2022 M L D 1547
[Balochistan]
Before Abdullah Baloch, J
GHULAM QADIR and others ---Petitioners
Versus
JAM ALI AKBAR and others ---Respondents
Civil Revision No.33 of 2019, decided on 3rd November, 2021.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Arts.117, 118 & 122---Limitation Act (IX of 1908), Art. 3---Mutation entries ---Suit for
declaration, possession, cancellation ---Petitioners/plaintiffs claimed that they were owners in
possession of the suit land since 1908; that prior to that their ancestors used to cultivate the
land as settlers; that respondents occupied the same with collusion of police and evicted the petitioners; that revenue record was not transferred in favour of the petitioners ---Suit was
concurrently dismissed--- Validity ---Statements of the petitioners and witnesses produced by
petitioners were contradictory to each other on material count of the case i.e. regarding possession, ownership, entries in revenue records, etc.---Record transpired that the settlement of land was completed in 1969 whereby all the record of right was recorded in the name of
respondents and nowhere the name of petitioners was assigned to ascertain their ownership---Record also showed that petitioners were aware of revenue record, but did not raise any objection till filing of the present suit before any forum for correction of revenue record---Suit was barred by time for 37 years ---Petitioners had failed to prove their ownership,
possession, dispossession from the property ---Revenue record since year of settlement in
1969 was in the names of respondents ---Heavy burden was upon the petitioners to prove
their affirmative case of ownership through cogent/reliable evidence and they were to stand on their own legs to succeed and could not avail benefits of any weakness in case of opposite party ---Even if the case was remanded, no fruitful purpose could be served because the suit
was hit by law of limitation ---Revision petition was dismissed accordingly.
United Bank Limited and others v. Noor -un-Nisa and others 2015 SCMR 380; Sultan
Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 and Syed Malang Shah v. Umar Shah 1998 SCMR 656 rel.
(b) Civil Procedure Code (V of 1908) ---
----O.XLI, R.31---Point for determination, non -framing of--- Scope ---If appellate Court had
not framed points for determination in a case, judgment of such Court would not be liable to
be set aside on such ground alone ---Such act of appellate Court would become immaterial
when all the raised questions have been answered by the appellate Court.
Ahsan Rafique Rana for Petitioners.
Mujeeb -ur-Rehmand Baloch, Illahi Bakhsh Mengal and Sagheer Ahmed Baloch for
Respondents.
Malik Azeem, Assistant A.G. for the State.
Date of hearing: 15th October, 2021.
JUDGMENT
ABDULLAH BALOCH, J. ----This petition is directed against the judgments and
decrees dated 9th February 2018 and 14th November 2018 ("the impugned judgments and
decrees") passed by the learned Qazi Lasbella at Uthal ("the trial Court") and the Majlis -e-
Shoora, Lasbella at Hub ("the appellate Court") whereby the suit and appeal filed by the petitioners were dismissed, respectively.
2. Brief facts arising out from the instant petition are that petitioners/plaintiffs filed a
Civil Suit for Declaration, Possession, Cancellation of Mutation entries and Permanent Injunction against the respondents/defendants in the learned trial Court with the averments that the petitioners/plaintiffs are residents and owners of the landed property measuring 1100- 0 acres having Khata No.03, Khatooni No.3 Misil No.55, 43/16, 54, 53, 11, 35, 58 and
50 situated at Suresh Path, Goth Mahmood, Goth Ghulam Qadir, Got Arif, Goth Ismail and Goth Hussain son of Pathan; that the said property in question is in their possession since 1908 and prior to this their ancestors used to cultivate the land as sellers (urdu ) and now the petitioners are possessors, owners, but on 7th January 2007, the Manager of Mir Jam Kamal
Khan occupied the property in question with collusion of police and evicted the petitioners/plaintiffs from their ancestral lands.
3. The suit was contested by the respondents/defendant by means of filing written
statements.
4. After framing of issues, recording evidence, the suit of plaintiffs/petitioners was
dismissed by the learned trial Court, vide impugned judgment and decree dated 9th February
2018.
5. Being aggrieved the petitioners/appellants assailed the judgment and decree of the
learned trial Court before the learned appellate Court by filing appeal, which was dismissed, vide impugned judgment and decree as mentioned hereinabove in para No.1. Whereafter the petitioners filed the instant Civil Revision Petition.
6. Heard the learned counsel for the parties and perused the record minutely, which
reveals that the petitioners filed a suit for declaration, possession, cancellation of mutation entries and permanent injunction in the learned trial Court claiming that they are residents and owners of the property measuring 1100 acres, bearing Khata No.03, Khatooni No.3 Misil Nos.55, 43/16, 54, 53, 11, 35, 58 and 50 situated at Suresh Path, Goth Mahmood, Goth
Ghulam Qadir, Goth Arif, Goth Ismail and Goth Hussain son of Pathan, which have been in
their possession since year 1908 and prior to this their ancestors used to cultivate the said land and also remained sellers of land in question, on 7th January 2007 the Manager of respondent No.4 (Jam Kamal Khan) forcibly occupied the disputed lands with collusion of police and vacated the petitioners/plaintiffs from their ancestral land.
7. It is further averred by the petitioners that vide Misal No.72 LR No.188607- 14 dated
3rd November 1974 declaration was made by the predecessor of the respondents Jam Mir Ghulam Qadir Khan, Jam (Ruler) of State of Lasbella under Section 115 he had declared that
Moroosi Bazgar who are in possession and cultivating the lands at the time of State
of Lasbella, they are declared as owner and revenue record be corrected in favour of
possessors of the lands and in this regard certain reports of revenue officers are also available on record, but despite of the fact the revenue record was not transferred in favour of the
petitioners/plaintiffs.
8. The suit was contested by the respondents/defendants by means of filing written
statements; whereby vehemently denied the claim of petitioners. The suit was initially
rejected by the learned trial Court, vide order dated 31st October 2007 under Order VII, Rule 11, C.P.C. Followed by appeal before the learned appellate Court, which was also dismissed, vide judgment and decree dated 6th June 2008, which was assailed before this Court in Civil Revision No.242 of 2008 and this Court set aside both the orders and decrees of the Courts below and remanded the matter to the learned trial Court, vide judgment dated 17th November 2015.
9. After receiving the same, the learned trial Court proceeded with the matter in the light
of direction of this Court and out of the pleadings of the parties framed the following issues
10. The burden of proof of issues was on the shoulders of the petitioners/plaintiffs, the
issue No.1 is with regard to limitation, which is important legal issue to resolve the
maintainability of the suit filed by the petitioners. In this regard the petitioners submitted in
their suit that they are in possession of the disputed property since year 1908 being owners of their ancestral property. In support this issue they produced oral evidence of two witnesses. PW-1 Muhammad Bachal, who stated the description of the property in question and, further
deposed that the petitioners are the owners of property in dispute and the possession of the
suit property prior to this was with the petitioners and now it is with the respondents. He did
not depose a single word from when the petitioners are in possession and owners of the
property in question and when they were forcibly dispossessed from the property by the respondents. He had shown his ignorance with regard to revenue record pertaining to whose name. He also did not mention a single word with regard to land reform declaration made by the late Jam of Lasbella and when the same was recorded in the name of respondents.
11. Likewise, PW- 2 Faqir Muhammad stated that property in question was in possession
of the petitioners and they were in possession of the suit property, however, for last eight years the possession of suit property is lying with the respondents. He did not depose a single word with regard to time of possession of petitioners and record of right rather he shown his ignorance with regard to documentary evidence of ownership of the property in question pertaining to whose name. PW -3 to PW -7 produced revenue records and official
correspondence and proceedings carried out by the revenue authorities from time to time, but nothing favourable came on record in favour of petitioners. Thereafter, the petitioner No.1 being attorney of the plaintiffs got recorded his own statement. The statements of petitioner and witnesses so produced are contradictory to each other on material count of the case.
12. The record further transpires that the settlement was carried out in the year 1964 -65
and completed in the year 1969; whereby all the record of right is recorded in the name of
respondents and nowhere the name of petitioners is assigned to ascertain their ownership. It is also transpired from the record that they were aware of the revenue record, but did not raise any objection till filing of the suit in hand before any forum for correction of revenue record.
13. Thus, in view of the above, it was rightly been observed by the Courts below that the
suit of petitioners/plaintiffs was barred by time for 37 years and the learned Courts below have rightly decided this issue against the petitioners. In this regard reliance is placed on the judgment of Hon'ble Supreme Court of Pakistan passed in the case of "United Bank Limited and others v. Noor -un-Nisa and others, 2015 SCMR 380"; wherein it was held that:
"(b) Limitation Act (IX of 1908) ---
---- S. 3---Under S. 3 of the Limitation Act, 1908, it was the bounden duty of every
court to take notice of the question of limitation even if not raised in defence by the contesting party. "
"23. When we examine the question of limitation on the basis of material available on record, we found that admittedly upon institution of ejectment proceedings, per averments made in the rent case, the claim of ownership of the disputed property in favour of the appellant had come to the knowledge of the respondents and their predecessor in the year 1980. But neither as such they challenged their title nor
strangely anywhere in their written objections/reply they made slightest reference of
the two fabricated documents i.e. PTO dated 5 -9-1961 and PTD dated 20- 12-1962,
which is by itself sufficient proof of the fact that these documents were subsequently manipulated and managed by them in connivance with the Settlement Department Staff, and thus reaffirm the authenticity of the report dated 24- 6-2003, submitted by
the Secretary (S&R), Chairman Verification Committee, Board of Revenue Punjab,
Lahore. As regards the authenticity of this report, another important aspect of the case
is that the Verification Committee was not constituted exclusively for the verification of purported documents of title of the respondents, but it was constituted on the directions of the Minister of Revenue of the Province to have a comprehensive report about the practices of fraud and manipulation rampant at the behest of the staff of defunct Settlement Department, after the repeal of settlement laws. Admittedly, having knowledge about the title of the disputed property in favour of the appellant acquired in the year 1980, the declaratory suit for challenging their title was instituted by the respondents after more than 18 years. Thus, on the basis of admitted and undisputed facts of the case, their suit was hopelessly time barred and for this reason alone, there was no occasion for passing an order of remand in the appeal through the impugned judgment, which could have resulted nothing but flogging a dead horse."
Similar view is taken in the case of "Sultan Muhammad and another v. Muhammad
Qasim and others", 2010 SCMR 1630; wherein held as under:
"Grievance of plaintiff against cancellation of PTD in his favour and transfer of property to private defendant without notice to him --- Suit against official defendants
instituted on 6 -2-1986 for cancellation of Transfer Order in favour of private
defendant, who was impleaded in suit on 21- 3-1990 by filing amended plaint in
compliance of order dated 13 -2-1990 ---Plaintiff's plea that both such orders were ab
initio void, whereagainst no limitation would run --- Validity ---Declaratory relief
sought against both such orders passed by official defendants had become time -barred
in year 1973/1974 as one year period of limitation provided under Art. 14 of Limitation Act, 1908 was computable from date of action or order and not from date of knowledge --- Plaintiff's plea about ignorance of both such orders was devoid of
any force as he had not given relevant details thereof either in plaint or evidence, thus, failed to discharge burden to prove such plea --- Period of limitation against
private defendant would be computed from 13- 2-1990, when he was impleaded in suit
as defendant ---If period of limitation for filing such suit against private defendant was to be computed from date of plaintiff's knowledge, then too suit filed after more than four years was hopelessly time -barred."
14. As far as rest of the issues are concerned pertaining to ownership of the property in
dispute, the entire evidence so brought on record by the parties reflects that the petitioners have failed to prove their ownership, possession, dispossession from the property in question rather the revenue record is pertaining since year of settlement 1969 in the name of respondents.
15. Thus, in view of the above, the learned Courts below have rightly observed that the
respondents are owner of the property in question and the same is rightly recorded in their
name since long and the petitioners have failed to prove their dispossession from the
property in question was being their ancestral property. According to Articles 117, 118 and 122 of Qanun- e-Shahadat Order, 1984 heavy burden was upon the petitioners/plaintiffs to
prove their affirmative case of ownership through cogent and reliable evidence, while any party approaching Court for grant of relief has to discharge his own burden and stand on his
own legs to succeed and cannot avail any weakness in case of opposite party. Reliance is
placed in the case of "Syed Malang Shah v. Umar Shah, 1998 SCMR 656"; wherein held as
under:
"5. Petitioner remained unsuccessful in preferring Civil Appeal before Majlis -e-
Shoora, Kalat at Mastung. It was held that the petitioner had failed to produce any evidence in support of his claim and that his witnesses Matlab Shah and Mulla Umer Shah had indicated wrong demarcation- lines in relation to the suit- land, Imam Bukhsh
has knowledge about the ownership of the petitioner and even Mulla Umer Shah falls in the same category. This appeal was dismissed on 30- 5-1995. Petitioner's Revision
Petition under section 115, C.P.C. was dismissed by the learned Judge in Chamber vide the impugned judgment, holding that parties had failed to produce any documentary evidence for substantiating their respective ownership and title; scrutiny of the evidence of the petitioner indicates that it is full of contradictions; the forums below had properly appraised the evidence in the case and that re -evaluation of the
entire material leads to irresistible conclusion that petitioner has failed to establish his right or title to the suit- land with the result that the relief claimed in the suit cannot be
granted "
16. Learned counsel for the petitioners also raised objection on the judgment passed by
the learned appellate Court for the reasons that no point of determination was framed by the
learned appellate Court as required under Order XLI, Rule 31, C.P.C. neither any issue was discussed in the light of evidence recorded by the parties nor any finding was given which caused prejudice to the petitioners, losing the appellate forum without appreciation of law and facts, he requested for remand of the case. Though it is prime duty of learned appellate Court to go through the pleadings of the parties and record its findings in the light of the provisions of Order XLI, Rule 31, C.P.C. However, if the appellate Court had not framed points for determination in any case, then such judgment would not be liable to be set aside on such ground alone, rather the same became immaterial when all the raised questions had been answered by the appellate Court, while case of petitioners is not that any mis -reading,
or non- reading of evidence was involved or that the Courts below had acted in excess of
jurisdiction no illegality and irregularity is found. Even if at all the case is remanded to the appellate Court no fruitful purpose can be served for the reasons that the case of petitioners is hit by the law of limitation as well as the petitioners have failed to prove their case through confidence inspiring evidence, thus remand of the case would be futile exercise. Reliance in this regard is placed in the case of "Muhammad Iftikhar v. Nazakat Ali, 2010 SCMR 1868", wherein it was held as under:
"4. We asked the learned counsel as to what were the arguments specifically urged before the learned High Court during the hearing of the regular second appeal but he failed to specifically refer the law points urged during the course of arguments before the learned High Court. However, perusal of para No.6 of the impugned judgment
indicates that the only ground urged before the learned High Court was that the
learned Courts below did not strictly adhere to the provisions of the Order XLI, Rule 31, C.P.C., which contention has been properly and correctly addressed to by the learned High Court in the impugned judgment. It appears from the perusal of the impugned judgment and that by the first appellate Court, in substance compliance of
the provisions of Order XLI, Rule 31, C.P.C. was made and it is not always required
that in each case the appellate Court would deal with each of the issue and to resolve
the same separately in the light of the evidence available on the record unless the same had caused any serious violation of the law or resulted into a grave miscarriage of justice to any of the parties to the suit. "
Thus, in view of the above, the petitioners have failed to prove their case through
confidence inspiring evidence and the learned Courts below have rightly dismissed the suit and appeal of the petitioners. The learned counsel for the petitioners has failed to point out any material illegality or irregularity in the concurrent findings recorded by the Courts below through impugned judgments and decrees to warrant interference by this Court.
For the reasons discussed hereinabove, the petition being devoid of merits is
dismissed with no order as to cost.
ZH/188/Bal. Petition 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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