2023 PLP 549 (CLC)

MUHAMMAD NAEEM ANWAR, J.

Instant revision petition under section 115 of the Code of Civil Procedure is directed against the judgment and decree of the learned Additional District Judge Shangla dated 20.02.2007 whereby appeal of the respondents against the judgment and decree dated 27.05.2005 of the learned Civil Judge, Shangla was accepted and suit of the petitioners was dismissed.

2. Brief facts of the case are that predecessor-in-interest of the petitioners namely Said Usman (hereinafter plaintiff) filed a suit against the respondents (hereinafter defendants) in the Court of learned Senior Civil Judge, Shangla at Alpuri to the effect that the entire land comprising of Khasra Nos. 1190, 1191 and 1192 measuring 33 Kanal, 17 Marlas known as Bar Kohi, Khata No. 354 Khatooni No. 490 while a portion to the extent of 01 Kanal 07 Marla situated in the southern corner of Khasra No. 1218 measuring 18 Kanal 03 Marla situated at Koz Kana is sole purchased ownership of the plaintiff by dint of Tamassuks Nos. 646 to 649 dated 19.09.1969 from Mukamil Khan which he had leased to predecessor-in-interest of defendants vide deed No. 1233 dated 02.10.1969 who had regularly paid the lease amount to him during his life. Plaintiff further averred in his plaint that since he was settled at Saidu Sharif, Swat in connection with his job, therefore, during the settlement the defendants with the collusion of official of revenue hierarchy entered the disputed land in their name, as such, the revenue entries being fake, fictitious and collusive, are ineffective upon his rights, hence, need correction. He also claimed that predecessor-in-interest had taken the afore-referred Tamassuk from him but did not return the same, as such, same is in possession of the defendants. The plaintiff next averred that when he got knowledge about the illegal entries in revenue record made by defendants, he filed a suit before the learned Senior Civil Judge at Camp Court Alpuri. The Court appointed a local commission with the consent of both the parties. The local commission, after visiting the spot, submitted its report regarding the disputed property as it was in the earlier suit, withdrew his earlier suit because the defendants, in connivance with revenue officials, had mentioned the name of disputed property as Aghaz instead of Bar Kohay and fresh suit was filed by plaintiff before the learned Senior Civil Judge at Alpuri regarding the Khasra numbers mentioned above. The plaintiff also disclosed that earlier to the previous suit, he had filed a suit against the defendants before the PATA Court, however, they were declared as minors and the plaintiff was directed for approach to the proper of forum. In Prayer () the plaintiff sought permanent injunction against the defendants restraining them from interference in the suit land while in prayer () he prayed for possession of the disputed land as consequential relief.

3. The defendants, on appearance before the trial Court, resisted the suit of plaintiff on various legal and factual grounds in their joint written statement. The divergent pleadings were reduced to issues on which both the parties led their respective evidence. On conclusion of trial, the learned trial Court vide judgment and decree dated 27.05.2005 partially decreed the suit of plaintiff to the extent of land Bar Kohay measuring 01-Kanal 07-Marla whereas the remaining suit of the plaintiff was dismissed. Both the parties challenged the judgment and decree of the learned trial Court through separate appeals. The learned appellate Court through its consolidated judgment and decree dated 20.02.2007 dismissed the appeal of petitioners while accepted appeal of the respondents/defendants, resultantly, suit of the petitioners was dismissed, hence, instant revision petition.

4. Arguments heard and record perused.

5. It was the case of plaintiff that earlier he had filed a suit under section 42 of the Specific Relief Act, 1877 regarding the property bearing Khasra Nos. 1218 and 1222 measuring 18-Kanal 06-Marla in the revenue estate Koz Kana claiming that he is sole owner of the property, however, during pendency of the suit, when commission was appointed for spot inspection and on the receipt of report-e-commission it was brought on record that the plaintiff has resiled from his earlier claim, as set out by him in the plaint, regarding the property known as Bar Kohay and confined his claim to the extent of 1-kanal 7-marlas as shown in the revenue papers as Aghuz Patay. Being confronted with the situation, he filed an application seeking withdrawal of his earlier suit with permission to file a fresh one, accordingly he was allowed, as such, the instant suit. Record reflects that the earlier suit was in respect of Khasra No. 1218 which is one of the Khasra numbers in the instant suit bearing No. 242/1, however, he has also included 03 other Khasra numbers i.e., 1190, 1191 and 1192 measuring 33-Kanal 17-Marla. Be that as it may, the crucial aspect is as to whether the petitioner was granted permission to file a fresh suit? Record reveals that at the foot of the application of the plaintiff, the respondents/defendants have given a note i.e. "I have no objection on the simple withdrawal without permission to institute a fresh suit on the present disputed property". The application was submitted on 25.04.1997 whereas the suit was dismissed vide order dated 25.04.1997 which reads as:

6. The above reproduced order of the learned civil Court clearly reflects that the suit of the plaintiff was dismissed as withdrawn. Neither application was conceded by the defendants to the extent of filing of fresh suit nor the Court had given permission to the plaintiff to file a fresh suit. Order XXIII, Rule 1(3) of C.P.C. pertains to the preclusion on the plaintiff when he withdraws from the suit or abandons a part of the claim without permission under sub-rule (2). The object of Order XXIII, Rule 1(3), C.P.C. is to prevent the plaintiff from filing a fresh suit after having been failed to conduct the first one with care and diligence. Though the plaintiff has right to withdraw the suit whenever he desires but he cannot file a fresh suit on the same subject matter unless permission is sought for filing a fresh suit, otherwise, plaintiff would be precluded from filing a fresh suit on the same cause of action. Reliance is placed on "Hashim Khan v. National Bank of Pakistan, Head Office at I.I. Chundrigar Road, Karachi and Branch Office at M.A. Jinnah Road, Quetta" (PLD 2001 SC 325). Thus, the institution of the fresh suit i.e Suit No. 242/1 instituted on 27.05.2005 from the very inception was without permission, as such, the suit instituted was not maintainable. In the case of Ch. Ghulam Rasool (PLD 2008 SC 146) it was observed by the Hon'ble Supreme Court that: The plaintiff may withdraw the suit at any time in terms of Order XXIII, Rules 1 & 2, C.P,C. with the permission of the Court but if the suit is withdrawn without the permission of the Court, he will be precluded from instituting a fresh suit in respect of such subject-matter as provided under sub-rule (3) of Order XXIII, C.P.C. It is clear from the pleadings of the parties in the two suits that notwithstanding the nature of subsequent suit the real controversy between the parties in both the suits related to the ownership of the suit property and there was no fresh cause of action in favour of petitioner in the second suit. The legal position emerged from the facts in the background would that petitioner having withdrawn the earlier suit without permission of the Court to file fresh suit had relinquished his claim and thereby precluded to file a fresh suit on the same subject-matter. Ref: Muhammad Maabool v. Muhammad Shafi and 9 others (2012 YLR 1794), Mst. Yasmeen and another v. Sahib Zarin and 6 others (2013 CLC 1417), Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others (2013 SCMR 464).

7. Moreover, the plaintiff added the property bearing Khasra Nos.1190, 1191 and 1192 measuring 33-Kanal 17-Marla along with a portion of the earlier disputed Khasra No. 1218 measuring 18-Kanal 03-Marla of the revenue estate Koz Kana by claiming that he is the sole owner of the property on the basis of deeds bearing Nos. 646 to 649 dated 19.09.1969. It was averred by him that the property in dispute was purchased by him from one Mukamil Khan which was later on handed over to the predecessor-in-interest of respondents/defendants on lease through lqrar Nama No. 1233 dated 02.10.1969. It was nowhere mentioned in the contents of the plaint that he is not in possession of the mentioned deed; the deed was lost or it was handed over to predecessor-in-interest of the respondent. Nonetheless, when he appeared through his attorney Noor Rahman as PW-2, he deposed that when possession of the property was being handed over to predecessor-in-interest of the respondents he had demanded the deed from him for making an entry with officials of the settlement and so on the request of predecessor-in-interest of the respondents, the deed was handed over to him. The plaintiff was required to prove the execution of the deed vide which he had purchased the property from Mukamil Khan but when it was alleged that he is not in possession of the deed, then in such circumstances it was for him to prove that when, where and under what circumstances the deed was handed over to predecessor-in-interest of the respondents. Unless this aspect i.e., handing over the possession of the deed to the predecessor-in-interest of the respondents/defendants is proved the existence and the execution of the deed cannot be proved. Article 76 of Qanun-e-Shahadat Order 1984 or section 65 of the Evidence Act, 1872 provides a specific mechanism for proving the document through secondary evidence but no such request was ever made. There is only a solitary statement to this effect which was not even corroborated by PW-3. This sole statement of PW-2 cannot be considered to hold that the original deed, by which the property was purchased, had been given to the predecessor-in-interest of the respondents. No doubt, a 30-year-old document has got a presumption of truth and when the deed was executed earlier to the promulgation of Qanun-e-Shahadat Order, 1984 then there was no bar to prove the deed without complying with the provision of the Article 79 of the Qanun-e-Shahadat Order, 1984, but was required to prove it under section 68 of the Evidence Act, 1872, however, the petitioner has not been able to prove the execution of the deed.

8. Mere 30 years age of a document would not provide any justification for its proof unless the document is proved in accordance with Evidence Act of 1872, when it was questioned. The sole ground that the age of the document is 30 years would not be taken as gospel truth, when the genuineness of the document is disputed, it is the duty of the Court to determine the question of its genuineness and correctness because age of the document alone would not amount to be a proof about the correct contents of such document. If genuineness of a document was susceptible to suspicion the Court could refuse to raise presumption and could ask for the proof of its contents. Provisions of Article 100 of Qanun-e-Shahadat Order, 1984 and section 90 of the Evidence Act, 1872 are same except explanation thus the reference may be made to the principle enunciated in the case of "Ch. Muhammad Shafi v. Shamim Khanum" (2007 SCMR 838). The Hon'ble Supreme court has held that: "It is settled law that 'presumption qua thirty years old document under Article 100 of Qanun-e-Shahadat Order, 1984 is permissive and not imperative. The Court must consider the evidence of the documents, in order to enable it to decide whether in any specific case it should or should not presume proper signature and execution. It is settled law that the Court should be very careful about raising any presumption under Article 100 in favour of old documents specially when the same are produced during the trial of suits in which under proprietary rights are set up on the basis of such documents/deeds. It is also settled law that the Court may refuse to apply the presumption where evidence in proof the document is available, or where the evidence has produced and disbelieved". Reference can also be on Mst. Naseem Fatima's case (PLD 2005 Supreme Court 455).

9. Moreso, another intruding aspect of the instant matter is the statement of Mukamil Khan. When he appeared in the witness box, he was unable to give the particular details with reference to name of the property, the description that either it was Aghuz or Bar Kohay as it is described in the revenue papers after the settlement. The statement of Mukamil Khan is of no help to plaintiff to prove that he has purchased this property from him. The petitioner even has not been able to prove that the property was given to predecessor-in-interest of respondents/defendants on lease and likewise, the existence of any relationship of tenant and landlord has also not been proved. Not even a single iota of evidence is available on record to fortify or augment the stance of plaintiff.

10. Perusal of the record reveals that since the first ever settlement, the disputed property has been recorded as ownership of the respondents/defendants on the basis of Ex. DW-3/1, Ex. DW-3/2 and Ex. DW-3/3. Presumption of truth is attached to the entries in revenue papers. Though this is a rebuttable presumption but in order to rebut it, strong and convincing evidence was needed because the entries in the settlement were made after adopting a proper procedure. Bare reading of section 52 of Land Revenue Act, 1967 shows that the entries made in Record of Rights in accordance with law are clothed with a rebuttable presumption of truth that is to say that they are presumed to be true unless contrary is proved or no entries lawfully substituted thereof. Reference can be made to the case law reported in "Nadir Khan and 05 others v. Mugadar Khan and others" 2017 CLC 277 wherein it has been held that:- "In the light of the mandate of Article 49 of the Qanun-e-Shahadat Order, 1984, such longstanding entries in revenue paper, especially in register of record of rights do carry presumption of truth and cannot be controverted by mere oral evidence unless proved otherwise by sufficient and convincing evidence" Likewise, the august Supreme Court in the case titled "Mazloom Hussain v. Abid Hussain" (PLD 2008 SC 571) it has been that: - "

11. 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 or 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."

11. Undisputedly, at the time of settlement field book, Latta, Masavi and khatoonis were prepared with proper dimension, description etc. of the property. Record further promulgates that respondents are in possession of the property since the first ever settlement ant this fact has also been admitted by the plaintiff. Entries in the revenue papers also favour the respondents and plaintiff has not been able to prove his ownership or even the sale in his favour and that too in respect of the disputed property.

12. During the course of arguments, one of the submissions of the learned counsel for the petitioners was that the respondents have not been able to prove their ownership on the basis of the deed as alleged by them. Not only the respondents/defendants have produced witnesses regarding the purchase of the property but also entries of the revenue papers which were culminated in first ever settlement in their favour. The said entries on one side preclude the plaintiff from challenging the sale by respondents/defendants and on the other hand substantiate the contention of respondents/defendants. Petitioners have placed on record the reports of local commission who proceeded to the spot. The first report, which was submitted, was of Mr. Sardar Zeb Advocate who had proceeded to the spot on 14.10.1995 and submitted the report on 24.10.1995 who has reported that the disputed property, as it was, is the ownership of defendants. This report was objected to by the plaintiff and another commission was appointed who proceeded to the spot, conducted commission proceedings and submitted report on 02.12.1995. In his report, he states that: In fact, this was the statement which led the plaintiff to submit an application before the trial Court for withdrawal of the suit. This report was not objected to by the plaintiff which suggests that he has admitted that his claim was not in respect of Bar Kohay but in respect of the property known at the spot as Aghuz Patay but even then, he has not been able to prove his contention and included the rest of the properties in the suit instituted by him that too without permission of the Court.

13. Learned appellate Court has properly appreciated and reversed the findings of learned trial Court to the extent of 01-Kanal 07-Marla which was decreed in favour of the plaintiff because of no evidence. Learned counsel for the petitioner could not point out any illegality, irregularity or jurisdictional defect in the findings of the learned appellate Court. Therefore, the instant petition, being without merits, stands dismissed, with no order as to cost. MH/161/P Revision dismissed.