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.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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