PLJ 2022 Quetta (Note) 30
Specific Relief Act, 1877 (I of 1877)--
----Ss. 42, 33 & 54--Suit for declaration, correction of mutation and permanent injunction--Concurrent judgments--Suit land was mutated in record of rights in names of respondents--No evidence regarding no presence of petitioners at time of final attestation--Mutation entries were not challenged by petitioner's father in his life time--Challenge to--Suit land was mutated in record of rights in names of respondents at time of final attestation--The petitioners had raised no objection--There is no evidence on record that petitioners were not present at time of final attestation--Entries made long ago--The petitioners have not challenged entries before revenue functionaries or through civil suit--There is no denial of facts that father of petitioners had not claimed inheritance during his life time, nor filed any suit before any forum--After death of father petitioners for first time claimed inheritance of late Tabaz Khan--Revision petition dismissed. [Para 8, 9 & 11] A, B & C
1979 SCMR 625, AIR 1939 PC 114 and 2015 ILR 2443 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 117--Burden of proof--Burden of proof lies on party who desire any Court to pass judgment in his favour--The party seeking relief from Court would have to discharge his burden by proving his case on its own evidence--The plaintiff has to prove its case on strength of his own evidence and cannot take benefit from short comings of defendant's evidence. [Para 12] D
2004 YLR 709 ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Scope of--Scope under Section 115, CPC is very limited in nature--Reappraisal of evidence is not function of High Court--The mere fact that High Court might have taken different view is no ground to interfere with concurrent findings of fact recorded by Courts below. [Para 13] E
2006 SCMR 50 ref.
Mr. Muhammad Akram Shah Advocate (called absent) for Petitioners.
Mr. Khalid Ahmed Kubdani, Advocate for Respondents No. 18 to 24.
Mr. Muhammad Ayub Assistant Advocate General for official Respondents.
Date of hearing: 16.10.2020.
PLJ 2022 Quetta (Note) 30
Present: Abdul Hameed Baloch, J.
ABDUL GHAFOOR and others--Petitioners
versus
MUHAMMAD MURAD and others--Respondents
C.R. No. 213 of 2012, decided on 21.10.2020.
Judgment
Through this judgment I intend to dispose of above titled revision petition filed by the petitioners/plaintiffs against the judgments and decrees dated 28th September, 2011 and 27th April, 2012 (impugned judgments and decrees) passed by learned Qazi Kharan and learned Majlis-e-Shoora Kharan (trial and appellate Court) respectively, whereby the suit filed by the petitioners/ plaintiffs was dismissed and appeal filed against the same was also dismissed.
2. Concise facts of the case are that the petitioners/plaintiffs filed a suit for declaration, permanent injunction and correction of entries regarding land bearing khewat No. 4, Khatooni No. 4, khasra No. 39, 40, 41, 42, 43, 44, 45, 118, situated at Mouza Jahlwar Eastern Sub Tehsil Shahoo Gari District Washuk against the respondents/ defendants before learned Qazi Kharan with the following prayer:
3. The respondents/Defendants No. 1 to 17 contested the suit on legal as well as factual grounds by filing written statement and prayed for dismissal of the suit.
4. On 5th January, 2010 the learned trial Court framed eight issues out of the pleadings of the parties. Whereafter, the parties to the lis produced their respective evidence. On conclusion the learned trial Court heard arguments and thereafter, vide impugned judgment and decree dated 28th September, 2011 dismissed the suit of the petitioners/plaintiffs. Being aggrieved of the same the petitioners/ plaintiffs preferred appeal before learned Majlis-e-Shoora Kharan, who vide impugned judgment and decree 27th April, 2012 dismissed the appeal by upholding the judgment and decree of the trial Court; hence the petitioners/plaintiffs are before this Court.
5. Heard the learned counsel for the respondents, Assistant Advocate General and perused the record with their assistance. The record transpires that the petitioners/plaintiffs filed a suit for declaration, permanent injunction and correction of entries khewat/ khatooni No. 4/4, khasra No. 39, 40, 41, 42, 43, 44, 45 and 118 situated at Mouza Jahlwar Sharqi Sub Tehsil Shaho Gari District Washuk before Qazi Kharan. The respondents/ defendants filed written statement and controverted the contention of petitioners/plaintiffs and prayed for dismissal of the suit.
6. The petitioners/plaintiffs claimed inheritance of Tabaz Khan stating that the parties are descendants of Tabaz Khan. The properties of Tabaz Khan have not been distributed among the legal heirs. The respondents/ defendants fraudulently mutated the inherited properties of late Tabaz Khan in their names in the revenue record. The petitioners'/plaintiffs' witness Abdul Majeed (PW-1) in cross-examination stated as under:
7. PW-3 Abdul Rasheed in cross-examination stated that it is not correct that Moulvi Saleh Muhammad had distributed the inheritance of Mir Ezat. Further, stated that cultivated land had been distributed, not barren land. The witness admitted that he was not present at the time of distribution of land. PW-4 stated that the suit land has been distributed. Abdul Ghafoor, aged about 50 years, appeared at attorney of the petitioners/plaintiffs and recorded his statement. In cross-examination he stated that Tabaz Khan had died before his birth. Further, stated that he accepted the settlement of Moulvi Saleh Muhammad as correct. The respondents/ defendants produced Moulvi Saleh Muhammad, who stated that he distributed the inherited land of Tabaz Khan.
8. Admittedly the suit land was mutated in the record of rights in the names of respondents/defendants at the time of final attestation. The petitioners/ plaintiffs had raised no objection. There is no evidence on record that the petitioners/plaintiffs were not present at the time of final attestation. Under Section 52 of the West Pakistan Land Revenue Act, 1967 (Act 1967) the mutation carries presumption of truth. It would be appropriate to reproduce Section 52 of the Act 1967:
“Presumption in favour of entries in record-of-rights and periodical records. Any entry made in the record-of-rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted thereof”
9. The entries made long ago. The petitioners/plaintiffs have not challenged the entries before revenue functionaries or through civil suit. The Honorable Supreme Court of Pakistan in case Hakim Khan v Aurangzeb 1979 SCMR 625, held:
“----The entries in jamabandis, as is obvious, carried a statutory presumption of truth under Section 44 of the Punjab Land Revenue Act XV of 1887 and Section 52, West Pakistan Land Revenue Act XVII of1967.--”
10. The document of entries cannot be disregarded. Mere bald verbal statement of the kind hardly cut ice. Even otherwise the documentary evidence cannot be rebutted by oral evidence. Reliance is placed on the case of Mt. Wallan v Fazla AIR 1939 PC 114.
11. The petitioners/plaintiffs have challenged the mutation on the ground that the suit land is ancestral property. They claimed inheritance from the grandfather. The petitioners/plaintiffs have not denied the entries made long ago. There is no denial of facts that the father of the petitioners/plaintiffs had not claimed inheritance during his life time, nor filed any suit before any forum. After the death of father the petitioners/plaintiffs for the first time claimed inheritance of late Tabaz Khan. Reliance is placed on the case of Mst. Shahi Lal v Khurshid Ali Khan 2015 YLR 2443, wherein it was held:
“10. In the recent judgment passed by the Hon'ble Apex Court in the case of Muhammad Rustam and others v. Makhan Jan and others, 2013 SCMR 299, the Hon'ble Supreme Court held that when inheritance mutation was never challenged by deceased lady in question, who remained alive after the death of her father for considerable time, the legal heirs of such lady cannot claimed the legacy being barred, under the law of limitation. Similarly in the case of Abdul Haq and another v. Mst. Surrya Begum reported in (2002 SCMR 1330) the Hon'ble Supreme Court while seized of similar issue observed as follow:
“Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no “locus standi” to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime.”
11. This view was further affirmed in another 'judgment passed in the case of Noor Din and another v. Additional District Judge, Lahore (2014 SCMR 513) with the following observations:
“There is no dispute that Mandoo Khan had passed away in the year 1951. The respondents/plaintiffs have also not controverted that the petitioners are in possession and enjoying the, suit property at least since the year 1971. Admittedly the gift mutation was attested in that year. Nazir Ahmad Patwari and Muhammad Naeem Akhtar, Revenue Officer who were present in Court along with the record had confirmed that no change had taken place in the revenue record since then and neither the plaintiffs nor their predecessor-in-interest have been recorded as receiving any share, in the produce of the property. When questioned the learned counsel for the respondents admitted that there is no documentary evidence to establish the receipt by the plaintiffs of any share from the produce.”
Reliance can further be placed on the case of Mst. Garana through legal heirs v. Sahib Kamala Bibi and another (PLD 2014 Supreme Court 167). Thus, the suit filed after more than seven decades was barred by limitation.
12. Under Article 117 of Qanun-e-Shahadat Order, 1984 (Order 1984) the burden of proof lies on the party who desire any Court to pass judgment in his/their favour. The party seeking relief from the Court would have to discharge his burden by proving his case on its own evidence. The plaintiff has to prove its case on the strength of his own evidence and cannot take benefit from the short comings of the defendant's evidence. Reliance is placed on the case of Amirullah Khan v Muhammad Akram 2004 YLR 709.
13. The scope under Section 115, CPC is very limited in nature. Reappraisal of the evidence is not function of the High Court. The mere fact that this Court might have taken different view is no ground to interfere with the concurrent findings of fact recorded by the Courts below. Reliance is placed on the case Abdul Mateen v Mst. Mustakhia 2006 SCMR 50, wherein it was held:
“--There is no cavil to the proposition that the concurrent finding on a question of fact or mixed question of law and facts, if is found suffering from misreading or non-reading of evidence or based on no evidence or. inadmissible evidence, the High Court in exercise of the revisional jurisdiction should correct the error committed by the subordinate Courts but in absence of any defect of misreading or non-reading of evidence in the concurrent finding of two Courts on such question, the interference of the High Court in the civil revision would amount to improper exercise of revisional jurisdiction. This is settled law that re-examination and reappraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by the subordinate Courts on a question of fact was erroneous. The revisional power of High Court is exercised for correcting an error committed by the subordinate Courts in exercise of their jurisdiction and mere erroneous decision would not call for interference unless it is established that the decision was based on no evidence or the evidence relied upon was inadmissible or the decision was perverse so as to cause grave injustice. This is settled law that the High Court in revisional jurisdiction cannot upset the concurrent findings of fact by means of re-examination of evidence and in the present case, the perusal of record would not show any misreading or non-reading of evidence brought on the record by the parties or suggest that the Court of first instance and the Appellate Court had drawn wrong conclusion from the evidence calling for interference of the High Court in its revisional jurisdiction.”
In view of above I find no illegality, irregularity, misreading or non-reading of evidence in the impugned judgments and decrees of the Courts below which require interference by this Court, therefore, the judgments and decrees dated 28th September, 2011 and 27th April, 2012 passed by learned Qazi Kharan and learned Majlis-e-Shoora Kharan respectively are upheld and petition being devoid of merit is hereby dismissed with no orders as to costs.
(Y.A.) Petition dismissed
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