Muhammad v. Dad Rahim,

2010 Y L R 2512

[Quetta]

Before Jamal Khan Mandokhail, J

MUHAMMAD and 15 others ---Petitioners

Versus

DAD RAHIM and another ---Respondents

Civil Revision No. 17 of 2008, decided on 31st May, 2010.

Specific Relief Act (I of 1877) ---

---S. 42 & 55 ---Suit for declaration an d permanent injunction --- Contention of plaintiffs was that they were owners in possession of the property in dispute which the defendant had illegally and unlawfully mutated in his name in the settlement proceedings ---Trial Court dismissed suit while Appe llate Court dismissed appeal ---Validity ---Plaintiffs contended that they were owners of the suit land but revenue entries were made in the name of defendant during the settlement proceedings while they were out of the country ---Perusal of evidence produced , however, showed that no witness had supported plaintiffs' averments --Plaintiffs' assertion that they were out of the country during settlement proceedings was contrary to usual course of procedure adopted during settlement proceedings which were always c arried out on the spot in the presence of owners or claimants and were followed by preparation of Record -of-Rights, thereafter objections could be raised within six years ---One of the plaintiffs' witnesses in cross -examination had admitted the presence of plaintiffs in the area at the time of settlement proceedings ---Plaintiffs were bound by the statements of their witnesses, therefore, their plea that they were not aware of the settlement proceedings was not acceptable --- Even otherwise, neither plaintiffs nor their witnesses had disclosed as to when they came to know about settlement proceedings ---Plaintiffs neither raised any objection before revenue authorities nor did they challenge the mutation in time ---Admittedly neither the plaintiffs were recorded owners nor were they in possession of the property in dispute, therefore, they had no right, title or interest under S.42 of the Specific Relief Act, 1877 to file the suit ---Defendant had been recorded as owner during settlement proceedings, therefore, presumption of the highest degree was attached to such entries/proceedings ---Strong evidence was required to rebut such entries which the plaintiffs had failed to do ---Plaintiffs had sought cancellation of mutation entries but extract of disputed revenue entr ies was not produced to prove illegality or fraud by defendants during settlement proceedings --Plaintiffs had failed to point out any irregularity or illegality in the impugned judgments warranting interference by High Court ---Petition was dismissed in lim ine.

Bibi Khatoon v. Taj Muhammad and others 1991 SCMR 1984 and Haji Allah Bakhsh v. Abdullah Khan and others 2001 SCMR 363 fol.

H. Shakil Ahmad for Petitioners.

Kamran Murtaza for Respondent No. 1.

Date of hearing: 18th May, 2010.

JUDGMENT

JAMAL KHAN MANDOKHAIL, J .---By this Civil Revision Petition under section 115, C.P.C., judgment/decrees dated 27 -6-2007 and 31 -10-2007 respectively passed by Senior Civil Judge and Addl: District Judge, Gwadar have been challenged whereby suit and appeal filed by petitioners have been dismissed.

Concise facts giving rise to file this petition are that the petitioners have filed a suit in the Court of Civil Judge, Gwadar against private respondent seeking declaration, permanent injunction and correction of revenue entries in respect of land falling under Khewat No.16, Khatooni No.16 Khasra No.266, situated at Panwan Jiwani. It is contented that they are owners in possession of the property in dispute whereas the private respondent has illegally and unlawf ully mutated the same on his name in the settlement. Since they were out of country, therefore, were unaware about the settlement proceedings, as such on coming to know about the illegal mutation present suit has been filed. The private respondent by filin g written -statement has denied the ownership and possession of petitioners/plaintiffs. The trial Court after framing issues, directed the parties to produce their respective evidence in support of their claim. To prove the case, the petitioners/plaintiffs have produced two witnesses and recorded their statements through attorney Faiz Muhammad. In rebuttal, the respondent has produced four witnesses and recorded his own statement.

Mr. H. Shakil Ahmed, Advocate counsel for petitioners argued that the petiti oners have been able to prove their claim, but the courts below, on mis appreciation and wrong conclusion of evidence, dismissed the suit.

Mr. Kamran Murtaza, learned counsel for respondent argued that the petitioners have failed to prove their case, whe reas, to the contrary, the respondent has proved his possession and entitlement over the suit -property through oral as well as documentary evidence. The courts below, on proper appraisal of record, have rightly dismissed the suit and appeal of petitioners.

I have heard learned counsel for the parties and have gone through the record as well as impugned judgments. It is the case of petitioners that before settlement, they were owners and entries were wrongly made on the name of respondent No.1. Perusal of statements of witnesses, it reveals that none of the witness has stated a single word in this respect nor any document has been produced, entitling petitioners to be recorded as owners during the settlement proceedings. Furthermore, it is their claim that at the time of settlement, they were out of country, as such, were not aware about settlement proceedings. As regards knowledge of settlement proceedings, it is important to mention here that such proceedings are always carried out at the spot in presence of owners or claimants and it takes considerable time to complete the process. After completion of same record of right is being prepared and thereafter any one who has an objection about settlement proceedings, can challenge the same within six years. In this behalf, P.W.2 in his cross examination has admitted that at the time of settlement, the petitioners were present in the area. Petitioners are bound by statements of their witnesses, therefore, their plea that they were not aware, is not acceptable, ev en otherwise, neither petitioners nor their witnesses have disclosed as to when the petitioners got knowledge about settlement proceedings. Moreover, no objection has been raised before revenue authorities, as such, they have not challenged the mutation in time.

Apart from above, it is an admitted fact that petitioners were neither recorded owners nor in possession of the property in dispute, therefore, they have no right, title or interest under section 42 of Specific Relief Act to file the present suit. In this regard, I am fortified by a dictum laid down in a case titled Bibi Khatoon v. Taj Muhammad and others reported in 1991 SCMR 1984, relevant portion whereof is reproduced herein below: ---

"3. Learned counsel for the petitioner submitted that the p etitioner is cousin of vendor and she had given her land for cultivation as she had gone to Sindh after marriage. This contention has not been proved through any evidence. P.W -4 Abdullah stated that the land was given by the petitioner to the respondent No .1 her cousin. The learned counsel has admitted that the petitioner's brothers are tenants in some other land. It has not been established that the suit land was ancestral property of the petitioner. The possession of the respondents is undisputed. In the settlement operation, the entries are in their favour.

4. Learned counsel for the caveator submitted that the suit land belonged to Sardar Mir Faqir Muhammad Khan and others and the respondents were in possession of the land as tenant and they had purcha sed the land from the original owner.

5. The evidence has been properly appreciated by the courts. There is no misreading of evidence. This petition has no force. The same is consequently dismissed and leave to appeal is refused".

The respondent has be en recorded as owners during settlement proceedings, therefore, presumption of truth of the highest degree is attached to such entries. To rebut the same extraordinary strong evidence was required, but the petitioners have failed to dislodge the same. Reli ance has been placed on a case titled Haji Allah Bakhsh v. Abdullah Khan and others reported in 2001 SCMR363.

Without prejudice to above, the petitioners have sought cancellation of mutation entries, but during the trial, extract of disputed revenue entr y has not t been produced to prove illegality or fraud on the part of respondents during settlement proceedings. Since the petitioners have failed to prove their claim, therefore, the Courts below have rightly declined discretionary relief to them. The sco pe of this Court while exercising power under section 115, C.P.C., is very limited and such powers can only be used, if law point is raised.

Counsel for the petitioners was unable to point out any illegality or irregularity in the impugned judgments, war ranting interference by this court in the concurrent findings of fact arrived by the E courts below.

Thus, in view of what has been discussed herein above, I am not inclined to accept the petition, as such, the same is dismissed in limine.

A.R.K./67/Q Petition dismissed.