2011 Y L R 2991
[Quetta]
Before Naeem Akhtar Afghan and Muhammad Noon Meskanzai, JJ
GHULAM AHMED ---Appellant
Versus
MUZAFARA BEGUM and 8 others ---Respondents
Regular First Appeal No.6 of 2007, decided on 28th July, 2011.
(a) Specif ic Relief Act (I of 1877) ---
----S. 42---Declaration of title ---Limita tion---Scope ---Limitation runs from the date of
denial to the right of plaintiff by defendant.
(b) West Pakistan Land Revenue Act (XVII of 1967) ---
----S. 42 --- Mutation= -- Presu mption ---Mutation does not confer any right in any property
on any one ---Mutation entry raises a rubttable presumption in favour of person in whose
favour the same is made.
(c) Specific Relief Act (I of 1877) ---
----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S. 42 ---Declaration of title---
Fraudulent mutation entries ---Mutation entry and registered sale -deed --Plaintiff claimed to be
co-owner of suit property to the extent of one half share, on the basis of a registered sale -deed
dated 16 -6-1920, in favour of his predecessor -in-interest, while defendants relying on mutation
entry in revenue record denied the claim of plaintiff ---Validity ---Presumption attached to
mutation entry in favour of predecessor -in-interest of defendants stood rebutted through
registered sale -deed dated 16 -6-1920, in view whereof defendants or their predecessors could
not be held as exclusive owners of disputed property ---Plaintiff and defendants were half
owners of disputed property in equal shares ---Revenue record ref lected that entry in the name of
predecessor -in-interest of defendants was a result of fraud which had vitiated the most solemn
proceedings ---Once a mutation was challenged, the party that relied on such mutation was
bound to revert to the original transac tion, which resulted into the entry or attestation of mutation
in question ---Defendant failed to bring any document on record to prove the transaction in which
entry in question was made in favour of their predecessor -in-interest as exclusive owner with
regard to disputed property and on the contrary, the only existing document on record i.e.
registered sale -deed dated 16 -6-1920, proved that plaintiff was owner of one half of the
property, who was illegally deprived of the property as shareholder in revenu e record ---As
mutation entry in revenue record in the name of predecessor -in-interest of defendants was
a result of fraud and contrary to registered sale -deed, therefore, the same was void ab intio,
hence no limitation could run with regard to such fraudu lent entry ---Plaintiff was entitled
to the relief claimed in the suit property with regard to half of the disputed property as co -
sharer on the basis of registered sale -deed dated 16 -6-1920 ---Plaintiff was further entitled
to inherit share of his mother an d wife in the other half of disputed property, by way of
correction of entries, partition and possession ---Judgment and decree passed by Trial Court
was set aside and the suit was decreed in favour of plaintiff ---Appeal was allowed in
circumstances.
Muh ammad Younus Khan v. Government N.W.F.P. 1993 SCMR 618; Mst. Suban v. Allah
Ditta 2007 SCMR 635 and Muhammad Saleh v. Muhammad Shafi 1982 SCMR P. 33 ref.
Syed Ayaz Zahoor for Appellant.
Jamil Ramzan for Respondents.
Date of hearing: 20th July, 2011 .
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ---This appeal is directed against the judgment -decree
dated 7 -10-2006 passed by learned Civil Judge -II Quetta, whereby suit for declaration,
permanent injunction, cancellation of mutation entries with partition and possession filed
by the appellant -plaintiff has been dismissed.
Facts in brief are that on 30 -6-1996 'appellant -plaintiff filed a civil suit with contention that
he was appointed in Air Force in the year 1943 and after serving till 1986 retired as
Squadr on Leader. During most of his service he remained out of Quetta, however for very
short span of period he was transferred to PAF Samungli Base Quetta. It was contended
that on 16 -6-1920 the father of the appellant -plaintiff (Khan Muhammad) and the great
grandfather of respondents/defendants (Mullah Abdul Rehman) jointly purchased a house
measuring 8 Poles bearing Kewat and Khatooni No.1/1, Khasra No.350/215/1 (hereinafter
referred as the disputed property) from its previous owner Haji Qadir Bakhsh and with
regard to this joint purchase registered sale -deed dated 16 -6-1920 was executed, which is
registered at Book No.1, Volume No.99 at pages No.64 and 65 bearing Registration
No.143. Subsequent to the joint purchase the record was not rectified by the parties and it
continued in the name of the previous owner Haji Abdul Qadir till the year 1938 -39. It has
further been contended that since the property was jointly purchased by the predecessor of
both the parties, no need was felt to get the same transferred in t he record of rights as the
joint purchase was based on registered sale -deed and the parties remained under impression
that registration authorities will inform the revenue authorities. The appellant -plaintiff
contended that he is sole survivor of his famil y as in the earthquake of 1935 his entire
family consisting upon mother, two brothers and six sisters died. However, the great
grandfather of respondents -defendants Mullah Abdul Rehman died in the year 1924. The
family of Mullah Abdul Rehman was residing i n the disputed house since the time of
purchase as they were previously tenants in the disputed house, however, after joint
purchase (Mullah Abdul Rehman) became 50% shareholder of the dispute property and for
the remaining 50% the predecessor of the appel lant-plaintiff became the shareholder. Since
parties to the suit were joint owners and were close relatives being first cousins and had
relations from both mother and father sides, therefore, the appellant -plaintiff did not bother
about the partition or mu tation. The mother of the appellant -plaintiff namely Mst. Aisha
Begum was paternal aunt of father of defendants Nos.2 to 8 and after the death of her father
Mullah Abdul Rehman she was entitled in all the assets left behind by him including the
disputed pr operty to the extent of her share according to Mohammedan Law and after her
death the appellant -plaintiff' is entitled for her share of inheritance.
It is contended in the plaint that in the year 1941 -45 settlement operation of Quetta Urban
was carried o ut and during those days the predecessor of respondents -defendants was in
occupation of the disputed house, therefore, the revenue authorities without conducting any
enquiry or considering the record erroneously and wrongly transferred the disputed
propert y in the name of the predecessor of respondents Nos.1 to 8 (Sadiq -ur-Rehman), who
at that time was minor and even his name and caste was not properly mentioned. During
settlement, the Kewat, Khatooni and Khasra numbers were changed as Kewat No.226,
Khatoon i No.274 and Khasra No.6670 measuring 1863 Sq. Ft. In the year 1971 the record
of rights was got corrected by the predecessor of respondents Nos.1 to 8 (Sadiq -ur-
Rehman) to the extent of correction of his name and caste and his name remained entered
as sol e owner of the property in dispute and this time again Kewat and Khatooni numbers
were changed as Khatooni No.372, Kewat No.328. It has been contended in the plaint that
in the year 1962 in Guardianship Application No.1 of 1962 titled as "Ghulam Ahmed Khan
v. Mst. Rahat Begum" the predecessor of the respondents namely Sadiq -ur-Rehman
appeared and admitted the factum of purchase of disputed property by the father of the
plaintiff -applicant and great -grandfather of respondents -defendants. It was also admitted
that Mullah Abdul Rehman was owner to the extent of half share in the disputed house,
remaining half share belonged to the father of the appellant -plaintiff. Similarly,
Muhammad. Tufail (father -in-law of Sadiq -ur-Rehman) and real father of respondent -
defendant No.1 also recorded his statement in those proceedings, who also produced the
registered sale -deed of the disputed house. Similarly, statement of Aitemad -ud-Din,
nephew of Sadiq -ur-Rehman was also recorded, who also admitted the half share of the
father of appellant -plaintiff in the disputed house. It has been contended in the plaint that
after retirement the appellant remained busy in other works, however, when he felt need of
the disputed house he approached the respondents with request to hand over the half share
of the disputed house as well as share of his mother (being legal heirs of late Mullah Abdul
Rehman) in the second half. The respondents -defendants declined on the ground that the
appellant -plaintiff has no concern with the disputed property as same exists in the Revenue
Record in the name of their predecessor late Sadiq -ur-Rehman. The appellant -plaintiff has
stated that on getting knowledge of the same the appellant -plaintiff obtained complete
record of rights which revealed the erroneous en tries in the name of the predecessor of
plaintiff -appellant during the settlement of 1941 -45, where after the appellant -plaintiff
submitted application to Deputy Commissioner/ Collector Quetta in the year 1995, but
same was disposed of with directions to a pproach the court of civil jurisdiction for redressal
of the grievance, hence suit was filed with the following prayer: --
(A) Declaring that the plaintiff is owner of the property bearing Old Kewat No.328,
Khatooni No. 372 and Khasra No. 6670 measuring 1 863 Sq. Ft situated in Mohal
Ward No.19 Tappa Tehsil, Quetta and presently Kewat No. 81; Khatooni No. 90
and Khasra Nos. 295 and 296 measuring 1894 Sq.Ft. situated at Mouza Ward
No.51 Tappa Urban Tehsil Quetta with its Municipal No.8 -19/ 30, Chaman Gali,
Balochi Street Quetta to the extent of 50% share out of said property, as well as
share to the extent of his mother namely Mst. Aisha, to which she was entitled to
the extent of her share, out of the property of Mullah Abdul Rehman, in accordance
with Moham medan Law.
(B) Declaring further that the plaintiff is owner of property in the question (detailed in
prayer clause "A") to the extent of half, share in view of sale -deed dated 16 -6-1920
duly registered with the Sub -Registrar, Quetta, in Book No.1 Volume No.99 at
page 64 and 65 with its Registration No.143.
(C) Further declaring that the transfer so effected in the' record of rights in the year,
1941 -45 by means of settlement/Jamabandi, in name of husband and father of
defendants Nos.1 to 8 and thereaft er all subsequent entries in the record of right is
illegal, improper, void and contrary to mutation entries effected in the record of
rights in the year, 1933 -34 and 1938 -39 and thus be cancelled.
(D) Directing the defendants Nos.9 to cancel the mutatio n entries so effected in the
record of rights in respect of property in dispute (detailed in prayer clause "A") and
to transfer the share of plaintiff to the extent of 50 per cent, as per sale -deed dated
16-6-1920 and the share of his mother inherited to h er by late Mullah Abdul
Rehman.
(E) Further by passing preliminary decree the property in dispute (detailed in prayer
clause "A") be partitioned to the extent of share of plaintiff including Mat of her
mother, and thereafter possession be directed to be handed over to the plaintiff
after passing final decree;
(F) Permanently restraining the defendants, from transferring alienating or selling the
property in dispute (detailed in prayed clause -A) to any other person;
(G) Any other relief deems fit and p roper in the circumstances of the case may. also be
awarded along with the cost of suit, in the interest of justice;
The suit was contested by the respondents -defendants by filing written statement. The
respondents -defendants agitated that suit is patent ly barred by time, the appellant -plaintiff
has no vested right, title or interest in the disputed house, no cause of action has accrued to
the plaintiff -appellant and plaint merits dismissal under Order VII Rule 11, C.P.C. Non
joiner and mis joinder of par ties was also pleaded. It was agitated that the entry in the
Revenue Record in favour of predecessor of respondents -defendants was within the
knowledge of plaintiff -appellant and he raised no objection during his life time and even no
objection was raised at the time of re -construction of the house. Estoppel was pleaded
against the appellant -plaintiff under Article 114 of the Qanun -e-Shahadat Order 1984. .The
contents of -the plaint upon merits were contested and deified. The joint purchase of the
property by the father of the appellant -plaintiff with the predecessor in interest of
respondents -defendants was denied, the description of the property was also denied. It was
agitated that the appellant -plaintiff has no concern with the disputed house. It was
contended that the paternal grandfather of the respondents -defendants had purchased the
disputed house from its previous Owner for the predecessor of the respondents -defendants
(Sadiq -ur-Rehrnan), who was minor at that time and in the settlement of 1941 it wa s
entered in his name on the instructions of previous owner, but the name and caste was
wrongly mentioned, which was subsequently corrected in the year 1971 vide Mutation
No.1030 and all these entries were in the knowledge of appellant -plaintiff, who raise d no
objection till 20 -9-1995, where after he filed a false and fabricated application to Deputy
Commissioner/Collector Quetta. It has been further contended in the written statement that
during his service the appellant -plaintiff used to visit the dispute d house being a relative
and replying defendants -respondents raised a pacca construction over a portion of disputed
property and the appellant -plaintiff raised no objection. The statement recorded by the
Senior Civil Judge Quetta in Guardianship Applicatio n No.1 of 1962 was also disputed on
the ground that wrong person was produced by the name of the predecessors of the
respondents -defendants with the collusion of Muhammad Tufail (father of respondent -
defendant No.1) who had constrained relations with the p redecessor of respondents -
defendants Nos. 2 to 8 since the year 1962 till 1981. It was finally prayed that the suit be
dismissed with cost.
On receipt of pleadings .of parties the learned trial court framed the following issues: --
(1) Whether this cour t has jurisdiction to adjudicate upon the matter?
(2) Whether the suit is liable to be dismissed in view of preliminary objections A, B, C
and H of written statement?
(3) Whether the defendants with collusion of revenue authorities, fraudulently
transf erred the , property in dispute in the name of defendants?
(4) Whether the plaintiff is entitled for relief claimed for?
(5) Relief?
After framing of issues the appellant -plaintiff produced six witnesses and recorded his
statement on oath. In rebutt al the respondents -defendants produced four witnesses, where
after statements of their attorney Saif -ur-Rehman (respondent/ defendant No.3) was
recorded.
On conclusion of trial and hearing the parties the learned trial court vide judgment -decree
dated 30 -6-1999 dismissed the suit holding the same barred by time, where after the
appellant -plaintiff preferred R.F.A. No.37/99 before this court, which was allowed and
after setting" aside judgment -decree dated 30 -6-1994 the case was remanded to the trial
court for decision on merits by considering the evidence available on record vide
judgment -decree dated 17 -6-2003. After remand by this court on 16 -10-2003 the trial court
dismissed the suit under Order XVII, Rule 3, C.P.C. on the ground that the counsel for th e
parties are not prepared to argue the matter. Again R.F.A. No.62 of 2003 was preferred by
the appellant -plaintiff before this court, which was allowed and after setting aside the
judgment -decree dated 16 -10-2003 again the matter was remanded to the trial court for
decision on the basis of evidence available on record. Subsequent, to the remand by this
court once again the suit filed by the appellant -plaintiff has been dismissed vide judgment -
decree impugned dated 7 -10-2006. The appellant has preferred the instant appeal
challenging the judgment -decree dated 7 -10-2006 of Civil Judge -II Quetta.
Syed Ayaz Zahoor, learned counsel for appellant -plaintiff argued that the judgment -decree
impugned is based on misreading and misappreciation of evidence available on record. The
findings upon the issues are contrary to record and the appellant -plaintiff cannot be non -
suited on the point of limitation as the mutation' entered upon the name of the .predecessor
of respondents -defendant is a result of fraud and in such circumstances limitation will not
run. He further argued that apart from his claim the appellant -plaintiff is also claiming the
inheritance of his mother and wife from remaining half share of the disputed house as his
mother was the paternal aunt of the pr edecessor of respondents -defendants and daughter of
Mullah Abdul Rehman and his wife was real sister of Sadiq ur Rehman (predecessor of
respondents/defendant) and they have been deprived of their right of inheritance
throughout and in such circumstances as well, the bar of limitation is not available to the
respondents -defendants. Learned counsel further argued that the basic document of title
between the parties is the registered sale -deed dated 10 -6-1920, which is not a disputed
document and in view of th is ' registered sale -deed, the mutation entry in the name of the
predecessor in interest of respondents -defendants alone is void and of no legal effect.
Mr. Jamil Ramzan learned counsel appearing for respondents -defendants while arguing the
matter suppor ted the impugned judgment -decree on the ground that the appellant -plaintiff
was very well aware of the mutation of the disputed house in the name of the predecessor
of respondents -defendants and had never raised any objection of whatsoever nature. He
argue d that the suit filed by the appellant -plaintiff is hopelessly barred by time. When
confronted with the registered sale -dead dated 10 -6-1920 and the share of the mother and
wife of appellant -plaintiff in half of the disputed house by way of inheritance, th e learned
counsel conceded to the same.
After hearing learned counsel for both the parties at length we have thoroughly gone
through the record of the case.
Record reveals that basic document in this case is the registered sale -deed dated 16 -6-1920
Exh.P/1 duly produced by P.W.2 representative of Sub -Registrar Quetta, which is an
undisputed document as same has not been denied during cross -examination to P.W.2. The
learned counsel appearing for this respondents/defendants when confronted with this
regis tered sale -deed did not dispute or deny the same. Even otherwise this sale -deed which
has been registered has been duly produced/ exhibited through proper custody i.e.
representative of Sub -Registrar Quetta, as such, presumption under Article 100 of Qanun -e-
Shandat Order, 1984 is attached to this document as well. According to this sale -deed the
disputed property was jointly purchased by Mullah Abdul Rehman son of Islam, (successor
in interest of respondents -defendants) and Khan Muhammad son of Faqir Muhamm ad
(father of appellant -plaintiff) in equal share from its owner Haji Qadir Bakhsh son of Dur
Muhammad and according to this document i.e. Sale -deed Exh.P/1 the disputed property
should have been entered in the Revenue Record upon the names of the purchase r i.e.
Mullah Abdul Rehman as well as Khan Muhammad in equal share, but same was not
recorded.
According to Exh.P/11. vide Mutation No.191 of 1910 Qadir Bakhsh had purchased 8 Poles
under Khasra No.350, 215/1 from its previous owners, which he had sold t o the
predecessors -in-interest of parties vide sale -deed 16 -6-1920.
It has also come on record that the parties to the suit as well as their successors -in-interest
are closely related inter se and in fact both the parties to the suit are successors -in-interest
of late Islam in the following manner:, --
The mother of the appellant -plaintiff namely Mst. Aisha was real daughter of Mullah Abd ul
Rehman and paternal Aunt of Sadiq -ur-Rehman (predecessor in interest of respondents/
defendants). Similarly, the wife of the appellant -plaintiff namely Ruqia Begum was the real
sister of Sadiq -ur-Rehman (predecessor in interest of respondents -defendants ). Similarly,
another daughter of Mullah Abdul Rehman namely Rahat Begum was married to Etisham -
ud-Din and they both were survived by - Aitemad -ud-Din. The family of Sadiq -ur-Rehman
and Etisham -ud-Din used to live in the disputed, house and on certain occa sions the same
was rented out to the tenants. The father of the appellant -plaintiff also lived in the disputed
house for some time.
It has come on record through the statement of plaintiff -appellant that his father in his half
portion constructed a seven type house in the year 1936, whereas in the year 1937 his
maternal uncle Sadiq -ur-Rehman (predecessor of respondents -defendants) also constructed
a seven type house upon his half portion and a door was also left between the two portions
and subsequently in one of the portion, a double storey pacca structure of a house was
raised, whereas the other half portion remained seven type. This aspect is also very
significant which reflects that being conscious of the entitlement of the appellant -plaintiff
in one half of the disputed property deliberately only in the other half portion of the
disputed property pacca construction was raised.
The evidence has also come on record that the appellant -plaintiff had been exercising
proprietary rights in the disputed pr operty with regard to his share as the cousin of the
appellant Aitemad -ud-Din was allowed to live in the disputed house by the appellant -
plaintiff and his father Etisham ud-din also lived in the disputed house during his life time
and after death of Etisha m-ud-Din his brother Muhammad Ayub was turned out of the
.disputed house by the appellant -plaintiff in the year 1962, which reflects the exercise of
proprietary rights by the appellant -plaintiff over the disputed property.
Further it is the evidence on record that in the year 1995 for the first time the entitlement of
the appellant -plaintiff was denied by respondent No.1 and real threat was offered to the
title of the appellant -plaintiff by defendant No.1 on the pretext that the disputed property is
upon their names, whereafter for the first time in the year 1995 the appellant -plaintiff
approached the Deputy Commissioner/Collector Quetta, who directed the appellant -plaintiff
to approach the court of civil jurisdiction, hence in these circumstances limitati on will run
from the date of denial to the right of appellant -plaintiff by the respondents/ defendants i.e.
in the year 1995 and in such circumstances the suit is within time as the same was filed in
June, 1996.
Moresoover, the Revenue Record produced by P.W.4, P.W.5 and P.W.6 reveals that first
settlement in the area took place in the year 1.898 and subsequently settlement took place
in the year 1908. Previously the disputed property was falling under Khasra No.350/215/1,
but subsequently it was allotted a new Khasra number i.e. 6670. Record further reflects that
in the Fard pertaining to y e a r 1941 -45 the disputed property falling under Khasra No.6670
measuring 1863 Sq. Ft. was recorded for the first time in the name of Muhammad Sadiq
minor son of Qalanda r Khan, Caste Rajpoot (predecessor in interest of respondents -
defendants), but the perusal of Fard Exh.P/10 does not mention about any mutation number
with reference to which this Fard was prepared. This is very surprising as copy of fard is
always prepare d from the contents of a mutation and reference of mutation number is
always mentioned in the fard issued, but in the instant case neither any mutation number is
mentioned nor any such mutation is available throughout the record to verify the
transaction t hrough which the disputed property was entered in the name of predecessor of
the respondents -defendants excluding the name of the father of the appellant -plaintiff.
Similarly the Mutation No.1030 dated 20 -4-1971 Exh.P/8 is a correction Mutation whereby
correction was made with regard to the name of the predecessor of the respondents -
defendants as well as his caste and word minor was removed and caste was corrected from
Rajpoot to "Daar". In the last settlement of 1986 Khasra No.6670 was changed to two
numbe rs i.e. Khasra No.295 measuring 957 and Khasra No.296 measuring 937 total
measuring 1894 Sq. Ft. and the Fard Exh.P/16 also displays Tatima showing two different
portions of old Khasra No.6670 consisting of two houses, which is again very significant
and s upports the contention of the appellant -plaintiff and this Fard Exh.P/16 reflects that in
1986 property still stood recorded exclusively in the name of Sadiq -ur-Rehman
(predecessor -in-interest of respondents/defendants), who died in the year 1981.
There are two other houses adjacent to the disputed property falling under Khasra No.6671
measuring 2303 Sq. Ft. in the name of Juma Khan son of Ali Muhammad and Khasra
No.6669 measuring 1032 Sq. Ft. in the name of Juma Khan son of Hakim Dad as reflected
from E xh.P12 and P/13 produced by P.W.5 Abdul Latif Patwari.
Exhs.P/14 and P/15 are also very important documents produced by P.W.5, which reflect
that in the Katooni of 1941 -45 pertaining to disputed property initially the name of Malik
Etisham -ud-Din was men tioned, but after making cutting, the name of Muhammad Sadiq
minor son of Qalandar Khan (predecessor of respondents -defendants) was over written,
which reflects mala fide/fraud and it seems that Malik Etisham -ud-Din maternal uncle of
the appellant -plaintif f manipulated the revenue entry in the name of the predecessor of the
respondents -defendants during his minority in clear disregard and contrary to the registered
sale-deed dated 16 -6-1920, hence the fraud is evident and this wrong entry continued till
today, which has been challenged by the appellant -plaintiff through the instant suit.
It is settled principle of law that mere mutation does not confer any right in any property on
any one and the mutation entry raises a rebuttable presumption in favour of person in
whose favour the same is made. The -presumption is rebuttable and in the instant case the
entry in the Revenue Record has been duly rebutted by the appellant -plaintiff, who is
challenging the entry by producing cogent and confidence inspiring evid ence contrary to
mutation entry. In the instant case the presumption attached with the mutation entry in
favour of predecessor of respondents -defendants stands rebutted through registered sale -
deed dated 16 -6-1920 in view whereof the respondents -defendants or their predecessor
cannot be held as exclusive owner of the disputed property rather the appellant -plaintiff
and the respondents -defendants/their predecessor are half owners of the disputed property
in equal share. The Revenue Record reflects that the e ntry in the Revenue Record in the
name of predecessor of respondents -defendants is a result of fraud and under the law fraud
vitiates most solemn proceedings. Reliance in this regard is placed on the case of
Muhammad Younus Khan v. Government of N. -W.F.P. reported as 1993 SCMR 618,
wherein it was held that,
"The claim made by the appellants based on Mutation No.36 on the basis of which
further mutations were recorded. By Mutation No.36, the appellants were recorded
as co -owners of the disputed land along with Nawab of Amb. If this mutation is not
legal and proper, the entire structure built on it shall crumble"
It has further been held that,
"The entries in the mutation record are fiscal in nature, do not conclusively establish
ownership in favour of t he person in whose favour such entries had been made and provide
merely a rebuttable material...In case where the right of the person whose name has been
recorded and the entry has been challenged on grounds of frauds such entry can hardly prove
ownership. "
The respondents -defendants through -out the trial have not produced a single document from the
Revenue Record to support their exclusive ownership of the disputed property. It is settled
principle of law that once a mutation is challenged, the party tha t relies on such mutation is
bound to revert to the original transaction and to prove such original transaction, which resulted
into the entry or attestation of mutation in question, but in the instant case the respondents -
defendants throughout the trial h ave failed to bring any document on record to prove the
transaction in which the entry was made in favour of their predecessor as exclusive owner with
regard to the disputed property and on the contrary, the only transaction existing on record i.e.
registe red sale -deed dated 16 -6-1920, proves that the appellant -plaintiff being owner of half of
the disputed property has illegally been deprived of the disputed property as shareholder in the
revenue record. Since, the mutation entry in the Revenue Record in th e name of the predecessor
of respondents -defendant is a result of fraud and -same is contrary to registered sale -deed, as
such, the same is void ab initio, hence no limitation will run with regard to such fraudulent entry.
Moresoover, the trial court whi le deciding the issue of limitation against the appellant -plaintiff
(Preliminary Legal Objection A) has also failed to appreciate that apart from claiming his
entitlement in the half of the disputed property on the basis of registered sale -deed dated 16 -6-
1920, the appellant -plaintiff in the plaint further claimed the inherited share of his mother and in
his statement before the court also claimed the inherited share of his wife. The mother of the
appellant -plaintiff is the real daughter of Mullah Abdul Reh man and paternal aunt of Sadiq -ur-
Rehman and the wife of the appellant was real sister of Sadiq -ur-Rehman and both were entitled
for their share of the disputed property from the half share of Mullah Abdul Rehman and with
regard to the claim of the right o f inheritance it is settled principle of law that mere efflux of time
does not extinguish any right in inheritance, hence on this score as well the suit of the appellant -
plaintiff cannot be dismissed being barred by time. The learned trial court while sust aining
(Preliminary Legal Objection -A) on Issue No.2 with regard to limitation has badly fallen in error
in appreciating the facts of the case as well as the law. Reliance in this regard is placed on the
case of Mst. Suban v. Allah Ditta, 2007 SCMR 635, wh erein it was held as follows:
"It is a proposition too well -established by now that as soon as someone who owns some
property, dies, the succession to his property opens and the property gets automatically
and immediately vested in the heirs and the said vesting was not dependent upon any
intervention or any act on the part of the Revenue Authorities or any other State agencies.
It is also an established proposition that a mutation did not confer on anyone any right in
any property as the Revenue Record w as maintained only for realization of land revenue
and did not, by itself confer any title on anyone. It may also be added that efflux of time
did not extinguish any rights" inheritance because on the death of an owner of property;
all the co -inheritors, i mmediately and automatically, became co -sharers in the property'
and as has been mentioned above, limitation against them would start running not from
the time of the death of their , predecessor -in-interest nor even from the date of mutation,
if there be any, hut from the dare when the right of any such co -sharers/ coinheritors in
such land was denied by someone."
The Apex Court in the same judgment further held that: --
"It is the principle of dispensation of justice, too well established by now, that after a
Court had determined all the legal and factual issues struck in a civil case and when it
reached the final issue of grant of relief then the Court seized of the lis had to consider
not only its answers to the said legal and factual issues but also and equally importantly,
to keep in mind the dictates of morality, ethics, 0fairplay, justice and equity."
The Apex Court in the above referred case, in view of the provisions of O.XLI, R.4, C.P.C.,
which envisaged grant of relief even to non -appealing parties and also in discharge of obligations
to do complete justice, declared that all those persons who qualified as heirs of diseased owner as
per Sunni Faith, at the time of his death, were entitled to their respective "Sharai" shares in each
and every inch of land left behind by him.
Hence, the appellant/plaintiff is also entitled for the share of inheritance of his wife along with
his mother in the other half of the disputed property and same cannot be non -suited on the
pointation of limitation.
Preliminary Legal Objection -B (Issue No.2) with regard to entitlement of the appellant -plaintiff
over the disputed property under section 42 of Specific Relief Act has also wrongly been
sustained by the trial court and the trial court has badly fallen in err or to hold that the right and
title of the appellant -plaintiff is not established. As mentioned above in detail the registered sale -
deed dated 16 -6-1920, the wrong mutation entries in the name of predecessor of respondents -
defendants without any basis and the inheritance share of the mother and wife of the appellant -
plaintiff in the other half of the dispute property prove the entitlement of the appellant -plaintiff to
bring the suit under section' 42 of Specific Relief Act.
Similarly the trial court while sustaining Preliminary Legal Objection -C (issue No.2) has
wrongly concluded that no cause of action has accrued to the appellant plaintiff against the
defendants. While giving such erroneous findings the learned trial court has miserably failed to
properl y appreciate the oral as well as documentary evidence available on record. The facts and
circumstances of the case reveal that cause of action accrued to the appellant -plaintiff to claim
half of the disputed property as co -sharer on the basis of registered sale-deed dated 16 -6-1920
and on the other hand the appellant -plaintiff is also entitled to claim the share of his mother and
wife with regard to inheritance from the other half of the disputed property, hence cause of
action has accrued to appellant -plaintiff and same is recurring to the appellant -plaintiff for filing
the suit.
The learned trial court while sustaining Preliminary Legal Objection -H with regard to estoppel
under Article 114 of Qanun -e-Shandat Order, 1984 has badly ignored the statements o f the
witnesses particularly the statement of the appellant -plaintiff which reveals the fact that the
appellant -plaintiff or his predecessor never disassociated themselves from their entitlement over
the disputed property nor ever acknowledged Sadiq -ur-Rehman as exclusive owner rather the
evidence speaks of the fact that the father of the appellant -plaintiff as well as the appellant -
plaintiff duly exercised their ownership rights and control over the disputed property as and
when desired and no such conduct of the appellant -plaintiff is available on record to bar him
from claiming his right under Estoppel. Rather on the contrary the statements of the witnesses
recorded during the proceedings of Guardianship Application No.01 of 1962 prove estoppel
against th e respondents -defendants as their predecessor Sadiq -ur-Rehman while recording
statement Exh.P/2 before the Guardian Judge admitted that the disputed property belongs to him
as well as Ghulam Ahmed (appellant/plaintiff) in equal share. He further stated tha t Mullah
Abdul Rehman was original owner of half share in that house and the remaining half share
belonged to the father of Ghulam Ahmed. Similarly Aitemad -ud-Din son of Etisham -ud-Din also
appeared in Guardian Application No.1/1962 and gave statement Exh .P/6, confirming that after
death of his father Etisham -ud-Din, the appellant -plaintiff turned out his uncle Muhammad Ayub
from the disputed house and he further asserted that half of the disputed property belongs to
appellant -plaintiff and half belongs to his maternal uncle Sadiq -ur-Rehman. In view of these
statements, Estoppel does not apply in deciding the entitlement of the appellant -plaintiff. The
court has wrongly sustained the objection of Estoppel against the appellant/plaintiff. In this
regard the court has absolutely failed to appreciate the facts as well as the law as omission to
enforce one's legal right strictly cannot give rise to inference that all rights have been abandoned.
Reliance in this regard is placed on the case of Muhammad Saleh v. M uhammad Shafi, reported
as 1982 SCMR page 33, wherein it was held as under: -
"It has been held that even gratuitous indulgence shown by one of the parties does not
constitute estoppel of waiver. Omission to enforce one's legal right strictly cannot give
rise to an inference that the right has been abandoned."
Moresoover, no overt act has been attributed to the appellant -plaintiff acknowledging the
respondents -defendants as sole owners of the disputed' property, hence in our view no question
of Estoppel arises against the appellant -plaintiff.
For the above reasons findings of the trial court upon Issue No.2 based on legal Objection A, B,
C and H are not concurred and the objection A, B, C and H are overruled.
The trial Court while deciding Issue No.3 in negative has wrongly held that the appellant -
plaintiff has failed to establish the fraud of respondents -defendants and witnesses have failed to
utter a single word in respect of fraud committed. In holding this view the trial court has only
mentioned, i n mechanical manner, Mutation No.11 (pertaining to ownership of previous owner
Qadir Bakhsh) and Katooni of 1941 -45 existing in the name of Muhammad Sadiq son of
Qalandar Khan and rectification thereof in the year 1970, but has failed to appreciate the rev enue
record in its, perspective and in relation to the registered sale -deed dated 16 -6-1920, which is
basic document of the title between both the parties of the suit. The findings of the trial court are
contrary and perverse to the record and same cannot be sustained.
In view of the findings rendered hereinabove, dilating upon the issue of relief, keeping in view
the settled principles of law and requirements of substantial justice, it is held that, exclusive
entry in the Revenue Record in the name of pr edecessor of respondents -defendant Sadiq -ur-
Rehman for the disputed property is a result of fraud, misrepresentation and same is void having
no legal effect. The appellant is entitled to the relief claimed in the suit with regard to the half of
the dispute d property as co -sharer on the basis of registered sale -deed dated 16 -6-1920 and is
further entitled for the inherited share of his mother and wife in the other half of the disputed -
property, by way of correction of entries partition and possession.
Resu ltantly the appeal is accepted, the judgment -decree dated 7 -10-2006 passed by learned Civil
Judge -II, Quetta is set aside and suit is decreed as prayed for and in the above terms with no
order as to cost. Decree sheet be drawn accordingly.
M.H./75/Q Appeal allowed.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,
let us know.