2015 C L C 385
[Balochistan]
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
BAKHTIAR---- Petitioner
Versus
NASRULLAH and 12 others ----Respondents
Regular First Appeals Nos.15 and 16 of 2008, decided on 10th November, 2014.
(a) Specific Relief Act (I of 1877) ---
----Ss. 8 & 42--Registration Act (XVI of 1908), Ss.17 & 49---Qanun -e-Shahadat (10 of 1984),
Art.79---Suit for possession and declaration---Agreement ---Scope ---Document, registration of ---
Mutation ---Scope ---Plaintiffs filed suit for possession whereas defendants instituted suit for
declaration ---Both the suits were consolidated by the Trial Court ---Contention of plaintiffs was
that they were owners of suit property which was given to the defendants for cultivation whereas
defendants contended that they had purchased the said property through agreement ---Suit of
plaintiffs was decreed whereas that of defendants was dismissed ---Validity ---Agreement did not
by itself create any right, interest or any charge on the property in dispute --Impugned agreement
did not create any lawful title in favour of defendants ---Defendants had a remedy to seek specific
performance of said agreement ---Every document purporting to create any right, title or interest
of the value of Rs.100 and upwa rd would require compulsory registration---Contract for sale of
immovable property was a contract that sale of such property should take place on the terms
settled between the parties subject to fulfillment of all other obligations ---No sale of property by
the owners was made in favour of defendants ---Defendants were bound to produce the marginal
witnesses of agreement to prove its execution---Non -production of such witnesses was fatal to
the case of defendants ---Recital of such document could not be said t o have been proved ---
Defendants had failed to establish their right or interest in the suit property ---Plaintiffs were
recorded owners of suit land whereas defendants were neither bona fide purchaser nor lawful
owners the same---Question of handing over di sputed property to the defendants by the plaintiffs
did not arise ---Agreement executed in favour of defendants was not a valid and proved
document ---Presumption of truth was attached to the mutation ---Some cultivable portion of suit -
land was given to the d efendants for cultivation only ---Defendants were bound to provide due
share of produce to the plaintiffs but they did not only withhold the same but also deprived them
from their valuable right in the property since 2007---Defendants had neither purchased any
piece of suit property nor had any lawful right to continue their possession over the same ---Trial
Court had rightly rejected the evidence produced by the defendants ---Findings recorded by the
Trial Court were based on proper appreciation of evidence ---Defendants were directed to pay
compensatory cost of Rs.50,000 jointly and severally to the plaintiffs ---Tehsildar was directed to
take the vacant possession of suit property and handover the same to the plaintiffs within a
specified period--- Appeal was d ismissed with cost.
PLD 1978 Lah. 113, PLD 1986 Lah. 399; PLD 181 SC (AJ&K); 1983 SCMR 1178;
Hakim Khan v. Nazar Ahmed Lughmani, 1992 SCMR 1832; Mazloom Hussain v. Abid Hussain
PLD 2008 SC 571 and Nawab Khan v. Said Karim Khan 1997 SCMR 1840 rel.
(b) Registration Act (XVI of 1908) ---
----Ss. 17 & 49 ---Document, registration of ---Scope ---Every document purporting to create any
right, title or interest of the value of Rs.100 and upward would require compulsory registration.
(c) Contract Act (IX of 1 872)---
----S. 2--- "Agreement" ---Scope --- Agreement did not by itself create any right, title, interest or
any charge on the property.
(d) Transfer of Property Act (IV of 1882) ---
----S. 54---Sale---Meaning ---Contract for sale of immovable property was a contract to the effect
that sale of such property should take place on the terms settled between the parties subject to
fulfillment of all other obligations.
(e) West Pakistan La nd Revenue Act (XVII of 1987) ---
----S. 42---Mutation ---Scope ---Presumption of truth was attached to the mutation.
Syed Ayaz Zahoor for Appellants.
Muhammad Saleem Lashari for Respondents.
Date of hearing: 24th September, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---- Through R.F.A. No. 15 of 2008, the appellant has
challenged validity of the judgment and decree dated 30th April, 2008 (hereinafter the
"impugned judgment and decree") passed by the learned Senior Civil Judge, Hub (hereinafter the
"trial Court") in Civil Suit No. 13 of 2007 (re -numbered 18 of 2008), whereby the suit filed by
the appellant was dismissed. Whereas, the Regular First Appeal No.16 of 2008 has been directed
against the judgment and decree dated 30th April, 2008 passed b y the learned Senior Civil Judge,
Hub, whereby the suit filed by the respondents was decreed.
Both the appeals involved the question of same property, therefore, are being decided
through this common judgment.
2. The common facts arising out from both the appeals are that, the respondents Nos.1 to 53
(plaintiffs) arising from R.F.A. No.16 of 2008, are recorded owners of land falling under Khasra
Nos. 791, 795, 795/1, 793, 794, 689, 683, 676, 696, 806 and 791/1 (11 pieces), measuring 40
acres situated i n Mouza Padua, Tehsil Hub, District, Hub (property -in-dispute). On the property
in dispute, the owner constructed 2/3 rooms and installed a bore. The property in dispute was
given to the appellants/defendants namely Sher Muhammad, Dur Muhammad and Bakhtiar Khan
for cultivation and they used to give due share to the owners i.e. respondents Nos.1 to 53
(plaintiffs), when the tenants (appellants) without consent and permission of the owners started
construction of further rooms, they were stopped, as a result, the appellants stopped giving the
share of ownership to them. The predecessor of respondent Nos.I to VI namely Muhammad
Qasim filed a complaint under section 3 of the Illegal Dispossession Act, 2005 against the
appellants, which was allowed on 15th July, 2006 and the appellants were directed to restore
possession of the suit land, however, the appellants assailed the above order before this Court by
way of filing Criminal Revision Petition No. 71 of 2006, which was decided with consent that
the parties will approach the Civil Court -for their respective claims in respect of property in
dispute.
3. The appellant/plaintiff Bakhtiar in R.F.A. No.15 of 2008 filed a suit bearing No.13 of
2007 on 28th April, 2007 for Declaration, Cancellation and Injunction before the Senior Civil
Judge, Hub against the respondents and pleaded that on the basis of an agreement dated 28th
February, 2008, he purchased the property from the predecessor of respondents Nos.1 and 2
namely Muhammad Ali in consideration of Rs.70,000 and sought ownership. The trial Court
after recording evidence from both the sides dismissed the suit vide impugned judgment as
mentioned hereinabove.
4. The respondents Nos.1 to 53 in R.F.A. No. 16 of 2008 filed a suit bearing No.29 of 2007
on 1st September, 2007 against the appellants before the same Court for possession of the
property in dispute, which was contested by the appellants (defendants) by way of filing written
statement. In Suit No. 13 of 2007, out of the pleadings of the parties, foll owing issues were
framed: ---
(1) Whether the suit of plaintiff is liable to be rejected under Order VII, rule 11, C.P.C. in
view of preliminary objections raised by defendants Nos.I to 6 in their W/S?
(2) Whether the plaintiff is bona fide purchaser and lawful owner of property bearing Khasra
Nos.791, 791/1, 792, 792/2, 793, 94, 689, 683, 676, 796, 806 measuring 40 Acres situated at
Mouza Pathra, Tehsil Hub?
(3) Whether the defendant No.7 has handed over physically possession of said land to
plaintiff on the basis of an agreement dated 28- 2-1988?
(4) Whether document dated 28- 2-1988 is not a sale agreement and is it a forged, fabricated
and unlawful document?
(5) Whether plaintiff is entitled to the relief claimed for?
(6) Relief?
5. In Suit No.29 of 2007 filed by the respondents Nos.1 to 53, following issues were
framed: ---
(1) Whether the plaintiffs are recorded owners with possession of land falling under. Khasra
Nos. 791, 795, 795/1, 793, 794, 689, 783, 676, 796, 806, 791/1 11 pieces, meas uring 40 acres,
Mouza Pathra Tehsil Hub District Lasbela?
(2) Whether four years ago few cultivable portions of the suit land were given to defendants
by plaintiff for cultivation purpose only?
6. The appellant Bakhtiar produced PW -1 Jamala, PW -2 Gohar Khan, PW -3 Wazir Khan
and thereafter the appellant Bakhtiar recorded his statement and produced agreement Exh.P/1- A.
In rebuttal, the respondents in R.F.A. No. 15 of 2008 produced DW -1 Ghulam Nabi, DW -2
Shoukat Ali, DW -3 Abdul Ghani, DW -4 Abdul Latif (Pat wari), who produced mutation entries
Ex.D/4 -A.
7. It is pertinent to mention here that during pendency of the suit filed by the appellant
Bakhtiar, the respondents in R.F.A. No.16 of 2008 filed Suit No.29 of 2007 on 1st September,
2007. Both the suits we re consolidated on the application and with consent of the parties and the
counsel requested that the evidence recorded in Suit No.13 of 2007, be considered in Suit No.29
of 2007, therefore, DW -5 Gulab Khan, DWR -6 Muhammad Siddique, DW -7 Muhammad
Naeem and DW-8 Suleman are witnesses of the appellants. While in Suit No. 29 of 2007, arising
from R.F.A. No. 16 of 2008, the respondents/plaintiffs produced PW -1 Abdullah, PW -2 Abdul
Wahid and thereafter got recorded their statements through attorney Sadiq Ali, however, in that
suit, the statements recorded in Suit No. 13 of 2007 of the respondents/plaintiffs' witnesses were
also considered and DW -1 Ghulam Nabi, DW -2 Shoukat Ali, DW -3 Abdul Ghani and DW -4
Abdul Latif Patwari, who produced Ex.D/4- A along with entrie s in favour of respondents Nos.1
to 53 were considered and the trial Court after completion of evidence from both sides passed the
impugned judgments/decrees as mentioned hereinabove.
8. The learned counsel for the appellants contended that the appellant s have lawfully
purchased the property in dispute from the real owners through valid agreements; that the sale
agreement was produced in evidence and accordingly proved; that longstanding possession of the
appellants over the suit -land further establishes their right and entitlement; that in view of the
lawful transaction, the respondents are under legal obligation to transfer the suit property in
favour of the appellants; that mere mutation entries do not create title in favour of respondents;
that the fin dings rendered by the trial Court reflect misreading and non- reading of evidence,
cannot be sustained.
The learned counsel for the respondents contended that the appellants were inducted in
few pieces of suit property only for the purpose of cultivation subject to payment of share of
produce; that the appellants not only stopped the share of ownership to respondent, but illegally
and unlawfully retain the possession for which they had no right or entitlement; that the suit filed
by the appellant Mukhtiar was neither maintainable nor based on any title documents, therefore,
the trial Court has rightly dismissed the suit; that the respondents through oral and documentary
evidence established that they are lawful recorded owners of the suit property; that the impugned
judgments and decrees passed by the trial Court are based on evidence and sound reasoning
warrant no interference.
9. We have heard the counsel for the parties and gone through the record of the case.
Considering the evidence on record in respect of R.F.A. No.15 of 2008 arising out of suit filed
by the appellant Bakhtiar, wherein; he alleged purchase of the property in dispute on the basis of
agreement dated 28th February, 1988 Exh.P/1- A and filed a suit for declaration. It is evident
from the plaint and evidence on record that the appellant has based his claim on Exh.P/1- A,
which does not by itself create any right, interest or any charge on the property in dispute and the
so called agreement does not create any lawful title in favour of the ap pellant/plaintiff Bakhtiar.
Even otherwise in presence of a purported agreement, the appellant had a remedy to seek specific
performance subject to all just legal exception. Under the provisions of sections 17 and 49 of the
Registration Act, every document purporting to create any right, title or interest of the value of
Rs.100 and upward requires compensatory registration. Even otherwise section 54 of the
Registration of Property Act, apart from other notice postulates that a contract for the sale of
immov able property is a contract that a sale of such property shall take place on the terms settled
between the parties subject to fulfillment of all other legal obligations. It does not itself create
any interest in or charge on such property, it follows that the agreement between the parties
would not confer any right, title or interest in the property in suit in favour of the plaintiff. In the
case reported in PLD 1978 Lahore 113, a Division Bench of the Lahore High Court while
dealing with the issue related to grant of declaratory relief in terms of section 42 of the Specific
Relief Act, 1877, held that "this section applies only to a case where a person files a suit
claiming entitlement to any legal character or any right to property, which entitlement is de nied
by the defendants. It cannot be applied to a case where the plaintiff did not allege to any legal
char character or any right to property or its denial by the defendants". In the case reported in
PLD 1986 Lahore 399, the view taken was that, "where the plaint reveals that there was a mere
agreement to sale, plaintiff could not maintain his suit for declaration on the basis of such
agreement as it did not create any right, title or interest in the property". In another case reported
in PLD 1981 SC (AJ&K ), it was held that "a person, who has contracted to buy a land, is not
owner of any interest in the land and is, therefore, not entitled to a decree of title". In the case
reported in 1982 SCMR 1178, it was held by the Hon'ble Supreme Court of Pakistan that "a suit
under section 42 of the Specific Relief Act, if based on an agreement, the plaintiff is required to
ask for other relief i.e. specific performance of agreement and if prayer for specific performance
of agreement being not made, that suit is liab le to be dismissed."
10. In the instant case, the appellant Bakhtiar in his suit has relied upon the purported
agreement Exh.P/1 -A dated 28th February, 1988, stipulation whereof is as under: ---
11. The aforesaid two lines recital produced by the appell ant in his suit nowhere indicates
sale of the property by the owners in favour of the appellant Bakhtiar nor imposes any
performance on the part of owners nor confers any right in favour the, appellant. Even otherwise,
it was incumbent upon the appellant t o have produced the marginal witnesses i.e. Faqir
Muhammad and Sharif Khan to prove its execution. Non- production of case witnesses are fatal
to the case of appellant with the legal consequences, that the recital of these documents cannot be
said to have b een proved in terms of Article 79 of the Qanun- e-Shahadat Order, 1984, therefore,
the appellant has miserably failed to establish his right or interest in the property in dispute.
11.A The respondents through evidence established that they are the recorded owners, besides
the evidence on record certainly shows that the appellant was neither bona -fide purchaser, nor
the lawful owner of the property bearing Khasra Nos.791, 791/1, 792, 792/2, 793, 94, 689, 683,
676, 796 and 806 (11 pieces), measuring 40 acre s situated at Mouza Pathra Tehsil Hub,
therefore, the question of handing over the disputed property to the appellant Bakhtiar by the
respondent No.7 does not arise and would also not create any right or title in his favour, thus, the
findings on Issues Nos.1 to 4 recorded by the trial Court are unexceptionable, warranting no
interference by this Court.
12. Adverting to R.F.A. No. 16 of 2008, arising out of Suit No.29 of 2007 filed by the
respondents Nos.1 to 53 against the appellant/ defendant for posses sion of the disputed property.
The plaintiffs, besides producing PW -1 Abdullah, PW -2 Abdul Wahid and PW -3 Ghulam Nabi,
DW-2 Shoukat Ali and DW -4 Abdul Latif, produced mutation entries Exh.P/4- A, indicating that
they are the recorded owners of the property in dispute, whereas in rebuttal the appellant
Bakhtiar relied upon the purported agreement as discussed hereinabove and the same has not
been considered a valid and proved documents. Whereas the appellants Dur Muhammad and
Sher Muhammad produced DW -6 Muham mad Siddique, who merely stated that the appellant
No.2 Dur Muhammad purchased the property in dispute from Abdullah in consideration of
Rs.300,000 and DW -7 Muhammad Naeem and DW -8 Suleman merely stated that the appellant
Sher Muhammad purchased the proper ty in dispute without specifying the name of that person or
what was the consideration amount, therefore, the trial Court has rightly rejected the evidence
produced by the appellants/defendants.
13. The learned counsel for the appellants laid much stress that mere the mutation entries in
favour of the respondents Nos.1 to 53 does not create any right and on that strength, the mutation
entries produced by the respondents confer no right. This contention of the learned counsel for
the appellants is not tena ble. It is a well- settled that presumption of truth is attached to mutation.
The appellant6s did not lead any evidence to rebut the said entries in any manner. In the case of
Hakim Khan v. Nazar Ahmed Lughmani, 1992 SCMR 1832, the claim made on the basis of
revenue entries was upheld and concurrent judgments and decrees of the Courts below were set
aside because no evidence was led to prove that those entries were collusive or fraudulent. In the
case of Mazloom Hussain v. Abid Hussain, PLD 2008 SC 571, the afore referred view was
reiterated and it was observed as under: ---
"The High Court has observed that the entries in the Revenue Record in favour of the
appellants were not made in accordance with the prescribed procedure provided in law. The
answer to the foregoing objection is that the said entries emerged in the record of rights for the
year 1965- 66 have not been challenged by the plaintiff -respondents Nos.1 and 2 before the
Revenue functionaries or through a civil suit. As provided in section 52 of t he West Pakistan
Land Revenue Act; 1967, the presumption of truth is attached to the revenue entries which has
also been upheld by this Court in the case of Hakim Khan v. Aurangzeb and another 1979 SCMR
625."
In the case of Nawab Khan v. Said Karim Khan , 1997 SCMR 1840, the entries made in
the revenue record were not interfered with as presumption of truth was attached to those entries
and no strong evidence was led in rebuttal to warrant interference with those entries. The Hon'ble
Supreme Court in the said judgment at page 1844 held as under: ---
"The contents of the record of rights which also includes the settlement record used to be
followed with more or less exactness by the Settlement Officers, which included Wajib -ul-Arz,
Jamabandi and the porti on of the Shajra -enasb or genealogical of the proprietors.
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
correct ness attached to the first settlement record of an area."
14. In the present case, the respondents Nos.1 to 53 through an oral and documentary
evidence, i.e. the revenue record, had proved that they are the recorded owners of the disputed
property and some cultivable portion of the said land were given to the appellants/defendants for
cultivation purposes only and the appellants had neither purchased any piece of the suit property
from them nor had any lawful right to continue their possession over the sa me, thus the findings
rendered by the trial Court in respect of Issue Nos.1 to 5 are based on proper appreciation of
evidence, which do not call for any interference by this Court.
15. The appellants in both the appeals, though had no right or entitlement over the disputed
property and they were inducted to cultivate the said portion of the property by the respondents
(owners of the property) and they were under legal obligation to provide due share of produce to
the owners i.e. respondents, they did not only withhold the share, but also deprived the
respondents from their valuable right in the property in dispute since 2007, thus we are
constrained to impose a compensatory cost of Rs.50,000 (Fifty Thousand) upon the appellants
jointly and severally to be paid to the respondents Nos.1 to 53 and the concerned Tehsildar is
directed to take the vacant possession of the property in dispute from the appellants and
handover the same to the respondents Nos.1 to 53 within a period of one month.
In view of the above, the Regular First Appeal Nos.15 and 16 of 2008 are dismissed with
cost.
Decree sheet be drawn accordingly.
AG/82/Bal. Appeal 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,
let us know.