2022 C L C 1764
[Balochistan]
Before Rozi Khan Barrech, J
GHULAM SARWAR and 19 others ----Petitioners
Versus
MUHAMMAD NASEEM and 5 others ----Respondents
Civil Revision No.240 of 2016, decided on 6th November, 2020.
(a) Balochistan Land Revenue Act (XVII of 1967) ---
----Ss.42 & 52---Qanun- e-Shahadat (10 of 1984), Arts.70 & 72--- Mutation, value of ---Claim
on basis of possession---Documentary evidence, preference of ---Petitioners/plaintiffs
contended that they were owners in possession of the suit property which was inherited from
their forefathers; that property of respondents/defendants was adjacent to the petitioners' property; that both parties constructed wall between their properties; that respondents dishonestly tried to trespass and petitioner r egister complaint in Police station; hence the
cause of action ---Respondents alleged that inherited property was partitioned privately; each
sharer was in proprietary possession of his due share; inheritance mutation had not been affected; that predecessor of petitioners had exchanged the suit property with respondents;
that on suit property father of respondents excavated tube -well for irrigating fruit orchard,
they had been cultivating several crops for years, erected separate boundary walls, and erected dwelling house ---Both the courts below held that respondents/defendants had proved
there constant possession since last 40 years without interference/objection, whereas petitioners/plaintiffs had failed to establish their possession---Validity ---Petitioner s produced
mutation entries and ocular evidence who specifically stated that petitioners were owners of suit property--- Respondents had failed to prove the said entries as collusive/forged ---
Presumption of truth was attached to the revenue entries in favou r of petitioners ---
Respondents had failed to rebut the said entries ---Claim on bases of possession was good
against the world except the rightful owner ---Claim of respondents merely on the basis of
possession against the rue owner (petitioners) was unjusti fied/unwarranted ---No
documentary evidence was produced to establish cultivation for last 40 years ---Held, that the
petitioner was lawful owner of the suit property and was entitled to possession ---Revision
petition was allowed and impugned judgments/decre es were set aside.
AIR 2004 SC 4609 and AIR 1990 SC 673 ref.
(b) Balochistan Land Revenue Act (XVII of 1967) ---
----Ss.42 & 52 ---Qanun- e-Shahadat (10 of 1984), Arts. 70 & 72--- Mutation ---Documentary
evidence, preference of ---In presence of mutation entri es in favour of one party, oral
evidence produced by the opponent had no substantial value with regard to the ownership of
the property in dispute ---Mutation entry was a document bearing presumption of correctness
unless rebutted.
Hakim Khan v. Nazar Ahme d Lughmani 1992 SCMR 1840 ref.
(c) Islamic jurisprudence---
---Adverse possession--- Repugnancy ---Possession howsoever adverse was, would not confer
any ownership title to the possessee of the property--- Claim on the basis of adverse
possession was declared against injunctions of Islam.
Maqbool Ahmad v. Federal Government 1991 SCMR 2963 rel.
Abbas Ahmed Jamaldini for Petitioners.
Mian Baddar Munir for Respondents Nos.1 to 6.
Date of hearing: 7th September, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ----This ci vil revision petition has been filed under
section 115 of Code of Civil Procedure Code, 1908 (hereinafter "the C.P.C.") arising out of
the judgment and decree dated 16.3.2016 passed by learned Additional District Judge -VII,
Quetta (hereinafter "the appellate court") wherein the appellate Court while dismissing the appeal under section 96, C.P.C. filed by the petitioner (appellant) upheld the judgment and decree dated 6.3.2015 passed by learned Civil Judge -I, Quetta (hereinafter "the trial Court").
(Both the judgments and decrees are referred to hereinafter ("the impugned Judgments").
2. Epitomized facts necessary for adjudication of the instant petition are that the
petitioner filed a suit for Declaration, Possession, Permanent and Mandatory Injunction before the trial Court with the averment that petitioners Nos. 1 to 20 (plaintiffs Nos. 1 to 20)
are the owners of in possession of a property/ land measuring 3 rod 7 poles bearing Khasra No. 1002 Khewat No. 2 Khatooni No. 3 and Mutation No. 290 situated at Wayala Nauhsar, Tappa Nauhsar, Tehsil Saddar District Quetta, inherited to them from t heir forefathers. The
petitioners Nos. 1 to 3 are the real paternal uncles of the petitioners Nos. 1 to 20. It is further awarded in the plaint that respondents Nos. 1 to 6 (defendants Nos. 1 to 6) are also residing in the same locality, whose land is situated on the brink of the petitioners' one. The petitioners upon the suggestion of respondents Nos.1 to 6 got a boundary wall constructed around the suit land to protect the crops etc from the animal as well as from thieves but installed wire towards the so uth marking division between their and the lands of the
respondents Nos. 1 to 6. A door was also placed towards north/road side in the wall, locked by the petitioner No.1 key of which remained in his possession. Respondents Nos. 1 to 6 after the constructi on of the wall dishonestly tried to trespass in the suit property of the
petitioners regarding which the petitioner No.1 got a complaint registered in the Roznamcha
of police station accordingly in the month of Ramadan 2009. A few days ago the respondents
Nos. 1 to 6 with the assistance of their sons again interfered in the suit land and started some work upon the same behind removing the wire. When the petitioners forbad the respondents, they became provoke and threatened the petitioners with dire conseque nces.
3. The respondents resisted the suit being defendants, while submitting their written
statement, they controverted the assertions contained in the plaint. From the divergent pleadings of the contested parties following multiple issues were framed: -
"1). Whether suit of the plaintiff is not maintainable in view of P.L.O "A & B"?
P.L.O "A". That the plaintiffs are out of possession with regard to suit property as such without seeking relief of possession, the suit under reply merely with relief of declaration is not maintainable, thus the same is legally not maintainable.
P.L.O "B". That the replying defendants are in proprietary possession of suit land from year 1971, as such the suit under reply is barred by time not maintainable.
2. Whether the plaintiffs and defendants Nos. 7 to 17 are legal owners in possession of inherited property/suit land measuring 3- Rods, 7 poles bearing Khasra No.1002,
Khewat No.02, Khewat No. 02, Khatooni No. 3 and Mutation No. 290 situated at Wayala Nausar Tappa Nauhsar T ehsil and District Quetta?
3. Whether the plaintiffs are entitled for relief claimed for?
4. Relief?
5. Whether the property in question was given to the predecessor in interest of contesting defendants in exchange of another inherited property upon the de fendants?
4. After framing issues, parties to the suit produced their respective evidence, and on
completion of the same, the suit of the petitioner was dismissed vide impugned judgment dated 6.3.2015 by the trial court.
5. Being aggrieved from the impugne d judgment, the petitioners filed an appeal under
section 96, C.P.C. before the appellate court, which was dismissed vide impugned judgment dated 16.3.2016. Hence, this petition.
6. I have heard learned counsel for the parties and have perused the entire r ecord with
their able assistance.
7. The viewpoints of the petitioners are that they are owners of the property bearing
Khasra No. 1002 Khewat No.2 Khatooni No. 3 and Mutation No. 290 situated at Wayala Nauhsar Tappa Nauhsar District Quetta which was inher ited to them from their forefathers
and now the respondents illegally interference/occupied the same.
8. The viewpoint of the respondents are that the petitioners and respondents are
descendants of one Haji Baha -uddin Khan who left properties in Legacy at muhals Vila
Nauhsar, Karez Bahaudding, Karez Shura Qala, Karez Khaliq Dad, Karez Shamsuddin
Mauza Nauhsar, tappa Nauhsar Tehsil Saddar, District Quetta, and after his demise all the properties were partitioned privately, and each sharer is in proprietary possession of his due share. Inheritance mutation of Mahals Karez Bahaudding, Karez Khaliq Dad, Karez Shamsuddin and a most portion of Muhal Viala Nauhsar has not been affected, whereas the
partition and mutation with regard to property falling in Muhal Sra Qala has already been
effected. As far as property in question is concerned the same is situated in Muhal viala
Nausar, and in the year 1971 during the life of predecessors of petitioners had exchanged their properties with respondents Nos. 1 to 6 in result whereof the property came in their share. The father of replying respondents by spending huge amount excavated a tube -well for
irrigating fruit -bearing orchard and on account of draughtness the said orchard became dried
as such the same was cut down in the year 2000. Later on, for a period of 4 years and the
replying respondents cultivated several crops over the same, however, in the year 2004, the respondents Nos.2 and 5 had erected separate boundary walls encircling their respective due share, and subs equently the respondents No.5 erected his dwelling house by spending huge
amount.
9. The trial Court, as well as the appellate court are of the view that the respondents
have succeeded to prove that they have been in constant possession since the last fort y years
coupled with the existence of orchard trees till 2014 reflect that the respondents are enjoying utilizing the possession of the property without any interference and objection from any corner and the petitioner have failed to establish that they ha ve ever been in possession of the
suit property and further observed that mere entries of the revenue record on the name of the petitioners are not the conclusive proof of ownership.
10. The main issue, i.e. whether the petitioners are the owner and they have been illegally
dispossessed from the suit property has been decided by the trial Court as well as appellate court against the petitioners on the ground that the respondents are in possession of the property in question for more than forty years a nd the petitioners have also been non- suited
on the ground that they have failed to prove their ownership of the disputed property.
11. The petitioners besides producing mutation entries as Ex- P/1 also produced the ocular
evidence, who specifically stated that the petitioners are the recorded owner of the property in question. The trial Court has not given due weight to the mutation entries Ex- P/1 produced
by the petitioners, and they are the recorded owners of the property in dispute whereas the trial Cour t, as well as the appellate court had given more weight to the witnesses produced by
the respondents; that the respondents have constructed walls on the property in dispute coupled with the longstanding possession of the respondents, the petitioners have l ost their
right, is also contrary to the law.
12. Since the petitioners have produced mutation entries indicating that they are recorded
owner of the property in dispute, the respondents have failed to lead any evidence to prove that the said entry was collusive or result of any forgery, therefore, the authenticity as well as the presumption of truth was attached to the revenue entry produced by the petitioners. This aspect of the matter has totally been ignored by the trial Court as well as an appellate court and have given weight to the ocular evidence produced by the respondents.
13. I have also observed that the trial Court as well as the appellate court has failed to
consider the evidence on record in its true perspective. In the presence of mutation entries in
favour of the petitioners, the oral evide nce produced by the respondents had no substantial
value with regard to the ownership of the property in dispute. The mutation entries 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 fraudulent. In the
case of Nawab Khan and others v. Said Karim Khan and others, 1997 SCMR 1840, the entries made in the reve nue record have not interfered with that, the presumption of truth was
attached to those entries, and no evidence was led in rebuttal to warrant interference in those entries. The Hon'ble Supreme court at page 1844 held as follows; -
"The presumption of tr uth 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 any area."
In the light of the pri nciple enunciated above for the adjudication upon the
authenticity of the entries of the revenue papers and those of the first ever settlement 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 record."
14. It is settled that presumption of truth is attached to the revenue record, which could
not be controverted without sufficient and convincing evidence. The respondents in rebuttal have failed to lead any evidence to rebut the said entries; therefore, through the cogent evidence, the petitioners have established their right to be the owner of the property in dispute. The respondents had further based their claim on mere possession. It is settled that a
claim on the basis of possession is good against the whole world except the rightful owner. It is not a good defense against the true owners in the judgment reporte d 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 operated 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 respondents cannot be permitted to claim their own possession. The respondents merely on the basis of possession cannot be declared owners.
15. In the instant case, the claim of the respondents merely on the basis of possession
against the true owner, i.e. petitioners were unjustified and unwarranted. The respondents also claimed that in the year 1971 during the lifetime of pr edecessors of petitioners had
exchanged their properties with respondents Nos. 1 to 6 in result whereof the property came in their share, but no evidence whatsoever has been produced by the respondents to establish their claim. Neither the respondents give n any description of the actual property allegedly
given to the predecessor of the petitioners by them nor produced any written agreement in this regard. For the sake of argument it is presumed that predecessor of the petitioners had exchanged their proper ty with respondents, then why for the last forty years in the life time
of the predecessor of the petitioners the respondent did not entered mutation entries in their names. This aspect of the matter is also not considered by the courts below.
16. The tria l Court, as well as the appellate court have also decided the issue of limitation
against the petitioners on the ground that respondents are in possession of the property in
dispute for more than forty years. The petitioners claimed that the property of the respondent and petitioners is situated adjacent to each other and they both constructed walls in the properties and the later on the respondents illegally occupied the property of the petitioners
and they also filed the complaint before the police.
On t he other hand, the possession of the respondents for last forty years concern, no
such documentary evidence was produced to establish that they are cultivating the said
property for the last forty years. The respondents have failed to establish that they possess the property on the basis of proprietary basis.
17. Learned counsel for the respondents is unable to point out any specific date on which
the respondents claimed adverse possession of the property against the petitioners.
18. Moreover, it is settled law that the possession howsoever it adverse is, do not confer
any ownership title to the possessee of the property as a claim on the basis of adverse possession has been declared against the injunction of Islam by the Hon'ble Supreme Court of Paki stan. If need be reference can be made to the judgment of Hon'ble Supreme court in a
case titled as "Maqbool Ahmad v. Federal Government" cited as 1991 SCMR 2063.
From the above provision of law and discussion of evidence, in the instant case, the
petitio ners through cogent and admissible evidence substantiated their claim qua the property
in dispute, and the respondents have not been able to rebut the mutation entries. It is held that the petitioner is the lawful owner of the property bearing Khasra No. 1002, Khewet No. 2 Katooni No. 3, Mutation No. 290 situated at Viala Nauhsar, Tappa Nauhsar, Tehsil Saddar,
District Quetta and is entitled for its possession, whereas the respondents have no lawful right to retain the possession of the same. The findings of the trial court, as well as the appellate court in respect of the issues are contrary to the evidence on record, therefore, the same are reversed and decided accordingly.
In view of the above, the Civil Revision Petition No. 240 of 2016 is allowed the
impugned judgments and decrees passed by the courts below are set aside, and the suit filed
by the petitioners is decreed in their favour and against the respondents. The parties are left to bear their own cost.
Decree sheet be drawn accordingly.
ZH/24/Bal . Revision 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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