2010 C L C 1496
[Quetta]
Before Mrs. Seyda Tahira Safdar, J
GOVERNMENT OF BALOCHISTAN through Secretary Revenue, Board and another ---
Petitioners
Versus
RASHID and 3 others ---Respondents
Civil Revision No. 177 of 2007, decided on 10th May, 2010.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Suit for declaration, permanent injunction and correction of entries in revenue
record ---Suit had concurrently been decreed by the courts below in favour of plaintiff ---Plaintiffs
claimed themselves to be the owners of land in question which according to them devolved on
them as their ancestral property, which was purchased by their predecessor -in-interest ---
Defendant/Provincial Government did not deny the title of the plaintiffs to the extent of landed
property purchased by their predecessor, but according to the defendant land in question was
different from the one as mentioned ---Burden was on the plaintiffs to establish their title in
respect of property in question as same existed in the name of Government ---Plaintiffs though
had asserted execution of sale-deed in favour of their predecessor in respect of suit property, but
they failed to produce sale -deed during course of trial---No evidence was available on record
about ownership and possession of land in question in favour of the plaintiffs ---Despite the same,
the Trial Court and Appellate Courts relied on oral evidence so produced ---Title of a party could
not be decided on such set of evidence ---Both the courts below had failed to appreciate the
evidence and material properly, while arriving to the conclusion which was not in accordance
with law and facts ---Plaintiffs had completely failed to establish their title on the basis of
evidence produ ced by them ---Plaintiffs, in circumstances, were not entitled to the relief as
prayed by them; and as granted to them by the Trial Court and upheld by the Appellate Court ---
Petition though was barred by more than three months, but impugned orders being con trary to
law and facts were illegal and void, no limitation would run against a void order ---Delay in filing
revision petition, was condoned, in circumstances ---Impugned orders were set aside and suit
filed by the plaintiffs stood dismissed being without m erits---Entry in question in record of rights
stood restored in favour of defendant/ Provincial Government.
Naseer Ahmed Bangulzai, A.A. -G. for Petitioners.
Iqbal Shah for Respondents.
Date of hearing: 25th November, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The petitioners being aggrieved of judgments dated
26-1-2006 made by Qazi Turbat and dated 13 -10-2008 made by Majlis -e-Shoora, Mekran,
whereby the suit filed by the respondents was decreed in their favour and appeal filed by them
(petit ioners) was dismissed upholding the order of the trial Court, preferred present petition
praying for setting aside of both the orders thereby the suit filed by the respondents be dismissed.
The petitioners urged that both the courts failed to consider the evidence produced from their
side, while legal issues were not framed, nor considered properly. Both the orders are contrary to
law and facts.
As per record a suit was filed by the respondents/plaintiffs seeking declaration, permanent
injunction and corr ection of entries in respect of Khatooni, khewat No.51/52, khasra Nos.284
and 282, Mouza Chellu Tehsil Turbat. It is their (respondents/ plaintiffs) case that a property was
'purchased by predecessor in interest of respondents namely Din Muhammad on 31 -12-1931
from one Mir Bohar Khan Gichki in consideration of Rs.1000, which is in their possession being
ancestral property. Further, the property in question is part of their ancestral property purchased
by their predecessor in interest, which is in their poss ession. It is also their case that as they were
out of area due to some family dispute from 1988 to 2003, while returned in 2003, thereby
approached the Settlement Department for obtaining the record ( ﮐﻬﻮﻨﻳﺎﮟ ) who supplied only
Khatooni khewat No.21/21 being record of their property, on the same they presumed that the
record pertains to all of their properties including cultivated (Aabad) and uncultivated land
( G h a i r -A a b a d ) are entered in their name by the Settlement Department. But when in January
2003 they tried to cultivate their land by plying tractor on the same then the Tehsildar Revenue
and Levies personnel stopped them on occasion of land being State Land. On obtaining the
relevant record it tran spired that the property in question was got entered in the name of
defendant No. 1/petitioner No.1 with collusion of defendants Nos.2 and 3/ petitioners Nos.2 and
3. The respondents/plaintiffs sought relief in terms that the declaration to the effect that land in
question is their ancestral property and in their possession, while direction be given to defendant
No.2 to correct the disputed entry in the record and entered the property in name of plaintiffs/
respondents.
The petitioners/defendants strongly contested the suit on merits and also raised several legal
objections on maintainability of the suit to the effect that another suit titled as Jamil Ahmed v.
Secretary is also pending in which same property i s the subject matter of that suit, as such on
same subject matter two suits are not maintainable. The court -fee paid is deficient, wrong
particulars are given and suit is filed beyond period of limitation. On merits they did not deny
sale transaction effected between Din Muhammad and Mir Bohar Khan, bu t according to them
the disputed property is situated at northern side of property of the respondents/ defendants.
While land in question is property of the Government. Further, the respondents/ plaintiffs were
very much present in the area when last settl ement was effected. They further denied the
possession of the respondents/ plaintiffs to the extent of land in question. Prayer for dismissal of
the suit is made.
After framing of issues evidence from both the sides was called. On conclusion of the same the
suit was decreed in favour of the respondents/ plaintiffs by the trial Court, whereby they were
declared to be lawful owners of property in question, further declaring the revenue entry as
unlawful, while directed for effecting of correction of entries in Revenue Record. The appeal
preferred by the respondents was also dismissed by the appellate Court thereby upholding the
decision of the trial Court, hence this petition.
Before coming on merits of the case, an Application No.479 of 2007, under sectio n 5 of
Limitation Act was filed by the petitioners along with the petition, whereby they sought
condonation of delay which is caused due to negligence of the officials of the department. None
of the counsel advanced any arguments i n same respect.
As per second proviso subsection (1) of section 115, C.P.C., the provided period for filing
application for revision of an order is 90 days. The time shall be counted from the date of
judgment i.e. supply of copy of judgment or in other case from the date of know ledge. In present
case the impugned order was made on 13 -10-2006. As the appeal was filed by the present
petitioners, therefore, they have full knowledge of the proceedings and the judgment made
thereon. As such the time starts running from the date of sup ply of copy of the judgment. The
perusal of copy of judgment reveals that the petitioners applied for the same on 13 -10-2006,
while copy was handed over to them on 11 -11-2006. As such the 90 days are to be counted from
11-11-2006, which expire on 10 -2-2007 . But the present petition has been filed on 22 -5-2007,
thus barred by more than three months. The only reason for this delay is explained as negligence
and irresponsible attitude of the staff of the concerned Department. This is no excuse for
condonation of delay occurred in filing of the petition. But as the matter in E issue is of utmost
importance i.e. in respect of ownership of land asserted to be property of the State, therefore, it
will be just and proper and also in the interest of the State to cons ider the merits of the case and
also the legality of the orders of both the courts impugned in present petition, whereafter findings
can be given that whether the present petition is maintainable and whether there exist grounds for
condoning the delay occu rred in filing of the same.
As per pleadings of the parties the land, which is matter in dispute in present case, is asserted to
be entered in record at Khatooni khewat No.51/52, khasra Nos.284, 282, Mouza Chullo, Tehsil
Turbat, while boundaries are desc ribed as East Keach Flour Mills, West Yousaf son of Kallo,
North Karez Merri and South cultivated lands of plaintiffs/ respondents, further the recorded
owner is Provincial Government of Balochistan, while possession is with Deputy Commissioner,
District K each. During course of pendency of this petition it has been informed to this court that
the land in question is now entered in name of the respondents/ plaintiffs in compliance of
judgment and decree made in his favour, which are presently impugned before this court, as such
present petition has become infructuous. The land in question may have entered in name of the
respondents/ plaintiffs being the decree holders, but due to this fact instant petition has not
become infructuous. As this court has the jur isdiction to revise the judgment, whereafter, the
entries can be restored in favour of Government or as the case may be.
The respondents/ plaintiffs claimed themselves to be the owners of land in question, which
devolved on them as their ancestral proper ty, which was purchased by their predecessor in
interest namely Din Muhammad from one Bohar Khan Gichki on 31 -12-1931. On the other hand
the petitioners/ defendants did not deny the title of the respondents/ plaintiffs to the extent of
landed property purc hased by Din Muhammad from Bohar Khan. According to them land in
question is different from the mentioned property which is situated at Northern side of land
owned by the respondents plaintiffs and is a Government land. As per pleadings of the parties
there is dispute about identification of land in question. Despite the same no issue in same
respect was framed by the trial Court, nor any direction was made for filing of better particulars
of land in dispute, which can help to resolve the issue.
As the as sertion of ownership is made, from the side of the respondents/ plaintiffs, therefore,
burden was on them to establish their title, as the land in question existed in name of
Government. The respondents/ plaintiffs claimed their right of ownership on basis of a sale deed
executed between their predecessor Din Muhammad and one Bohar Khan on 31 -12-1931.
Though the respondents/ plaintiffs asserted execution of sale deed, but during course of trial said
sale deed has not been produced, nor properly exhibited to bring it on record. Rather during
pendency of present petition the respondents filed an application for placing on record certain
documents. Along with the application photo copy of said sale deed is filed. Perusal of the same
reveals that two Hangam Aab ( D o H a n g a m A a b ) Karaiz Mosola Nook Abad at Turbat was
sold while possession of water was handed over to Din Muhammad. The respondents have also
filed copy of Khatooni No.21, khewat No.21, which shows Malook Bibi and' others as owners of
the property with p ossession. No other document has been produced, rather no document has
been produced before the trial Court, Rather only two witnesses appeared on behalf of plaintiffs
who only deposed that land in dispute was owned by Ghulam Rasool, while at present it is
property of Rasheed and others. Respondent No.1/ plaintiff No.1 only got recorded his statement
as attorney of the remaining ones. It is his statement that the property entered in record at
Khatooni khewat No.51/52, bearing khasra No.282/284 is their prop erty, purchased by their
grandfather Din Muhammad through Sale Deed dated 31 -12-1931, which is in their possession
and they are cultivating the same. He denied title of the Government. Apart from the plea taken
by the petitioners/ defendants it is the resp ondents/ plaintiffs to establish their title in respect of
land in question independent of the same. No title deed was produced despite the same, both the
courts below relied on oral, that too formal, statements of the witnesses and also of respondent
No.1 / plaintiff No.1. The said sale deed was not made part of the record, despite the same the
trial Court as well as appellate court relied on the same, which is neither proper, nor legal. The
copy of said Sale Deed produced before this court, perusal of the same reveals that it is in respect
of right of water as the possession of water is shown to be delivered to Din Muhammad. No
khasra number of land or description of land is mentioned therein. As such it is of less help to the
respondents/ plaintiffs in est ablishing of their title in respect of disputed land. Apart from the
same the other property existed in name of the respondents/ plaintiffs is not disputed, the entries
whereof are in name of them in record of rights. Rather the dispute is to the extent of land
entered at Khatooni/ khewat No.51/52 in the record. Now the burden lies on the respondents/
plaintiffs to establish their title in respect of this property bearing khasra No.282/284. The sale
deed does not disclose any khasra number, nor even the are a of the same. Further, the
respondents/ plaintiffs have not filed any other document from which it can be ascertained that
the said land ever existed in name of said Bohar Khan from whom the same was purchased by
their predecessor in interest. The land in question surely existed in favour of the Provincial
Government from the date unknown. The respondents/ plaintiffs furthermore, are completely
silent in their plaint about the exact measurement of land in question to the extent of which they
are claiming t heir right. Rather in paragraph No.5 of their plaint they contended that the disputed
land was purchased by grandfather of plaintiffs Nos.1 and 3, who was father in law of plaintiff
No.2 and father of plaintiff No.4, which is part of their (plaintiffs') an cestral property. The
measurement of said property and measurement of disputed property are neither mentioned in
the plaint, nor the same has come on record through evidence produced by them (plaintiffs).
Both the courts below failed to consider this aspec t also. As no decree or order can be made for
an unspecific area of land. Though it is an admitted position that land in question is situated
adjacent to the lands owned by the respondents/ plaintiffs, while the surrounding lands are
owned by private perso ns. Despite admission of these facts it does not seem to be logical to hold
that as the surrounding lands belonged to private persons, therefore, it is not possible that land in
question existed in favour of the Government. The reasoning given by both the lower courts are
some how strange. This shows their illogical conduct, which is also objectionable. There is no
evidence about ownership and possession of land in question in favour of the
respondents/plaintiffs on record. Despite the same the learned tria l and appellate Courts relied on
oral evidence produced before the court that too not specific. On such set of evidence title of a
party cannot be decided.
The second point which requires consideration that there was specific objection in written
stateme nt about suit being barred by limitation, which affects maintainability of the suit, despite
the same no specific issue was framed in respect of the same. Rather issue No.4 was framed to
the extent of all legal objections. The trial Court while deciding po int of limitation comes to the
conclusion that cause of action occurred in January 2003, while the respondents/ plaintiffs filed
their first suit on 19 -2-2003. No document in respect of previous litigation is on record. The
appellate Court also gave same f indings. Both the courts below failed to observe the fact that the
disputed mutation entry was made in year 1997, when the Settlement was made in the area. Now
keeping in view Article -120 of Limitation Act, the provided period is six years, which is to be
counted from the date when the right to sue accrues. As such the provided period for filing suit
for cancellation of disputed entries was up to 2003. The suit was filed in year 2004. Now it is the
respondents/plaintiffs who have to establish that their sui t was filed within provided period as
such maintainable. In the plaint it is their contention that due to family dispute they left the area
and remained out side for period 1988 to 2003, while on return in 2003 they came into
knowledge of disputed mutation entry. In course of evidence their witnesses are silent to this
effect. Rather respondent No.1/plaintiff No.1, while recording his own statement, only deposed
that a murder was held in their family, they were not present in the area, while returned in 200 3
and started cultivating the disputed land when he was stopped, on approaching the Settlement
Office, he came to know about the same, whereupon he filed suit. His statement is not specific in
this aspect too. The party who is entering into litigation has to establish that he come before the
court within provided time and in case there is any delay the same must be explained. But in
present case there is nothing on record. The respondents/plaintiffs though in plaint showed their
absence from the area from 1 988 to 2003, while in his statement year of leaving of the area is not
mentioned. It is only asserted that some murder took place, but no date or year of said incident
was disclosed. In this respect also these is no specific evidence from the plaintiffs' s ide despite
the same the trial court comes to the conclusion that the respondents/ plaintiffs were out of the
area, thus have no knowledge about effecting of entries in record and for the first time they came
into knowledge of the same in year 2003. The fi nding is given on no basis.
It is observed from the material on record that the petitioners/ defendants being the Government
and its functionaries are neither properly looking after the rights of the State, nor actions are
taken to safeguard the same in time. In present case too though the petitioners / defendants are
custodian of the record, but they failed to produce the same before the trial Court at relevant time
and only relied on oral evidence, which is to some extent worth less. Even the office of Advocate
General being the Law Officer is not conducting the cases properly in which valuable rights of
the State are involved. It is unfortunate. Due to irresponsible conduct of the Government
functionaries irreparable loss is sustained by the State on mo st of the occasions. It is further
unfortunate.
Though only oral evidence has come on record from petitioners/ defendants' side, but less benefit
of the same can be extended in favour of the respondents/plaintiffs, as burden lies on them to
establish the ir own independently, whereafter, burden shifted on the petitioners/ defendants to
prove the contrary. The suit was surely filed beyond period of limitation. The explanation made
for said delay is not established by the respondents/ plaintiffs. Despite the same both the courts
on their own come to the conclusion that they were not in knowledge of the effecting of entries
in favour of Government in time. The findings were erroneous. In case last entry was made in
year 1997 then there was no delay as six year s expires in 2003. Thus there was no occasion to
assert about their absence from the area. An adverse inference can be drawn against the
respondents/ plaintiffs.
As far as title of land in question is concerned, the same existed in name of Provincial
Government, being recorded owner. To prove the contrary, the burden is upon the respondents/
plaintiffs, who have to establish their title as owners of the same. As discussed in preceding paras
the respondents/ plaintiffs completely failed to establish their title in respect of land in question.
The trial court while deciding the title in favour of the respondents/ plaintiffs relied on such piece
of evidence which also neither specific, nor reliable. Only presumptions are made, which also
not based on any lega l or factual grounds. While the appellate court mostly reproduce the
pleadings, evidence, memo. of appeal in the judgment, while failed to discuss the issues in its
true perspective. The appellate Court based the findings on the cross -examination made to t he
defence witnesses, that too, contrary to record. Both the courts failed to appreciate the real issue
between the parties, while give findings in favour of respondents/plaintiffs on no basis.
The respondents/ plaintiffs at the first instance had to est ablish a clear title in their favour and on
basis of the same they have to justify their entitlement for retaining the possession and on basis
of his title only the correction in record of rights have to be made. But in present case all these
factors are m issing, despite the same the trial and appellate Courts made order in their favour.
The courts while deciding the disputes relating to lands existed in name of the Government, must
be more careful and cautious as interest of State is involved, which is sur ely to be protected. But
in present case both the courts below did not observe the same, which is some how
objectionable.
Keeping in view the above discussion both the courts below failed to appreciate the evidence and
material properly while arrived to the conclusion which is not in accordance with law and facts.
The respondents/plaintiffs have completely failed to establish their title on set of evidence
produced by them, as such they were not entitled to the relief as prayed by them and as granted
to them by the trial Court and upheld by the appellate court. In the circumstances as the
impugned orders are contrary to law and facts, thus illegal and void, as no limitation runs against
a void order, therefore, the delay in filing of present petition is li able to be condoned, which is
hereby condoned.
In view of above discussion the petition is hereby accepted. The impugned judgments dated 20 -
1-2006 made by Qazi Dasht, Turbat and dated 13 -10-2006 made by Majlis -e-Shoora Mekran at
Turbat are hereby set asi de. Thus the suit filed by the respondents/ plaintiffs stands dismissed
being without merits. As a result the entry in question in record of rights stands restored in
favour of Provincial Government.
Parties are left to bear their own costs.
H.B.T./50/ Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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