2012 M L D 841
[Balochistan]
Before Naeem Akhtar Afghan, J
MUHAMMAD SHAFI ---Petitioner
versus
WIDOW OF LATE TALIB HUSSAIN and 3 others ---Respondents
Civil Revision No.304 of 2004, decided o n 25th November, 2011.
Specific Relief Act (I of 1877) ---
----Ss. 8, 39, 42 & 54 ---West Pakistan Land Revenue, Act (XVII of 1967), S.39 ---Suit for
possession, cancellation of registered deed, declaration and permanent injunction ---Mutation ---
Presumpti on---Scope ---Plaintiff claimed that he had purchased suit property from its owner
through mutation and said property was in possession of husband of the defendant as tenant ---
Husband of defendant subsequently died and his widow/defendant was residing in th e suit
property ---Plaintiff filed ejectment application against widow of deceased tenant, who denied
relationship of landlord and tenant between the parties and claimed to be owner of the property --
-Said ejectment application having been dismissed, plainti ff had filed suit for possession,
declaration, etc. against the defendant, widow of deceased --Defendant, claimed that her late
husband had purchased suit property from original owner through registered sale -deed ---
Validity ---Record had revealed that suit p roperty had remained throughout in possession of the
predecessor of the defendant and the plaintiff had never remained in possession of the same ---
Mutation in the record of rights did not create title in favour of the person in whose favour entry
had been recorded, nor the mutation entry could be used as a document of title, but mutation
entry would raise a rebuttable presumption in favour of the person in whose favour the entry had
been made ---Said presumption could be rebutted by the person challenging su ch entry by
producing evidence contrary to the mutation ---Presumption of truth and correctness attached to
mutation existing in the name of the plaintiff with regard to suit property, was rebutted by its
contents, wherein it had been mentioned that possess ion of suit property had been delivered to
the plaintiff, whereas possession was not delivered to the plaintiff and it was with predecessor of
defendant ---Presumption was further rebutted as the plaintiff had throughout failed to prove the
status of the pr edecessor of defendant as tenant ---In view of registered sale -deed in favour of
predecessor of the defendant, mutation had lost its significance and had no legal value; and same
would not confer any right or title in favour of the plaintiff to claim posses sion---Impugned
judgment passed by the Appellate Court had also revealed that Appellate Court, after due
appraisal of evidence on record and after discussing the issues framed, found the plaintiff not
entitled for the relief claimed and had rightly dismiss ed appeal on merits ---Concurrent findings
of the courts below, not being result of mis -reading or misappreciation of evidence, could not be
interfered with in revisional jurisdiction of High Court.
Dilber Hussain v. Muhmoodul Hassan and 3 others PLD 198 6 Quetta 198 ref.
Naresh Nath Kohli for Petitioner.
Sultan Taran for Respondents.
Date of hearing: 23rd September, 2011.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ---This revision petition is directed against the
judgment/decree dated 2nd August 2003 passe d by learned Senior Civil Judge -I, Quetta,
whereby suit for declaration, possession, cancellation and permanent injunction filed by the
petitioner/ plaintiff has been dismissed by Senior Civil Judge -I, Quetta and against the judgment
and decree dated 11th September 2004 passed by Additional District Judge -II, Quetta, whereby
the appeal filed by the petitioner/plaintiff has also been dismissed.
2. Brief facts of the case are that the petitioner/plaintiff filed a suit with regard to property
measuring 1700 sq.ft. falling under old Khasra Nos.14435, 12995/275, (new Nos.128/129,
Khewat No.215, Khatooni No.276, Ward No.2, Urban) bearing Municipal No.10 -9/2862, Tehsil
and District Quetta. It was contended that Khasra No.128 comprises of street measuring 115
sq.ft. and Khasra No.129 comprises of disputed premises measuring 1585 sq.ft. Previously the
disputed premiseswas measuring 1334 sq.ft. in the revenue record due to exclusion of street, but
in the recent settlement the street has also been included in the meas urement.
It was contended that Mst. Rahat Begum daughter of Rasaldar Major Muhammad Umar Khan
Durrani was owner of about 5948 sq.ft. in Ward No.2, having three seven type houses built
thereon and same remained in possession of tenants from time to time. It was contended that out
of the total property 3951 sq.ft. was sold by Mst. Rahat Begum to Muhammad Akbar on 15th
November 1965 through Mutation Nos.441 and 1023 sq.ft. was sold to one Muhammad Din on
8th August, 1968 vide mutation No.531 through her att orney namely Shida Ahmed son of
Shahzada Muhammad Shah and the remaining property measuring 1334 sq.ft. was sold to the
petitioner/plaintiff through mutation No.606 dated 30th June, 1970 through her attorney and
Anwar Khan Durrani was attesting witness of mutation No.606. It was further contended that the
property sold to the petitioner/plaintiff was in possession of Talib Hussain predecessor in interest
of respondent No.1, who was residing as tenant of Mst. Rahat Begum. It was further contended
that the pe titioner/plaintiff by virtue of purchase became owner of the disputed premises,
wherein late Talib Hussain was residing as tenant and he was intimated accordingly and due to
cordial relations being neighbourer Rs.100 (Rupees hundred) per month rent was fix ed, which
was collected after lapse of year or months due to posting of late Talib Hussain outside Quetta.
Talib Hussain died in 1984/85 and was survived by his widow as they had no child from the
wedlock. After death of Talib Hussain the widow of Talib H ussain mostly used to reside with her
nephew namely Muhammad Ameen at Arbab Ghulam Ali Road and the disputed house used to
remain in occupation of one Abdul Ghaffar i.e. a Sublettee. The petitioner/plaintiff due to his
personal bona fide need and requireme nt of the disputed property being owner requested the
widow of late Talib Hussain to vacate the disputed house but the 'request was not acceded
whereafter the petitioner/plaintiff filed an eviction application on 11th December, 1999 on the
ground of perso nal bona fide requirement as well as subletting. The widow of late Talib Hussain
contested the eviction application and also denied the ownership of the petitioner with regard to
the disputed property and claimed that her husband Talib Hussain had purchase d the disputed
premises from Mst. Rahat Begum and she is exclusive owner of the disputed property. The
widow of late Talib Hussain relied upon and produced the registered sale -deed executed on 5th
May 1967 and registered on 11th May 1967. The eviction appl ication filed by the
petitioner/plaintiff was dismissed whereafter the petitioner/ plaintiff filed the instant suit seeking
declaration as owner, cancellation of registered deed dated 11th May 1967 and possession of the
disputed property.
3. After filing of the suit the widow of late Talib Hussain submitted an application to the Deputy
Commissioner for correction of the revenue record, but the application was disposed of on the
ground that the matter pertains to civil liability and unless determined by th e civil Court the
Deputy Commissioner cannot adjudicate upon the matter.
4. The suit filed by the petitioner/plaintiff was strongly contested by the widow of late Talib
Hussain. It was contended that late Talib Hussain had purchased the disputed property in 1967
from Rahat Begum through registered sale -deed and after his death the widow of Talib Hussain
is the lawful owner of the property and defendant No.2 is not in possession of the property but he
is mere relative of the widow. The trial Court on the b asis of pleadings of the parties framed
following issues: --
(1) Whether the plaintiff is the owner of the property in dispute?
(2) Whether the registry dated 11th May 1967 was fabricated by Sub -Registrar with the collusion
of late husband of defendant No.3?
(3) Whether the suit of the plaintiff is barred by time?
(4) Whether the proper court fee has not been affixed on the plaint?
(5) Whether the plaintiff' is entitled for possession of the property in question without submitting
ad valorem court fee on the suit?
(6) Whether the plaintiff is entitled for the relief claimed for?
(7) Relief?
5. After framing of the issues the parties led their evidence and recorded their statements and
after hearing arguments the suit was dismissed vide judgme nt/decree dated 24th July, 2002 by
learned Senior Civil Judge -I, Quetta, but in appeal preferred by the petitioner, the matter was
remanded to the trial Court vide judgment/decree dated 30th April 2003 with direction to follow
the provisions of Order XX, R ule 5, C.P.C. and to decide the issues separately in the light of the
statements of the witnesses and the documents after providing opportunity of arguments to the
parties.
6. Subsequent to remand, after hearing arguments, again the suit filed by the, pe titioner/plaintiff
was dismissed vide impugned judgment/ decree dated 2nd August 2003 whereafter the
petitioner/plaintiff appeal but same has been dismissed vide impugned judgment/decree dated
11th September, 2004 by learned Additional District Judge -II, Q uetta. The petitioner feeling
aggrieved of the judgments/decrees impugned passed by the courts below has preferred the
instant revision petition. During pendency of the revision petition before this Court the widow of
late Talib Hussain i.e. respondent No. 1 expired and Muhammad Ameen son of Ahmed Jan being
successor in interest/ nephew of the widow of late Talib Hussain was joined as respondent No.1
through amended title dated 27th July 2011.
7. Learned counsel for the petitioner/plaintiff Mr. Naresh Nath Kohli, Advocate argued that the
concurrent findings of the forums below are result of misreading and misappreciation of oral as
well as documentary evidence. He further argued that the contesting respondent has failed to
prove the registered sale -deed and further argued that the petitioner/plaintiff being lawful
recorded owner of the disputed property is entitled for the relief claimed on the basis of
mutation.
8. On the other hand Mr. Sultan Taran Advocate, learned counsel for the contesting respondent
argued that mere entry in the revenue record does not confer any right or title in favour of the
petitioner/ plaintiff in view of the earlier registered deed in the name of late Talib Hussain and in
view of continuous and uninterrupted possession of late T alib Hussain and his widow. Learned
counsel also referred to the decision of the eviction application wherein the petitioner/plaintiff
had failed to establish relationship of landlord and tenant between the parties.
After hearing arguments of the learned counsel for the parties I have gone through the record of
the case.
9. Record reveals that the disputed property has remained throughout in physical possession of
the predecessor of respondent No.1 i.e. late Talib Hussain and the petitioner has never re mained
in physical possession of the same. The claim of the petitioner is based on Mutation No.606
dated 30th June 1970 allegedly signed by Sheeda Ahmed (attorney of the owner Rahat Begum),
whereas the respondent No.1 has contested and denied the claim of the petitioner on the basis of
registered sale -deed dated 11th May 1967 duly signed by its owner Rahat Begum. It has been
throughout the contention of the petitioner that predecessor of respondent No.1 was occupying
the property in dispute as his tenant, but throughout the eviction proceedings (under Case No.93
of 1999) the petitioner failed to prove the relationship of landlord and tenant with the
predecessor of respondent No.1. Since, the date of mutation i.e. 30th June 1970 till issuance of
legal notice dated 25th September 1999 the petitioner never informed the predecessor of
respondent No.1 about his alleged purchase of the disputed property and in response to legal
notice dated 25th September 1999 the predecessor of respondent No.1 filed an applicatio n in
October 1999 before Deputy Commissioner/Collector Quetta for correction of the entry in the
record of rights on the basis of registered sale -deed of May 1967, which remained pending and in
the meanwhile after dismissal of application the petitioner fi led civil suit (subject matter of the
instant petition), due to which the entry was not corrected by the Deputy Commissioner/
Collector Quetta being a civil dispute.
In view of any inaction by the petitioner since 30th June 1970 till issuance of legal no tice dated
25th September 1999 i.e. 29 years the suit of the petitioner was hopelessly barred by time as
well.
10. The representative of Registrar Office Quetta duly appeared at the trial and produced the
registered sale -deed Exh.P/8. The predecessor of respondent No.1 has produced DW -3 Shahid
Zaman, who is son of Sher Zaman a marginal witness of the registered sale -deed Exh.P/8 and the
witness duly/correctly identified signatures of his father on the registered sale -deed, who was a
Jirga member as well a s a social worker. The witnesses produced by the predecessor of
respondent No.1 prove that predecessor of respondent No.1 remained in physical possession of
the disputed property as lawful owner.
11. There is no cavil to the proposition that mutation in the record of rights does not create title
in favour of the person in whose favour entry has been recorded, nor the mutation entry can be
used as a document of title. However mutation entry raises a rebutable presumption in favour of
the person in whose fa vour the entry has been made. The above presumption can be rebutted by
the person challenging such entry by producing evidence contrary to the mutation. Reference in
this regard is made to the case of "Dilber Hussain v. Muhmoodul Hassan and 3 others" PLD
1986, Quetta 198.
In the instant case the presumption of truth and correctness attached to Mutation No.606 existing
in the name of petitioner with regard to disputed property is rebutted by its contents, wherein it
has been mentioned that the possession o f the disputed property has been delivered to the
purchaser i.e. the petitioner, whereas admittedly the possession was not delivered to the
petitioner and it was with late Talib Hussain i.e. the predecessor of respondent No.1. The
presumption is further re butted when the petitioner alleged the status of the predecessor of
respondent No.1 as tenant, but throughout failed to prove the status of the predecessor of
respondent No.1 as tenant, which also resulted into dismissal of his eviction application. This
presumption also stands rebutted by uninterrupted physical possession of late Talib Hussain as
well as his successor in interest and further this presumption stands fully rebutted through
registered sale -deed dated 11th May 1967 executed between the owner of the property and late
Talib Hussain.
In view of the registered sale -deed dated 11th May 1967 subsisting on the day of Mutation
No.606 i.e. 30th June 1970 the Mutation No.606 loses its significance and has no legal value and
same does not confer any ri ght or title in favour of the petitioner to claim possession.
12. Perusal of judgment impugned passed by the learned trial court reveals that while deciding
issues Nos.1 and 2 learned trial court has rightly observed that according to admission of
petiti oner, Rahat Begum was alive in the year 1970/1971, but she never appeared before the
revenue authorities to attest the Mutation No.606, which bears signature of her alleged attorney
Sheeda Ahmed, but the petitioner at the trial never produced any attorney of Rahat Begum in the
name of Sheeda Ahmed. Even the revenue record does not bear any power of attorney of Rahat
Begum in the name of Sheeda Ahmed and on the basis of proper appraisal of evidence the
learned trial court has rightly resolved the issues Nos. 1 and 2 in negative.
13. The impugned judgment passed by the learned appellate court also reveals that the learned
appellate court after due appraisal of evidence on record and after discussing the issues framed,
held the petitioner not entitled for the relief claimed and rightly dismissed the appeal on merits.
14. After careful appraisal of material available on record I have found no illegality or
irregularity in the judgments/decrees passed by the courts below. The concurrent findings of the
courts b elow are not result of any misreading or mis -appreciation of evidence detrimental to the
petitioner. Both the courts below while passing the judgments and decrees impugned have
properly exercised the jurisdiction vested/ conferred on them. Even on reapprai sal of entire
evidence I see no reason to interfere with the concurrent findings of the forums below as the
same are not perverse or contrary to the available record.
For the above reasons the revision petition is dismissed.
H.B.T./157/Q Petiti on 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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