2015 C L C 1555
[Balochistan]
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
BIBI BABO ----Appellant
versus
MUHAMMAD ASLAM and another ----Respondents
R.F.A.No.66 of 2013, decided on 16th April, 2015.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 85, 89 & 92---- Specific Relief Act (I of 1877), Ss. 8, 9, 39 & 54 ---Revenue record,
evidentiary value of ---Mutation entry ---Presumption of truth---Utility bill as proof of ownership
of property ---Scope ---Plaintiff filed suit for posses sion, permanent injunction, possession and
cancellation of agreement claiming ownership of suit property alleging that defendant had
illegally occupied the same---Contention raised by plaintiff was that she was owner of suit
property as per revenue record supported by oral evidence which remained unrebutted, and
utility bills produced by defendant were not sufficient proof of ownership---Defendant took the
plea that he had been in possession for twenty -eight years and paid all utility bills; that question
of title had earlier been decided in complaint filed by plaintiff under Ss.3, 4 & 5 of Illegal
Dispossession Act, 2005; and that mere entries in name of plaintiff were no proof of her
ownership---Trial Court dismissed the suit on ground that defendant had been in possession of
suit property for twenty -eight years and substantiated his possession by producing electricity
bills---Validity ---Trial court had given more weight to utility bills than to mutation produced by
plaintiff ---Defendant had failed to prove that mutation entry in name of plaintiff was collusive or
result of forgery ---Presumption of truth was attached to revenue entry ---Mutation entry was a
document bearing presumption of truth unless rebutted---Presumption of truth was attached to
revenue record, which could not be controverted without sufficient and convincing evidence ---
Utility bills might establish possession of a person, but such documents could not establish
ownership in presence of recorded owner ----In presence of mutation entry in favour of plaintiff,
utility bills had no substantial value with regard to ownership of suit property ---Plaintiff had
succeeded in substantiating her claim, which defendant could not rebut ---High Court, setting
aside judgment and decree of Trial Court, decreed the suit in favour of plaintiff as prayed for.
Hakim Khan v. Nazar Ahmed Lughmani 1992 SCMR 872 and Nawab Khan and others v.
Said Karim Khan and others 1997 SCMR 1840 rel.
(b) Illegal Dispossession Act (XI of 2005) ---
----Ss. 3, 4 & 5 ----Specific Relief Act (I of 1877), Ss. 8 & 9---Complaint, dismissal of ---Effect ---
Plaintiff before filing the suit for possession had filed complaint under Ss.3, 4 & 5 of Illegal
Dispossession Act, 2005 against the defendant which the court dismissed on ground of pendency
of civil litigation between parties ---Defendant raised plea that after dismissal of said complaint,
plaintiff had no right to file suit for possession--- Validity ---Mere dismissal of complaint did not
create any right in favour of defendant regarding suit property.
(c) Civil Procedure Code (V of 1908) ---
----O. VII, R. 3----Pleadings ---Wrong description of property in pleadings -- Effect ---Trial court
non-suited plaintiff for giving wrong description of property ---Validity ---Wrong description of
suit property was not disputed as per pleadings of parties ---Plaintiff produced mutation entry in
evidence which contained detail description of suit property ---Defendant in his written statement
had admitted possession of plaintiff prior to his own, and due to such admission there was no
cloud between parties in res pect of identity or incorrect description of suit property ---Oral
witnesses also supported the version of plaintiff ---Findings of Trial Court were based on
erroneous assumption and contrary to record of case ---Appeal was allowed.
(d) Specific Relief Act (I of 1877) ---
----Ss. 9 & 42---Suit for possession---Defendant based his claim on mere possession ---Validity ---
Claim merely on basis of possession was good against whole world except the rightful owner ---
Possession was not a good defence against true owner and the same was unjustified and
unwarranted.
AIR 2004 SC 4609 and AIR 1990 SC 673 rel.
(e) Limitation Act (IX of 1908)---
----Art. 144----Adverse possession ---Limitation ---Defendant raised objection of limitation as he
had based his claim on adverse possession for having been in possession of suit property for
twenty -eight years ---Trial Court accepting said objection held that the suit was time -barred ---
Validity ---Plaintiff filed the suit on basis of title and cause of action under Art.144 of L imitation
Act, 1908 arose on date when possession of defendant over suit property became adverse to
plaintiff ---Defendant claimed right on basis of adverse possession when he had filed written
statement ---Suit was within time ---High Court reversed findings of Trial Court as to issue of
limitation.
Mrs. Maqsooda Begum v. Ghulam Qadir and others 1996 SCMR 1539 rel.
Abdul Aziz Khan Khilji for Appellant.
Qurban Ali Tareen for Respondents.
Date of hearing: 9th March, 2015.
JUDGMENT
MUHAMMAD EJA Z SWATI, J.--- Through the instant Regular First Appeal, the
appellant has challenged the validity of the judgment and decree dated 22nd July, 2013
(hereinafter the "impugned judgment and decree") passed by the learned Civil Judge -VI, Quetta
(hereinafter t he "trial Court"), whereby the suit filed by the appellant against the respondent was
dismissed.
2. The facts of the case are that the appellant/plaintiff filed a suit for declaration, permanent
injunction, possession and cancellation of agreement dated 15th October, 1981 with the
averments that the appellant is the owner of the house bearing mutation No.3191, Khasra No.2
Qitats, measuring 11 poles situated at Chalobowary Satellite Town, Quetta with further
description mentioned in the plaint (the house i n question). It is further averred that she being an
old woman of 60 years of age was residing with her 70 years old husband, who was suffering
from ailment. The appellant went to Karachi for treatment of her ailing husband, the respondent
No.1, by taking the advantage of her absence, while breaking the lock of the house in question
occupied it. After her return from Karachi, she tried her best to take possession of the house in
question from the respondent No.1, but could not succeed. She approached the concerned Police
authorities and subsequent thereto filed a complaint under sections 3, 4 and 5 of the Illegal
Dispossession Act, 2005 (hereinafter the "Act, 2005") before the Court of the learned Additional
Sessions Judge -III, Quetta, which was dismissed on the ground that a civil dispute existed
between the parties, therefore, the instant suit for possession of the house in question was filed.
3. The respondent No.1 contested the suit by way of filing the written statement. Out of
pleadings of the parties, following issues were framed:
1. Whether the suit of plaintiff is not maintainable under section 42 of Specific Relief Act?
Relief?
2. Whether the suit of the plaintiff is not maintainable under sections 54 and 56 of the
Specific Relief Act?
3. Whether the suit of plaintiff is time -barred?
4. Whether no cause of action accrued to plaintiff against the defendant?
5. Whether the plaintiff has not given the Specific description of the suit property and not
gave kind of ownership under Order II, rule 2, C.P.C.?
6. Whether the plaintiff is lawful owner of the house bearing mutation No.3191 Khasra
No.2 Qitat, measuring 3,000 sq. ft situated at Chalobawary Satellite Town Quetta, and the
defendant No.1 has no lawful right or entitlement to retai n the possession of the house in
question?
7. Whether the agreement dated 15 -10-1981 is liable to be cancelled?
8. Relief?
4. The appellant produced PW -1 Abdul Haleem, representative of Tehsil City, Quetta, PW -
2 Mehboob Ali, Junior Clerk/representati ve of Additional Sessions Judge -III, Quetta, PW -3
Usman Ghani and thereafter, the appellant recorded her own statement. In rebuttal, the
respondent No.1 produced DW -1 Rafi -ud-Din, DW -2 Ghulam Bari, representative of Additional
Sessions Judge -III, Quetta, D W-3 Kamal -ud-Din, DW -4 Muhammad Ishaq, representative of
SSGC, Quetta, DW -5 Yahya Khan, DW -6 Muhammad Yasir, DW -7 Muhammad Siddique, DW -
8 Muhammad Yasir and thereafter respondent No.1 got recorded his own statement.
5. The trial Court, vide impugned judg ment dismissed the suit.
6. The learned counsel for the appellant contended that the appellant has substantiated her
title over the house in question by producing mutation entry No.3191 Exh.P/1 and other oral
evidence, indicating that she is recorded own er in the revenue record. This aspect of the matter
has altogether been ignored by the trial Court; that the presumption of truth is attached to the
revenue entries as no evidence worth of reliance had been produced by the respondent No.1, in
rebuttal; tha t the trial Court relied upon the utility bills produced by the respondent No.1, which
are not proof of the ownership; that mere longstanding possession of the respondent No.1, is not
a good defence against the recorded owner.
7. The learned counsel for the respondent No.1 controverted the contention of the learned
counsel for the appellant and contended that prior to filing of the suit, the right and title of the
appellant was decided by the learned Additional Sessions Judge -III, Quetta when her complain t
under sections 3, 4 and 5 of the Act, 2005 was dismissed; that the order of the learned Additional
Sessions Judge -III, Quetta had not been challenged before the higher forum, which had attained
finality; that the appellant's suit was hopelessly time barr ed and she had also failed to
substantiate her claim; that the respondent No.1 is in possession of the house in question for
more than 28 years and also paying utility charges of gas, electricity and water charges on the
basis whereof, he is entitled to re tain the possession of the house in question; that the mere
entries on the name of the appellant neither create any right or title nor it had any evidentiary
value; that the findings rendered by the trial Court are based on proper appreciation of evidence,
as such the same are liable to be sustained.
8. We have heard the learned counsel for the parties and have gone through the record of the
case. We find that the fate of the case had been decided by the trial Court on the following issue:
"Whether the plaintiff is lawful owner of the house bearing mutation No.3191 Khasra
No.2 Qitat, measuring 3,000 sq. ft situated at Chalobawary Satellite Town Quetta, and the
defendant No.1 has no lawful right or entitlement to retain the possession of the house in
question?"
9. The aforesaid issue had been decided by the trial Court against the appellant on the
ground that the respondent No.1, is in possession of the house in question for more than 28 years
and he has also produced the documentary evidence i.e. utili ty bills Exh.D/4 -A, Exh.D/5- A,
Exh.D/5- B and Exh.D/8- A. Further the appellant has also been non- suited on the ground that she
has failed to give the proper description of the house in question. It is important to note here that
on the basis of pleadings of the parties, there was no dispute in respect of wrong description of
the house in question. The appellant in para No.1 of her plaint, asserted that she is the owner of
the house in question on the basis of mutation entry No.3191 and the respondent No.1, i n legal
objection 'C' of the written statement admitted that 28 years ago, she was in possession of the
house in question and a dispute arose between them, which was settled by the notables of the
area. The respondent No.1 made some payment to the appellant and she vacated the house in
question; due to this admission on the part of the respondent No.1, there was no cloud between
the parties in respect of identity or incorrect description of the house in question; even otherwise
the appellant had produced mutation entry Exh.P/1, wherein the detail of the property and its
area had been mentioned, therefore, the findings of the trial Court in respect of incorrect
description of the house in question is based on erroneous assumption and contrary to the record
of the case. The appellant, besides producing mutation entries Exh.P/1 also produced the other
witnesses, who have specifically stated that the appellant is the recorded owner of the house in
question. The trial Court has not given due weight to the mutation entry Exh.P/1 produced by the
appellant, whereas had given more weight to the utility bills produced by the respondent No.1,
was held that on the basis of said utility bills coupled with the longstanding possession of the
respondent No.1, the appellant ha s lost her right, is also contrary to law. Admittedly, the
appellant prior to filing the suit had filed a complaint under sections 3, 4 and 5 of the Act, 2005
against the respondent No.1, which was dismissed by the learned Additional Sessions Judge -III,
Quetta on the ground that a civil dispute existed between the parties. The mere dismissal of the
complaint does not create any right in favour of the respondent No.1 qua the property in
question. Since the appellant had produced the mutation entry indicating that she is recorded
owner of the house in question, the respondent No.1 has failed to lead any evidence to prove that
the said entry was collusive or result of any forgery, therefore, the authenticity as well as
presumption of truth was attached to the r evenue entry produced by the appellant. This aspect of
the matter has totally been ignored by the trial Court and has given weight to the utility bills
produced by the respondent No.1. The utility bills may establish the possession of a person, but
such documents cannot establish the ownership of the person in presence of the recorded owner.
The evidence on record produced by the appellant further shows that she is an old lady and went
to Karachi for treatment of her old and ailing husband and in her absenc e, the respondent No.1,
who is happened to be the real brother of the appellant occupied the house and when she came to
Quetta, she was not allowed to stay in the house in question. We have also observed that the trial
Court has failed to consider the evidence on record in its true perspective. In presence of
mutation entry in favour of the appellant, the utility bills relied upon by the respondent No.1, had
no substantial value with regard to the ownership of the house in question. The mutation entry is
a document bearing presumption of truth unless rebutted. In the case of Hakim Khan v. Nazar
Ahmed Lughmani, 1992 SCMR 872, the claim made on the basis of revenue record was upheld,
as no evidence was led to prove that those entries were collusive or fraudule nt. In the case of
Nawab Khan and others v. Said Karim Khan and others, 1997 SCMR 1840, the entries made in
the revenue record were not interfered with that, the presumption of truth was attached to those
entries and no evidence was led in rebuttal to warr ant interference in those entries. The Hon'ble
Supreme Court at page 1844 held as follows: ---
"The presumption of truth is attached to the record of rights generally but to the first ever
settlement record in particular. Very strong evidence is required to rebut the presumption of
correctness attached to the first settlement record of an area.
In the light of the principle enunciated above for the adjudication upon the authenticity of
the entries of the revenue papers and those of the first ever settl ement record very strong
evidence is required in rebuttal of those entries. In the instant case as has been held by all the
three Courts below no evidence of any consequence has been adduced by the petitioners in
rebuttal of the entries of the settlement r ecord."
10. It is settled that presumption of truth is attached to the revenue record, which could not be
controverted without sufficient and convincing evidence. The respondent No.1, in rebuttal has
failed to lead any evidence to rebut the said entries, therefore, through the cogent evidence, the
appellant has established her right to be the owner of the house in question. The respondent
No.1, had further based his claim on mere possession. It is settled that a claim on the basis of
possession is good ag ainst the whole world except the rightful owner, it is not a good defence
against a true owner. In the judgment reported in AIR 2004 SC 4609, it was held that "the
possession is no good against the rightful owner and the assumption that he is in peaceful
possession will not work and cannot be operate against the true lawful owner". In the judgment
reported in AIR 1990 SC 673, it was held that the possession of the agent is the possession of the
principal and in view of the fiduciary relationship, the respondent No.1 cannot be permitted to
claim his own possession. The respondent No.1 merely on the basis of possession cannot be
declared owner.
11. In the instant case, the claim of the respondent No.1, merely on the basis of possession
against the true owner i.e. appellant was unjustified and unwarranted. The trial Court also
decided the issue of limitation against the appellant on the ground that the respondent No.1, is in
possession of the house in question for more than 28 years. Admittedly, the stand of t he appellant
that the respondent No.1 occupied the house in question when she went to Karachi for treatment
of her husband and after return, the respondent No.1, raised a dispute, which appears to be based
on an adverse possession. The learned trial Judge while considering the facts that the respondent
No.1 is in possession of the house in question for the last 28 years and held that the suit for
possession filed by the respondent No.1 was barred by time, as she filed the suit beyond the
period of twelve ye ars, is not in accordance with law. The appellant had filed the suit on the basis
of title and cause of action under Article 144 of the Limitation Act arises on the date when the
possession of the respondent No.1 over the house in question becomes adverse to the
appellant/plaintiff. In the instant case, the respondent No.1, claimed right over the house on the
basis of adverse possession where he filed written statement, therefore, the suit filed by the
appellant was not barred by time. The findings of the t rial Court in respect of issue No.1 and the
related issues are reversed accordingly. Reference in this respect is made to the case of Mrs.
Maqsooda Begum v. Ghulam Qadir and others 1996 SCMR 1539, wherein it has been held as
under: ---
"The next Article relied by the learned counsel for the petitioner is Article 144 (ibid),
which also prescribed a period of 12 years for claiming possession of immovable property or
interest therein not otherwise specially provided for. The cause of action for suit under Ar ticle
144 (ibid), arises on the date when the possession of the defendant over the property becomes
adverse to the plaintiff. We have gone through the evidence on record and asked the learned
counsel for the petitioner to point out the actual date on which possession of the petitioner
became adverse to that of the plaintiff. The learned counsel is unable to point out any specific
date on which the petitioner claimed adverse possession of the property against the plaintiff.
However, the learned counsel conte nded that since possession of property from the date of
purchase in the name of respondents' predecessor had long been either with the petitioner or with
her father, the limitation prescribed in filing of the suit expired within 12 years of the date of
purchase. The contention of the learned counsel has no merit. As pointed out by us earlier the
limitation for filing suit under Article 144 (ibid) starts on the date on which the defendant's
possession became adverse to that of the plaintiff. In the present c ase the point on which the
petitioner claimed adverse possession of the land is the date on which she filed her written
statement in the rent proceedings, wherein she denied the title of respondents and claimed to be
in possession of the property in her ow n right. It is not disputed by the learned counsel for the
petitioner that from the date of filing written statement in the ejectment case, the suit is within 12
years. In view of the above circumstances, the suit instituted by the respondents was within
time."
12. From the above provision of law and discussion of evidence, in the instant case, the
appellant through cogent and admissible evidence substantiated her claim qua the house in
question and the respondent No.1, has not been able to rebut the muta tion entry. It is held that the
appellant is lawful owner of the house bearing mutation No.3191, Khasra No.2 Qitats 3000 sq. ft
situated at Chalouboury, Satellite Town, Quetta and is entitled for its possession, whereas the
respondent No.1 has no lawful ri ght to retain the possession of the same. The findings of the trial
Court in respect of issue No.1 and the connected issues including legal objections are contrary to
evidence on record, therefore, the same are reversed and decided accordingly.
In view of the above, the Regular First Appeal No. 66 of 2013 is allowed, the impugned
judgment and decree dated 22nd July, 2013 passed by the learned Civil Judge -VI, Quetta is set
aside and the suit filed by the appellant is decreed in her favour and against the respondent No.1.
The parties are left to bear their own cost.
Decree sheet be drawn accordingly.
SL/53/Bal. Appeal allowed.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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