2015 C L C 560
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
Malik MUNIR AHMED ----Petitioner
Versus
Sardar KHAIR MUHAMMAD TAJIK and others ----Respondents
Civil Revision No.6 of 2007, decided on 30th April, 2014.
(a) Specific Relief Act (I of 1877) ---
----S. 8---Suit for possession ---Lease deed ---Mutation ---Scope ---Lease deed executed in favour
of plaintiff without possession was merely an entry in the record which did not confer any title ---
Mutation by itself would not create title and same had to be proved through evidence of title ---
Persons deriving title on the strength of mutation entries had to prove that transferor had parted
the ownership of property in favour of transferee and mutation was duly entered and attested ---
Lease a greement and abstract of record maintained by Cantonment Board was not proved and
same did not provide any assistance to the plaintiff's claim ---Plaintiff had failed to substantiate
his plea through documentary and oral evidence ---Defendants had establishe d their possession
over the suit property since the life time of their predecessor ---Pleadings and evidence produced
by the plaintiff did not correspond to each other ---Plaintiff had failed to establish that either he
had constructed the property in questi on or had ever remained in possession of the same ---
Divergent pleadings and evidence was fatal for the case of plaintiff ---Departure from pleadings
could not be allowed and evidence which did not support the pleadings or vice versa in any case
would not ac hieve the object ---Both the courts below had passed well speaking and well
reasoned judgments ---Revision was dismissed in circumstances.
Hakim Khan's case 1992 SCMR 1832 and Shafi Muhammad v. Khanzada Gul 2007
SCMR 368 rel.
(b) Civil Procedure Code ( V of 1908) ---
----S. 115 ---Revisional jurisdiction of High Court ---Scope ---High Court could not reverse
concurrent findings of facts while exercising revisional jurisdiction.
Major Rasheed Baig v. Rehmatullah Khan PLD 2001 SC 443 rel.
(c) Mutation ---
----Mutation by itself would not create title and same had to be proved through evidence of title.
Hakim Khan's case 1992 SCMR 1832 rel.
(d) Pleadings ---
----Departure from pleadings could not be allowed.
Hadi Shakeel Ahmed and Ay az Swati for Petitioner.
Mushtaq Anjum for Respondents.
Date of hearing: 21st March, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- This Civil Revision Petition is
directed against the judgment and decree dated 7 -9-2004 passed by the learn ed Senior Civil
Judge -IV Quetta ("trial court") in Civil Suit No.80 of 2002, whereby the suit for 'Possession and
Permanent Injunction' filed by the plaintiff (hereinafter the petitioner) was dismissed judgment
was assailed through Civil Appeal No.42 of 20 05 before the learned Additional District Judge -
III, Quetta ("appellate court"), who vide judgment dated 14 -10-2006 upheld the judgment and
decree passed by the learned trial court.
2. Briefly the facts of the instant revision petition are that the petit ioner filed a civil suit for
"Possession and Permanent Injunction" against the defendants (respondents) on the strength that
he is the owner of super -structure of a building known as 'Kabir Building', while the land
underneath belongs to the Cantonment Boa rd Quetta, which was leased out in his favour vide
lease deed dated 29 -4-1981 for a period of ninety nine years. It was narrated that in fact the said
building was constructed by his father namely Muhammad Kabir, which consists of five blocks
and his late father during his life time had distributed the said property among his legal heirs in
the following manner.
(1) Share of Gul Muhammad, Block -A.
(2) Share of Munir Ahmed, Block -B. (Petitioner)
(3) Share of Sher Muhammad and his two sons, Block -C.
(Legal heirs of respondent No.3 delisted).
(4) Share of Sardar Khan and his daughter, Block -D.
(5) Share of Khair Muhammad and his three sons (Respondent No.1) Amir Muhammad
(Respondent No.2) and Ghulam Muhammad, Block -E.
He further stated that in Bl ock-B two rooms and two `godowns' identified as postal F -4 and
postal F -5 inclusive of godowns Nos.1 and 2 of the suit property exclusively belong to the
petitioner. The rooms were allowed to be retained by defendant No.1/respondent No.1 for a
temporary ph ase, while godowns were given to defendant No.2/respondent No.2 for personal use
but purely on temporary basis. He alleged that instead of utilizing the suit property for their
personal occupation the respondents rented out the same against a huge amount o n monthly rent.
Initially, the petitioner was unaware that the property had been rented out. Now the said property
was required for his personal bona fide requirement, therefore, he prayed that the same be
handed over to him after passing a decree for poss ession and permanent injunction against the
respondents.
3. On receipt of notices, the respondents appeared and filed their joint written statement,
wherein they had controverted the claim by raising certain legal objections and categorically
denied the facts pleaded by the petitioner. The gist of their contention was that the suit property
situated in Kabir Building belongs to their predecessor -in-interest and same was constructed by
him, however in terms of family arrangement the properties were distrib uted among the legal
heirs but was not partitioned on ground, therefore, the title of the petitioner was seriously
disputed. During the pendency of the case, the respondent No.3 viz Sher Muhammad (Brother of
the parties) filed an application under Order I, Rule 10 of Code of Civil Procedure, 1908 seeking
to be joined as defendant, which was accepted and he was allowed to be arrayed as defendant
No.3.
4. In view of the controverted pleas entered by the parties the learned trial court framed the
following i ssues: ---
"(1) Whether plaintiff is the owner of Super Structure of the property in dispute?
(2) Whether the property in dispute is a joint shared property, if so who are the sharers and to
what extent?
(3) Whether the plaintiff is entitled for the r elief claimed for?
(4) Relief? "
The petitioner produced three oral witnesses and one official witness in respect of record of
ownership of the suit property and finally got his statement recorded. Respondents produced two
witnesses and statement of th eir attorney was recorded.
5. On conclusion of trial the judgment and decree dated 7 -9-2004 was passed and the suit
filed by the petitioner was dismissed. The judgment and decree of the learned trial court was
assailed before the District Judge in appeal , which was subsequently transmitted to the file of
learned Additional District Judge -III, Quetta, whereby the appeal was also dismissed vide
judgment dated 14 -10-2006. Both the said judgments were assailed in this petition.
6. Mr. Ayaz Swati, learned counsel for the petitioner contended that PW -2 viz Muhammad
Safeer, the representative of Military Estate Officer produced the extract of record pertaining to
ownership of suit property and a lease deed showing the lease hold rights of the petitioner over
the suit property. He further stated that the oral evidence produced by the petitioner is more
reliable as PW -1 and PW -4 are sons of respondent No.3, whereas PW -2 is the real brother of the
parties, while the witnesses produced by the respondents including the attorney are sons of
respondent No.1 viz Khair Muhammad. Thus, when excluding the oral evidence, the
documentary evidence shows the ownership of the petitioner over the suit property, while the
defendants/respondents were unable to substantiate their claim on basis of documentary
evidence. He urged that the judgments passed by the courts below are perverse, non -speaking
and based on non -reading of evidence; therefore, after setting aside the impugned judgments and
decrees the suit filed by the petition er may be decreed.
7. Mr. Mushtaq Anjum, learned counsel for respondents Nos.1 and 2 contended that the
witnesses produced by the petitioner were not only contradictory among them but were also at
variance from the pleadings of the petitioner. He referre d to the documentary evidence produced
by the petitioner and pointed that the same relates to Block -B of Kabir Building, while the suit
property is separated and distinctive portion, which is in possession of respondent Nos.1 and 2
from the time when prede cessor -in-interest of the parities was alive, who passed away in the year
1996, while the rooms and godowns relating to suit property were constructed in the year 1981.
He added that due to some taxation issues the predecessor of the parties distributed th e properties
among the legal heirs in documents only, except the suit property the whole Kabir Building was
at the disposal of their predecessor, who himself was recipient and the respondent No.1 was
collecting the rent till his death. He stated that after his death the parties and other legal heirs of
their predecessor have entered into possession in lieu of inheritance but no physical partition on
ground has ever taken place, therefore, the parties and other legal heirs have strained relationship
due to n on-partition but the dispute between the parties is in respect of rest of the properties and
except the petitioner no one else claimed in respect of suit property. He finally referred to the
report compiled by the learned Local Commissioner appointed with consent of the parties on 10 -
12-2004, who in her report mentioned that according to the record and physical inspection no
such property known as Postal F -4 and Postal F -5 was found. He finally urged that in such view
of the fact, when no objection was file d against the report of learned Local Commissioner no
occasion was available to the petitioner to claim the ownership and sought possession over the
suit property. He finally added that the concurrent findings of fact arrived at by the learned trial
court and the appellate court cannot be disturbed under the revisional jurisdiction of this court.
8. The perusal of case file reveals that initially the predecessor of respondents Nos.3 -A to 3 -
E namely Sher Muhammad was allowed to join as defendant before the learned trial court but
after his death, though his legal heirs were arrayed as respondents Nos.3 -A to 3 -E but upon their
statement that they do not have any concern with the issue in dispute, therefore, their names may
be deleted from the array of respon dents. The needful was accordingly done vide order dated 27 -
7-2012 passed by this court and respondents Nos.3 -A to 3 -E were delisted from the array of
respondents.
9. I have heard the learned counsel for the parties and perused the record with their valu able
assistance. Perusal of plaint reveals that in para 1, the petitioner stated that he is an exclusive
owner of super -structure of Kabir Building in which the suit property is also included and in para
2 he stated that the said Kabir Building was constru cted by his father. In para 3 he again
reiterated by specifying that the suit property known as Postal F -4 and Postal F -5 including two
godowns are under his exclusive ownership and he himself gave the same to respondents Nos.1
and 2. He tried to improve h is plea in his court statement, whereby he stated that he was the only
collector of monthly rent of the properties of their predecessor and the suit property was given to
respondent Nos.1 and 2 by his father on his instance but now the same is required for his
personal bona fides requirements. PW -1 namely Khan Jan Shaheryar son of Sher Muhammad
(respondent No.3) admitted that E -Block belongs to respondent No.1 viz Khair Muhammad but
denied the suggestion that the suit property falls within E -Block. PW -2 nam ely Gul Muhammad
s/o Muhammad Kabir (brother of the parties) stated that he does not know who is entitled to
retain the property in dispute, however, the lease hold rights vests with the petitioner. PW -4
namely Mohib Shoaib son of Sher Muhammad stated that the suit property was given by his
grandfather (predecessor of the parties) to respondent No.1, while he as well as, the petitioner
admitted that during the life time of their predecessor, the respondent No.1 was collecting the
rent of whole properties.
10. The perusal of case file and careful consideration of contention put forth on behalf of the
petitioner, it is crystal clear that the petitioner's case mainly hinges upon the lease deed dated 29 -
4-1981. But on the other hand through pleadings as well a s in evidence it was brought on record
that the said transfer took place due to some taxation issues, when predecessor of the parities
distributed his properties among the legal heirs and said arrangement was made in documents
only but was never materializ ed physically, therefore, lease deed executed in favour of the
petitioner was just to the extent of documents only. The lease deed executed in favour of the
petitioner without possession was mere entry in the record, which does not confer any title. In
Hakim Khan's case reported in 1992 SCMR 1832 the Hon'ble apex Court has held that mutation
by itself would not create title and the mutation had to be proved through evidence of title. The
persons deriving the title on the strength of mutation entries, have t o prove that transferor had
parted the ownership of property in favour of transferee and the mutation was duly entered and
attested, therefore, the lease agreement and abstract of record maintained by the Cantonment
Board Quetta was not proved and did not provide any assistance to the petitioner's claim,
therefore, was rightly discarded by the courts below.
Keeping in view the aforesaid principle enunciated by the Hon'ble Apex Court the
petitioner had failed to substantiate his plea through documentary a nd oral evidence to establish
that the property in question either known as Postal F -4 and Postal F -5 or comes within the B -
Block of Kabir Building.
11. The respondents established their possession over the property in dispute since the life
time of thei r predecessor. They further established that due to taxation issues the property was
distributed among the legal heirs of late Muhammad Kabir and no physical partition has as yet
taken place between the parties and other legal heirs of their predecessor -in-interest. The
contention of respondents finds more support from the report compiled and submitted by the
learned Local Commissioner that no such property known as Postal F -4 and Postal F -5 exist and
the petitioner neither filed any objection to the report of the learned Local Commissioner nor
produced any documentary evidence to substantiate his claim.
12. The pleadings and evidence produced by the petitioner did not correspond to each other.
The petitioner had miserably failed to establish that either h e had constructed the property in
question or had ever remained in possession of the said portion of Kabir Building. The
divergence between the pleading and evidence has also been considered as fatal and in case of
such an eventuality the result would be s ame as drawn by the learned lower courts. Thus, the
departure from pleading cannot be allowed and the evidence, which does not support the
pleading or vice versa, in any case, the lis so brought does not achieve the object. Reliance in this
behalf is made to Shafi Muhammad v. Khanzada Gul's case reported in 2007 SCMR 368.
Therefore, the learned lower courts correctly observed the contradiction between the pleadings
and the evidence and the suit, as well as, the appeal were rightly dismissed.
13. I am in a greement with the learned counsel for the respondents that concurrent findings
of facts cannot be reversed in revisional jurisdiction of this court. Reference is made to Major
Rasheed Baig v. Rehmatullah Khan reported in PLD 2001 SC 443.
In view of abov e discussion and precedents rendered by the Hon'ble Apex Court, I am of
the considered view that both the forums below have passed a well speaking and well reasoned
judgments, which do not require any interference under the revisional jurisdiction of this court,
therefore, petition is dismissed.
AG/6/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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