PLJ 2022 Quetta 21
Present: ROZI KHAN BARRECH , J.
GHULAM SARWAR and 19 others --Petitioners
versus
MUHAMMAD NASEEM and 5 others --Respondents.
C.R. No. 240 of 2016, decided on 6.11.2020.
Specific Relief Act, 1877 (I of 1877) --
----Ss. 9, 42, 54 & 55 --Suit for possession declaration and mandatory injunction --Inheritance mutation --Recorded
owners of property --Presumption of truth--Specific date regarding claim of adverse possession by respondents --
Entitlement for possession --
Non-producing of evidenc e by respondents regarding cultivation of suit property-- Ocular evidence--Challenge
to--Presumption of truth was attached to revenue entry produced by petitioners --This aspect of matter has totally
been ignored by trial Court as well as an appellate Court and have given weight to ocular evidence produced by
respondents --Trial Court as well as appellate Court has failed to consider evidence on record in its true
perspective--No such documentary evidence was produced to establish that respondents were cultiva ting said
property for last forty years --Respondents have failed to establish that they possess property on basis of
proprietary basis --Respondents were unable, to point out any specific date on which respondents claimed
adverse--Possession of property aga inst petitioners --It is held that petitioner is lawful owner of property and he is
entitled for its possession, whereas respondents have no lawful right to retain possession of same --Findings of
trial Court, as well as appellate Court in respect of issues are contrary to evidence on record--Revision petition
allowed.
[Pp. 25, 26 & 27] A, B, C, D & F
Ownership Title --
----Possession howsoever it adverse is, do not confer any ownership title to pos sessee of property as a claim on basis
of adverse possession has been declared against injunction of Islam by Hon’ble Supreme Court of Pakistan. [P.
27] E
Mr. Abbas Ahmed Jamaldini , Advocate for Petitioners.
Mian Baddar Munir , Advocate for Respondents No. 1 to 6.
Date of hearing: 7.9.2020.
JUDGMENT
This civil revision petition has been filed under Section 115 of Code of Civil Procedure Code, 1908
(hereinafter “the, CPC” ) arising out of the judgment and decree dated 16.3.2016 passed by learned Additional
District Judge -VII, Quetta (hereinafter “the appellate Court” ) wherein the appellate Court while dismissing the
appeal under Section 96, C.P.C. filed by the petitioner (appellant) upheld the judgment and decree dated 6.3.2015 passed by learned C ivil Judge -I, Quetta (hereinafter “the trial Court” ). (Both the judgments and decrees are
referred to hereinafter ( “the Impugned Judgments” ).
2. Epitomized facts necessary for adjudication of the, instant petition are that the petitioner filed a suit for
Declaration, Possession., Permanent and Mandatory Injunction before the trial Court with the averment that
Petitioners No. 1 to 20 (plaintiffs No. 1 to 20) are the owners of in possession of a property/ land measuring 3 rod 7
poles Bearing Khasra No. 1002 K hewat No. 2 Khatooni No. 3 and Mutation No. 290 situated at Wayala Nauhsar,
Tappa Nauhsar, Tehsil Saddar District Quetta, inherited to them from their forefathers. The Petitioners No. 1 to 3 are
the real paternal uncles of the Petitioners No. 1 to 20. It i s further awarded in the plaint that Respondent No. 1 to 6
(Defendants No. 1 to 6) are also residing in the same locality, whose land is situated on the brink of the petitioners’
one. The petitioners upon the suggestion of Respondents No. 1 to 6 got a boundary wall constructed around the suit land to protect the crops etc from the animal as well as from thieves but installed wire towards the south marking
division between their and the lands of the Respondents No. 1 to 6. A door was also placed towards nort h/road side
in the wall, locked by the Petitioner No. 1 key of which remained in his possession. Respondents No. 1 to 6 after the
construction of the wall dishonestly tried to trespass in the suit property of the petitioners regarding which the
Petitioner No. 1 got a complaint registered in the Roznamcha of police station accordingly in the month of Ramadan
2009. A few days ago the Respondents No. 1 to 6 with the assistance of their sons again interfered in the suit land
and started some work upon the same behind removing the wire. When the petitioners forbad the respondents, they
became provoke and threatened the petitioners with dire consequences.
3. The respondents resisted the suit -being defendants, while submitting their written statement,
they controve rted the assertions contained in the plaint. From the divergent pleadings of the contested parties
following multiple issues were framed:
“1). Whether suit of the plaintiff is not maintainable in view of P.L.O “A&B”?
P.L.O “A”, That the plaintiffs are out of possession with regard to suit property as such without
seeking relief of possession, the suit under reply merely with relief of declarationis not ‘maintainable, thus the same is legally not maintainable.
P.L.O. “B”. That the replying defendants are in proprietary possession of suit land from year 1971,
as such the suit under reply is barred by time not maintainable.
2. Whether the plaintiffs and Defendants No. 7 to 17 are legal owners in possession of inherited
property/suit land measuring 3- Rods, 7 poles bearing Khasra No. 1002, Khewat No. 02, Khewat No.
02, Khatooni No. 3 and Mutation No. 290 situated at Wayala. Nansar Tappa Nauhsar Tehsil and District Quetta?
3. Whether the plaintiffs are entitled for relief claimed for?
4. Relief?
5. Whether the property in question was given to the predecessor in interest of contesting defendants in
exchange of another inherited property upon the defendants?
4. After framing issues, parties to the suit produced their respective evidence, and on completion of the
same, the suit of the petitioner was dismissed vide impugned judgment dated 6.3.2015 by the trial Court.
5. Being aggrieved from the impugned judgment, the petitioners filed an appeal under Section 96 CPC
before the ap pellate Court, which was dismissed vide impugned judgment dated 16.3.2016. Hence, this petition.
6. I have heard learned counsel for the parties and have perused the entire record with their able assistance.
7. The viewpoints of the petitioners are that they are owners of the property bearing Khasra No. 1002
Khewat No. 2 Khatooni No. 3 and Mutation N. 290 situated at Wayala Nauhsar Tappa Nauhsar District Quetta which was inherited to them from their forefathers and now the respondents illegally interference /occupied the
same.
8. The viewpoint of the respondents are that the petitioners and respondents are descendants of one Haji
Baha -uddin Khan who left properties in Legacy at muhals Vila Nauhsar, Karez Bahaudding, Karez Shura Qala,
Karez Khaliq Dad, Karez S hamsuddin Mauza Nauhsar, tappa Nauhsar Tehsil Saddar, District Quetta, and after his
demise all the properties were partitioned privately,.and each sharer is in proprietary possession of his due share.
Inheritance mutation of Mahals Karez Bahaudding, Karez Khaliq Dad, Karez Shamsuddin and a most portion of
Muhal Viala Nauhsar has not been affected, whereas the partition and mutation with regard to property falling in
Muhal Sra Qala has already been effected. As far as property in question is concerned the s ame is situated in Muhal
viala Nausar, and in the year 1971 during the life of predecessors of petitioners had exchanged their properties with Respondent No. 1 to 6 in result whereof the property came in their share. The father of replying respondents by
spending huge amount excavated a tube -well for irrigating fruit- bearing orchard and on account of draughtness the
said orchard became dried as such the same was cut down in the year 2000. Later on, for a period of 4 years and the
replying respondents cultivated several crops over the same, however, in the year 2004, the Respondent No. 2 & 5 had erected separate boundary walls encircling their respective due share, and subsequently the Respondents No. 5
erected his dwelling house by spending huge amount.
9. The trial Court, as well as the appellate Court are of the view that the respondents have succeeded to
prove that they have been in constant possession since the last forty years coupled with the existence of orchard trees
till 2014 reflect that the respond ents are enjoying utilizing the possession of the property without any interference
and objection from any corner and the petitioner have failed to establish that they have ever been in possession of the suit property and further observed that mere entries of the revenue record on the name of the petitioners are not
the conclusive proof of ownership.
10. The main issue, i.e. whether the petitioners are the owner and they have been illegally dispossessed
from the suit property has been decided by the trial C ourt as well as appellate Court against the petitioners on the
ground that the respondents are in possession of the property in question for more than forty years and the
petitioners have also been non- suited on the ground that they have failed to prove their ownership of the disputed
property.
11. The petitioners besides producing mutation entries as Ex- P/1 also produced the ocular evidence, who
specifically stated that the petitioners are the recorded owner of the property in question. The trial Court has not
given due weight to the mutation entries Ex -P/1 produced by the petitioners, and they are the recorded owners of the
property in dispute whereas the trial Court, as well as the appellate Court had given more weight to the witnesses produced by the res pondents; that the respondents have constructed walls on the property in dispute coupled with the
longstanding possession of the respondents, the petitioners have lost their right, is also contrary to the law.
12. Since the petitioners have produced mutation entries Indicating that they are recorded owner of the
property in dispute, the respondents have failed to lead any evidence to prove that the said entry was collusive or
result of any forgery, therefore, the authenticity as well as the presumption of truth was attached to the revenue entry
produced by the petitioners. This aspect of the matter has totally been ignored by the trial Court as well as an
appellate Court and have given weight to the ocular evidence produced by the respondents.
13. I have also observed that the trial Court as well as the appellate Court has failed to consider the
evidence on record in its true perspective. In the presence of mutation entries in favour of the petitioners, the oral
evidence produced by the respondents had no substantial value with regard to the ownership of the property in dispute. The mutation entries is a document bearing presumption of truth unless rebutted. In the case of Hakim Khan
v. Nazar Ahmed Lughmani , 1992 SCMR 872, the claim made on the basis of revenue record was upheld, as no
evidence was led to prove that those entries were collusive or fraudulent. In the case of Nawab Khan and others v.
Said Karim Khan and others , 1997 SCMR 1840, the entries made in the revenue record have not interfered with
that, the presumption of truth was attached to those entries, and no evidence was led in rebuttal to warrant
interference in those entries. The Hon’ble Supreme Court at page 1844 held as follows:
“The presumption of truth is attached to the record of rights generally but to the first ever settlement record in particular. Very strong evidence is required to rebut the presumption of correctness attached to
the first settlement record of any area.”
In the light of the principle enunciated above for the adjudication upon the authenticity of the entries of the
revenue papers and those of the first ever settlement record very strong evidence is required in rebuttal of
those entries. In the instant case as has been held by all the three Courts below no evidence of any consequence has been adduced by the petitioners in rebuttal of the entries of the settlement record.”
14. It is settled that presumption of truth is attached to the revenue record, which could not be controvert ed
without sufficient and convincing evidence. The respondents in rebuttal have failed to lead any evidence to rebut the said entries; therefore, through the cogent evidence, the petitioners have established their right to be the owner of the
property in dispute. The respondents had further based their claim on mere possession. It is settled that a claim on
the basis of possession is good against the whole world except the rightful owner. It is not a good defense against the true owners in the judgment reported in AIR 2004 SC 4609; it was held that “the possession is no good against the
rightful owner and the assumption that he is in peaceful possession will not work and cannot be operated against the
true, lawful owner”. In the judgment reported in AIR 1990 SC 673, it was held that the possession of the agent is the
possession of the principal and in view of the fiduciary relationship, the respondents cannot be permitted to claim
their own possession. The respondents merely on the basis of possession cannot be declared owners.
15. In the instant case, the claim of the respondents merely on the basis of possession against the true
owner, i.e. petitioners were unjustified and unwarranted. The respondents also claimed that in the year 1971 during
the lifetime of predecessors of petitioners had exchanged their properties with Respondent No. 1 to 6 in result
whereof the property came in their share, but no evidence whatsoever has been produced by the respondents to
establish their claim. Neither the respondents giv en any description of the actual property allegedly given to the
predecessor of the petitioners by them nor produced any written agreement in this regard. For the sake of argument
it is presumed that predecessor of the petitioners had exchanged their prope rty with respondents, then why for the
last forty years in the life time of the predecessor of the petitioners the respondent did not entered mutation entries in
their names. This aspect of the matter is also not considered by the Courts below.
16. The tri al Court, as well as the appellate Court have also decided the issue of limitation against the
petitioners on the ground that respondents are in possession of the property in dispute for more than forty years. The
petitioners claimed that the property of the respondent and petitioners is situated adjacent to each other and they
both constructed walls in the properties and the later on the respondents illegally occupied the property of the petitioners and they also filed the complaint before the police.
On the other hand, the possession of the respondents for last forty years concern, no such documentary
evidence was produced to establish that they are cultivating the said property for the last forty years. The respondents have failed to establish that they possess the property on the basis of proprietary basis.
17. Learned counsel for the respondents is unable, to point out any specific date on which the
respondents claimed adverse. possession of the property against the petitioners.
18. Moreover, it is settled law that the possession howsoever it adverse is, do not confer any ownership
title to the possessee of the property as a claim on the basis of adverse possession has been declared against the
injunction of Islam by the Hon’ble Supreme Court of P akistan. If need be reference can be made to the judgment of
Hon’ble Supreme Court in a case titled as “Maqbool Ahmad v Federal Government” cited as 1991 SCMR2063.
From the above provision of law and discussion of evidence, in the instant case, the petitioners through
cogent and admissible evidence substantiated their claim qua the property in dispute, and the respondents have not
been able to rebut the mutation entr ies. It is held that the petitioner is the lawful owner of the property bearing
Khasra No. 1002, Khewet No. 2 Katooni No. 3, Mutation No. 290 situated at Viala Nauhsar, Tappa Nauhsar, Tehsil
Saddar, District Quetta and is entitled for its possession, where as the respondents have no lawful right to retain the
possession of the same. The findings of the trial Court, as well as the appellate Court in respect of the issues are
contrary to the evidence on record, therefore, the same are reversed and decided acco rdingly.
In view of the above, the Civil Revision Petition No. 240 of 2016 is allowed the impugned judgments and
decrees passed by the Courts below are set aside, and the suit filed by the petitioners is decreed in their favour and
against the respondents. The parties are left to bear their own cost.
Decree sheet be drawn accordingly.
(Y.A.) Revision petition allowedThis 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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