2019 C L C 1096
[Balochistan]
Before Mrs. Syeda Tahira Safdar, C.J and Muhammad Ejaz Swati, J
Syed ABDUL MANAN and others ----Appellants
Versus
Malik ASMATULLAH and others ----Respondents
Regular Second Appeal No. 04 and Civil Revision Petition No.355 of 2000, decided on 28th
September, 2018.
(a) Arbitration Act (X of 1940) ---
----Ss. 14, 17, 21, 23 & 47---Qanun -e-Shahadat (10 of 1984), Arts. 100 & 101---Balochistan
Land Revenue Act (XVII of 1967), S.52---Limitation Act (IX of 1908), Art.144 (since
omitted )---Suit for declaration and possession--- Limitation ---Compromise by the attorney on
behalf of his principal ---Reference to arbitration without intervention of the Court ---
Possession on the suit property---Document more than thirty years old---Effect ---Revenue
entries ---Presumption of truth ---Contention of plaintiffs was that they were owner of suit
property--- Suit was dismissed by the Trial Court but Appellate Court decreed the same ---
Validity ---Principal of attorney had not authorized him to refer the mat ter to the arbitrator or
enter into compromise with the defendants ---Attorney should have sought permission from
the principal for such act, in circumstances ---Act of attorney in absence of any such
permission was misrepresentation and it had element of fr aud---Purported award was not
only undated but it also did not contain the names and signatures of arbitrators ---Terms of
said award could not be enforced, in circumstances ---When parties to the suit had agreed that
matter in question should be referred to arbitration then they might, before announcement of
judgment, apply to the Court in writing for an order of reference ---Where parties to the suit
had agreed or consented to refer the matter to arbitration, Court could refer the same to arbitrator and spec ify the time for making the award ---Parties who had agreed to refer matter
to arbitrator would be bound by such award--- Reference to arbitration and an award in the
pending suit without intervention of the Court would be nullity and such award could not be
made rule of the Court ---Presumption could not be attached to the document more than thirty
years old when defendant had denied the same---Parties should prove said document in accordance with law ---Presumption of truth was attached to the revenue entries unless
rebutted through cogent evidence ---Longstanding impugned mutation in favour of a party
could not be disturbed due to presumption of truth attached to such entries ---Impugned
mutation was not challenged by the vendor in his lifetime and defendants had no locus standi to assail the same---Possession was an incident of ownership and it could be transferred by
the owner of an immovable property to another ---Possession would be important when there
was no title document and other relevant record ---Once a document and record of title came
before the Court then it was the title which had to be taken into consideration--- Possession
on suit property could not be considered in vacuum ---Mere longstanding possession would
not be good against the rightful owner a nd the assumption that he was in peaceful possession
would not work and could not operate against the true lawful owner ---Plaintiffs were owners
of suit property and they had sought relief of possession---Evidence produced by defendants
spoke about possess ion which could not work against the plaintiffs ---Plaintiffs had adopted
due course of law by filing suit for possession ---Defendants while filing written statement
had denied the title of plaintiffs and raised question of limitation--- Limitation would run
from the date when written statement was filed by the defendants, in circumstances ---
Defendants had no title document to continue their possession--- Revision was dismissed, in
circumstances.
Fida Muhammad v. Pir Muhammad Khan and others PLD 1985 SC 341; Messer S.M.
Qasim and Co. v. Messer Shah Azimuddin PLD 1962 (WP) Lah. 95; Allah Bakhsh v. Mst. Shamshad Begum and 2 others 1991 MLD 1937; Mst. Hashmat Bibi v. Muhammad Rafi and another 1980 CLC 967; Abdul Karim and 3 others v. Mst. Zar Bibi PLD 1996 Quett a 1;
Nazir Ahmed deceased through LRs v. Karim Bakhsh (Late) through LRs, 2017 SCMR 1934; Ghulam Abbas and others v. Mohammad Shafi through LRs and others 2016 SCMR 1403; 1996 SCMR 1539 and 2010 SCMR 1630 rel.
(b) Civil Procedure Code (V of 1908) ---
----O. VI, R. 7--- Departure from pleadings ---Effect ---Anything stated outside the scope of
suit, averments cannot be looked into---Order VI R. 7, C.P.C. not only excludes the element of surprise, but also precludes the party from proving what has not alleged or pleaded.
PLD 1976 SC 469; 1968 SCMR 804; 1996 SCMR 336 and 2006 SCMR 562 rel.
(c) Civil Procedure Code (V of 1908) ---
----O. XIII, R. 4--- Endorsement on documents admitted in evidence ---Scope ---Document not
to be exhibited unless proved---Marked document could not be taken into consideration.
2011 SCMR 1013 and 2005 SCMR 152 rel.
(d) Qanun -e-Shahadat (10 of 1984) ---
----Art. 100 ---Document more than thirty years' old--- Presumption ---Condition ---
Presumption could not be attached to the document more than thirty years old when
defendant had denied the same ---Parties should prove said document in accordance with law -
--Presumption of truth was attached to the revenue entries unless rebutted through cogent evidence--- Longstanding impugned mutation in favour of a party could not be disturbed due
to presumption of truth attached to such entries ---Impugned mutation was not challenged by
the vendor in his lifetime and defendants had no locus standi to assail the same.
Adnan Ejaz for Appellants (In R.S.A. No. 04 and for Petitioners in Civil Revision
Petition No.355 of 2000).
Mujeeb Ahmed Hashmir for Private respondents (In R.S.A. No. 04 and Civil Revision
Petition No.355 of 2000).
Zahoor Ahmed Baloch, Assistant A.G. for Official Respondents (In R.S.A. No. 04
and Civil Revision Petition No.355 of 2000).
Date of hearing: 14th September, 2018.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The respondents (Asmatullah etc.) are recorded
owners of land bearing Khewat No.41, Khatooni No. 42, Khasra No. 435, situated in Mohal,
Mouza Majak Tappa Mazai Tehsil Gulistan District Killa Abdullah. The
appellants/petitioners filed a Suit No. 27 of 1999 for Declaration, Permanent Injunction and Correction of mutation on 3rd August 1999 in the Court of Civil Judge, Chaman against the respondents. It was contended that they are owners in possession of above land, as their
predecessors had purchased the said land in the year 1932 through an agreement from the predecessor in interest of the respondents (defendants), but in the settlement of the year 1941/45, the land had inadvertently mutated on the name of respondents' predecessors.
2. The respondents also filed a suit bearing No. 33 of 1999 for Declaration and
Possession against the appellants/petitioners and averred that they are lawful ow ners of the
above land measuring 14 acres. Out of 14 acres, 4 acres (suit land) had been given to the
appellants/petitioners in the year 1993 for a period of 6 years through an oral agreement and it was agreed that the father of the appellants will excavat e a tube -well in the suit land and
develop the same. It was further averred that the appellants were further allowed to irrigate their own land during such period; that as per agreement, the respondents were also entitled to get 1/4th share in the produce. Both the suits were consolidated by the learned Civil Judge,
Chaman.
3. From divergent pleadings of the parties following issues were framed:
1. Whether the suit in hand, is not maintainable in view of the R/Os B (Limitation), C (Article 113 of the Limita tion Act), D (No. description), and E written statement filed
by the defendant No.1 to defendant No.11?
2. Whether the plaintiffs are owners in possession of the land bearing Khata No. 41/42, Khasra No. 435 situated at Mohal and Mouza Majak, Tappa Mazai Adda, Gulistan, District Killa Abdullah?
3. Whether the predecessor in interest of the plaintiffs had purchased the land in question in 1932 from the predecessors in interest of the present defendants?
4. Whether the land in dispute had been inadvertently mu tated on the name of the
present defendants in 1941/45 from their predecessor in interest Malik Bismillah
Khan?
5. Whether the plaintiffs are entitled to the relief claimed?
6. The relief?
The petitioners/appellants being plaintiffs in Suit No. 27 of 1999 and defendants in
Suit No. 33 of 1999 produced following witnesses:
PW-1 Syed Muhammad Siddique son of Syed Haji Shebaz.
PW-2 Rahim Khan son of Muhammad Hashim.
PW-3 Syed Muhammad Saleem son of Haji Mir Ahmed.
PW-4 Syed Muhammad Rafique son of Haji Da d Muhammad.
PW-5 Haji Sahib Khan son of Haji Muhammad Hashim.
PW-6 Khawand Bakhsh son of Muhammad Saddiq Qanoongo Killa Abdullah.
PW-7 Muhammad Hussain son of Haji Muhammad Ishaque.
PW-8 Muhammad Shafi, Saddar Qanoongo Chaman.
Statement of petitioner No.1 being attorney of all the rest of the petitioners was also
recorded. The respondents in Suit No. 27 of 1999 and plaintiffs in Suit No.33 of 1999
produced following witnesses:
DW-1 Muhammad Hanif son of Nazar Muhammad, caste Kakar.
DW-2 Hiyatullah son of Moulvi Abdullah Caste Kakar.
DW-3 Abdul Haque son of Haji Muhammad Raza, Caste Kakar.
DW-4 Hayatullah son of Haji Bungul, representative A.D.B.P.
DW-5. Anwar Ali son of Hukamdin Patwari Killa Abdullah.
DW-6 Muhammad Alam son of Abdul Salam Caste Kakar.
Statement of the respondent No.1 was also recorded as attorney of the remaining
respondents.
4. The learned Civil Judge, Chaman (hereinafter the "trial Court") vide common
judgment dated 6th March 2000, decreed the Suit No. 27 of 1999 of present petitioners/appellants and dismissed the Suit No. 33 of 1999 of the respondents. On appeal (being Nos. 15 -A and 15 -B) filed by the respondents, the learned Additional District Judge,
Pishin (hereinafter the "appellate Court") by common judgment/d ecree dated 30th September
2000 (hereinafter the "impugned judgment/decree") allowed the appeals and Suit No. 27 of
1999 filed by the petitioners/appellants was dismissed and the suit filed by the respondents
being No. 33 of 1999 was decreed.
5. The petiti oners in respect of dismissal of their Suit No. 27 of 1999 filed Civil
Revision Petition No. 355 of 2000 and in respect of decree of Suit No. 33 of 2000 in favour of the respondents/appellants filed R.S.A. No. 04 of 2000.
Since both the R.S.A No. 04 of 2000 and Civil Revision Petition No. 355 of 2000,
arising out of common judgment related to same subject matter between the same parties are being disposed of through this common judgment.
6. During pendency of the above proceedings before this Court, a join t urgent
Application No.723 of 2001 in Civil Revision Petition No. 355 of 2000 and urgent
Application No. 724 of 2001 in R.S.A. No. 04 of 2000 were filed on 25th April 2001, which
were duly signed by the attorney the petitioners and the respondents as well .
7. The attorney for the respondents contested the applications by way of filing
Miscellaneous Application No. 743 of 2001 on 26th April 2001 and disputed the private
settlement through arbitration. The petitioners/appellants filed C.M.A. No. 543 of 2004 in
Civil Revision Petition No. 355 of 2000 and C.M.A. No. 544 of 2004 in R.S.A. No. 04 of 2000, for disposal of both the matters between the parties in terms of the award. The
respondents contested the applications, however, this Court vide order dated 5th July 2004
accepted the C.M.As. Nos. 543 of 2004 and 544 of 2004 and disposed of the suits in terms of
the settlement referred hereinabove. The respondents assailed the above order in Civil Appeal No. 2170 of 2004 before the Hon'ble Supreme Court of Pakist an. The Apex Court
vide judgment dated 23rd June, 2016 allowed the appeal and set aside the order dated 5th July, 2004 passed by this Court and pleased to remand the case with direction as under:
"The contentions of the learned counsel are not without for ce. A perusal of the
impugned Judgment reveals that the aforesaid aspects of the matter have not been adjudicated upon. The necessity to record evidence has not even been considered nor all the legal objectives decided. In this view of the matter, the impugned Judgment is not sustainable in law and is hereby set aside. As a consequence whereof: Regular Second Appeal No. 04/2000 and Revision No.355 of 2000 stand revived and the C.M.As. Nos. 724 of 2001 and 544 of 2004 filed in R.S.A. No.04/2000 and C.M.A. Nos. 723/2001 and 543 of 2004 filed. in Civil Revision Petition No. 355 of 2000 filed
for disposal of the matter in terms of the alleged Statement also stand revived, which applications shall be decided afresh by the learned High Court after affording the parties full right of hearing and if necessary, permitting them to lead evidence.
For the foregoing reasons, these Civil Appeals are allowed and the matter is remanded to the learned High Court in the above terms with no order as to costs."
8. Learned counsel for the parties not opted for producing any evidence, however, made
their submission on C.M.As. Nos.723 of 2001 and 543 of 2004 in Civil Revision Petition No. 355 of 2000 and C.M.A. Nos. 724 of 2001 and 544 of 2004 in R.S.A. No. 04 of 2000 and also argued their cases on merit.
9. Learned counsel for the appellants/petitioners contended that during pendeney of the
matters the parties referred their dispute to the arbitrators, who had given an award; that not
only there was award, which was accepted by the parties even urgent Applications Nos. 723 and 724 of 2001 and compromise bear the signature of the attorney for the respondents, therefore, they were bound by law to abide the same; that the award given by the arbitrator
was in nature of comp romise and the parties had come to a lawful agreement or compromise
adjusting the suit/appeal/revision, which require to be decided under Order XXIII Rule 3,
C.P.C.; that a lawful agreement was reached at between the parties and the award made pursuance thereof the valid foundation for adjustment of the suit/appeal/revision. On merit of the case, the learned counsel for the petitioners/appellants contended that the land in dispute was purchased in the year 1932 by the predecessor in interest of the petitioners from the predecessor in interest of the respondents and since then they are in lawful possession; that an orchard for more than 20/25 trees exist on the land in dispute; that being a lawful owner, they also installed a tube -well and the utility bills o n their names further affirm their lawful
ownership and longstanding possession; that the predecessor in interest of the respondents fraudulently and with the connivance of the revenue authorities recorded the revenue entries in his favour; that the petitioners were not aware about the adverse entries until the suit was filed; that besides oral evidence the documentary evidence Mark- P/2 had been ignored by the
appellant Court without any lawful justification; that Mark- P/2 (sale deed) was executed in
the ye ar 1932, which was in the proper custody of the appellants and its admissibility had
been proved in view of Article 100 of the Qanun- e-Shahadat Order, 1984 (the Order, 1984),
but this important piece of documentary evidence has not been considered; that be sides
limitation, no evidence worth of reliance was produced by the respondents to substantiate
their claim that the land in dispute was given to the appellants in the year 1993 on lease
for five years.
The learned counsel for the respondents in respect of award and settlement adjustment
of suit/appeal in view of C.M.As. Nos. 543 of 2004 and 544 of 2004 contended that no power
was conferred to attorney either to refer the matter to the arbitrator or to enter into compromise on behalf of the principal; tha t the so called award was silent with regard to the
dispute and its determination, even none of the arbitrators signed the award; that the attorney for the respondents through C.M.A No. 743 of 2001 on 26th April 2001 specifically denied the reference of th e dispute to the arbitrator and compromise, therefore, without consent of
the respondents, the applications are liable to be dismissed. On merit of the case, the learned counsel for the respondents contended that the suit of the appellants/petitioners was barred under Articles 113, 91 and 120 of the Limitation Act; that the mutation of the land in dispute existed in the record of right in the name of the respondents, which was never questioned by the predecessor in interest of the appellants in his lifetime nor they alleged purchase of the
land in dispute through Mark- P/2; that none of the witnesses of the appellants deposed about
the so -called sale or purchase and thus, not substantiated the same; that the appellants had
failed to rebut the revenue entries through any substantial evidence.
10. We have heard the learned counsel for the parties and perused the available record.
First, we shall deal with C.M.A No. 723 of 2001 and C.M.A No.543 of 2004 in Civil Revision Petition No. 355 of 2000 and C.M.As Nos. 72 4 of 2001 and 544 of 2004 in R.S.A.
No. 04 of 2000. C.M.As Nos. 723 and 724 of 2001 for urgent hearing respectively were filed
on 25th April 2001 by both the attorneys for the parties accompanied by a compromise dated
24th April 2001 (the compromise/settle ment) and in continuation of above applications the
petitioners/appellants filed C.M.As. Nos. 543 and 544 of 2004 respectively and prayed that the Civil Revision Petition No. 355 of 2000 and R.S.A. No. 04 of 2000 "be decided in terms of compromise". The pr ayer of the petitioners/appellants in the compromise/settlement deed
dated 24th April 2001 was as under:
11. The attorney for the respondents (Asmatullah) had already filed a Miscellaneous
Application No. 743 of 2001 dated 26th April 2001, where in paragraph No.2 of the
application contended that on the intervention of notables of the area only settled that the
petitioners/appellants would withdraw from their case pending before this Court and prayed
as under:
"It is therefore, accordingly humbly prayed that the appellants be only allowed to
simply withdraw from their cases or both the cases he proceeded with on its own merits."
12. On 26th May 2004, the attorney for the respondents (Malik Asmatullah) while
appearing before this Court and made point black refusal about appointment of Arbitrator or
entering into compromise. To consider the authority of the attorney to refer the matter to the
arbitrator and enter into compromise on behalf of the principal, the special power of attorney
dated 3rd August 1999 Ex.P/4 in favour of Abdul Manan (attorney/agent) given by the
petitioners/appellants (principal) not granted him authority to refer the matter to the arbitrator or enter into compromise on behalf of the principal. In absence of any such special stipulation , the attorney (Abdul Manan) could not assume that power. His own act required
that he should have sought permission from the principal for such act. The act of agent (attorney) in absence of any such stipulation in the special power of attorney was misrep resentation and it had element of fraud, reference in this respect is to be made to case
of Fida Muhammad v. Pir Muhammad Khan and others, PLD 1985 SC 341.
13. Besides above, the purported award is not only undated, but it also does not contain
the names a nd signatures of the arbitrators, nor could the terms of the same be enforced. In
the instant applications, the applicants/petitioners/appellants sought disposal of the petition and appeal in accordance with the terms of the award. Section 47 of the Arbitr ation Act,
1940 (The Act) provides as under:
"Act to apply to all arbitrations. -Subject to the provisions of section 4, and save in so
far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbit rations and to all proceedings thereunder:
Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending."
14. It provides that if the parties want to get their suit/appeal/revision decided through
arbitrator, they must comply with the provisions of sections 21 and 25 of the Act, 1940.
Section 21 of the Act, 1940 provides that when in a suit all the pa rties are interested/agreed
that any matter in dispute shall be referred to the arbitration, they may before announcement of the judgment, apply to the Court in writing for an order of reference. It is condition
precedent for referring such matter to the arbitrators that all the parties must agree or
consented to refer the matter to the arbitration. The Court where the proceedings are pending
under section 23(1) of the Act, 1940, will order the matter to be referred to the arbitrator and shall also specify the time for making the award and those parties, who have actually joined
the exercise being bound by the award. Reference to arbitration and an award proceeds in a pending suit without intervention of the Court are nullity and such an award cannot be made
rule of the Court in accordance with the provision of sections 14 and 17 of the Act, 1940. Reference in this respect is made to the eases of Messer S.M. Qasim and Co. v. Messer Shah Azimuddin, PLD 1962 (WP) Lahore 95, Allah Bakhsh v. Mst. Shamshad Begum a nd 2
others, 1991 MLD 1937, Mst. Hashmat Bibi v. Muhammad Rafi and another, 1980 CLC 967 and Abdul Karim and 3 others v. Mst. Zar Bibi, PLD 1996 Quetta 1.
15. The only exception provided is that one contemplated by section 47 of the Act, 1940,
proviso to w hich makes a provision for implementation of such award brought into being
without intervention of the Court and may be enforced as an adjustment of the suit or settlement of the dispute under Order XXIII Rule 3, C.P.C., but sine qua non for such an eventu ality is the consent of all the parties interested.
16. In the instant case, C.M.A. No. 543 of 2004 in Civil Revision Petition No. 355 of
2000 and C.M.A. No. 544 of 2004 in R.S.A. No. 04 of 2000 respectively were filed by the petitioners/appellants on 1st April 2004 for treating the terms of the award as compromise
for the adjustment of the suit and settlement of the dispute. Besides, the respondents in the rejoinder to C.M.As. Nos. 543 and 544 of 2004 had also not consented to treat the terms and condition s of the award as compromise. The proviso to section 47 of the Act, 1940 places an
embargo on the right of the litigant parties conferred on them under Rule 3 of Order XXIII, C.P.C. that unless all the parties to the award give their consent, it cannot be considered by the Court as a compromise for the purpose of adjustment of the suit. In the instant case, the parties are at variance respecting the award/compromise nor it can be considered as a compromise for the adjustment of the petition/appeal. C.M.A. N o. 543 of 2004 in Civil
Revision Petition No. 355 of 2001 and C.M.A. No. 544 of 2004 in R.S.A No. 04 of 2000 are dismissed respectively. Consequently, C.M.As. Nos. 723 of 2001 and 724 of 2001 are decided accordingly.
17. Adverting to merits of the case, the petitioners/appellants in their Suit No. 27 of 1999
mainly averred that the land in dispute was purchased by their predecessor in interest in the year 1932 from the predecessor in interest of the respondents and they are owner with possession of the same, regarding which, Issues Nos.2 and 3 were framed. The trial Court while resolving Issues Nos.2 and 3 in favour of the petitioners dilated as under:
"To begin with the Mark/2 has been executed by the predecessor in interest of the parties regardin g the land described by boundaries therein since the executant and the
witnesses of the Mark/2 are died, recourse is taken to Articles 100 and 101 of the
Qanun- e-Shahadat Order ................ Hence Articles 100 and 101 makes the Court to
preserve that Mark P/2 had been duly executed............ The longstanding possession
of the land in dispute by the plaintiffs deposed by the PWs further contribute to the execution of Mark P/2 ............ To sum up, the longstanding possession of the plaintiffs, the revenue record the eye- witness account read with provision of Articles
100 and 101 bring the Court to the conclusion that that the plaintiffs
(petitioners/appellants) discharge the initial burden of proof by oral as well as
documentary evidence, that they are lawful owner in possession of land in dispute."
The appellate Court reversed the findings and plea of the petitioners/appellants with
regard to Issues Nos.2 and 3 as under:
"If for the sake of arguments such contention is admitted for a while, then time and
again it is stated that Mark/2 was not executed by the predecessors of the respondents. Secondly, if the respondents/petitioners were in possession of such Mark then why the entries were not got obtained entered in 1941 -45 when the first settlement in the area
made………………….if mark P/2 is admitted for a while even then respondents have no right to claim any relief on the basis of such alleged sale as it is time barred."
18. We have considered the Issues Nos. 2 and 3 in the light of pleadings and evidence
produced by the parties. To substantiate Issues Nos. 2 and 3, though the petitioners/appellants produced eight witnesses, but none of them deposed about the alleged sale in their testimony. In respect of Issue Nos.2 and 3 there is no evidence on r ecord except
the statement of attorney for the petitioners namely Abdul Manan, who was neither executant of Mark -P/2 nor the marginal witness of the same, who while producing Mark- P/2 in his
statement deposed that in the year 1932, the land in dispute was purchased by his uncle
namely Syed Ameer Jan in consideration of Rs.600/ -. The relevant is reproduced herein
below:
19. From the above, it reveals that the attorney for the petitioners/appellants though stated
that his uncle namely Ameer Jan had purchase d 4-1/2 acres land in consideration of Rs.600/ -
through Mark- P/2, but has not disclosed the name of the person from where, it was
purchased. Secondly, whether the petitioners/appellants proved what they have pleaded. In Para No.1 of the plaint, they averre d that "said piece of land was purchased in the year 1932
by the predecessor -in-interest of the present plaintiffs from the predecessor -in-interest of the
present defendants (respondents), but in his testimony in the attorney for the petitioner deposed tha t his uncle Ameer Jan purchased land measuring 4- 1/2 acres in consideration of
Rs.600/ - through Mark- P/2. It was out right departure from what has been pleaded in the
plaint. The averments made in the pleadings do not constitute evidence, but the evidence led
in their support must be consistent therewith. Anything stated outside the scope of suit, averments cannot be looked into, Order VI Rule 7, C.P.C. not only excludes the element of surprise, but also precludes the party from proving what has not alleged or pleaded. The
Hon'ble Supreme Court of Pakistan in the cases reported in PLD 1976 SC 469, 1968 SCMR
804, 1996 SCMR 336 and 2006 SCMR 562 observed that no party can be allowed to lead
evidence on a fact which has not been specifically pleaded nor can any evidence be looked
into, which is outside the scope of pleadings. In the instant case, the only evidence brought on record with regard to alleged purchase of land in dispute by the petitioners is the statement of the attorney of the petitioners namely Abdul Manan, therefore, in the above
circumstances, his statement in this regard cannot be taken into consideration. Whereas,
admissibility of Mark -P/2 in view of Articles 100 and 101 of the Order, 1984. The document
Mark -P/2 was not exhibited by the trial Co urt in view of Order XIII Rule 4, C.P.C. It is the
requirement of law that document should not be exhibited unless proved, therefore, marked
document i.e. Mark- P/2 cannot be taken into consideration. Reference in this respect is to be
made to the cases rep orted in 2011 SCMR 1013 and 2005 SCMR 152.
20. Whereas, admissibility of Mark -P/2 in view of Articles 100 and 101 of Order, 1984 is
concerned, it is settled principle of law that 30 years old documents, presumption cannot be attached when defendant denies the same. It was required by the parties to prove the same, but the petitioners/appellants failed to do so. In the case titled Nazir Ahmed deceased through LRs v. Karim Bakhsh (Late) through LRs, 2017 SCMR 1934, the Hon'ble Supreme Court of Pakistan observed as under:
"We find that the argument that a presumption of truth was attached to the document in question because it was alleged more than 30 years old is misconceived. It is settled law that the condition precedent for grant of benefit of presumption of truth to a document which is more than 30 years old is that there is no doubt about the valid execution of the same, it is clear from the record that the Respondents had categorically stated in their written statement that the alleged agreement to sell was a forged document. In these circumstances, onus was on the petitioners to prove
execution of the document in accordance with law. Having failed to do so, the petitioners were not entitled to rely on the age of the document to claim the benefit of a presumption of truth in terms of Article 100 of the Qanun- e-Shahadat Order, 1984."
21. Whereas, findings of Issues Nos. 4 to 8 are concerned, the petitioners/appellants
asserted that in the year 1941 -45, the land in dispute had inadvertently mutated on the na me
of the respondents and the impugned mutations are liable to be cancelled. Whereas on the other hand the respondents asserted that they are recorded owners of the land in dispute since 1941/45, as such are entitled for possession of the same. The documen tary evidence
produced by the respondents i.e. Ex- D/4, Ex- D/5 and record Ex.P/6 to 7 are the impugned
mutations produced by the petitioners through PW -6 indicate that the respondents are
recorded owners of the land in dispute from 1941 till to date. Ex- D/4 and Ex- D/5 further
indicate that through Intiqal -e-Wirasat, the respondents inherited the land in dispute. Ex- D/7
and Ex- D/8 further shows that some of the land in dispute was mortgaged with the
Agriculture Development Bank by the respondents in lieu of l oan. The petitioners/appellants
mainly challenged the above impugned mutation and based their claim on Mark -P/2, which
according to them disclosed factum of purchase of the suit land by their ancestors. Legally and factually Mark -P/2 has neither been prope rly proved nor duly authenticated. The details
mentioned therein do not tally with description of the land specified in the plaint. The oral testimony in this respect is silent, which cannot satisfactorily establish the factum of ownership claimed by the p etitioners/appellants. Learned counsel for the petitioners made
efforts to explain that in the years 1941 -45, the settlement was not properly carried out.
Obviously these aspects have no direct relevancy. The petitioners/appellants claimed for
relief of cancellation of the longstanding impugned mutation entries and they must independently prove their legal right and title over suit land, which they have miserably failed to do so. Under section 52 of the Land Revenue Act, presumption of truth is attached
to the revenue entries unless rebutted through cogent evidence. The oral evidence produced
by the petitioners/appellants only deposed that the land in dispute is in possession of the
appellants where they installed a tube- well. In absence of any rebuttal, the longstanding
impugned mutations in favour of the respondents cannot be disturbed due to presumption of truth attached to such entries. The petitioners mainly based their claim on the factum of purchase of the land in dispute by their uncle namely Ameer Ja n, which aspect of the case
has not been substantiated through evidence, even otherwise, the uncle of the petitioners in his lifetime has not challenged the impugned mutation entries on such claim, therefore, the petitioners have also no locus standi. Refe rence in this respect is to be made to the case titled
Ghulam Abbas and others v. Mohammad Shafi through LRs and others, 2016 SCMR 1403, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"Be that ay it may, there is another important principle of law laid down by this Court which is applicable to the facts of the present case. An heir, who is directly affected by a wrongfully recorded mutation of inheritance, fails to challenge such mutation for a considerable length of time until his death, thereby deprives his heirs of locus standi
to dispute such mutation on the ground of his estoppel, abandonment of claim/cause of action. Reference in this regard is made to Abdul Haq v. Surraya Begum (2002 SCMR 1330), Kala Khan v. Rab Nawaz (2004 SCMR 517) and Muhammad Rustam v. Makhan Jan (2013 SCMR 299). The appellants' suit is not maintainable under that principle as well."
22. The respondents in their Suit No. 33 of 1999 claimed possession of the suit land, as
they are recorded owners since 1941 -45. In defence, the appellants claimed their
longstanding possession and further the suit of the respondents is barred by time. Possession is an incident of ownership and can be transferred by the owner of an immovable property to another; such as in a mortgaged lease licence. Possession is important when there is no title
document and other relevant record, but once a document and record of title came before the Court, it is the title, which has to be taken into consideration. Possession cannot be considered in vacuum. There is a presumption that possession of a person other than the owner, if at all, it is to be called permissive possession on behalf of the title holder unless supported through valid documents. It is settled legal position that mere longstanding
possession is no good against the rightful owner and that the assumption that he is in peaceful possession will not work and cannot operate against the true lawful owner. In the instant case, the respondents being recorded owners had sought relief of poss ession. The
evidence produced by the petitioners/appellants only speaks about their possession, which cannot be worked against the respondents, who are, recorded owners of the land in dispute and they adopted due course of law by filing suit for possession . The petitioners/appellants
while filing written statement denied the title of the respondents and raised question of limitation, therefore, limitation in such circumstances would run from the date when written statement was filed by the petitioners/appellants in Suit No.33 of 1999. Reference in this respect is placed to the judgment reported in 1996 SCMR 1539, therefore, the suit filed by
the respondents was not barred by time, as Article 144 of the Limitation is not in field
against the true owner. Refer ence is placed to the judgment reported in 2010 SCMR 1630.
No title document has been produced by the petitioners/appellants to continue their possession, therefore, the findings rendered by the appellate Court warrant no interference by this Court.
In view of the above, Regular Second Appeal No.04 of 2000 and Civil Revision
Petition No. 355 of 2000 are dismissed respectively. The parties are left to bear their own costs.
ZC/83/Bal Order accordingly.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.