This civil revision under section 115, C.P.C. Is directed against the judgment and decree, dated 18-12- 1997 passed by Majlis-e-Shoora, Kalat Division at Mastung whereby appeal filed against the judgment and decree, dated 28-10-1996 was accepted and the suit filed by the petitioner was ordered to be dismissed.
2. The facts briefly stated are that the petitioner filed a suit in the Court of Qazi Kalat on 10-11-1995 for declaration, permanent injunction and correction of mutation entries regarding property bearing Khewat No.2 Khatooni No.7 Khasra Nos.94 to 100 situated in Mauza Gayawan Mall Kalat (hereinafter referred to as the property in dispute). The claim of the petitioner as stated in the plaint is that the property in dispute is his ancestral property and the respondents were tenants at will and had been paying Haq-e-Malkana to the grandfather and father of the petitioner and to the petitioner. Last year the respondents refused to give Haq-e-Malkana to the petitioner and also informed him that the property has been entered in the name of the respondents in the Revenue Record. Respondent No.3 Abdul Karim did not contest the suit and filed his written statement on 17- 9-1995 stating therein that he has no interest in the property in dispute. The suit was resisted by respondents Nos. l, 2, 4 and 5. The,- filed joint written statement and denied the contention of the petitioner. Out of the pleadings following issues were framed:--
3. In support of his claim the petitioner produced five witnesses namely P.W.1 Haji Khan, P.W.2 Abdul Rahim, P.W.3 Shaik, P.W.4 Durrani, P.W.5 Ahmad-ud-Din and got recorded his own statement. In rebuttal the respondents produced D.W.1 Jan Khan D.W.2 Muhammad Hassan, D.W.3 Muhammad Hayat, and statement of respondent No. l Mulla Abd-ur-Rehman's was recorded for himself and as attorney for respondents Nos.2, 4 and 5. Respondent No.3 was also examined; he admitted the claim of the petitioner. The learned Qazi also inspected the site and after assessment of the evidence on record decreed the suit of the petitioner vide judgment and decree, dated 28-10-1996.
Being aggrieved the respondents preferred an appeal before Majlis-e-Shoora, Kalat Division at Mastung. The learned Majlis-e-Shoora accepted the appeal vide judgment and decree, dated 26- 3-1997 and dismissed the suit of the petitioner. Being aggrieved from the said judgment and decree, the petitioner filed a revision petition being Civil Revision No.203 of 1997 before this Court.
The said petition was partly allowed by this Court and judgment and decree dated 26-3-1997 passed by the learned Majlis-e-Shoora was set aside and the case was --remanded to the learned Majlis-e-Shoora. After remand the learned Majlis-e--Shoora again accepted the appeal and dismissed the suit of the petitioner vide judgment and decree, dated 18-12-1997; hence this petition as mentioned hereinabove.
4. Mr. Ahmad Khan Lashari, Advocate appearing for the petitioner contended as follows:--
(i) That the learned Qazi erred in holding that the suit was not maintainable under section 42 of the Specific Relief Act.
(ii) That the learned Qazi has misread and. Misappreciated the entire evidence on record and has wrongfully set aside the findings correctly arrived at by the lower Court.
(i.e) That the judgment and decree, dated 18-12-1997 is based on surmises and conjectures.
Further, the petitioner proved that the suit filed by him was within time but the learned Majlis-e- Shoora has wrongly held that the suit was barred by time.
5. Mr. Ghulam Mustafa Mengal, Advocate for the respondents contended that the learned Majlis-e- Shoora rightly held that the suit was not maintainable under section 42 of the Specific Relief Act as no, relief for possession was sought. The learned counsel further contended that the evidence had been rightly discarded by the learned Majlis-e-Shoora as the sane was based on hearsay. The learned counsel argued that the suit was rightly dismissed as barred by time as the petitioner failed to prove to have filed the suit in time.
6. I have beard the learned counsel for the parties and have also perused the record of the case.
7. Adverting to the contention of Mr. Ahmad Khan Lashari, Advocate that the suit was maintainable under section 42 of the Specific Relief Act, the learned counsel contended that it was averred in the plaint that the respondents are tenants and the petitioner is the owner of the property in dispute and further that the respondents had stopped paying Haq-e-Malkana to the petitioner. The respondents in their written statement denied the title of the petitioner. The learned counsel contended that the present suit filed by the petitioner was for declaration of the title and petitioner could not have filed a suit for possession at the same time as the petitioner had alleged that the respondents were his tenants. The remedy available for the petitioner for possession was to file a suit for possession/ejectment under the Baluchistan Tenancy Ordinance, 1978 before the Revenue Hierarchy. The learned counsel next contended that it was not possible for the petitioner to have approached the Revenue Authorities for ejectment of the respondents as the respondents had denied the title of the petitioner and had also got the mutation entries of the property in dispute, entered in their name during the settlement operation. When confronted with the above argument of the learned counsel for the petitioner, respondents' counsel could not give any satisfactory reply.
8. The contentions raised by Mr. Ahmad Khan Lashari, Advocate for the petitioner has substance.
Admittedly, to dispossess a tenant the proper forum is the Revenue Courts i.e. a suit for ejectment but in the case in hand since the title of the petitioner was denied by the respondents, thus, the suit for determining title was not competent before the Revenue Court. The only competent forum for determining the title of the petitioner is civil Court and only a civil suit was maintainable. As observed hereinabove, separate forum has been prescribed for dispossessing the tenant under the Baluchistan Tenancy Ordinance, thus, the suit for declaration and possession could not have been filed at the same time before the learned Qazi as there is a separate forum for dispossessing the tenant; thus, the instant suit for declaration and permanent injunction for determining question of title was maintainable before the learned Qazi without seeking further relief of possession.
9. Reverting to the next contention of Mr. Ahmad Khan Lashari, Advocate for the petitioner that the learned Majlis-e-Shoora had misread and misappreciated the entire evidence and the impugned judgment and decree, dated 18-12-1997 is based on sermises and conjectures; it may be mentioned that in support of his case the petitioner produced five witnesses. P.W.1 Haji Khan stated that last year in the summer season he was in the house of the petitioner when respondent No. l came to Khuzdar and in his presence he gave Rs.3,000 to the petitioner and stated that this is his share of the Haq-e-Malkana in the crops from the lands situated in Kalat. He further stated that Abdur Rehman's stated that the property in dispute was purchased by the grandfather of the petitioner from his (respondents') grandfather and thereafter, the said property was given to them for cultivation as tenants. P.W.2 Abdul Rahim stated that last year he was sitting in the house of the petitioner when respondent No. l came there and in his presence he gave Rs.3,000 to the petitioner as Haq-e-Malkana. On enquiry respondent No. l informed them that he is a tenant of the petitioner in the lands situated in Kalat.
10. It may be mentioned here that the aforesaid witnesses were not cross--examined by the respondents inasmuch as regarding payment of Rs.3,000 by respondent No. l to the petitioner. Both the witnesses were not even questioned regarding relationship of landlord and tenant between the parties. It is a settled principle of law that when a portion of statement of a witness goes unchallenged, the same has to be accepted in evidence. Both the witnesses stated that respondent No. l admitted himself to be tenant of petitioner but they were not cross-examined on this point. The learned Majlis-e-Shoora has discarded the evidence of the aforesaid witnesses only on the ground that they stated that they had not seen the property in dispute whereas both the witnesses have deposed about the fact that Rs.3,000 were given to the petitioner by respondent No. l in their presence as Haq-e-Malkana. The said portion of the statement of both the witnesses was not disputed. Thus, the petitioner through evidence has proved that he was the owner of the property in dispute and respondents were his tenants and from the statement of P.W.1 issue No. l has been proved. P.W.1 in his statement stated that respondent No. l informed him that the property in dispute was purchased by the father of the petitioner from his father and thereafter, the said property was given to respondents as tenants. P.W.3 stated that he had seen the property in dispute and also gave the boundaries. He further stated that his father had informed him about the factum of sale and further stated that the petitioners used to go to Jhalawan in summers; thus, the property was given to the respondents as tenants. PMA Durrani stated that he had seen the property in dispute and also gave boundaries thereof and stated that the property in dispute belongs to the petitioner which was purchased by his grandfather from the father of the respondents for a consideration of Rs.80. After the sale of the property, the same was given to the respondents as tenants. He further stated that about three to four years back he was going to Khuzdar and respondent No. l also boarded the same bus and told him to inform the petitioner that he is not willing to keep the lands as tenants and thereafter, he informed the petitioner about the same. It may be observed that both P.W.3 and P.W.4 were also not controverted regarding purchase of the property in dispute by the grandfather of the petitioner from the father of respondent. The learned Majlis-e-Shoora has only discarded the evidence of the above witnesses on the ground that their evidence is based on hearsay. It may be mentioned here that as per showing of the petitioner, the property in dispute was purchased by the grand-father of the petitioner. Though the date of the transaction has not been given but as per averments made in the plaint, the property in dispute was purchased about three generations back. The evidence of P.W.3 and P.W.4 cannot be ruled out on the ground that the same was based on hearsay as they themselves admitted that they were informed by their parents about the sale. It is worth- mentioning that the said version deposed by both the witnesses was neither denied nor they were cross-examined; thus, the learned Majlis-e-Shoora has wrongly ruled out of consideration the evidence produced by the petitioner. It is worth mentioning that in cross-examination the respondents have admitted that the petitioners are owners of five shares of the total land but the learned Majlis-e-Shoora has not taken into consideration the said aspect of the case; thus, Issues Nos.1 and 2 were independently proved by the petitioner through independent evidence and their version was not challenged by the respondents.
11. As far as issue No. 3 regarding mutation entries in favour of respondents is concerned, it has been alleged that the said entries were fraudulently entered in the name of the respondents. The respondents had not denied the mutation entries. They have only stated that the mutation entries were rightly entered in their name. The learned Majlis-e-Shoora has reversed the said issue on the ground that the petitioner failed to tender the Revenue Record in evidence. It may be noted that the Revenue Entries in the name of the respondents have not been denied nor Revenue Entries mentioned in the plaint have been denied; thus, no purpose would have been served by merely tendering the Revenue Record in evidence whereas from the evidence of P.W.1 to PMA it has been proved that respondents were tenants in the property in dispute and they had been paying Haq-e- Malkana to the petitioner and further that the property in dispute was purchased by the grandfather of the petitioner from the father of the respondents. The said contention of the petitioner has supported by respondent No.3 and in his statement before the learned Qazi he stated that he had partitioned the property with his brothers i.e. Respondents. Nos. l, 2, 4 and 5 and as far as the property in dispute is concerned when he asked his brothers to partition the same, they informed him that the property in dispute belonged to the petitioner. The statement of respondent No.3 was also not challenged nor rebutted by the respondents. In his own statement the petitioner stated that the property in dispute was purchased by his grandfather and he had given the detail of the said sale. In cross-examination he stated that during the settlement operation he was in Saudia but this portion of his statement was also not rebutted and it was not disputed that during the settlement operation he was in Saudia. Thus, from the evidence on record, the petitioner had independently proved that the mutation entries were carried out in the name of the respondents behind the back of the petitioner but the learned Majlis-e-Shoora while discussing issue No.3 had totally ruled out of consideration the statement of respondent No.3 who is brother of the petitioner. While discarding the statement of respondent No.3 the learned Majlis-e-Shoora held that since respondent No.3 was the step-brother of the other respondents and there was a dispute between them; thus, he had wrongly deposed against the other respondents. It is worthwhile to mention here that the said conclusion arrived at by the learned Majlis-e-Shoora is nowhere supported from the record. As mentioned above the respondent No.3 was not even cross- examined nor his statement was rebutted by the other respondents. Thus, the conclusions drawn by the learned Majlis-e-Shoora for discarding the evidence are erroneous and not supported from the record.
12. The learned Majlis-e-Shoora while discarding issue of limitation has held that the mutation entries were recorded in the year 1970 and the suit was filed in the year 1995. Thus, the suit was barred by time. The petitioner in the plaint had stated that he had been receiving Haq-e-Malkana from the respondents and one year prior to the filing of the suit, the respondents refused to give him Haq-e-Malkana and also informed him that the property in dispute has been entered in the Revenue Record in the name of the respondents and to substantiate the abovesaid plea, the petitioner produced P.Ws.2 and 3 and stated that the petitioner had received Haq-e-Malkana from the respondents and thereafter, in his own statement also stated that when the respondents refused to pay Haq-e--Malkana he filed the instant suit and then he came to know that the mutation entry had been entered in the name of the respondents. In Cross-examination he stated that at the time of settlement operation he was in Saudia. The abovesaid portion of the statement of the petitioner was not recorded; thus, the learned Majlis-e-Shoora wrongfully decided the issue of limitations. It may be observed here that it is settled that the Revenue entries do not create a title and always carry a rebuttable presumption in favour of the person in whose favour the entry has been recorded. After the statements of P.W.I to P.W.4 and statement of respondent.No.3 the burden shifted upon the respondent to show that they were owners of the property in dispute and the Revenue entries had been rightly recorded in their name but the respondents have failed to prove as to how they became the owners of the property in dispute and the Revenue entries were rightly recorded in their favour. The witnesses produced by the respondents only stated that they had seen the respondents in cultivatory possession of the property in dispute but they failed to prove that they were in possession as owners of the same.
13. Thus, the impugned judgment, dated 18-12-1997 is based on no evidence. The learned Majlis-e- Shoora has misread and mis-appreciated the evidence and the conclusion arrived at are not supported from the record. It is settled that Revisional Court can reverse the findings of the Appellate Court if the same are based on misreading of evidence or are perverse. The learned Majlis-e-Shoora while reversing the findings of the learned Qazi which were based on proper appreciation of evidence had committed a grave illegality causing prejudice to, the petitioner.
Thus, the judgment of learned Majlis-e---Shoora was liable to be set aside. In this regard I am fortified with the dictum laid down in Habibullah Khan v. Malik Bahadur 1996 SCM R 1921 wherein following observations were made:-- "The finding recorded by the learned trial Court was reversed by the learned Appellate Court as pointed out by the learned Judge in Chambers without considering the effect of the statement of D.W.3 in the cross-examination and also the testimony of P.W.1 and P.W.2. We are, therefore, of the view that the learned Judge in Chambers was justified in interfering with the above appellate judgment. "
14. In view of the above discussion this revision application is accepted and the judgment and decree, dated 18-12-1997 passed by the learned Majlis-e--Shoora is set aside and the judgment and decree, dated 28-10-1996 passed by Qazi, Kalat is upheld. However, the parties are left to bear their own costs.