was dismissed. On appeal the first appellate Court reversed the findings of the trial Court on issues Nos. 1 and 2 and as a consequence thereof the findings of the trial Court on issues Nos. 5 and 6 were also reversed, with the result the suit of respondents was decreed. The Civil Revision Application filed by the appellants against the judgment and decree of the first appellate Court failed as the learned Judge in chambers found that the order of resumption of land dated 5-4-1938 was void order as it was passed against the express provisions of sections 10 and 24 of the Colonization of Government Lands (Punjab) Act, 1912. The learned Judge, accordingly, concurred with the conclusion of the first appellate Court. That the possession of appellants was on behalf of all the co-sharers and therefore, the suit was within time from the date the respondents became aware of the denial of their title to the suit land by the appellants. The appellants obtained leave to appeal against the-- judgment of High Court, as aforesaid.
13. The learned counsel for the appellants contended before us that the order for resumption of 1/3 share of Farid Bakhsh in the suit land was passed by the Government on 5-4-1938. This order, according to learned counsel, could not be brought under challenge before a Civil Court. It is also contended by the learned counsel that the mutations in favour of appellants and their predecessors in respect of the suit land having stood for over 40 years, same could not be challenged after a lapse of 45 years. It is further contended by the learned counsel that the suit land was finally conveyed by the Government through a registered sale-deed in favour of appellants in the year 1966 while predecessor of the respondents, Farid Bakhsh, was alive but neither the respondents nor their predecessors challenged the same. It is, accordingly, contended by the learned counsel that in these circumstances the findings of the learned Judge in chambers that the land was held by the appellants for and on behalf of respondents as co-owner, was not only contrary to the evidence on record but is. Also not sustainable in law.
14. The learned counsel for the respondents supported the judgment of High Court and contended that in view of the law laid down by this Court in the cases of Fatgh Muhammad v. Mushtaq Ahmad 1981 SCM R 1061, Aswa r Muhammad and others v. Sharfuddin 1983 SCM R 62 and Ghulam Ali v. Mst.
15. Ghulam Sarwar Naqvi PLD 1990 SC 1 the respondents continued to be the joint owners of the suit land and the suit instituted by them in 1983 was well within time. We have heard the learned counsel for the parties at length and our conclusions are as follows: The admitted position in the case is that the land was allotted to Ibrahim, Shadi and Farid Bakhsh jointly. The original allotment order or its copy has not been produced on record by any of the parties to the litigation. It is, therefore, not possible to ascertain the terms and conditions on which the land was allotted to them. The evidence on record shows that 1/3 share of Farid Bakhsh in the suit land was cancelled and resumed by order dated 5-4--1938. No doubt the order of cancellation of Farid Bakhsh's share in the suit land has not been produced on record but the mutation dated 29-5-1938 do show that the share of Farid Bakhsh in the suit land was resumed by the Government as, a consequence of cancellation of his share in the suit land by order dated 5-4-1938 and the resumed land was subsequently allotted to Ibrahim and Shadi in equal share. The mutation entries in the Revenue Record regarding cancellation of the share of Farid Bakhsli in the suit land and its subsequent allotment to Ibrahim and Shadi stood in the record unchallenged for about 45 years. It is also in the evidence that Ibrahim died in the year 1956, and treating him owner to the extent of 1/2 share in the suit land his. Share was mutated in favour of his legal heirs. Again in 1971 upon death of one of the legal heirs of Ibrahim, the share of the deceased heir was entered in favour of his legal heir. Shadi, the other co-allottee of the suit land, died in or about 1971 and his 1/2 share in the land was entered in the Revenue Record in favour of his legal heirs. Meanwhile the suit land was also conveyed through a registered sale-deed by the Government in favour of the heirs of Ibrahim and Shadi to the exclusion of Farid Bakhsh in the year 1966. Farid Bakhsh, who was alive until 1978, took no action when the suit land changed hands through mutations one after the other and finally through a registered sale-deed it was conveyed in favour of the heirs of Ibrahim and Shadi. In these circumstances, a - very heavy burden lay on the heirs of Farid Bakhsh to establish that late Farid Bakhsh and respondents were not aware of the cancellation of allotment of Farid Bakhsh and that late Muhammad Ibrahim and Shadi during their lifetime and after their death legal heirs acknowledged the rights of Farid Bakhsh in the suit land and continued to pay his share in the suit land during his lifetime and after his death to respondents. The respondents claimed before the trial Court that their father Farid Bakhsh placed explicit faith and confidence in his elder brother Muhammad Ibrahim who used to manage the suit land. It was also asserted by the respondents that Farid Bakhsh used to get his share of the produce from the suit land until his death.. The appellants who were defendants in the suit categorically denied these assertions. They claimed that they never paid any share of the produce to late Farid Bakhsh or to the respondents. They also claimed that Farid Bakhsh was not the joint allottee of the suit land after resumption of - his share in the land by the Government on 5-4-1938. The appellants asserted that all the installments of suit land were paid by them -and it was transferred in their favour in 1966 through a registered. Sale- deed. The evidence on record did not show that Farid Bakhsh or the respondents were ever in possession of the suit land or cultivated it. The respondents also could not tender in evidence any proof regarding any payment towards-the instalments of the land. The suit land was cultivated by Ibrahim according to respondents' own showing and after the death of Ibrahim, his son Muhammad Ali cultivated the land. Fateh Muhammad son of Shadi also cultivated the suit land along with Muhammad Ali. Hassan Muhammad (respondent No.1) in his statement before the trial Court , made the following statement in cross --examination:-- No doubt, respondents claimed before the trial Court that their father Farid Bakhsh and they did not know about the order dated 5-4-1938 and that they became aware of the same only 2-1/2 years before the filing of the suit when the appellants refused to give them their share of produce from the suit land. The preponderance of evidence, however, did not support their stand in the case. Even if it is assumed as claimed by the respondents that their father Farid Bakhsh on account of his love and- faith in his elder brother Ibrahim had left the management of the suit land to him, there is no evidence on record to show that after the death of Ibrahim in 1956, the legal heirs of Ibrahim and Shadi, the other co-allottee, accepted the claim of Farid Bakhsh in respect of suit land. -On the contrary, the mutation of 1/2 share of Ibrahim on his death in favour of his legal heirs would show that the legal heirs of Ibrahim never accepted the share of Farid Bakhsh in the suit land. In so far as Shadi was concerned there was no assertion by the respondents that after the deaih of Ibrahim he accepted the share of Farid Bakhsh in the suit land. Shadi died in'1971 and on his death his share to the extent of 1/2 in the suit land was also entered in favour of his legal heirs which would show that the legal heirs of Shadi also never accepted the claim of Farid Bakhsh in respect of the suit land. Apart from it, the land was conveyed by the Government in the year 1966 in favour of Shadi and the legal heirs of Ibrahim in equal shares through a registered document but Farid who was alive at that time and lived for about 12 years thereafter never objected to or challenged the transfer of land by the Government in favour of Shadi and legal heirs of Ibrahim to his exclusion. The trial Court while discussing issues Nos. 1 and 2 considered the assertion of the respondents that Farid Bakhsh and the respondents were not aware of the order dated 5-4-1938 and the subsequent mutation of land in favour of legal heirs of Ibrahim and Shadi in the light of the evidence on record as follows:-- "It is proved that originally the land in question was allotted in favour of lbrahim, Shadi and Farid Bakhsh, vide Ex.P-1. However, later on vide Mutation No.34 Exh.P-2, the share of Farid Bakhsh was resumed on the basis of the order dated 5-4-1938 passed by Sadder Nili Bar Pakpattan and an entry to this regard was duly made in Exh.P-2. The land so resumed on the basis of that very order dated 5-4-1938 was given to Ibrahim and Shadi vide Mutation No.36 Exh.P-3. The order dated 5-4- 1938 was nowhere challenged before any forum on behalf of plaintiffs side prior to this suit. In the affirmative evidence given by the plaintiffs their stand was that the order dated 5-4-1938 was procured by Ibrahim and Shadi deceased by deceitful means and in collusion with the Revenue staff. However, in the rebuttal evidence, as pointed out above, the plaintiffs have taken altogether a different stand asserting that the order dated 5-4-1938, has no existence and was never passed and that the entries in that regard are bogus. Thus, the plea of the plaintiffs raised subsequently is contradictory to their own case. Exh.P-2 and -Exh.P-3 clearly speak about the passing and existence of order dated 5-4-1938. The plaintiffs have not bothered to get a copy of the impugned order or cause the production of that very order through the relevant record by summoning the record witness of the relevant office. The order was passed by Sadder Nili Bar Pakpattan. The plaintiffs only summoned record witness of the record office, Vehari to prove the report Exh.P-10/1.
16. However, it is a clear admission of the plaintiff. No. 1 that he did not make any effort to sort out or enquire about the impugned order out of District Vehari. The order was passed at Pakpattan and duty was cast upon the plaintiffs to approach to the concerned Record Room- -outside Vehari because report Exh.P-M/1 had clearly indicated that record was not received in the office of Tehsil Vehari. Report Exh.P-10/1 does not prove that the impugned order in fact has no existence. It simply shows that this order was not available in the Record Office, Vehari. Failure on the part of the plaintiffs to make proper effort to cause the production of the said order goes to affect their case adversely. On the other hand entries in Exh.P-2 and Exh.P-3 clearly establish the passing of the order dated 5-4-1938."
17. The first appellate Court and the learned Judge in chambers did not agree with the above conclusion of the trial Court mainly for the reason that the order dated 5-4-1938 was a void order as there was nothing in the evidence on record to show that Farid Bakhsh~was heard before passing of the order G".'ed 5-4-1938. In arriving at the above conclusion, the first appellate Court as well as the learned Judge in chambers, firstly, failed to consider that under section 129 of the Qanun-e-Shahadat there is a presumption in law that judicial and official acts have been performed regularly. It is, therefore, quite clear that the burden of showing that the order 5-4-1938 was a void order or that it was passed without hearing the affected party, namely Farid Bakhsh, was entirely on the respondent. In this regard, the 1st appellate Court as well as the learned Judge in chambers failed to take into account the circumstances of the case which very strongly suggested that Farid Bakhsh, though aware, never challenged the validity .Of order dated 5-4-1938.
18. The first circumstance to be noted in this regard is the entry dated 5-4-1938 which stood in the Revenue Record' unchallenged for over 45 years, although Farid Bakhsh who was affected by this order, remained alive for a period of about 40 years' after the passing of the said order. The second important circumstance in the case to be noted is, that after' the passing of the order dated 5-4- 1938 Muhammad Ibrahim, one of the allottees of the land, died in 1956 and his 1/2 share .In the suit land was mutated in favour of his legal heirs. Thereafter there have been successive transfers of the said 1/2 share of Ibrahim through mutation on account of death of his legal heirs in favour of the surviving heirs but no objection was taken by Farid Bakhsh to these transfers. The other co- allottee of the land, Shadi, who claimed the other 1/2 share of the land died in the year 1971 and his share was also mutated in favour of his legal heirs. There have been, thus, several transfers of the suit land through mutation in favour of legal heirs of Ibrahim and Shadi to the exclusion of Farid Bakhsh between the years 1956 and 1971 but at no time Farid Bukhsh, who was very much alive, raised any objection to these transfers on the ground that he too was one of the sharers in the suit land. In addition to the above-referred mutations, the property was also transferred through registered sale-deed by the Government in the year 1966 in favour of Shadi and the legal heirs of Ibrahim in equal shares but Farid Bakhsh, who was not only alive at the time of this transfer but also lived for about 12 years thereafter, did not object to the above transfer of land to his exclusion in favour of Shadi and legal heirs of Ibrahim. In these circumstances, the conclusions by the first appellate Court . Which were confirmed by the learned Judge in chambers in revision, that the order dated 5-4-1938 was a void order are not sustainable in law. In this connection, it may also be mentioned that the assertion that the order dated 5-4-1938 was passed without hearing Farid Bakhsh was raised after about 45 years by the legal heirs of Farid Bakhsh and Farid Bakhsh, who was alive for about 40 years after passing of the said order never raised this objection. The objection raised by the legal heirs of Farid Bakhsh, therefore, in the circumstances of the case has little evidentiary value. The first appellate Court and the, learned Judge in Chambers while disagreeing with the conclusions of the, trial Court totally failed to take into account the above- noted circumstances and the reasoning of the trial Court, which were fully supported by the preponderance of. The evidence in the case: Similarly, the conclusion of the trial Court that the suit instituted by the legal heirs of Farid Bakhsh was time-barred, was based on correct appraisal of the circumstances and the evidence in the case. It is true that in case of successive denial of title, the person whose title is denied is not bound to sue for a declaration on each and every such denial howsoever trivial it may be. It is for the plaintiff to elect to file a suit as and when he feels aggrieved by such denial of his title. However, where denial of title is of a substantial nature and has the effect of depriving the person of his right in the property, such denial can only be ignored by the plaintiff at his own peril. In the present case,.
19. The order dated 5-4-1938 had the effect of depriving Farid Bakhsh of his right in the suit land, therefore, the right to sue accrued to Farid Bakhsh on 5-4-1938 and the suit for declaration of title should have been brought within the period prescribed under Article 120 of the Limitation Act.
20. However, the contention of the legal heirs of Farid Bakhsh before the Courts below was, that Farid Bakhsh was not aware of this order. Even if it is assumed that Farid Bakhsh did not know about the order dated 5-4-1938, for the reasons that he -reposed full confidence and faith in his elder brother Ibrahim who used to, cultivate and manage the suit land and that he never informed Farid Bakhsh about the order dated 5-4-1938, there was no justification to hold that when the land was transferred/mutated in favour of the legal heirs of Ibrahim, on his demise, to the exclusion of Farid Bakhsh, he remained unaware of the said mutation. The explicit denial by the legal heirs of Ibrahim and Shadi that they accepted Farid Bakhsh as the co-owner of the suit land or that they ever paid any share of the produce of the land to Farid Bakhsh or the respondents found full support from the evidence and attending circumstances of the case. Similarly, failure on the part of Farid Bakhsh to challenge the transfer of suit land by the Government in favour of Shadi and legal heirs of Ibrahim in 1966 through a registered deed had the effect of negating the title of Farid Bakhsh in the suit land. Therefore, in these circumstances Farid Bakhsh could not be deemed to be unaware about the assertion of the title by the legal heirs of Ibrahim and Shadi to the suit land. The learned counsel for the respondents has relied on the cases of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, Haji v. Khuda Yar PLD 1987 SC 453 and Najabat v. Saban Bibi PLD 1982 SC 187 in support of his contention that the appellants shall be deemed to be in possession of the suit land as joint owners along with the respondents as the suit land was originally allotted to Ibrahim, Shadi and Farid Bakhsh jointly and as such there was no question of limitation in the present case. The cases relied by the learned counsel for the respondents are of no help and assistance to the respondents in the circumstances and facts of the present case.
21. In Ghulam Ali v. Mst. Ghulam Sarwar Naqvi's case (supra), it was observed by this Court that the adverse entry in the Revenue Record and non-- participation in the profits of the property would not necessarily amount to an ouster of co-sharer as wrong mutation could not confer any right in respect of the property. It was also observed in that context that a suit for declaration filed upon the denial of the title of the co-sharer was within time.In the case of Najabat v. Saban Bibi (supra) two persons, Hidayat and lnayat were co-owners of the land along with one Naurang, the predecessor of the appellant in that case. Notwithstanding the co-ownership and possession, Naurang got a mutation sanctioned in 1902, whereby the names of Hidayat and Inayat were omitted as owners and Naurang was shown as the sole owner. On mediate protest of Hidayat and Inayat, Naurang executed a document on 4-5-1902, in which he admitted the ownership of Hidayat and Inayat. This arrangement. Was acted upon up to 1953 when the legal heirs of Naurang exchanged some of the suit land with another person which was considered as contravention of agreement dated 4-5-1902 and the suit was filed on 20-5-1954 seeking declaration of title. The suit in those circumstances was held to be within time.
22. 1n Haji v: Khuda Yar (supra), the suit land originally belonged to one Ghaus, the common ancestor of the parties in that case. On the death of said Ghaus, the land was entered in favour of his sons Karam, Alam, Saadat and Mehram in equal shares. Alain died subsequently issueless and on his death his share in the land was entered through mistake only in the name of one of his brothers Mehram. The Revenue Record continued to show this position' from 1877 to 1957, which consolidation process started in the village. The claim preferred by the legal heirs of Karam and Saadat during consolidation proceedings, that they were also entitled to inherit the share of Alam along with legal heirs of Mehram was rejected because of the entries in the Revenue Record, whereupon descendants of Karam filed a declaratory suit claiming title to the share of deceased Alam along with the descendants of Saadat. The suit filed in the year 1957 in these circumstances was held to be within time.
23. From the above discussion, it is quite clear that property in suit in each of the above-cited cases originally belonged to the common ancestors of the parties and it was through mistake during the mutation proceedings that the share of some of the legal heirs was not correctly entered in the record. It also appears from the facts of these cases that notwithstanding the omission of the names of some of -the legal heirs, their shares in the land was not disputed by the others. It is well settled that entries in the Revenue Record can neither create nor extinguish the title to the property.
24. These entries are maintained p mainly for fiscal purposes. Therefore, in each of the above-cited cases, in the facts and circumstances of the .Case, it was held that the parties being the co-, owners, the possession of one was held to be the possession for and on behalf of all the co-owners.
25. In the present case although the suit land was originally allotted to Ibrahim, Shadi and Farid Bakhsh in equal share by the Government but the share of Farid Bakhsh was cancelled and resumed by the Government under a specific order and the resumed land was allotted to Ibrahim and Shadi in equal share. In these circumstances the subsequent entries in the Revenue Record made in favour of Ibrahim and Shadi and thereafter in favour of their heirs was ~_ not on the basis of the original allotment of land made in favour of Ibrahim' Shadi and Farid Bakhsh but on the basis of the subsequent order of Government conferring rights on Ibrahim and Shadi alone in equal share.
26. Therefore, it could not be said that entries in the Revenue Record in favour of Ibrahim and Shadi, and thereafter in favour of their legal heirs, were erroneous or were the result of some mistake. The above-cited cases, therefore, are of no help to the respondents in the circumstances of the present case. We, accordingly, allow this appeal, reverse the findings of the two Courts below and restore the judgment and decree passed by the trial Court. There will, however, be no order as to costs in the circumstances of the case.
27. AA./M-1916/S