2017 C L C 1443
[Balochistan]
Before Abdullah Baloch, J
LAL MUHAMMAD and others ----Petitioners
Versus
Nawabzada ABDUL GHAYAS and others ----Respondents
Civil Revisions Nos.222 and 458 of 2010, decided on 21st April, 2017.
(a) Specific Relief Act (I of 1877) ---
----Ss. 42 & 54---Suit for declaration, permanent injunction and recovery of Haq Maalkaana ---
Plaintiffs claimed ownership of suit property under cultivation of defendants as Mouroosi
Buzgars ---Defendants denied entries in revenue record showing them as Mouroosi Buzgars ---
Effect --- Entries in revenue record --- Scope ---Petitioners/defendants denied that they were
Mouroosi Buzgars and contended that they were not liable to pay 1/4th share to the plaintiffs of
the income of crops ---Respondents/plainti ffs contended that their predecessors being Nawab was
owner of suit property which subsequently devolved upon them through inheritance and
partition; therefore they were entitled to get 1/4th income of crops ---Validity ---Record showed
that respondents/plai ntiffs produced three witnesses in support of their contention as well as
recorded statements of their attorneys, who in support of claim of respondents/plaintiffs
produced and exhibited documents with regard to the ownership of the property belonging to
former Nawab which remained in the custody/possession of Court of Ward for an indefinite
period and during the course of that period the predecessor of petitioners along with other
Mouroosi Buzgars had paid Haq Maalkaana to the Court of Ward i.e. Deputy Com missioner as
per exhibited document ---Disputed property was in the name of Deputy Commissioner being
custodian of the property of Nawab, which later on devolved and transferred in the revenue
record in the name of respondents/plaintiffs, bearing certain Kh ata numbers and names of the
petitioners were entered as Mouroosi Buzgars ---Property in question was distributed amongst the
legal heirs of Nawab i.e. respondents/plaintiffs in the year 2000, copy whereof was annexed with
the suit ---Petitioners/defendants produced only four witnesses and got recorded the statements of
attorneys, wherein most of the witnesses had shown their ignorance and knowledge regarding the
ownership of the property in dispute ---Respondents/plaintiffs, therefore, had succeeded to prove
their case of ownership, as such, Trial Court as well as the appellate court had rightly decided
both the issues of ownership and title in favour of respondents/plaintiffs ---Documentary
evidence prevailed and overrode upon the oral evidence ---Respondent/pl aintiffs having
succeeded to prove the issue by producing oral as well as documentary evidence ---No illegality
or irregularity was found in the concurrent findings of courts below ---Revision was dismissed
accordingly.
(b) Balochistan Tenancy Ordinance (XX I of 1978) ---
----S. 10---Payment of Haq Maalkaana of land ---Determination ---Jurisdiction --- Record had
revealed that respondents/plaintiffs had failed to prove their case to the extent of non- payment of
Haq Maalkaana w.e.f. 2004 to 2008 through any cogent evidence, as such, the same was decided
against them ---Contention of the petitioners/ defendants as well as State Counsel with regard to
the issue of non- payment of Haq Malkhaana was that alternate remedy was available to the
respondents/plaintiffs to invoke the jurisdiction of Revenue Authorities under the Balochistan
Tenancy Ordinance, 1978 for recovery of payment of Haq Maalkaana, but said issue having been
decided against the plaintiffs/respondents they did not challenge the same which attained finalit y,
as such, there would be no occasion for the plaintiffs/respondents to agitate upon---High Court
observed that plaintiffs/respondents were at liberty to invoke the jurisdiction of Revenue Court
under the Balochistan Tenancy Ordinance, 1978 for Haq Maalka ana, if so advised.
(c) Civil Procedure Code (V of 1908) ---
----S. 11---Correction of mutations in revenue record---Earlier suit between the parties ---
Principle of res judicata ---Applicability ---Record revealed that earlier suit was contested by the
same parties on the same subject matter and petitioners had failed to challenge mutation entries --
-Main issue regarding ownership and mutation entries having already been decided in the earlier
suit, as such, the second suit on the same subject -matter between t he same parties was hit by the
principle of res judicata as contemplated under S.11, C.P.C.
Tahir Ali Baloch for Petitioners.
Ehsan Rafiq Rana for Respondents Nos.1 to 10.
Farooq Sarwar and Abdul Rahim Mengal for State.
Dates of hearing: 24th March an d 7th April, 2017.
JUDGMENT
ABDULLAH BALOCH, J. --- This common judgment disposes of Civil Revision
Petition Nos.222/2010 and Civil Revision Petition No.458/2010. Since, the subject -matter of
both the suits are same and in between the same parties, thus the same are being decided through
common judgment. In Civil Revision Petition 222/2010, the petitioners assailed the judgments
and decrees 25th September 2009 and 25th February, 2010 passed by learned Additional Qazi
(hereinafter referred as, "the trial Cou rt") and Majlis -e-Shoora Kharan (hereinafter referred as,
"the appellate Court"), respectively, whereby suit filed by the respondents was decreed and
maintained by the appellate Court. Whereas, in Civil Revision Petition No.458/2010 the
judgments and decre es dated 24th February 2010 and 30th June 2010, have been assailed,
whereby the suit and appeal filed by the petitioners were dismissed by the learned trial Court and
appellate Court, respectively.
2. Facts of the case are that on 4th March 2009, one Nawabzada Abdul Ghayyas
Nousherwani including nine others (the respondents in both the petitions) filed a suit for
declaration, permanent injunction and recovery of Haq Maalkana from the income of crops for
the years 2004 to 2008 from the property, boundaries w hereof are as under:
It is averred in the initial plaint that the plaintiffs are the recorded owners of the ancestral
property in question, which came into their share on the basis of partition took place in between
the legal heirs of Nawab of Kharan Habi bullah Khan, whereas the petitioners (defendants) are
their Buzgars duly entered in the revenue record; that besides the petitioners (defendants) there
are certain other Buzgars, who are paying 1/4 share from the income, that earlier Muhammad
Khair, Shah M uhammad and other Buzgars used delaying tactics in paying the Haq Maalkana,
hence they were sued before the Qazi Kharan and during pendency the said Buzgars were agreed
to pay the due share, thus the matter was compromised on 7th November, 2006; that the
petitioners have not paid 1/4 Haq Maalkana of the respondents amounting to Rs.97,350/ - for the
period from 2004 to 2008, hence they were approached through notables, but they refused, hence
suit was filed .
3. Whereas, the subsequent suit (Civil Revision Pe tition No.458/2010) has been filed by the
petitioners seeking declaration, permanent injunction and correction of Khewat/Khatooni
Nos.1/9, 1/10, 1/12, 1/14, 1/15, 1/17, 1/18, 1/19, 1/20, 1/21, 1/22, 1/23, 1/24, 1/25, 1/26, 1/27,
1/28, 1/29, 1/30, 1/31, 1/33, 1/35, 1/36, 1/37, 1/38, 1/39, 1/40 situated at Mouza Padain Tehsil
and District Kharan, which is bounded as under: --
It is averred in the subsequent plaint that the suit property is their ancestral property and
they are in cultivation possession of the same from the time of their forefathers, whereas they
have never paid any kind of tax etc. for the said land, but the respondents being influential
persons with the connivance of revenue authorities got entries in the name of Nawab of Kharan
Habib Ullah K han as the owner and the petitioners have been shown as Buzgars in the revenue
record and thus, succeeded in obtaining Khatooni in his favour, whereas subsequently the said
properties were further mutated in the name of respondents as owners; that the peti tioners have
absolutely no knowledge of the mutation entries so carried out in the name of Nawab of Kharan
or to the names of his legal heirs i.e. respondents; that in the year 2007 by hiding the said
Khatoonis, the respondents filed a suit for payment of Haq Maalkana, whereafter the petitioners
obtained the copies of Khatoonis and found that they have been mentioned as Mouroosi Buzgars,
while after declaring Nawab Habibullah Khan as owner, and the petitioners were also bound
down to make payment of 1/4 sha re as Haq Maalkana; that the mutation entries were made by
the respondents with the connivance of revenue authorities: that earlier the respondents filed a
suit for payment of Haq Maalkana, but the same was dismissed due to insufficient evidence; that
the Nawab of Kharan have only lands in Mouza Padain, which are in the possession of
Muhammad Khair, Jalal, Murad Khan, Shah Muhammad and Ali, but in the garb of such lands,
the respondents want to usurp the lands of petitioners; that the representative of Nawa b of
Kharan has never approached the petitioners for payment of Haq Maalkana.
4. The suit so filed by the parties against each other were contested by them on legal as well
as on factual grounds by means of filing written statement, wherein raised certain legal
objections on maintainability of the suit. The learned trial Court out of the pleadings of the
parties framed the following issues for determination of dispute in Civil Revision No.222/2010,
as under:
5. The parties produced their respective evidence and also recorded the statements of their
attorneys. The learned trial Court after hearing the parties decreed the suit of the respondents,
vide its judgment and decree dated 25th September, 2009. Being aggrieved from the aforesaid
judgment, the petitione rs filed an appeal before the appellate Court, which was dismissed, vide
its judgment and decree dated 25th February, 2010, whereafter the instant revision petition was
filed.
6. Learned counsel for petitioners contended that the judgments and decrees pass ed by the
Courts below suffer from misreading and non- reading of evidence; that the judgments are non-
speaking; that the issues have not been framed according to law and pleadings of the parties; that
both the Courts below passed the judgments and decrees in contravention and Order XX, Rule 5
as well as Order XLI, Rule 31, C.P.C.; that the Courts below had no jurisdiction to decide the
dispute of Haq Malkaana for the reasons that an alternate remedy was available to the
respondents before the Revenue Court under the Balochistan Tenancy Ordinance (XXIV of
1978). He further prayed for setting -aside the judgments and decrees passed by the learned
Courts below .
7 Conversely, the learned counsel for respondents vehemently opposed the arguments so
advanced by the learned counsel for petitioners and contended that the respondents are legal
heirs of Nawab of Kharan and the land in dispute is their ancestral property; that the property of
Nawab Kharan was distributed and devolved upon the legal heirs of Nawab Kharan by the orders
of the Hon'ble Supreme Court of Pakistan; that the names of respondents have been entered in
the revenue record as owner, while the names of the petitioners were recorded in the revenue
record as Mouroosi Buzgars that according to rules/tradi tions the petitioners are liable to pay
Haq Malkaana to the owners of the land for which the petitioners were failed to discharge their
liabilities; that sufficient oral as well as documentary evidence produced by the respondents in
support of their case; that the petitioners have failed to produce any documentary evidence in
rebuttal; that the learned trial Court after proper appreciation of evidence decreed the case of
respondents. He also supported the judgments of the Courts below.
8. On the other hand, Mr. Abdul Raheem Mengal, State Counsel appearing on behalf of
Advocate General contended that the Courts below had no jurisdiction to adjudicate upon the
matter of tenancy; that alternate remedy is available to the respondents to invoke the jurisdiction
of Revenue Court under Balochistan Tenancy Ordinance (XXIV of 1978).
9. Heard the learned counsel for the parties and minutely perused the record with their able
assistance. Record reveals that the respondents/plaintiffs filed a suit for declaration and rec overy
of Haq Malkaana at the rate 1/4 share of crops w.e.f. 2004 to 2008 and also prayed for
declaration and ownership as well as recovery of Haq Malkaana in their prayer clause. It is
evident from the written statement filed by the petitioners/defendants, wherein it is categorically
denied the ownership of the petitioners and also contested the claim of the respondents on merits.
The learned trial Court out of the pleadings of the parties framed the issues as stated above,
mainly framed issues Nos.2 and 4 for determination of ownership and title, which reads as under:
Both the issues are related to the ownership of the disputed property. The petitioner did not file
the relevant evidence of exhibited documents in their petition, however, the original record of the
case was called from the trial Court, perusal of which reflects that the respondents/plaintiffs
produced three PWs in support of their contention as well as recorded statements of their
attorneys, who in support of claim of respondents/ plaintiffs produced and exhibited documents
as Ex.P/8 and Ex.P/9 with regard to the ownership of the property belonging to former Nawab of
Kharan, which was subsequently remained in the custody/possession of Court of Ward for an
indefinite period and during the course of that period the predecessor of petitioners along with
other Mouroosi Buzgars had paid Haq Maalkaana to the Court of Ward i.e. Deputy
Commissioner Kharan as per Ex.P/3. It is further transpired that revenue record was exhibited
through record keeper Muhammad Ayaz Patwari as Ex.P/7, wherein earlier the disputed property
was in the name of Deputy Commissioner Kharan being custodian of the property of Nawab of
Khan, which was later on devolved and transferred in the revenue record in the name of
respondents /plaintiffs, bearing Khata Nos.9, 10, 15, 16, 17, 18, 19, 20, 35, 36, 37, 38, 33, 34, 39,
40, 21, 22 as well as the names of petitioners were entered as Mouroosi Buzgars.
10. Perusal of record further reveals that the above disputed property was also distr ibuted
among the legal heirs of Nawab of Kharan i.e. respondents/plaintiffs in the year 2000 and copy
whereof was also annexed with the suit and exhibited before the Court, as such, with regard to
the ownership. In view of the aforesaid two issues, the pet itioners/defendants only produced four
DWs and also recorded the statements of attorneys, wherein most of the witnesses have shown
their ignorance and knowledge regarding the ownership of the property in dispute either belong
to Nawab of Kharan or thereaft er transferred in revenue record in the name of
respondents/plaintiffs, as such, the petitioners/defendants had been failed to produce any
documentary evidence with regard to the ownership of the disputed property while the
respondents/plaintiffs had succe eded to prove their case of ownership, as such, the learned trial
Court as well as the appellate Court had rightly decided both the issues of ownership and title in
favour of respondents/ plaintiffs. It is settled principle of law as laid down by the Hon'ble Apex
Court as well as by this Court that the documentary evidence prevails and override upon the oral
evidence. It is pertinent to mention here that out of aforesaid two issues burden of prove was
lying upon the respondents/plaintiffs on issue No.2 whil e the burden of prove on issue No.4 was
upon the petitioners/defendants. The respondents/plaintiffs succeeded to prove issue No.2 in
their favour by producing oral as well as documentary evidence while the petitioners/defendants
have failed to prove the is sue No.4 in their favour.
11. As far as the other issues are concerned, the issue No.1 was with regard to submission of
Court Fee, which was accordingly decided in favour of the respondents, while burden of prove
on issue Nos.5 and 6 were lying upon petiti oners Since the main issue Nos.2 and 4 had been
decided in favour of respondents, as such, the issue Nos.5 and 6 decided against the petitioners,
while rest of the issue No.3 regarding non -payment of Haq Maalkana w.e.f. 2004 to 2008 is
concerned the record reveals that the respondents/plaintiffs have been failed to prove their case
to the extent of payment of Haq Malkana w.e.f. 2004 to 2008 through any cogent evidence, as
such, the same was decided against the respondents/plaintiffs.
12. The contention of t he learned counsel for the petitioners as well as the learned State
Counsel with regard to the issue No.3 that alternate remedy was available to the
respondents/plaintiffs to invoke the jurisdiction of Revenue Authorities under the Balochistan
Tenancy Ordi nance, 1978 for recovery of Haq Maalkana, is concerned, be that as it may, but the
said issue was decided against the respondents and they did not challenge the impugned
judgments to the extent of issue No.3, which attained finality, as such, there would be no
occasion for the respondents to agitate upon, however, they are at liberty to invoke the
jurisdiction of revenue Court under the Tenancy Ordinance for future dispute of Haq Maalkana if
so arrived.
13. Now adverting to Civil Revision Petition No.458/2010 ,wherein the petitioners/plaintiffs
filed a suit for declaration and correction of mutation entries before the Qazi Kharan against the
present respondents, which was contested by the respondents by means of filing written
statement, wherein raised legal objection mainly objection of res -judicata for maintainability of
the suit on the ground that the mutation entries questioned in the instant suit pertaining to
disputed property of subject matter of suit between the same parties has been decided earlier t o
the instant suit in Civil Revision Petition No.222/2010 and the question of ownership of said
mutation entries were also questioned under issues Nos.2 and 4 of that suit and both the issues
were decided in favour of the respondents, as such, the instant suit is hit by principle of Res
judicata.
14. The learned trial Court out of pleadings of parties framed as many as seven issues and
mainly parties were directed to argue the issue No.6 pertaining to Section 11, C.P.C. (res
judicata). After hearing the par ties the learned trial Court comes to the conclusion that the earlier
suit between the same parties on the same subject matter was adjudicated and decided vide its
judgment dated 29th September, 2009 and the only difference between the earlier suit and in the
suit in hand is that, the earlier suit was filed by the respondents/plaintiffs while the suit in hand
was filed by the petitioners/plaintiffs, as such, the suit in hand is hit by the principle of res -
judicata, accordingly the suit of petitioners was di smissed, vide judgment and decree dated 24th
February, 2010. Being aggrieved and dissatisfied the petitioner filed an appeal before the learned
appellate Court, which was also met the same fate.
15. The learned counsel for petitioners contended that the judgments and decrees passed by
the Courts below are result of misreading and non- reading; that the learned trial Court has failed
to provide opportunity of evidence to the petitioners; that the petitioners were condemned
unheard "Audi Alteram Partem;" that the learned Courts below erroneously decided the suit of
petitioners/plaintiffs on the principle of res -judicata; he further prayed for remand of the case and
providing opportunity of leading evidence.
16. On the other hand, the learned counsel for the res pondents strongly opposed the
arguments of the counsel for the petitioners and contended that the issue between the parties on
the same subject matter was decided by the same Court, as such, the second suit was incompetent
and not maintainable. While the l earned State Counsel argued that no interest of State is involved
in the subject matter.
17. After hearing the counsel for the parties and perusing of record, it reveals that earlier suit
was contested by the same parties on the same subject matter. It is pertinent to mention here that
earlier suit remains pending for adjudication before the trial Court till 25th September, 2009, but
the petitioners have failed to challenge the mutation entries during the course of pendency of
earlier suit and after passing of final judgments on 25th September, 2009 by the trial Court, the
suit in hand was filed by the petitioners on 24th November, 2009. Since the main issue regarding
ownership and mutation entries have already been decided in the earlier suit, as such, the second
suit on the same subject matter between the same parties was hit by the principle of res -judicata
as contemplated under Section 11, C.P.C. The Courts below had rightly decided the matter in
accordance with law and the learned counsel for petitioners have failed to point out any illegality
or irregularity in the concurrent findings of Court below, which are well reasons and decided in
the manner of Order XX, Rule 5 and Order XLI, Rule 31, C.P.C.
For the above reasons both the Civil Revision Petitions Nos.222 and 458/2010 are hereby
dismissed and the judgments and decrees passed by the Courts below are maintained, with no
order as to costs.
MQ/75/Bal. Petitions 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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