2020 M L D 426
[Balocshitan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
MUHAMMAD KHAN DURRANI through Attorney ---Appellant
Versus
ABDUL ALI DURRANI and 4 others ---Respondents
Regular First Appeal No.43 of 2015, decided on 27th August, 2019.
(a) Specific Relief Act (I of 1877)---
----Ss. 42 & 54--- Suit for declaration and permanent injunction--- Limitation ---Allegation of
fraud ---Proof ---Procedure ---Contention of plaintiff was that he was owner of suit property---
Suit was dismissed by the Trial Court ---Validity ---Evidence produced on behalf of plaintiff
did not substantiate his claim---When a party had alleged fraud then he/she had to prove the
allegations and mere verbal assertion would not be beneficial ---Present suit was time barred --
-Plaintiff had failed to rebut evidence produced on behalf of defendants ---Where
presumption of truth was attached to a document then same could not be discarded unless proved otherwise by convincing and cogent evidence ---Evidence produced on behalf of
plain tiff was self contradictory and non- confidence inspiring--- Plaintiff had not produced any
witness of purchase of suit property---Defendants had not produced any evidence but plaintiff was bound to prove his case on the strength of his own evidence and he c ould not
get any benefit from the shortcoming and weakness of defendants' side ---Findings recorded
by the Trial Court were based on proper appreciation of evidence on record---Appeal was dismissed in circumstances.
Mazloom Hussain v. Abid Hussain PLD 2008 SC 571; Sher Afghan v. Muhammad
Rafiq 2012 CLC 1798 and Munawar Shah v. Habib- ur-Rehman 2018 CLC 1901 rel.
(b) Maxim ---
----"Dubio secundum Reum Potius Quam secundum actorem litom dori opertet"; where the case is doubtful the decision should be given for the defendant rather than the plaintiff.
Kamran Arshad and Naseebullah Kasi for Appellant.
Ahsan Rafique Rana for Respondents Nos.2 to 4.
Date of hearing: 19th August, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J .---This appeal is directed against the judgment and
decree dated 30.06.2015 ("impugned judgment") passed by learned Senior Civil Judge -I,
Quetta (the "trial court") whereby suit filed by the appellant for "Declaration, Possession,
Cancellation of Mutation No.1168 (Reference Mutation No, 836, 83 9) and Mutation No.1247
(Reference Mutation No.1169 and Permanent Injunction." was dismissed.
2. The appellants filed the referred suit before the trial court with the averments that
initially he purchased a land bearing Khasra Nos.1847/1812/1805/154 Mohal Khushkaba
Yasinzai, Mouza Shaldara, Tappa Saddarm Tehsil and District Quetta, measuring total area is 48 Rod, 9 Poles, from its previous owner Abdul Hakeem vide mutation No.765. It is contended that the transferred shares in the name of plaintiff from the total area 48 -rod, 9
pole is 27- 1/2 poles. The plaintiff from total purchased shares consists of 27- 1/2 pole, being
elder brother has given deliberately and open heartedly some portion consists on equal shares to his father Muhammad Naeem Durrani, brother Abdul Ali (Defendant No.1) Abdul Karim
and Abdul Qayyum Durrani equally 3- 5/8-poles each respectively with possession thereof
through registries which is not a matter in dispute on 5.3.1980. It is contended that that brothers of plaintiff namely Abdul Ali , Abdul Karim, Abdul Qayyum and his father has
constructed a house on their respective portion by themselves without any objection. After
giving respective shares to their brothers and his father from total area of 27- 1/2 pole,
plaintiff remained exclusive owner of 13 poles only with possession of the same. It has
further been contended that the plaintiff has constructed a seven type construction on his
above said 13 poles share and constructed 5 -Rooms and one kitchen and bathroom and
started living with de fendants Nos. 2, 3 and 4 happily and in cordial manner. The plaintiff 10
or 15 days ago approached the defendants that the possession of the house in question is now required for his son, but they refused to deliver possession and respondent No.4 (mother) further informed that mutation of the house is in her name.
Lastly the plaintiff prayed as under:
i. Declare that the plaintiff is the owner of the house in question and is entitled for the possession of the same.
ii. Declare that after withdrawal of the permission by plaintiff from defendant as licensee their possession is illegal or unwarranted.
iii. Declare that the mutation Nos.1168 and 1169 are outcome of fraud, declare null and void and defendant No.5 be directed to cancel the same.
iv. Declare that the defendants Nos.1, 2, 3 and 4 to handover the possession of the house
in question to plaintiff.
v. Declare that the defendants having no concern and denying the title of plaintiff regarding house in question.
vi. Permanently restrained the defendants fr om interference regarding title and
possession with house in dispute. appellants prayed that the permanent order No.214 dated 29th September, 1976 issued by the respondent/defendant No.3 may be cancelled/ set -aside, besides cancelling the mutations Nos.949 and 300 recorded on
the basis of the same by the respondent/defendant No.2 in favour of
respondent/defendant No.1 and to direct the respondent No.1 to hand over the
peaceful possession of the house in question to the plaintiffs, and to further direct the defendant No.2 to record the revenue entries of property in question in favour of appellants and other legal heirs of Haji Muhammad Rahim and to restrain the respondents permanently from transferring and alienating the property in question in
favor of any other person with any other relief and cost of the suit.
3. The respondents entered appearance and filed the written statement by raising certain
legal objection as well as on merits.
4. Out of the pleadings of the parties the trial court framed the follow ing issues:
"1. Whether the suit of the plaintiffs is hopelessly time -barred?
2. Whether the suit of plaintiff is hit by law of estoppel, as well Order II, Rule 2,
C.P.C.?
3. Whether the suit of plaintiff is lawful owner of house in question and defendants by means of fraud got mutated the mutation Nos.1168, 1169, which are liable to be cancelled?
4. Whether the defendants Nos.1, 2, 3 and 4 are legally bound to handover the vacant possession of the house in question to the plaintiff?
5. Whether th e plaintiff has not challenged the mutation effected in respect of suit
property and Hiba Nama, as well he has no control or authority and legal entitlement on the land in question?
6. Whether the plaintiff is entitled to the relief claimed for?
5. In orde r to substantiate their claim the appellants produced five witnesses including
official witness, while the respondents did not produce any evidence on their behalf.
6. On conclusion of trial the suit filed by the appellant was dismissed vide impugned
judgm ent and decree, which has been assailed through this appeal.
7. Learned counsel for the appellant contended that the suit of the appellants was well
within time, but the trial court has not applied judicial mind on the point of the limitation; that the trial court has not decided the remaining issues legally and separately rather violated the previsions under Order XX, Rule 5, C.P.C.; that the appellant has produced and exhibited all the relied document and produced five witnesses but the respondents after filing written statement have failed to appear before the trial court; that the trial court ignored the point of licensee in the entire evidence produced by the appellant; that the trial court ignored the point of redemption and mortgage deed dated 28.3.19 83; that the appellant has no concern
with the Hiba Nama of the respondents and the respondents were required to prove this issue; that the impugned judgment is based on surmises and conjunctures; that the learned trial court has passed the judgment and de cree in a haphazard manner without considering the
evidence; that the impugned judgment and decree suffer from illegalities and irregularities, as such liable to be set -aside.
8. Learned counsel for the respondents supported the impugned judgment and urged for
dismissal of the appeal.
9. Heard. Record perused. We have given due consideration to the submissions of the
learned counsel for the parties and have gone through the record of the case. The
appellant/plaintiff filed a 'Suit for Declaration, Possession, Cancellation of Mutation Entries' with the contention that plaintiff purchased 27- 1/2 rod 9 pole, Muhal Khushkaba, Yasinzai
Mouza Shaldara Tappa Saddar Quetta from one Abdul Hakeem vide mutation No.765 on 2.10.1979; that the plaintiff had retained 13 poles himself and transferred the remaining land on the name of his father and three brothers with equal share; that on 13 poles he constructed house where he resided with respondents Nos. 2, 3 and 4. That the plaintiff also obtained loan from HBL through re gistered deed on 28.3.1983; that the plaintiff allowed the
respondents to reside in the house with undertaking that on requirement they would hand over the possession to the appellant. The plaintiff through PW -2 exhibited registered sale
deed Ex.P/1 to Ex.P/3 before the trial court. According to Ex.P/1 to Ex.P/3 the sale and purchase had taken place on 1st March, 1980 between plaintiff and Muhammad Naeem. The said registered sale deed transpires that the plaintiff has sold the land to his father in March, 1980. The plaintiff through PW -3 (Representative of Tehsildar city Quetta) exhibited
Mutation Nos.765, 1148 and 1247 as Ex- P/4 to 6 which transpire that the transfer had taken
place on payment/consideration and not as a gift which belies the contention of plaintiff.
The plaintiff has filed the present suit after 27 years of mutations, but has failed to
produce any cogent and reasonable evidence to explain such a long delay.
The evidence produced by the appellant could not substantiate his cl aim. When a
party takes plea of fraud, he/she has to prove the allegation while mere verbal assertion could
not be beneficial. The transfer has taken place in the year 1984 and since then the plaintiff remained silent and did not approach the revenue forum or civil court of competent
jurisdiction for cancellation of mutation/transfer. The trial court has rightly come to the conclusion that the suit of the plaintiff is time -barred.
10. The documents exhibited by the appellant before the trial court transpire that the
transfer has legally taken place in the name of respondents and the appellant has failed to rebut the same through cogent evidence. It is by now well settled that where presumption of truth is attached to a documents, it cannot be discarded unles s proved otherwise by
convincing and cogent evidence and the burden of proof that the entries in the record of rights are wrong, is on the party who alleges it. Reliance is placed on the case of Mazloom Hussain v. Abid Hussain PLD 2008 SC 571.
11. The evi dence produced by the appellant is self contradictory and not confidence
inspiring. PW -1 stated that the suit property was purchased by the appellant in the year 1969
while the plaintiff himself in his court statement stated that he purchased the suit prop erty on
2nd October, 1979. The plaintiff has not produced any witness of sale/purchase. None of the witness of the plaintiff deposed that house in question was constructed by the appellant or that the respondents were residing in the same as licensee with the permission of the appellant. When a plea is taken by a party, then said party is under obligation to prove the
same with strong and cogent evidence. Thus the contradiction amongst the statements of
witnesses on material point cannot be ignored. Relianc e is placed on the case of Sher Afghan
v. Muhammad Rafiq 2012 CLC 1798, wherein it has been observed as under:
"The contradiction on material points in the testimony of witnesses cannot be ignored altogether merely by saying that the same were result of the slip of tongue because in that eventuality the evidence would have to be discarded and could not be formed basis of decision."
12. Though the respondents neither produced witnesses nor recorded their statement on
oath but it is well settled law that the plaintiff must prove his case on the strength of his own evidence and could not get any benefit from the shortcomings and weaknesses of the defendants/ respondents' side. Reliance in this regard is placed on the case of Munawar Shah v. Habib- ur-Rehman 2018 CLC 1901.
13. There is well known maxim Dubio Secundum Reum Potius quam secundum actorem
litom dori opertet, which means that where the case is doubtful the decision should be given for the defendant rather than plaintiff.
The plaintiff has failed to prove his contention in respect of permissive possession of
respondents through cogent evidence.
Thus, in view of above, we are of the considered opinion that the findings of the trial
court are based on proper appreciation of evidence and mater ial available on record
warranting no interference by this court. Therefore the instant appeal is dismissed with no order as to cost.
Decree- sheet be drawn separately.
ZC/98/Bal. Appeal 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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