2010 Y L R 2578
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
GOVERNMENT OF BALOCHISTAN through Secretary Board of Revenue and 2 others ---
Petitioners
Versus
RAHEEM BAKHSH and 13 others ---Respondents
Civil Revision No.44 of 2007, decided on 3rd December, 2009.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Suit for declaration and permanent injunction ---Trial Court dismissed the
suit, but Appellate Court on appeal decreed the same ---Plaintiffs claimed that their
predecessor -in-interest was owner of the suit property from time of her forefathers and
produced only two oral witnesses and record ed their statements through attorney ---No title
deed in favour of their predecessor -in-interest was produced by the plaintiffs before the Trial
Court ---None of the witnesses of the plaintiffs had clarified as to how suit property devolved
upon their predec essor -in-interest ---Even the attorney who appeared on behalf of the
plaintiffs, also failed to disclose the source from which the property was devolved upon their
predecessor -in-interest ---Attorney was also unable to disclose that as to when disputed
muta tions entries were made ---Appellate Court had simply relied on oral statements of the
witnesses appeared from the side of the plaintiffs and neither discussed nor analyzed the
material present on record ---No documentary evidence was produced, nor the witne sses
appeared during the trial deposed specifically about the ownership of the plaintiffs; and the
channel through which suit property devolved upon the plaintiffs ---Suit though was hit by
limitation, but Appellate Court had found that suit was filed by th e plaintiffs well within
time---Appellate Court, on both the issues, had taken erroneous view, findings given by the
Appellate Court were without basis as nothing was on record from which it could be
ascertained that previously the property in question was ever in possession of the plaintiffs
being owners thereof ---No explanation was on record about delay in filing of the suit ---
Burden lay on the plaintiffs to prove their claim in respect of suit property, but they had
completely failed to discharge the sam e---Trial Court had rightly found that suit was hit by
limitation and was not maintainable ---Order of Appellate Court was set aside, while that of
the Trial Court was upheld.
Amanullah Tareen, A.A. -G. for Petitioners.
Ayaz Swati for Respondents.
Date of hearing: 8th October, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---It is case of the petitioners that a suit for declaration
and permanent injunction was filed in respect of property bearing khewat and Khatooni
No.31/31, Khasra No.1 79, Mouza Balan Northern alias Choot Dasht by the respondents,
wherein they claimed that their predecessor -in-interest Mst. Mah Ganj was owner of the
property from time of her forefathers. As her children were minors, while becoming major
they gone abroad for business purposes, on their back the Government entered property in
dispute in its own name. The suit was contested by the present petitioners on legal and factual
grounds. Issues were framed, evidences of the parties were recorded, whereafter, the tri al
court dismissed the suit through judgment made on 31 -10-2007. The appeal filed by the
respondent was accepted by the appellate court, while decreed the suit through judgment
made on 5 -1-2008. Being aggrieved of the same the petitioner has filed the inst ant revision
petition, wherein it is their contention that the appellate court failed to consider the facts and
circumstances of the case. The suit filed by the respondents was barred by 20/25 years,
material contradictions were in the evidence, furthermor e, the respondents are not in
possession of property in question, rather the same is in possession of the petitioner, proper
court -fee has not been paid, these material points are not considered by the appellate court.
The petitioners have prayed for setti ng aside of impugned order and restoration of order of
the trial court.
Parties through counsel are heard, while record is perused. As per learned counsel for the
petitioners the appellate court has not discussed any issue, nor give findings on the sam e.
Further, as the settlement of the area was made in 1994 while the respondents filed suit in
2006, surely the suit was hit by limitation thus not maintainable, but the appellate court
wrongly decided this issue. Furthermore, the respondents are out of po ssession, while
ownership can be declared on basis of possession only. It is further contended that the
respondents have not produced any document about their ownership. In rebuttal it is
contention of the counsel for the respondents that present revision petition is filed beyond
provided period being time barred thus not maintainable. Further, it has not been denied by
the petitioners that the Khasra No.179, Khatooni No.31 are not of the property in question.
The first point which is required to be con sidered before touching merits of the case is that
whether the present revision petition is filed within the provided period or not. The provided
period for filing revision petition is ninety days of the decision of subordinate court. In
present case revis ion petition is filed on 13 -3-2008 against decree and judgment made on 5 -1-
2008 by Majlis -e-Shoora, Mekran. The time is to be counted from the date when the copy of
said judgment is provided to the petitioners. As per record the copy of judgment was
provid ed to the petitioners on 10 -1-2008. As such the 90 days expires in April 2008, while
the present petition is filed on 31 -3-2008 much before expiry of the provided period thus very
much within time. The objection is baseless which is rejected.
The respo ndents claimed to be owners of land in question bearing khewat and khatooni
No.31/31 Khasra No.179, Mouza Balan Northern alias Choot Dasht. According to them the
property in question was owned by one Mst. Mah Ganj their predecessor -in-interest from
time of their forefathers without any intervention, while they cultivate the same, existence of
dams therein establish their ownership, the petitioners in collusion with Revenue Authorities
entered the property in question in its name in their absence. In reply t he
petitioners/defendants strongly denied their title and also their possession. The learned trial
Court dismissed the suit, as the respondents/plaintiffs failed to establish their title and also the
suit has been filed beyond period of limitation through judgment made on 31 -10-2007. While
the appellate court accepted the appeal filed by respondents/plaintiffs through judgment made
on 5-1-2008 thereby declared the respondents/plaintiffs as owners of property in question,
while it is further held that the su it is filed within provided period.
The respondents/plaintiffs claimed to be owners of property in question bearing khasra
No.179, Khewat/Khatooni No.31/31 situated in Mouza Balan Northern alias Choot Dasht.
They claimed it to be their ancestral proper ty. As the title is denied, therefore, the onus lies
upon the respondents/plaintiffs to establish their ownership in respect of property in question.
But as per record the respondents/ plaintiffs only produced two oral witnesses and recorded
their statemen t through attorney. Though they claimed that the property in question was
owned by their mother Mst. Mah Ganj, but no title deed in her favour is produced by them
before the trial Court. Further, none of their witnesses clarified that how the property in
question devolved upon said Mst. Mah Ganj. Even the attorney appeared on behalf of the
respondents/plaintiffs, also failed to disclose the source from which the property in question
devolved upon said Mah Ganj. He is further unable to disclose that when the disputed
mutation entries were made. Rather it is his only contention that Mst. Mah Ganj was Pardah
observing lady, while her sons were small and becoming grown up they went outside the area
for business purposes, the Revenue Authorities while declaring t he disputed property as
(ﻻﻮﺍﺮﺚ )entered it in name of the State. But he completely failed to specify the date or year
when said settlement was carried out. The appellate court while deciding the appeal held that
the respondents/ appellants produced specific evidence in respect of possession and presence
of dams, but the trial Court failed to assess the same properly. The appellate court simply
relied on oral statements of the witnesses appeared from side of the plaintiffs/respondents.
Appellate court neither discussed, nor analyzed the material present on record. No
documentary evidence was produced, nor the witnesses appeared during trial deposed
specifically about the ownership of the respondents/plaintiffs and the channel through which
property in question devolved upon the respo ndents/plaintiffs.
As far as point of limitation is concerned, the learned appellate court while deciding the issue
held that as the record reveals that the respondents/plaintiffs got knowledge about the
mutation in question in near past, while cause o f action accrues to them one week back as
such the suit is not time barred. Though it is an established principle of law that the time
starts from the date of knowledge. Even in such case it is the respondents/plaintiffs who have
to establish the date of t heir knowledge about the disputed mutation entry, as it is an admitted
position that disputed entry in Revenue Record was made 20/25 years, rather in 1994. But in
same respect also no specific evidence has come on record from side of the
respondents/plaint iffs. Their witnesses only deposed that Mst. Mah Ganj was a Pardah
observing lady, while her two elder sons were out of country for business, while two were
minors and were along with her. Even their attorney was also unable to disclose the specific
date o r year when the respondents/plaintiffs got knowledge about the same. They have
completely failed to discharge the burden lies on them. The learned appellate court in absence
of any specific evidence simply relied on contention raised by the respondents/ pl aintiffs,
thereby held that the suit is filed well within time.
On both the issues the appellate court takes an erroneous view. The findings given are on no
basis. There is nothing on record from which it can be ascertained that previously property in
question was ever in possession of the respondents/plaintiffs being owners of the same.
Further, there is no explanation about delay accrued in filing of the suit. There is nothing on
record that which of the respondent/plaintiffs were out of country or ar ea and who were
minors, when did Mst. Mah Ganj died and in all these years who managed the property. The
burden lies on the respondents/plaintiffs, who completely failed to discharge the same. They
slept over their rights thus they have to bear the consequ ences. The trial court rightly held
that the suit is hit by limitation, thus not maintainable.
In view of above discussion, the revision petition is accepted. The order made on 5 -1-2008 by
Majlis -e-Shoora Mekran is set aside, while the order made on 31 -10-2007 passed by Qazi
Dasht is hereby upheld.
No orders as to costs.
H.B.T./56/Q Petitioner accepted.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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