JUDGMENT JUDGMENT - CH. MUSHTAQ AHMAD KHAN, . J. ~ In this Civil Revision, the defendants of a declaratory suit on the basis of title filed by the respondent has challenged the judgment and decree of variance passed by the learned Addl. District Judge, Mianawali in favour of the respondent.
2. Facts of the case briefly stated are that a Mutation No. 5224 dated 30.8.43 was got sanctioned by the petitioners in their favour with regard to landed property owned by the respondent. On coming to know of this mutation, the respondent filed a suit seeking a declaration of title in the land in question to the extent of his one third share therein with a prayer for grant of a decree for permanent injunction to the-effect that the defendants should not be interfered With his possession This suit was filed on 20.2.1974 on the ground that he has never held held the land in question and that the mutation of sale is illegal, based on fraud and is null and void. This suit has been contested by the petitioners on the ground that the same is barred by time and that the mutation of sale is lawful and further that the defendants have acquired rights of ownership by adverse possession for a period of l2 years. On the pleadings of the parties, the learned trial court framed the following issues:-
1. Whether the plaintiff is the owner in possession of the suit land? OPP.
2. Whether the suit is within time? OPP.
3. Whether the plaintiff is out of possession and the suit is not maintainable in the present form?
OPD.
4. Whether the defendants have become owners of the suit land by adverse possession for more than l2 years? OPD.
5. Relief.
The suit was dismissed by the learned trial court holding that the plaintiff is not owner in possession of the land in question and further that the suit is barred by time. However it was held that the plaintiff is in possession of the land in question. Aggrieved of the judgment and decree dated 6.7.77 dismissing the suit filed by the plaintiff respondent, first appeal was filed in the district court of Mianwali which has been accepted by the learned AddL District Judge, Mianwali and the suit has been decreed.
2. Mirza Hafiz-ur-Rehman. Advocate has appeared on behalf to the petitioners and has raised the following arguments:-
(i) that there is no proof ol fraud on the file and further the basic evidence in the case to effect that the plaintiff was throughout serving in the Army when the mutation in question was sanctioned has not been produced and therefore best evidence having been withheld, it cannot be said that the mutation in question was not sanctioned in the presence of the plaintiff;
(ii) that the sale was preempted by the real paternal uncle of the plaintiff wherein a compromise was effected and therefore the plaintiff has no right to file that suit. Leamed counsel however admits that there is nothing in evidence to show that the plaintiff was a party to the suit or to the aforementioned compromise.
There is only a "mutation Ex. D. 2 which shows that the preemption suit was compromised and a compromise decree was passed therein according to which 17 kanals of land was surrendered to the paternal uncle of the plaintiff;
(iii) that the mutation in question was sanctioned on 30.8,43 but the suit has been filed on 20.2.1974, hence the same is barred. Learned counsel has relied upon the case of Kajan etc V. Noor Muhammad etc. (NLR 1989 Revenue 122), a judgment rendered by a learned Single Judge of this Court; According to which a suit filed after 13 years to challenge a mutation on the ground of fraud' was dismissed.
3. I have considered the arguments addressed by the learned counsel for the petitioners and have also perused the record as well as compared the two judgments rendered by the two learned courts below in the light of the law laid down in the case of Mr. Haji Khan and 11 others V. Mir Aijaz Ah and 2 others (PLD 1981 S.C. 302). There is a documentary evidence produced by the respondent to the effect that during the time when the mutation in question was sanctioned, he was employed in Indian Army wherein he had joined service on 21.6.40. He was .Sent to Burma Front to participate in World War Second. During the action he sustained injuries resulting into the amputation of his one leg and he was discharged from service in 1945 due to his disability. It is also established on the Record that it is during those days that the mutation in question was got sanctioned. Contentions of the learned counsel that the evidence has been led with reference to each day . Of his service in the Army is of no consequence. The petitioners did not lead any evidence to the effect that on 30.8.1943 when the mutation in question was sanctioned, the respondent was present in the estate.
Alongwith this Civil revision an application lias been moved which is C.M.No. 5465/86 to produce in evidence since record of the petitioner showing that he enjoyed casual leaves w.e.f. 27.8.1943 to 9.9.1943. This document which has been placed on the record of this civil revision is not a certified copy of the document. It is just a typed copy and it is not clear as to who has prepared it and how it has been procured by the petitioner. This document was neither produced before the learned trial court nor any prayer was made before the learned trial court or before the learned first appellate court to produce the said document. No date is mentioned on this document as to when it was prepared. It is a settled law that a party cannot be allowed to fill up lacunas in his evidence during the course of a civil revision, particularly when there is sufficient evidence already on the record on the basis whereof the this can be effectively decided. Consequently this civil misc. Application is dismissed, with the result that as against the evidence produced by the respondent with regard to his disability and participation as a Army personnel in the World War Second on the fateful day.
There is absolutely no rebuttal. Consequently the learned this appellate court has correctly held that the mutation in question was sanctioned at the time when the respondent was not present.
Learned Addl. District Judge has discussed the documentary as well as oral evidence and has come to a definite finding of fact which cannot be interfered with in exercise of revisional jurisdiction of this Court, particularly when the learned counsel for the petitioners has not pointed out any misreading or non reading of evidence. Silence I hold that the finding of the learned first appellate court on issues Nos. 1,13 and 4 are correct and the plaintiff is owner in possession of the suit land. So far issue No. 2 with regard to limitation is concerned, that has also been correctly decided by the learned first, appellate court. The petitioners have been held to be out of possession and it is the respondent who has been held to be in possession of the land in question.
Consequently the respondent had a recurring cause of action and hence it cannot be said that, the suit is barred by time merely because the same is filed after l2 years, of the sanctioning of the mutation. It has been held in cases of Mst. Izzat v. Allah Ditta (PLD 1980 S.C. 165) and case of Mst.
Zareen v. Mst. Rehmati (1987 SCM R 66) that the plaintiff who is in possession of land in question can file a title suit at any time, he gets a threat of dispossession and each invasion to his title/possession by the defendant shall give rise to a fresh period of limitation. Judgment cited by the learned counsel for the petitioners does not lay do down a correct law inasmuch as the proposition laid down in the-said judgment is contrary to the law laid down by their Lordships of the Supreme Court of Pakistan in the aforementioned two judgments. Consequently, respectfully, I do no follow the dictum laid down by the learned Single Judge of this Court and following the law laid down by the Supreme Court of Pakistan in the aforementioned two judgments, I hold that the plaintiff respondent who has been held to be owners in possession of the land in question had deed the suit within limitation. Findings of the .Learned first appellate court on the issue of limitation is also maintained. No other point has been raised by the learned counsel for the petitioners.