2016 Y L R 188
[Balochistan]
Before Muhammad Ejaz Swati, J
ABDUL ZAHIR--- Petitioner
Versus
KHUDA -E-DAD and others ---Respondents
Civil Revisions Nos.78 and 79 of 2015, decided on 6th October, 2015.
(a) Specific Relief Act (I of 1877) ---
----Ss. 8, 39, 42 & 54----Qanun -e-Shahadat (10 of 1984), Art. 129 (g) ---West Pakistan Land
Revenue Act (XVII of 1967), S. 52--- Limitation Act (IX of 1908), Art. 91---Contract Act (IX of
1872), Ss. 17 & 18 ---Suit for declaration, possession, cancellation and permanent injunction---
Maintainability --- Limitation --- Mutation challenged on ground of fraud and misrepresentation---
Proof ---Presumption in favour of entries in record- of-rights and periodical records ---Court may
presume existence of certain facts ---Plaintiff filed suit for declaration and permanent injunction
claiming separation of his share through demarcation of suit property on ground that he had
purchased suit property from joint Khata from predecessor of defendants by way of mutation
entry ---Defen dants also filed suit for declaration, cancellation of the mutation entry in favour of
plaintiff, possession and permanent injunction claiming that plaintiff, with connivance of
revenue authorities, had got suit property mutated in his favour ---Trial Court decreed the suit of
plaintiff and dismissed the one filed by defendants ---Appellate court reversed findings of Trial
Court and decreed suit of defendants ---Both parties raised objection of limitation ---Validity ---
Plaintiff had first filed application for demarcation of suit property before Revenue hierarchy,
which fact had not been disputed by defendants ---Plaintiff, having purchased suit property from
predecessor of defendants, had stepped into his shoes and become co- sharer ---Limitation for
demarcation o f suit property arose when right of plaintiffs had been declined by defendants ---
Plaintiff's suit was, therefore, within limitation ---Limitation for cancellation of the mutation
entry was three years under Art. 91 of Limitation Act, 1908---Mutation of inhe ritance recorded
in favour of defendants had reflected that they were aware of the mutation entry in favour of
plaintiff before filing of present suit ---Defendants, in their pleadings, had not mentioned date
when they had come to know about mutation entry in question---Suit filed by defendants for
cancellation of the mutation entry was, therefore, barred by limitation ---Appellate court had
decided question of limitation on wrong premise ---Plaintiff, being joint recorded owner of suit
property, had every rig ht to seek relief from competent court pertaining to his right arising out of
mutation entry ---Impugned mutation entry had never been challenged by predecessor of
defendants during his life time ---Defendants, both in their written statement and suit
subsequently filed by them, had initially challenged mutation entry in question on ground of
fraud and misrepresentation, but they later had withdrawn said ground by filing application for
amendment of their pleadings ---Defendants had challenged the mutation ent ry also on ground
that the mutation was neither signed nor attested by witness mentioned in list of witnesses, but
subsequently, they had abandoned said witnesses by filing an application to that effect ---Best
evidence, which could be produced by defendant s, had not been produced and the same had been
intentionally withheld, for which adverse inference was to be taken against them under Art. 129
(g), Qanun- e-Shahadat, 1984---Presumption of truth was attached to revenue record in terms of
S. 52 of West Pakis tan Land Revenue Act, 1967, which was rebuttable ---Defendants had not
elaborated alleged forgery and misrepresentation either in their pleadings or through evidence ---
Defendants had not led any evidence to prove that the entry in revenue record was collusi ve and
fraudulent ---Defendants failed to rebut presumption of truth attached to the mutation entry ---
Entries in favour of plaintiff appeared in Jamabandi, which was strong evidence in his support
and required rebuttal ---Mere verbal assertions made by defen dants could not be taken as rebuttal
to the mutation entry in favour of plaintiff ---High Court, setting aside impugned judgments and
decrees of appellate court, maintained decision of Trial Court ---Revision petition filed by
plaintiff was allowed, while th e other filed by defendants dismissed.
PLD 2015 SC 58; PLD 1994 SC 245; 1990 SCMR 725 and 2002 SCMR 54 ref.
Hakim Khan v. Nazir Ahmed Rogmani 1992 SCMR 1832; Mazloom Hussain v. Abid
Hussain PLD 2008 SC 571; Nawab Khan v. Said Karim Khan 1997 SCMR 1840; Jan
Muhammad v. Abdul Rashid 1993 SCMR 1463 and Abdul Haq v. Mst. Surrya Begum 2002
SCMR 1330 rel.
(b) Limitation Act (IX of 1908)---
----S. 5----Civil Procedure Code (V of 1908), S. 96 & O. XLI ----Appeal from original decree ---
Extension in period of limitation in certain cases ---Condonation of delay in filing first appeal
against decree ---'Sufficient cause' ----Meaning ---Principles ---Defendants filed application for
condonation of delay in filing of appeal before appellate court on ground that they ha d been
prevented from filing appeal for certain unexplainable circumstance--- Appellate court condoned
the delay ---Validity ---Condonation of delay in filing appeal required sufficient reasons ---Term
"sufficient cause" meant adequate reasons ---Party should have shown that beside acting bona
fide, he had taken all possible steps within its power and control and approached court without
any unnecessary delay ---Once a valuable right had accrued in favour of one party, as result of
failure of other party to expla in delay by showing sufficient cause and its own conduct, that
would be unreasonable to take away that right, particularly when delay was direct result of
negligence, default or inaction of that party ---Law of limitation was substantive law and has
definit e consequence on rights and obligations of parties ---Appellate court had accepted the
application for condonation of delay without assigning any cogent reasons ---Defendants could
not made out a case for condonation of the delay ---Revision of plaintiff was allowed.
(c) Words and phrases ---
----'Sufficient cause' ---Meaning ---Term 'sufficient cause' means adequate reasons.
(d) West Pakistan Land Revenue Act (XVII of 1967) ----
----S. 52----Presumption in favour of entries in record of rights and periodical records ---
Presumption of truth attached to revenue record in terms of S. 52 of West Pakistan Land
Revenue Act, 1976, is rebuttable ---Mere verbal assertions of party cannot be taken as rebuttal to
the mutation entry.
Hakim Khan v. Nazir Ahmed Rogmani 1992 SCMR 1832; Mazloom Hussain v. Abid
Hussain PLD 2008 SC 571 and Nawab Khan v. Said Karim Khan 1997 SCMR 1840 rel.
(e) Qanun -e-Shahadat (10 of 1984) ---
----Art. 129 (g) ----Court may presume existence of certain facts ---Best evidence, which could be
produced by defendants, had not been produced and had been intentionally withheld, for which
adverse inference was to be taken against them under Art. 129 (g), Qanun -e-Shahadat, 1984.
Dilshad Begum v. Mst. Nisar Akhtar 2012 SCMR 1106 rel.
Gul Hassan for Petitioner.
Mujeeb Ahmed Hashmi and Khushal Khan Kasi for Respondents.
Date of hearing: 4th September, 2015.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --Civil Revision Petitions Nos.78 and 79 of 2015 are
arising out of the same subject matter , therefore, are being disposed of through this common
judgment.
2. Facts arising out of the Civil Revision Petition No.78 of 2015 are that the private respondents
(plaintiffs) filed suit No.14 of 2013 against the petitioner (defendant) for declaration,
cancellation of mutation entry No.28, possession and permanent injunction with the averments
that they are owners of the property bearing Khasra Nos.304 and 305, measuring 7 Rod, 4 Pole,
situated in Mahal Karez Mubarak Shah, whereas, the petitioner (defendant) is their bazgar for
whom a house comprising on an area of 1 rod, 8 pole was constructed and was given in Khasra
Nos.304 and 305, but he with the connivance of revenue authorities, mutated the same on his
name vide mutation entry No.28 in revenue record in the year 1987. The respondents further
averred that they were not aware about the said illegal and unlawful mutation and when the
petitioner filed a suit, they came to know about the same.
Facts arising out of the Civil Revision Petition No.79 of 2015 are that the petitioner (plaintiff)
filed suit No.14 of 2012 ag ainst the private respondents (defendants) for declaration and
permanent injunction on the ground that he had purchased the aforesaid disputed property from
the predecessor -in-interest of the private respondents vide mutation No.28 dated 18th April 1987.
It was the case of petitioner that the land purchased by him was joint and same had not been
separated, therefore, on 21st October 2011, he filed an application for demarcation and
identification of his land before the revenue authorities, but the respondents did not come for
separation of the petitioner's land, however, when the private respondents dumped construction
material over the land in dispute, the petitioner refrained them on the ground that first
demarcation/ separation of the purchased land of the petitioner is to be settled, which was
declined.
3. The private respondents filed their joint written statement and contested the suit.
4. Divergent pleadings of the parties in Suit No.14 of 2012 necessitated the following issues: --
"(1) Whether pl aintiff has no legal character, entitlement or vested right under section 42
of the Specific Relief Act to institute instant suit?
(2) Whether no cause of action accrued to the plaintiff to file instant suit against the
private defendants?
(3) Whether suit of plaintiff is not maintainable under section 172 of the West Pakistan
Land Revenue Act, 1967?
(4) Whether the suit of plaintiff is not properly valued for the purpose of court fee and
jurisdiction?
(5) Whether predecessor -in-interest of defendan ts Nos. 1 to 4 sold out about 1 rod 8 pole
(48 shares) property under Khasra Nos.304 and 305 Karez Mubarak Shah Mouza Sheikh
Manda Tappa Baleli, Quetta upon plaintiff vide mutation No.28 dated 18th April, 1987
and plaintiff is lawful owner and in joint pos session of such property?
(6) Whether plaintiff is entitled for the relief claimed for?
(7) Relief?
Whereas, in Suit No.14 of 2013, following issues were framed: --
"(1) Whether the suit of plaintiffs is hopelessly time barred?
(2) Whether plaintiffs have no legal right, character or entitlement under Section 42 of
the Specific Relief Act, 1877 to institute instant suit.
(3) Whether plaintiffs have no cause of action to file instant suit?
(4) Whether the suit of plaintiffs is not properl y valued and requisite court fee is not
affixed on the memo of plaint?
(5) Whether mutation No.28 dated 18.04.1987 is the product of fraud having been
attested after the death of predecessor -in-interest of plaintiffs?
(6) Whether plaintiffs are entitle d for the relief claimed for?
(7) Relief?
5. Petitioner produced PW -1 Muhammad Yousuf, PW -2 Muhammad Hanif Patwari and recorded
his statement.
6. During this, the private respondents filed Civil Suit No.14 of 2013 against the petitioner in
respect of cancellation of mutation entry No.28.
7. Both the suits were consolidated with consent of the parties.
8. The private respondents produced DW -1 Abdul Hannan and recorded their statements through
attorney i.e. respondent No.1 .
9. The Civil Judge -IV, Quetta (hereinafter referred to as "the trial Court") vide judgment dated
25th October, 2013 decreed the suit of the petitioner in his favour, whereas, dismissed the Suit
No.14 of 2013 filed by the private respondents.
10. The private respondents assail ed the judgment and decree of the trial Court by filing two
separate appeals bearing Nos.107 and 108 of 2013. After notice and hearing the parties, the
learned Additional District Judge -I, Quetta (hereinafter referred to as "the appellate Court") vide
orders and decrees dated 26th March 2015 (hereinafter referred to as "the impugned orders and
decrees") accepted both the appeals, and dismissed the suit filed by the petitioner and decreed the
suit filed by the private respondents, which have been assailed by the petitioner in the aforesaid
Civil Revision Petitions.
11. Learned counsel for the petitioner contended that the petitioner had purchased the property in
dispute vide mutation No.28 dated 18th April 1987, whereas, the respondents had filed the suit
on 28th February 2013, after 13 years of mutation, which was hopelessly time barred; that the
property in dispute was purchased from the father of the private respondents, namely, Abdul
Qadoos, who in his lifetime had neither challenged the said mutation, nor objected the right of
the petitioner; that the private respondents alleged fraud in respect of mutation No.28, and the
sole ground of fraud and misrepresentation was that at the time of mutation entry i.e. 1987 their
father was not alive as according to them he was died in the year 1984, but instead of
substantiating the same, they withdrawn their sole ground of alleged fraud by seeking
amendment to the effect that their father died in the year 1992 instead of 1984; that longstanding
mutation entry in fa vour of the petitioner, which had also been incorporated in the Jamabandi,
creates a vested right in his favour and same cannot be cancelled unless rebutted through strong
and exceptional grounds; that the appellate Court while passing the impugned orders and decrees
has misread the evidence and on wrong premises decided the issues, which reflects material
illegalities and irregularities; that the petitioner had purchased the property from joint Khata,
therefore, soon after its purchase, he became the co -sharer and had sought relief for separation of
his share by way of filing suit, therefore, question of limitation in this respect was to be
considered when the right of the petitioner was declined by the private respondents, but the
appellate Court has failed to consider this material aspect of the case, and thus, non- suited the
petitioner; that the appeal filed by the private respondents against the judgment and decree of the
trial Court was hopelessly barred by time. Lastly, the learned counsel for the peti tioner relied
upon the cases reported in PLD 2015 SC 58, PLD 1994 SC 245, 1990 SCMR 725 and 2002
SCMR 54.
12. Learned counsel for the private respondents contended that the suit filed by the petitioner was
based on mutation alone, which do not create tit le; that the disputed mutation entry No.28 was
attested contrary to the provisions of Section 42 of the West Pakistan Land Revenue Act; that the
petitioner has failed to substantiate the mutation through any evidence, nor the attesting witness
was produced to authenticate its attestation; that the trial Court had failed to consider the above
aspects of the matter and the appellate Court while considering the same in its true perspective
passed the impugned orders and decrees, which are based on sound reasoning; that the suit filed
by the petitioner was hopelessly barred by time, as the property in dispute was purchased in the
year 1987, whereas, the suit was filed in the year 2012.
13. Heard the learned counsel for the parties and gone through the record of the case. Petitioner
in his suit No.14/2012 claimed demarcation / separation of his land from the joint Khata of
Khasra Nos.304 and 305 on the basis of mutation entry Ex.P/1- A recorded on 18th April 1987,
whereby, 1 rod 8 pole out of joint Khata had been purchased by him from one Abdul Qadoos son
of Atta Muhammad (father of the private respondents). The claim of the petitioner was contested
by the private respondents by their joint written statement and subsequently by filing Suit No.14
of 2013 for cancel lation of mutation entry No.28 in question. The petitioner in his written
statement raised objection of limitation in respect of Suit No.14 of 2013 filed by the private
respondents. On the other hand the private respondents also raised point of limitation in respect
of Suit No.14 of 2012. Besides limitation, the question of maintainability of suit on the ground of
locus standi and jurisdiction under Section 172 of the West Pakistan Land Revenue Act, was also
raised by the private respondents. As far as the legal objection related to locus standi is
concerned, in this respect the petitioner being joint recorded owner in the property in dispute has
every right to seek relief from the competent Court of law pertaining to his right arising out of
the said mutation entry and this question, as held by the trial Court while deciding the said issue,
which is based on sound reasoning. Whereas, the issue related to Section 172 of the Land
Revenue Act, is concerned, though the petitioner initially filed an application f or demarcation of
his land in the hierarchy of revenue and this fact has also not been disputed by the private
respondents, however, when the private respondents dumped construction material on the
property in dispute, the petitioner prevented them on the ground that unless his portion of the
property has been separated, the private respondents declined the request of the petitioner, he
filed a suit, regarding which Civil Court had jurisdiction, thus the determination of issues Nos.1,
2 and 3 had rightly be en decided by the trial Court. The appellate Court erred in holding that
mutation in question is result of fraud and misrepresentation. The appellate Court has failed to
consider that the private respondents initially in their joint written statement and s ubsequently by
filing suit challenged the mutation entry in question on the ground that father of the private
respondents died in the year 1984, therefore, mutation in favour of the petitioner in the year 1987
is based on fraud and misrepresentation. Admit tedly the private respondents subsequently
withdrawn the said ground by way of filing an application for amending their pleadings to the
extent of correction of date of death of their father as 1992 instead of 1984, which was allowed
by the trial Court vid e order dated 18th June 2013 and passed the following order: --
14. The aforesaid order reveals that the only ground of fraud, forgery and misrepresentation
pursuant to mutation in question pleaded by the private respondents had been withdrawn and
further asserted that the father of the petitioner died in the year 1992 instead of 1984. The private
respondents also challenged the mutation in question on the ground that Abdul Kareem had
neither attested nor signed the mutation in question and cited him in the list of witnesses, but
subsequently through an application abandoned the said witness, whereupon, the trial Court vide
order dated 23rd July 2013 passed the following order, which is reproduced herein below: --
16(sic) The aforesaid order further reveal s that the best evidence which could be produced by the
private respondents, but was not produced and intentionally withheld, therefore, adverse
inference is to be taken against the respondent under Article 129 (g) of the Qanun -e-Shahadat,
Order 1984. Refe rence in this respect is to be made to the case reported titled Dilshad Begum v.
Mst. Nisar Akhtar 2012 SCMR 1106, wherein, the Hon'ble Supreme Court of Pakistan held as
under:
"The case of the respondent/ plaintiff would be squarely hit by Article I29(g ) of the
Qanun- e-Shahadat Order referred to above as without assigning any reason, the best
evidence was withheld and not produced. In Abdullah Khan v. Nisar Muhammad Khan
and others (PLD 1959 (W.P) Peshawar 81), a Division Bench of the said Court observed
as follows: -
"It is, therefore, positively proved that so far as Fateh Muhammad Khan is concerned, he
purchased the property with the notice that it had already been agreed to be sold to the
plaintiffs. So far as the other defendant -appellants are concerned, none of them appeared
in the witness -box except Mr. Afzal Khan. It is a settled law that it is the bounden duty of
a party personally knowing the whole circumstances of the case to give evidence on his
behalf and to submit to cross - examination. His non- appearance as a witness would be the
strongest possible circumstance going to discredit the truth of his case. By non -
appearance, therefore, the defendant -appellants except Mir Afzal Khan failed to
discharge the onus or shift the onus on to the plainti ffs."
17. Adverting to the mutation entry No.28 in favour of the petitioner is concerned, the Ex.P/1
and Fard P/2 indicate that Khasra Nos. 304 and 305 measuring 7 rod 4 pole had been recorded on
the name of Abdul Qadoos. Said Abdul Qadoos vide mutation entry No.28 has transferred I rod 8
pole out of Khasra Nos.304 and 305 in favour of the petitioner on 18th April 1987. The private
respondents in their joint written statement and in Suit No.14 of 2013 averred that they came to
know about the said entry, w hen the suit was filed by the petitioner. This contention on the part
of the private respondents does not inspire confidence, because, in the year 1993 after death of
their father, namely, Abdul Qadoos mutation of inheritance was recorded in their favour a nd they
were well aware about the entries in favour of the petitioner, therefore, in the pleadings the
contention of private respondents to say that they were not aware of the aforesaid mutation entry,
does not to be a reason. Secondly, the private respondents had not mentioned the date when they
came to know about the mutation entry. Admittedly, the mutation in question in favour of the
petitioner had also been appeared in the Jamabandi carried out in the revenue record. It would be
pertinent to note here that under West Pakistan Land Revenue Act, 1967, a complete mechanism
has been provided, thus, on account of this elaborated procedure, the presumption of truth had
been attached to the revenue record in terms of Section 52 of the West Pakistan Land Revenue
Act, 1967 and the same is rebuttable. The private respondents though asserted in their pleadings
that said mutation entry is result of fraud and misrepresentation, but they have failed to elaborate
the alleged forgery/ misrepresentation either in their p leadings or through evidence, therefore, it
is obvious from record that no rebuttal whatsoever in nature has been produced by them to
substantiate their contention, therefore, within a view that presumption of truth is attached to the
mutation in question, the private respondents did not lead any evidence to prove the allegation of
fraud against any revenue official and that the entry was forged. In case of Hakim Khan v. Nazir
Ahmed Rogmani, 1992 SCMR 1832, the claim made on the basis of entries entered in revenue
record was upheld by the Hon'ble Supreme Court of Pakistan, as no evidence was led to prove
that those entries were collusive or fraudulent. In case of Mazloom Hussain v. Abid Hussain,
PLD 2008 SC 571, the Hon'ble Supreme Court of Pakistan held as under:
"Where a presumption of truth is attached to a document, it cannot be discarded unless
proved otherwise by convincing and cogent evidence and the burden of proof that the
entries in the record of rights are wrong, is on the party who alleges it. Reliance can be
placed in this context on the cases of Sundar Singh v. Chhajju Khan AIR 1934 Lahore
309 and The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar
and others 1990 SCMR 725."
In case of Nawab Khan v. Said Karim Khan, 1997 SCMR 1840, the entries recorded in revenue
record were not interfered as the presumption of truth was attached to those entries and no strong
evidence was led in rebuttal to warrant interference to those entries, the Hon'ble Supreme Court
in this view hel d as under: --
"The contents of the record of rights which also includes the settlement record used to be
followed with more or less exactness by the Settlement Officers, which included Wajib -
ul-Arz, Jamabandi and the portion of the Shajra -nasb or genealogical tree of the
properties.
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 fi rst settlement record of an area."
18. In view of the above dictum/ principle laid down by the Hon'ble Supreme Court of Pakistan,
upon the authenticity of the entry of revenue, the instant case had been considered on the
aforesaid touchstone. Admittedly, the entries in favour of the petitioner had appeared in
Jamabandi, which is strong evidence in favour of the petitioner and requires rebuttal, but the
private respondents had failed to do so and mere on verbal assertion their such contention cannot
be tak en as rebuttal to the entries in favour of the petitioner. The appellate Court has unnoticed
the aforesaid principles lay down in respect of evaluating the mutation as presumption of truth
attached to the entries. The appellate Court has also failed to decide the issue of limitation in
respect of filing of suit by the petitioner as well as private respondents, whereas, limitation in
respect of the suit filed by the petitioner is concerned, admittedly, the petitioner had purchased 1
rod 8 pole out of Khasra Nos.304 and 305, which is joint holding and thus has taken step into the
shoes of predecessor -in-interest of the private respondents and became co -sharer in the property.
In this respect reference is to be made to the case of Jan Muhammad v. Abdul Rashid, 1993
SCMR 1463, wherein, the Hon'ble Apex Court held as under: --
"Needless to emphasise that the possession of one co- sharer in law is the possession of all
and that any alienation made by the co -sharer in possession cannot put an end to the joint
owners hip/possession of the property and the transferee co -sharer steps in to the shoes of
the transferor qua his ownership rights in the joint property no more no less, as held by
this Court in case Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC
(Pak) 9."
19. The limitation for demarcation of land arises when the right of the petitioner in this regard
has been declined by the private respondents. The pleadings as well as of evidence on record
indicate that during the year 2012 an application was fi led by the petitioner for separation of his
land before the revenue authorities, however, same could not be proceeded, as another dispute
regarding demarcation of share of the parties arose, therefore, the suit filed by the petitioner was
a remedy, which w as not vested to the revenue authorities. Therefore, in such view of the matter,
the suit filed by the petitioner was within time and in this respect the appellate Court has failed to
consider the issue of limitation in its true perspective and decided the same on wrong premises.
As far as the limitation for cancellation of mutation, as alleged by the private respondents is
concerned, admittedly, the mutation in question in view of petitioner was recorded in the year
1987, which had been challenged in the y ear 2013 by the private respondent by way of filing suit
No.14 of 2013. Limitation for cancellation is provided under Article 91 of the Limitation Act,
which provides period of limitation as under: --
Description
of suit Period of
limitation Time from
which
period
begins to
run
91. To
cancel or
set aside an
instrument
not
otherwise
provided
for. Three
years When the
facts
entitling
the
plaintiff to
have the
instrument
cancelled
or set
aside
became
known to
him.
20. In the instant suit the private respondents alleged that they were not aware about the mutation
in favour of the petitioner. The evidence on record particularly mutation of inheritance recorded
in favour of the private respondents in the year 1993 reflects that the private respondents we re
well aware about the portion of the property i.e. 1 rod 8 pole, which was recorded in favour of
the petitioner, thus, the suit filed by the private respondents was time barred, therefore, the
findings of the appellate Court in this respect cannot be mai ntained and reversed accordingly.
21. The other aspect of the matter due to which the impugned orders and decrees cannot be
sustained is that the private respondents had assailed the judgment and decree of the trial Court
dated 25th October 2013 by way of filing two Appeals Nos.107 and 108 of 2013 after
considerable delay and in this respect an application for condonation of delay was also filed,
which was objected by the petitioner by way of filing counter affidavit. The finding of the
appellate Court wi th regard to condonation of delay in filing appeals is also not based on
reasoning. Condonation of delay in filing appeal requires sufficient reasons. The word "sufficient
cause" means adequate reasons. Enough as much as may be necessary to answer the purpose
intended, it should be such as would persuade the Court in exercise of its judicial discretion to
treat the delay as an excusable one. The party should show that beside acting bona fide, it had
taken all possible steps within its power and control and had approached the Court without any
unnecessary delay. The test is whether or not a cause is sufficient to set whether it could heve
been worded by the party be exercise of due care and attention. The law of limitation is
substantive law and has definite consequence on the right and obligation of party to arise. Once a
valuable right has accrued in favour of one party, as a result of the failure of the other party to
explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to
take away that right on mere asking of an application, particularly when the delay is directly or
result of negligence, default or inaction of that party. Section 5 of the Limitation Act, confer
power to condone delay if the applicant is successfully i n showing that he was prevented from
preferring the appeal / revision for sufficient cause. Normally, after the expiry of the period right
to sue extinguish and after said acquire right which normally should not be disturbed, only in
case of providing good cause. In the instant case, the delay was condoned by the appellate Court.
To explain this delay, the private respondents filed one page application stating that they were
prevented by certain unexplained circumstances. In order to examine the reliability and
worthiness of the alleged cause neither private respondents put - forth any sufficient reasons nor
acted bonafidely. The application for condonation of delay filed by the private respondents
contained vague averments, were accepted by the appellate Cou rt without assigning cogent
reasons. Besides on merits, the private respondents had also not been able to make out a case for
condonation of delay before the appellate Court.
22. The other aspects of the case, which rendered the findings of the appellate Court reverse are
that, admittedly, the impugned mutation entry No.28 was never challenged by the father of the
private respondents during his life time, as he remained alive till 1991 and in this respect no
reason is reflected in plaint of Suit No.14 of 2013, nor in evidence led to indicate as to why he
did not challenge the mutation in question. In the afore referred circumstances, the judgment and
decree passed by the trial Court in both suits are unexceptionable and impugned orders and
decrees passed b y the appellate Court are not sustainable. In case of Abdul Haq v. Mst. Surrya
Begum, 2002 SCMR 1330, the Hon'ble Supreme Court of Pakistan observed as under: --
"Atta Muhammad was deprived of right to inherit the property as a consequence of
mutation in dispute but he did not challenge the same during his lifetime. The petitioners
claimed the property through Atta Muhammad as his heirs who filed the suit as late i n
1979 about nine years after sanction of mutation which had already been given effect to
in the record of rights. The petitioners, therefore, had no locus standi to challenge the
mutation independently, for Atta Muhammad through whom they claimed inheri -tance
himself had not challenged the same during his lifetime."
In view of the above, the Civil Revision Petitions Nos.78 and 79 of 2015 are allowed and the
impugned orders and decrees dated 26th March 2015 respectively, passed by the Additional
District Judge -I, Quetta are set aside, consequently, the judgments and decrees passed by the trial
Court shall hold the field.
SL/99/Bal Order accordingly.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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