2014 C L C 1126
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
GOHRAM alias ALI GOHAR and another ----Petitioners
Versus
Mst. ZAR BANO alias ZERO through L.Rs. and others ----Respondents
Civil Revision No.143 of 2006, decided on 18th March, 2014.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 8 ---Limitation Act (IX of 1908), Art.120 ---Qanun -e-Shahadat (10 of 1984), Art.100 -
--West Pakistan Land Revenue Act (XVII of 1967), Ss.39 & 52 ---Suit for declaration and
possession ---Limitation ---Scope---Contention of plaintiffs was that they were owners of suit
property and entries in the Revenue Record were result of fraud ---Suit was dismissed
concurrently ---Validity ---Six years period was available to the plaintiffs to approach a court for
declarat ion of title from the date when right to sue accrued ---Accrual of grievance would be the
relevant time to determine the stipulated period of limitation for filing of suit ---Period of
limitation would start as soon as title was denied or the entries in the record had become adverse -
--Defendants were in possession of the suit property ---Date of recording of impugned entries in
the Revenue Record was not disclosed by either of the parties ---Said entries were not made part
of record which were neither tendered in evidence nor marked as exhibits by either of the parties -
--Said entries were effected in the record during the course of settlement held 30 years back ---
Time to file a suit for declaration as to entry in the record of rights or periodical record would
start from the accrual of cause of action to a party and not from the date of effecting of such
entry ---No record was available as to when such entries were effected in the Revenue Record,
however same were made 25 to 30 years back ---Plaint and evidence on record had not specified
the date or period when title of plaintiffs was denied by the defendants ---Entries maintained in
the Revenue Record were not for the purpose of title deed but it described that a title would rest
with a person ---Entry in the Revenu e Record would neither create a title nor extinguish the same
but it would describe a title of a person which was believed to be true until proved otherwise ---
Presumption of truth would be attached to the entry in the record of rights and periodical record
until contrary was proved or a new entry was lawfully substituted, however such presumption
was rebutable ---Name of plaintiffs did not appear in the alleged agreements on the basis of
which suit was filed ---No document was produced in the name of plaintif fs or their father to
prove title of plaintiffs and they had failed to establish the execution of alleged agreements ---
Discretion provided in Article 100 of Qanun -e-Shahadat, 1984 could only be exercised when a
document was produced from a proper custody a nd purported or proved to be thirty years old ---
Plaintiffs had failed to discharge the basic requirement that alleged documents were executed on
the dates mentioned therein ---No evidence was on record with regard to the facts when suit
property was handed over to the defendants and when they received the proceeds and even the
dates for the same had not been proved ---Plaintiffs had failed to establish title of property in
question in their favour ---Revision was dismissed in circumstances.
Taj Muhammad for Petitioners.
Muhammad Aslam Chishti and Hamayun Tareen, Additional Advocate -General for
Respondents.
Date of hearing: 8th November, 2013.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The petitioners Gohram and Ali Akbar are
before this court to assail judgment dated 28th February, 2002 of Qazi Khuzdar, and judgment
dated 3rd March, 2006 of Majlis -e-Shoora Khuzdar, for an order to set aside the impugned
judgments and issue a decree in the terms as prayed in the suit.
2. The facts necessary to determine the case in hand that the petitioners (plaintiffs) filed a
suit for ascertainment of their right in the suit property as of owners and claimed its possession
as such. Consequent to decl aration of their title the entries in the Revenue Record entered in the
names of respondents Nos.1 to 9 (defendants Nos. 1 to 9) as a result of fraud be rectified in their
(petitioners') names. It was their case that their (petitioners') father Noor Muhamm ad and his
(father's) brother Jan Muhammad purchased several properties from their joint earnings over a
period of time, but the documents were executed in the name of Jan Muhammad, the elder
brother. It was further their case that due to drought their fat her left the area and started living in
Rani Pur, District Khair Pur, and while leaving the suit property was handed over to respondent
No.1 Mst. Zar Bano, their close relative, with a responsibility to take care and cultivate it. During
the period they (p etitioners) frequently visited the area, and also received their share from the
proceeds, but in the recent past the fact came into their knowledge that the respondents Nos.1 to
3 intended to install a tube -well on the suit -land without their permission wi th a denial of their
(petitioners') right by the mentioned respondents. The Revenue Record was obtained for a
purpose to ascertain the fact, which transpired that the defendants Nos.1 to 4 managed to get a
portion of the suit -land pertaining to the Khasra Nos.312, 313 and 377, Khewat No.5, Khatooni
No.33 entered either in their own names or in the names of their relatives. While the second
portion of the suit -land pertaining to Khasra Nos.258, 260, 263, 263/1, 296, 367, 368, Khewat
No. 3, Khatooni No. 3 was recorded in the names of respondent Nos.2 to 9 (defendants Nos.5 to
12), without having any right therein.
3. The defendants Nos.1 to 4 namely Mst. Zar Bano, Pir Muhammad, Nazeer Ahmed and
Mst. Naseema denied the claim of the petitioners (plaintiffs) wi th a plea that the property bearing
Khasra Nos.312, 313, 366/1 was in their possession as owners, while the remaining property
bearing Khasra Nos.258, 260, 263, 263/1, 296, 367, 368 though recorded in the names of
defendant Nos.5 to 12 (present defendants. Further, the plaintiffs (petitioners) failed to
respondent Nos.2 to 9) as owners, but it was also in their (replying defendants) possession as
tenants of the mentioned approach the court within the stipulated period of time, and the suit was
not properly valued.
4. The defendant No.14 Kachkol in his separate reply denied the claim of the plaintiffs
(present petitioners), with further assertion to have no vested interest in the suit -land.
5. Defendants Nos. 15 to 21 in their written statement affirmed t he plea of the plaintiffs, but
asserted to have no interest or claim in the suit -land.
6. It was observed that this court vide order dated 17th October, 2003, in previous round of
litigation, deleted the names of defendants Nos.13 to 23, in view thereof they were no more party
to the proceedings, and while hearing the instant petition an order was made to further clarify the
same on 19th November, 2012.
7. The facts apparent from the record that the issues were framed, and the contesting parties
produce d their respective evidence. On completion of the trial initially vide judgment dated 28th
February, 2002 the suit stands dismissed, and the appeal against the judgment was also dismissed
by the appellate court vide judgment dated 11th May, 2002. The revis ion petition filed by the
petitioners was accepted by this court vide judgment dated 8th October, 2004, and the matter was
remanded to the appellate court for fresh decision. On remand the appellate court set aside the
judgment of the trial Court with an o rder of remand for further hearing of the matter vide
judgment dated 28th February, 2005. The petitioners were once again before this court and
through judgment dated 30th September, 2005 the matter was remanded to the appellate court for
a decision on bas is of the material already available on the record. The appellate court vide
judgment dated 3rd March, 2006 concurred with the findings of the trial Court, the grievance still
subsists, hence the instant petition.
8. The petitioners questioned the impugn ed judgments with averments that the courts, trial
and appellate, failed to appreciate the law governing the period of time for filing of a suit. In
addition the factual aspect of the case, and the available material on the record was ignored,
while the or al as well as the documentary evidence was not considered in true context. Further,
the documents properly tendered in the evidence were ignored. Due to the reason the decision
arrived was erroneous, therefore, not sustainable. The prayer was for decree of the suit in the
terms of the relief claimed.
9. The learned counsel for the petitioners in affirmation of the written submissions added
that the material on the record was not duly considered, and it was ignored that there was an
admission on part of th e defendants Nos.11, 14 to 17, on basis thereof an order might have been
passed in favour of the petitioners. Further, despite the fact that the original title deeds were
produced during the course of evidence, but contrary observations were made by the tr ial Court
resulted in an adverse decision. It was contended that the appellate court simply relied on the
judgment of the trial Court without application of independent mind, therefore, failed to fulfil the
legal requirement.
10. The learned counsel furt her stated that the plaintiffs purchased the suit property from
Ghulam Haider, Muhammad Umar and Mewa Garganari in different period of time, and the
documents to the effect were executed, which were duly tendered in the evidence. Further, the
documents wer e executed almost hundred (100) years back, therefore, no further proof was
required and the documents needed to be considered as authenticated pieces of evidence, but the
courts, trial and appellate, were unable to appreciate this legal aspect of the case . In addition it
was stated that the date of knowledge was of much importance to determine the fate of the case.
It was for the reason that the plaintiffs were not in knowledge of the mutation entries in the
names of the respondents (defendants), in view t hereof the time to sue starts as soon as they got
knowledge of the mutation entries, if counted as such the suit was not barred by the law of
limitation, and the contrary findings to the effect were of no legal significance. It was further
stated that the title documents produced by the contesting defendants had no connection with the
suit property, nor there was a claim of purchase, rather they (contesting defendants) were only
allowed to cultivate and utilize the suit -land with no title of their own. The learned counsel in
addition to the prayer in the petition stated that in alternate the case be remanded to the appellate
court for re -writing of the judgment.
11. Before this court only Pir Muhammad, Nazeer Ahmed and Naseema respondents (i), (ii),
(iii) (defendants Nos.2, 3 and 4) appeared to contest the petition, while Mst. Zar Bano described
to have already been expired. The learned counsel representing the mentioned respondents
contended that the plaint failed to contain the necessary details of the su it-land, therefore, unable
to describe the actual position at the site. Further, the suit was bad for non -joinder of parties, as
the persons described as "other relatives" were not joined as party to the suit, nor their names
were disclosed. In addition th e plaint failed to disclose the date of knowledge of the petitioners
(plaintiffs) about the questioned mutation entries in the names of the defendants, rectification
whereof was claimed. The learned counsel urged that the settlement in the area was held ne arly
25 to 30 years back, which was in knowledge of the petitioners, but they opted to remain silent.
Further, the physical possession with title in the names of the contesting respondents on basis of
the Revenue Record created a presumption of ownership i n their (contesting respondents) favour,
while the onus was on the petitioners (plaintiffs) to establish the contrary, but they failed.
Further, Articles 70, 72 to 76 of the Qanun -e-Shahadat Order, 1984 were referred with
contention that the documents, on which reliance was made, were not established by the
petitioners in accordance with law. Further, a presumption of truth attached with an entry in the
Revenue Record within the meaning of section 52 of the Land Revenue Act, 1967, until duly
rebutted, but t he petitioners failed. The learned counsel objected the remand of the case for re -
writing of the judgment.
12. The learned Additional Advocate -General, in attendance on court's notice, stated that no
interest of the State existed in the subject matter of the suit.
13. The case as set up by the petitioners (plaintiffs) was that the suit property consisted of
two pieces, existed in the several khasra numbers, details whereof available in the plaint, asserted
to be purchased by their (petitioners/plaintiff s) predecessors namely Noor Muhammad and Jan
Muhammad as far as back in 1945, and 1309 and 1363 Hijri from Ghulam Haider, Umar, and
Mewa Garganari, and the agreements were executed in the name of Jan Muhammad, which
devolved on them (petitioners) as their ancestral property. It was further their case that the suit -
land was handed over to Zar Bano with a permission to cultivate it and to take care it on their
behalf in their absence from the area due to drought, they were shown to be shifted to Sindh,
Distri ct Khair Pur. During the period they (petitioners) frequently visited the area and also
received the proceeds from Zar Bano, but recently the lady and the remaining respondents denied
their right in the suit -land. Further,' recently the fact disclosed that the entries in the Revenue
Record existed in the names of the respondents Nos.1 to 9 (defendants Nos.1 to 11).
14. In rebuttal the defendants Nos.1 to 4 (contesting respondents) claimed their ownership in
respect of the first part of the suit -land, and described their status as of tenants ( ) of respondents
Nos.2 to 9 (defendants Nos.5 to 12), the owners of the second part of the suit property. They
further claimed their physical possession in respect of whole of the suit -land with an assertion to
have c ultivated the land from last several decades.
15. The courts, trial and appellate, decided that the suit was filed beyond the stipulated period
and the plaintiffs had failed to establish their right and title in the suit -land, with an order for
dismissal of the suit. In view of the pleadings of the parties the initial onus was on the petitioners
(plaintiffs) to establish a clear title in their favour and if they succeeded the burden shifted to the
contested respondents to establish the contrary, therefore , the evidence produced by both of them
to be assessed in the same context.
16. Before dilating upon the merit of the case the issue pertaining to maintainability of the
suit to be filed within the stipulated period is to be determined. In case in hand t he petitioners
(plaintiffs) were before the court for declaration of their rights, rectification of mutation entries
and possession of the suit -land, therefore, Article 120 of the Limitation Act, 1908, would be the
basic provision to govern the time limit for filing of a suit for the purpose. The petitioners if
succeeded for the relief of declaration of their title they would be entitled for the remaining
reliefs in consequence thereof. In view of Article 120 of the Limitation Act, 1908 a six (6) years'
period was available to the petitioners to approach a court of law for declaration of a title from
the date when the right to sue accrues. The petitioners claimed themselves to be the owners of
the suit -land, but aggrieved of the entries in the Revenue Record in favour of the respondents,
adverse to their title, therefore, this accrual of grievance would be the relevant time to determine
the stipulated period of limitation for filing of a suit. The period of limitation starts as soon as the
title is denied or the entries in the record become adverse.
17. In the case in hand the petitioners claimed themselves to be the ancestral owners of the
suit-land, the possession was with the contesting respondents, but they (petitioners) felt
aggrieved of the entries in the Revenue Record in the names of the respondents (defendants)
behind their back. The date of recording of the questioned entries nowhere disclosed by either of
the parties. The period was roughly described as 25 to 30 years, when the settlement in the ar ea
was held. The questioned entries (mutations) were not made part of the record, neither tendered
in the evidence, nor marked as exhibits by either of the parties. The parties were in agreement
that the questioned entries were effected in record during co urse of the settlement held in the area
nearly 30 years back. It is an established principle that the time to file a suit for declaration as to
entry in the record of rights or periodical record starts from the accrual of cause of action to a
party and not from the date of effecting of the entry. This principle equally applicable in the case
in hand. The courts, trial and appellate, decided the issue pertaining to the limitation, computed
the time from the date when the entries were made in the Revenue Reco rd, but failed to consider
the date when the title in fact was denied, an error was committed. Though the record failed to
disclose the exact date, but admittedly the relevant entries were made 25 to 30 years back.
Further, the plaint and also the evidence on record failed to specify the date or the period when
the title of the petitioners was denied by the other side, except a period of one month prior to
filing of the suit, if they succeeded to establish their ignorance and their knowledge within the
described period it would bring their claim within the time and their suit would not hit by law of
limitation.
18. The petitioners claimed their right of ownership on basis of three agreements executed by
three persons namely Ghulam Haider, Umar and Mewa Gar ganari in favour of Jan Muhammad,
their paternal uncle, as far as 60 to 100 years back. While on the other hand the defendant Nos.1
to 12, including the contesting respondents, claimed their right of ownership supported by the
entries in the Revenue Record and a number of agreements executed in their favour.
19. The entries in the record of rights, maintained as per requirement of section 39 of the
Land Revenue Act, 1967, are for the purpose as described in the statute. It is not a title deed in a
strict sense, but it described a title rest with a person. An entry in the Revenue Record neither
creates a title, nor extinguished it; only describe a title of a person which is believed to be true
until proved otherwise. Section 52 of the Land Revenue Act, 1967 attached a presumption of
truth with an entry in the record of rights and periodical record, until contrary is proved or a new
entry is lawfully substituted thereof, therefore, this presumption of truth is rebutable. In view of
the principle contained in the referred provision a person who feels aggrieved of an entry in the
Revenue Record has to prove the contrary.
20. The title in the suit -land was the main dispute between the parties. The petitioners
claimed themselves to be the owners and in order to establish their title based their claim on
three documents, made part of the record as exhibits. Exh.P/1 is the agreement executed by one
Ghulam Haider on 8th August, 1945, whereby he agreed to sell out some land to Jan
Muhammad. While Exh.P/2 executed in the year 1309 Hijri by Mewa Garganari, and the third
exhibit was executed on 1363 Hijri by one Umar. The contents of all the three agreements ( )
disclosed the fact that the transaction was in the favour of Jan Muhammad by the mentioned
persons. The name o f Noor Muhammad, father of the present petitioners, nowhere appeared, he
was not party to the transaction. To explain non -presence of Noor Muhammad the petitioners
appeared with the plea that the property was purchased by their father Noor Muhammad and his
brother Jan Muhammad with their joint earnings, but the documentation was in the name of Jan
Muhammad due to respect, as he was the elder brother.
21. The onus was on the petitioners to establish their plea, in addition they were required to
establish t heir status as of legal heirs of Jan Muhammad to inherit the property owned by him
(Jan Muhammad). Nothing placed on the record to establish that Jan Muhammad died issueless
and the property owned by him devolved on the petitioners. Further, no document in the name of
the petitioners or their father was produced, nor their evidence replied their status to the extent of
share of Jan Muhammad. The three agreements tendered by the petitioner No.1 while recording
his statement before the trial Court, in origina l, which were perused and returned, and the
photocopies were retained and made part of the record. The observation of the trial Court was in
contravention of the same, therefore, erroneous. As the documents were properly tendered and
made part of the recor d, therefore, needed to be considered for a proper finding.
22. The petitioners completely relied on the referred documents, but unable to produce any
evidence to establish their execution. The petitioners were of the view that as the documents
were exec uted as far back as 100 years, therefore, as per law required to be considered without
any further proof within the meaning of Article 100 of the Qanun -e-Shahadat Order, 1984.
23. In rebuttal also the contesting defendants (contesting respondents) produc ed three
documents. Exh.D/1 was about some transaction between Jan Muhammad and Hazoor Bakhsh,
executed in 1378 Hijri. Exh.D/2 executed between Hazoor Bakhsh and Murad Khatoon, and the
date of execution was described as 2nd May, 1959, Exh.D/3 was executed between one
Khameesa and Ghulam Muhammad and the date of execution was mentioned as 28th May, 1961.
Exh.D/2 referred to some transaction and settlement between Murad Khatoon, predecessor of the
contesting respondents, and one Hazoor Bakhsh. The perusal of this document reveals that it
pertained to sale of two pieces of lands between Hazoor Bakhsh and Moula Bakhsh by Jan
Muhammad father of Murad Khatoon and she claimed one piece and there was a settlement
between the three and a piece of land was handed over to Murad Khatoon. This document
describes the fact that Murad Khatoon was daughter of Jan Muhammad, in whose name the sale
transactions were held by both the brothers (Jan Muhammad and Noor Muhammad) jointly by
Exh.P/1 to Exh.P/3.
24. The petitioners in sisted to invoke the discretion available under Article 100 of the Qanun -
e-Shahadat Order, 1984, which can only be exercised when a document produced from a proper
custody and is purported or proved to be thirty (30) years old. In view thereof the basic
requirement was to establish that the document intended to be produced was executed thirty
years back, and if established the available discretion can be exercised in favour of the person
who produced it. In the present case the petitioners had failed to pro duce any evidence to
discharge the basic requirement, as there was no evidence that the referred documents in fact
were executed on the dates mentioned therein, and further for the land, matter in issue in the case
in hand. Further, there was no evidence a bout the accompanying facts, the dates when they left
the area, when the suit property was handed over to Zar Bano, or to Murad Khatoon by them or
by their predecessor for the described purpose, when they received the proceeds, even the date
when their rig ht was denied by the other side. Furthermore, the concealment of the fact that Jan
Muhammad was survived by Murad Khatoon, his daughter, the predecessor of the contesting
respondents, established mala fides on part of the petitioners. There was not a singl e piece of
evidence to establish that they (petitioners) ever remained in possession of the suit -land. The
entries in the Revenue Record in favour of the respondents with the physical possession of the
suit-land established the adverse title in their (resp ondents') favour. Long standing entries in the
Revenue Record in no way can be reversed on unspecific evidence. The petitioners were unable
to establish a clear title in their favour.
25. As far as defendants Nos.12 to 23 are concerned, though they filed their written statement
jointly and admitted the claim of the petitioners (plaintiffs) with an assertion that they have no
connection or interest with the suit property. The petitioners (plaintiffs) had not made it clear that
why these persons were made p arty to the proceedings, as neither any relief was claimed to their
extent, nor even they were shown to be in possession of any portion of the suit property. In view
thereof an admission on part of the referred persons was of no legal effect. The mala fide s on
part of the petitioners is further apparent from their act of impleading the mentioned defendants
to get a support for their claim by admission on their (referred defendants) part.
26. In view of the above discussion the courts, trial and appellate, though failed to consider
the material on record in true context and misunderstood the law governing the matter, but
fortunately arrived to a correct decision. The petitioners, as per their own contention, frequently
visited the area, and have a contact w ith the mentioned respondents, but remained silent, and not
contested the entries in favour of the defendants (respondents Nos.1 to 9), and also failed to
establish their ignorance, which restrained them to approach the court within the stipulated
period o f time, and the delay occurred in filing of the suit made their claim barred by time.
27. The petitioners have failed to make out a case in their favour and for the reason the
petition is dismissed, with no orders as to costs.
AG/27/Bal. Revision dismissed.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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