2023 C L C 530
[Balochistan]
Before Abdullah Baloch, J
ABDUL GHAFFAR and others ----Petitioners
Versus
SHINKO and others ----Respondents
Civil Revision No.46 of 2012, decided on 23rd October, 2020.
Balochistan Land Revenue Act (XVII of 1967) ---
----S.42 ---Qanun -e-Shahadat (10 of 1984), Arts.117 & 118--- Mutation ---Fraud, allegation of -
--Plaintiffs/respondents averred that their owned land was exchanged with the father of
certain (4) defendants which they took possession of ---In exchange plaintiffs/respondents got
possession of a suit property from father of said four defendants in whose name the same was registered ---Other two defendants/petitioners with collaboration of revenue staff fraudulently
transferred the suit property in their names through fake sale deed/documents ---Trial Court
dismissed the suit--- Appeal was accepted by Appellate Court ---Validity ---Nothing was
brought on record to suggest that the mutation entries in question had fraudulently been carried out by the petitioners in their favour ---Attorney of plaintiffs deposed that plaintiffs
along with said four defendants carried a subsequent agreement and admitted that their elders had exchanged the properties 30 to 35 years before ---Perusal of oral/documentary evidence
including the said agreement did not disclose any fraudulent transfer of property in question by petitioners ---Said agreement was silent with regard to description/mutation numbers of
property and did not disclose any cause of action---Plaintiffs/respondents had failed to discharge burden of proof ---No question was put to defendants' witnesses with regard to
fraudulent transfer ---Suit property was not claimed by the predecessors in their life time
despite remaining alive for more than 20 years after transfer, and plaintiffs and said four defendants kept mum since long time ---Lacunas of defendants could not be extended in
favour of plaintiffs ---Revision petition was accepted and impugned judgment/decree of
appellate Court was set aside.
Muhammad Rustam and others v. Mst. Makhan Jan and others 2013 SCMR 299 rel.
Shams -ud-Din Achakzai for Petitioner.
Masoom Khan Kakar for Respondent.
Saifullah Sanjarani, Assistant A.G. for the State.
Date of hearing: 6th October, 2020.
JUDGMENT
ABDULLAH BALOCH, J. ----This petition is directed against the judgment and
decree dated 18th February 2012 (hereinafter referred as "the impugned judgment and
decree") passed by learned District Judge, Zhob (hereinafter referred as "the appellate Court") whereby the appeal filed by the respondents was allowed and the suit of plaintiffs was decreed against the petitioners and the judgment and decree dated 25th November 2011 passed by the learned Civil Judge, Zhob (hereinafter referred as "the trial Court") was set aside.
2. Brief facts of the case are that the respondents/plaintiffs filed a suit for Declaration,
Cancellation of Mutation Entries and Permanent Injunction against the petitioners/defendants in the trial Court with the averments that they were owner of land bearing Khata No. 172, Kathooni No. 192/193, Khasra Nos.41- 42 total 83 rod and 20 pole at Meena Bazar was
exchanged with the father of defendants Nos.3 to 6 and possession was given to them. In exchange of that they got possession of a piece of land bearing Khata No.165, Kathooni No. 185 Khasra No.4 rod 428 and 18 pole from the father of defendants Nos.3 to 6 and the said piece of land was registered in the name of father of defendants Nos.3 to 6, but defendant/petitioners Nos.1 and 2 with collaboration of revenue staff fraudulently transferred the land in question in their name through fake sale deed and documents.
3. The suit was contested by the petitioners/defendants by means of filing written
statements. After framing issues and recording evidence pro and contra, the learned trial Court dismissed the suit filed by the respondents/plaintiffs vide judgment and decree dated 25th November 2011.
4. Being aggrieved, the respondents/appellants assailed the judgment and decree of the
learned trial Court before the learned appellate Court and the appeal of the respondents/appellants was accepted and the suit was decreed in their favour, vide impugned judgment and decree as mentioned hereinabove in Para No.1. Whereafter the instant Civil Revision Petition has been filed.
5. Heard the learned counsel for the parties and perused the record, which reveals that
the plaintiffs elucidated that they have exchanged a piece of land having Khata No. 172,
Kathooni No. 192/193, Khasra No.41- 42 total 83 rod and 20 pole at Meena Bazar with the
father of defendants Nos.3 to 6 and given possession of the same to them. In exchange of that
they got the possession of a piece of land bearing Khata No. 165, Kathooni No. 185 Khasra No.4 rod 428 and 18 pole from the father of defendants Nos.3 to 6, but the petitioners/defendants Nos.1 and 2 with collaboration of revenue staff fraudulently transferred the land in question in their name through fake sale deed and documents.
6. On the other hand, the petitioners/defendants Nos.1 & 2 vehemently denied the claim
of the plaintiffs/respondents, while defendants Nos.3 to 6 conceded the claim of the plaintiffs. Out of the pleadings, the learned trial Court framed the following issues:
"1. Whether no cause of action accrued to plaintiffs' side to file instant suit against the defendants?
2. Whether the suit is not maintainable by virtue of less court -fee, jurisdiction and time
limitations, as mentioned in legal objections 1, 2, 3 of written statement of the
defendant's Nos. 1 to 2?
3. Whether defendants Nos.1 to 2 illegally and fraudulently through misrepresentation mutated property in dispute?
4. Whether the plaintiffs are entitled for relief claimed?
5. Relief?"
7. The entire case of the parties revolved around the issue No.3 that "Whether
defendants Nos.1 to 2 illegally and fraudulently through misrepresentation mutated property in dispute?" in support of their claim the plaintiffs/respondent Nos. 1 to 4 produced as many eleven (11) PWs and also the attorney of the plaintiffs recorded his statement. The reprisal of entire evidence reflects that nothing specifically was brought on record through any oral or documentary evidence to suggest that the mutation entries in question have fraudulently been carried out by the defendants/petitioners in their favour, in this regard PW -1 Musa Kalim,
PW-2 Mulla Iran, PW -Shakar Din, who have brought on record an unregistered stamp paper
as Ex.P/3 -A, which suggests that their parents 35 years ago sell and exchanged the property
in question, but however, it is pertinent to mention here that this agreement was carried out on 25th August 2006 by the plaintiffs and defendants Nos.3 to 6, even these witnesses have not mentioned a single word with regard to fraudulent transfer of the disputed property, while PW -4 Ayaz Khan is also one of the signatory of Ex.P/3- A and he has also did not
depose a single word with regard to fraudulent transfer and mutation. Likewise, PW -5
Saeedullah, PW- 6 Haji Sharaf Khan, PW -7 Juma Khan, PW -8 Abdullah Shah, PW -9
Muhammad Ismail and PW -11 Dost Muhammad, Record Keeper, Tehsil office Zhob he has
produced Fard- e-Haqqiyat as Ex.P / 11 -A, which was correct according to their record during
cross examination in reply of question No.2 he stated that:
In reply of Question No.3 he deposed that:
And specifically In reply of Question No.4 he replied that:
In reply of Question No.5 he answered that:
In reply of Question No.6 he stated that:
In reply of Question No.7 he replied that:
In reply of Question No. 10 he deposed that:
In reply of Question No. 11 he stated:
In reply of Question No. 12 he answered that:
On 10th September 2011 once again the PW -11 was called for cross -examination of
respondents/defendants Nos.3 to 6, wherein in reply of Question No. 1 he stated that:
In reply of Question No.2 he replied that:
8. The attorney of plaintiffs Shinko son of Majeed, while recording his statement, stated
that their elders have exchanged the land bearing Khasra Nos.41- 42 30- 35 years ago with one
Akbar Ali the predecessor of defendants Nos.3 to 6, while he asked the sons of Akbar Ali in
the year 2006 to get effect proper transfer of land in question, however, in the year 2007 they came to know that land in question had fraudulently been transferred in the name of defendant No.1 in the year 1990, he also deposed that with regard to exchange of land in question, the plaintiffs along with defendants Nos.3 to 6 carried out an agreement in the year 2006 and both the parties admitted the fact that their elders have exchanged the land 30 to 35 years before. In reply of questions he stated that:
9. The perusal of entire oral and documentary evidence including the agreement dated
25th August 2006 Ex. P/3- A does not disclose any fraudulent transfer of the property in
question by the defendants/petitioners, even if all the agreement dated 25th August 2006 Ex.
P/3-A taken into consideration that the elders of the respondents have exchanged the
property in question, the agreement is silent with regard to description of the property, its mutation numbers etc, thus does not disclose any cause of action in favour of plaintiffs.
10. It is pertinent to mention here that the burden of proof of issue No.3 was on the
shoulders of plaintiffs, which they failed to discharge, however, in rebuttal the defendants also produced as many as ten (10) witnesses and also recorded the statement of their attorney and all of them deposed the possession of cultivation of defendants and mainly one official witness i.e. DW -9 Dost Muhammad, Record Keeper Tehsil Zhob, who produced Intheqal
No.235, Khata Kathooni Nos.45/48 and 161/180 as Ex. D/9- A in reply of question No.1 he
stated that:
In reply of Question No.2 he deposed that:
In reply of Question No.3 he replied that:
11. It is worthwhile to mention here that no question was put to the DWs with regard to
fraudulent transfer of the property in question. On the other hand, the respondents/defendants
Nos.3 to 6 did not produce any witness except the statement of respondent/defendant No.3
Zahir Shah, who deposed that his father has exchanged the property in question bearing Khasra Nos.41 -42 with the father of Shinko 30- 35 years ago and given the possession of
exchanged properties to each other, while property in question was fraudulently transferred in the name of plaintiffs in the year 1990. In reply of questions he stated that:
12. It is important to mention here that the said witness in cross examination in reply of a
question stated that they have carried out an agreement with the plaintiffs in the year 2006, but he has failed to mention a single word in his examination in chief with regard to carrying out any agreement pertaining to the disputed land. He also deposed incorrect that no property of his father has been transferred in his name, while DW -9 Dost Muhammad, Record Keeper
of Tehsil Zhob produced Intheqal No.235 of Khasra Nos.41- 42 in reply of question No.1
stated that:
In reply of Question No.2 he deposed that:
13. From the entire reappraisal of evidence produced by the parties, it appears that an
attempt made by the plaintiffs and defendants Nos.3 to 6 by garb of simple agreement dated
25th August 2006 to usurp the property in dispute, which was not claimed by their elders in
their life time as both the predecessors of the plaintiffs and defendants Nos.3 to 6 remained
alive for more than twenty (20) years after the transfer of property in question in revenue record, but they kept silent, even the plaintiffs and defendants Nos.3 to 6 also kept mum
since long time. Reliance in this regard is placed in the case of "Muhammad Rustam and
others vs. Mst. Makhan Jan and others" 2013 SCMR 299, wherein it was held by the Hon'ble
apex Court that:
"3. Having heard petitioners' learned counsel at some length, we find that admittedly the impugned mutation of inheritance bearing No. 571 dated 9- 7-1927 was never
challenged by Mst. Karam Jan; that she remained alive till 1975 and no reason whatsoever is reflected either in the plaint or in the evidence led to indicate as to why she did not challenge the said mutation. It has never been the case of the petitioners that either they or their predecessor -in-interest were unaware of the said mutation. In
the afore- referred circumstances, the judgment of the learned High Court is
unexceptionable. So far as the precedent case- law to which reference has been made
by petitioners' learned counsel is concerned, the same is distinguishable as in none of the judgments the question of locus standi was a moot point. In Abdul Haq v. Mst. Surraya Begum (2002 SCMR 1330), this Court inter alia was seized of a similar issue
and while dismissing the petition, it observed as follows: --
"11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom
they claimed inheritance himself had not challenged the same during his lifetime."
14. Thus, plaintiffs/respondent have failed to prove their case through confidence
inspiring evidence, however, main issue No.3 has been resolved against the plaintiffs they
have failed to prove the issue. It is now well settled principle of law that the lacunas of
defendants cannot be extended in favour of plaintiffs.
For the reasons discussed hereinabove, the petition is accepted the impugned
judgment and decree passed by the learned appellate Court dated 18th February 2012 is hereby set aside and the judgment and decree dated 25th November 2011 passed by the
learned trial Court is hereby maintained.
Parties are directed to bear their own cost.
ZH/25/Bal. Petition
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