2020 C L C 142
[Balochistan]
Before Abdul Hameed Baloch, J
SABZAL KHAN and 9 others ----Petitioners
Versus
MUHAMMAD AKBAR and 10 others ----Respondents
Civil Revision No.120 of 2016, decided on 27th August, 2019.
(a) Balochistan Land Revenue Act (XVII of 1967) ---
----S.50 ---Qanun -e-Shahadat (10 of 1984), Art. 117--- Limitation Act (IX of 1908), Art.
120--Unsettled land ---Presumption of ownership---Suit for declaration ---Limitation ---
Contention of plaintiffs was that they were owners in possession of suit property---Suit was
dismissed concurrently--- Validity ---Impugned mutation was carried out in presence of
plaintiffs and they at that time neither raised any objection nor claimed for unsettled land-
--Plaintiffs had a ccepted the impugned mutation without any objection ---Present suit had
been filed after more than fifty years of entry of mutation---Limitation for filing declaratory suit was six years ---Plaintiffs had acknowledged impugned mutation but did not move any
revenue forum ---Aggrieved party was supposed to pursue his legal remedy with diligence
and had to explain delay of each day---Plaintiffs had failed to produce any cogent as well as documentary evidence with regard to such delay ---Plaintiffs had failed to pr ove their
ownership with regard to suit land--- Plaintiffs should have proved their case on the basis
of their own evidence and they could not take benefit of shortcoming of defendants ---
Plaintiffs were bound to prove their ownership through cogent evidence ---Presumption of
ownership of forests and waste lands would be in favour of Government ---Revision was
dismissed, accordingly.
Jamal Ud Din v. Syed Faizullah Shah PLD 2016 Bal. 44; Badar Zaman v. Sultan
1996 CLC 202 and Secretary Board of Revenue v. Qadi r Bakhsh 2012 CLC 1165 rel.
(b) Specific Relief Act (I of 1877) ---
----S.42 ---Limitation Act (IX of 1908), Art. 120 ---Suit for declaration ---Limitation ---Suit
for declaration could be filed within six years.
Ghulam Mohyuddin Sasoli for Petitioners.
Habi bullah Nasar for Respondents.
Shahid Baloch, Additional Advocate General for the State.
Date of hearing: 23rd August, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ----This judgment disposes of instant civil
revision petition filed by the petitioner Sabzal Khan son of Sardar Khan and others, under
section 115, C.P.C., against the judgment and decree dated 28th December, 2015 (hereinafter referred as, impugned judgment and decree") passed by the learned Majlis -e-
Shoora, Mastung (hereinafter referred as, "the appe llate Court"), whereby appeal of the
petitioners was partly allowed, whereby the suit filed by the petitioners was dismissed by the learned by the learned Qazi Mastung (hereinafter referred as, "the trial Court") vide judgment dated 30th April, 2015.
2. Facts of the case are that the petitioners filed a suit for declaration, permanent
injunction, restraining from interference and Sehat -e-Indraj in the trial court with the
averments that the land bearing Khewat No.16, Khatooni No.16, Khasra Nos.113, 114, 115, 116 situated in Mouza Deh Bala, Tappa Saddar, Tehsil and District Mastung is their possessive ancestral property and too reached in their names as 'self -cultivation possessive
owners' in revenue record during first settlement, whereas the land is bounded on the east
by Daman/mid of mountain, on the west by adjacent Bandats, on the north by general public path and bandats of Mulla Ayub and on the south by adjacent bandats of Ghulaman. The predecessor -in-interest of petitioners late Lashkar Khan after absol ute purchase from Maula
Dad son of Jangi Khan got timely possession, whereas predecessor -in-interst of petitioners
after absolute purchase from Muhammad Ali, Mubarak and Zar Naz land bounded on the east by Bandat Landi and Shafi Muhammad, on the west by Ba nd Bahadur, on the north by
general pubic path, on the south by Bandats of Jangi Khan got timely possession, similarly the predecessor -in-interest of petitioners purchased land bounded on the east by mountain,
on the west by Band Lashkari, on the north by Lashkari, on the south by Lashkari from Daulat Khan, whereas the predecessor -in-interest of petitioners after absolute purchase land
bounded on the east by adjacent Bandat and band Girani barren, on the north by adjacent
Bandats and Bandats of Gul Muhammad, on the south by adjacent Bandats and Bandats of
Ghulam from Maula Dad, Mai Lobak got timely possession thereon, whereas as per Sanad dated 25th Jamai -us-Sani 1324 Hijri the boundaries of all settled and unsettled lands are
that on the east of Sado and la st well of Karez Dand, on the north by Land of Maisoori,
land of Kach and Nala Sado, on the south by water course and Giri mountain, land of Sheikhan and Gharman place and Nala Matraba which is known as 'Kazhdam'. The aforementioned unsettled lands and Sanads manifestly proves that unsettled lands are in possession of petitioners, on interference the petitioners/ complainants submitted complaint before the learned Sessions Judge, Kalat at Mastung. The learned Sessions Judge, Kalat at
Mastung has dismissed t he complaint and directed the parties to approach the civil court
and prayed for decree.
3. The suit of the petitioners/ plaintiffs was contested by the respondents/defendants
by means of filing written statements, wherein vehemently denied the claim of pe titioners/
plaintiffs.
4. Out of the pleadings of the parties the learned trial Court framed following issues:
5. The parties led evidence in pro and contra and hearing the parties, the learned trial
court dismissed the suit of the petitions/ plaintiffs on 30.04.2015.
6. Being aggrieved from the judgment of learned trial court the petitioners assailed the
same and filed an appeal before learned appellate court, which was partly allowed on 28th
December, 2015 to the extent of settled lands.
7. The learned counsel for the petitioners contended that the impugned judgment and
decree passed by the appellate Court suffers from misreading, nonreading and misappreciation of evidence and decided the matter on presumption and assumption; that the petitio ners owned suit property from ancestral they are cultivating and no one interfered
in their ownership; that with regard to the ownership the petitioners produced confidence inspiring oral as well as documentary evidence; that the impugned judgment passed by the
appellate court is against the norms of justice, which required to be set aside.
8. On the other hand, the learned counsel for the private respondents vehemently
opposed the arguments so advanced by the learned counsel for the petitioners and contend ed that the judgment of learned appellate court is well reason and in accordance to
law, which did not require interference; that the petitioners have failed to prove their case through confidence inspiring evidence; that the learned appellate court proper ly appreciated
the evidence and no misreading and non- reading has been pointed out by the learned
counsel for petitioners.
9. On the other hand, learned Additional Advocate General supported the judgment of
the appellate court.
10. Heard the learned counsel for the parties and perused the record minutely, which
reveals that the trial court framed issues for deciding the case on the basis of evidence available on record. The record transpires that the suit of petitioners consisted two portions one is regard to settled land bearing Khewat No.16, Khatooni No.16, Khasra Nos.113, 114,
115, 116 situated in Mouza Deh Bala, Tappa Saddar, Tehsil and District Mastung and second in respect of unsettled land. Record further reveals that the mutation process had been com pleted on 1962/ 1964, during settlement process the part of land had been mutated
in the name of petitioners. The mutation was carried out in the presence of petitioners at that time the petitioners neither raised any objection nor claimed for unsettled la nd. It means
the petitioners accepted the mutation without any objection. The petitioners filed instant suit for declaration, cancellation and correction of mutation after more than 50 years of mutation. The Article 120 of the Limitation Act (IX of 1908) providing of limitation for filing declaratory suit is six years. Record transpired that the petitioners had knowledge of mutation, but did not file any application before the revenue forum nor file any suit before the competent court of jurisdiction. The a ggrieved party has to pursue his legal remedy with
diligent and has to explain delay of each days. The petitioners failed to produce any cogent oral as well as documentary evidence with regard to such long delay. Reliance is placed in this regard the case titled Jamal Ud Din v. Syed Faizullah Shah PLD 2016 Balochistan 44,
which read as under:
"13. The respondents(plaintiffs) challenged the mutation entries of 1967/1968 by way of a civil suit on 27th March 2004. In view of aforesaid admission, the assertion
of the respondents/plaintiffs that mutation and its attestation were without their knowledge does not appear to be correct. The limitation to file a suit for declaration in terms of Article 120 of the Limitation Act, is six years whilst for cancellation thereof in terms of Article 91 of the Act, is three years"
The petitioners claimed the suit property is still in their possession they are
cultivating it. There exists contradictions in the of evidence of petitioners/plaintiffs. The petitioners failed to prove their ownership of the suit land. It is well settled principle of law the plaintiffs are bound to prove his case on the basis of their own evidence they did not take benefit of short coming of respondents. In this regard Article 117 of Qunun- e-
Shahada t, 1984 is very much relevant which states as under:
"117. Burden of proof. (1) Whoever desires any Court to give judgment as to any
legal right or liability dependent on the existence of facts which he asserts, must
prove that those facts exist.
(2) Whe n a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person."
Reliance is placed in this regard the case titled Badar Zaman v. Sultan 1996 CLC 202,
which read as under:
"Under the law, a party who seeks judgment from a Court as to any right or liability, must prove all the facts which he alleges and on which the existence of that right or liability depends, and in case he fails to prove the existence of those facts which constitute the right or liability he is seeking to enforce, he must fail. A deed between the parties must reflect the mutually arrived agreement between them and if it does not convey their direction of mind and objects as they intended to convey, then its
sanctity becomes doubtful. It is necessary for binding a person executing a deed that there should not only be a materially executed document but it must also speak of the mental question of executor wi th the other party arrived at mutually for the
purpose. As the plaintiff awfully failed to establish and substantiate his claim by any cogent evidence, therefore, his suit deserved dismissed."
The evidence of petitioners/plaintiffs is not such standard on reliance can be placed.
The petitioners claimed ownership of unsettled land on the basis of possession of heavy burden lies on the petitioners to prove their ownership and to prove strong cogent evidence. Presumption of ownership of forests and wastelands shall be held and to belong to
Government. In this regard Section 50 of West Pakistan Land Revenue Act, 1967 is very much relevant which reads as under:
"Presumption as to ownership offorests, quarries and wastelands.
(3) The presumption created by subs ection (1) may be rebutted by showing-
(a) from the record or report made by the assessing officer at the time of assessment, or
(b) if the record of report is silent, then from a comparison between the assessment of villages in which there existed, and the assessment of village of similar character in which there did not exist, any forest or quarry, or any such land, produce or interest, that the forest, quarry, land, produce or interest was taken into account in the assessment of the land revenue.
(4) Until the presumption is so rebutted, the forest, quarry, land, produce or interest
shall be held to belong to Government."
Reference in this respect is to be made in the case titled Secretary Board of Revenue
v. Qadir Bakhsh 2012 CLC 1165 (E), the relevant portion reads as under:
"Mere possession occupation would not be bestowed the ownership right title to petitioners."
For the above reasons, the judgment and decree dated 28th December, 2015 passed
by the learned appellate Court (Learned Majlis -e-Shoora, Mastung) is well reasoned and
according to law did not need interference. The instant civil revision petition is dismissed with no order as to costs. ZC/99/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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