2003 PLP 1900 (MLD)

9. It was also argued that mutation Exh. D. W. 1/2 to Exh. D. W. 1/12 were attested in his favour in the year 1993 i.e. during the pendency of the suit in absence of the vendors and the Revenue Officer while contesting said mutations violated the mandatory provisions of subsection (7) of section 42 of the Land Revenue Act, hence the same were not admissible in evidence.

10. It was further argued that there was no need to raise objection when those mutations were tendered in evidence by the petitioner/defendant because the same as mentioned above, were not admissible in evidence. Reliance in this regard was placed on WAPDA v. Ghulam Shabbir (1999 MLD 1592) and Mst. Hazan and 2 others v. Government of Balochistan, Board of Revenue Balochistan and 13 others (PLD 1997 Quetta 104).

11. I have heard the learned counsel for the parties and perused the record.

12. In order to prove his case, the plaintiff examined Ghulam Sarwar Patwari Halqa P.W.1 who placed or, record copy of Fard Jamabandi for the year 1969-70 Exh.P.W.1/1, list of owners of Kandi Charinda Exh.P.W.1/2. Plaintiff appeared as P. W.2 and the evidence of the plaintiff was closed.

13. In rebuttal Munir Ahmad Draftsman from the office MEO appeared as D.W.1, who placed on record blue print with regard to the property in dispute. The same was placed on file as Exh.D.W.1/1 to 1/3. Petitioner/plaintiff examined him as D. W.1/1. He placed on file copy of mutation Exh. D. W.1/2 to 1/12 through which he alongwith family members purchased the contiguous land as well as property in dispute. The petitioner/defendant did not examine any other person and closed his evidence.

14. The question that requires determination in this case is as to whether the predecessor of respondents namely Haji Fateh Muhammad Khan was dispossessed forcibly from the property in dispute, answer to this question is in negative.

15. Perusal of the evidence available on record shows that the petitioner/defendant had purchased adjacent land measuring 8 Kanals comprising Khasra No.4991 and 4893 through Mutation No.2912 attested on 24-4-1965 from Haji Fateh Muhammad Khan and others. Since the property purchased by the petitioner/defendant in Khasra No.4891 and 4893 was contiguous to the property in dispute, and no marks were apparent on the spot to identify the suit Khasra Number distinctly and the suit-land had been amalgamated with the land purchased by the petitioner, therefore, the possession of the property in dispute was delivered to him in the year 1965 i.e. when the land was purchased by him. This fact was admitted by Ghulam Sarwar Patwari Halqa P. W.1 in his statement in which he stated: "The defendant is Malik-e-Qabza (ﻪﺿﺑﻘ ﮏﻠﺎﻣ) in Kandi Charinda and is not an owner of Shamilat of the said Kandi. " There is not an iota of evidence available on record to show that the petitioner/defendant occupied the land in dispute forcibly. Having come to know that the adjacent land which was in his possession was Shamilat Deh, the petitioner started his efforts to purchase the same from the co- sharer/co-owners. He purchased sufficient landed property through unregistered sale-deeds on the basis of which later on mutations Exh. D. W.1/2 to 1/12 were attested in favour of petitioner and his other family members. He, therefore, became co-sharer in the Shamilat of Kandi Charinda.

16. The suit in hand was filed by the plaintiff under section 8,of the Specific Relief Act, which is reproduced hereunder for convenience: "A person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure". Plain reading of this section shows that suit under the above quoted section can be filed by a person who is "entitled" to the possession or specific immovable property i.e. if a person sues for possession on the basis of title, he has to establish the same and in case he fails to prove the title, he cannot be granted decree for possession under this section or law. The difference between a suit filed under section 8 and section 9 of the Specific Relief Act is that in a former case entitlement to get the possession is to be proved by the plaintiff, whereas in the suit filed under section 9 of the Act ibid for recovery of possession questions of right or title cannot be raised or determined and the plaintiff has not to prove his title over the disputed property. Section 9 provides a summary procedure for grant of relief to persons dispossessed from immovable property without their consent. The purpose of this section is to discourage forcible dispossession. This section comes into operation in those cases where a person in possession is deprived of actual possession of immovable property otherwise then in due course of law. Where a plaintiff sues on the basis of title and fails to establish his title, his suit for possession based on title cannot be converted into a suit for possession under section 9 of the Specific Relief Act and decree for possession cannot be granted to him under the latter provision. A similar proposition came up for hearing in Ganesh Rai and others v. Bhushi Rai (AIR 1925 Allahabad 69), wherein it was held:-- "where a plaintiff sues for possession on the basis of a little and fails to establish his title his suit for possession based on title cannot be converted into a suit for possession under S.9 of the Specific Relief Act; and a decree for possession cannot be granted to him under the latter provisions."

17. In the light of section 8 of the Specific Relief Act and judgment cited above, I proceed to see as to whether the respondents/plaintiffs had proved their title to the property in dispute, answer to this question is in negative. In order to prove his case, as mentioned above, plaintiff examined Ghulam Sarwar Patwari Halqa, who placed on record Fard Jamabandi for the year 1969-70, Exh.P.W.1/1 and list of owners of Shamilat of Kandi Charinda Exh.P.W.1/2. It is admitted position that the suit-land is Shamilat and the- name of plaintiff appeared in the list of owners of Kandi Charinda Exh. P. W.1/2, but there is nothing on record to show as to how much was the entitlement/ownership of land of respondent/plaintiff in the Shamilat of Kandi Charinda. It was for the predecessor of respondents to prove that he was owner of the land wherefrom he was dispossessed which he failed to prove. There is no evidence on the record to indicate that he was in possession of land measuring 7 Kanals when the petitioner entered into the land in dispute. It is by now settled law that a defendant dispossessing plaintiff within period of limitation prescribed for suit for possession, the latter is entitled to recover possession unless the defendant establishes a better title. Reliance in this regard is placed on Shiv Saran Rai v. Sukhdeo Rai and others (AIR 1937 Patna 418). In the case in hand the petitioner/defendant has proved that he had attained the possession lawfully and the same was neither procured by force or fraud but peacefully, no one interested opposing the same. He is the owner of the property in dispute by virtue of unregistered deeds and mutations Exh.D.W.1/2 to 1/12 which are still subsisting and were never challenged by the predecessor of respondents.

18. The argument of the learned counsel for the respondents that Mutation Exh.D.W.1/2 to 1/12 were not admissible in evidence has no force at all. Mutations Exh.D.W.1/2 to 1/12 were admitted in evidence and were exhibited without any objection raised from the side of the respondents/plaintiffs and it is also by now settled law that objection to admissibility of mutations cannot be taken in appeal when the same were admitted and exhibited without any objection as to normal proof.

19. In Bhundo v. Sami Khan (1982 CLC 316) it was held:-- "mutations being a public document can be received in evidence to prove the facts stated therein".. Similarly in Government of Pakistan v. Maulvi Ahmad Saeed (1983 CLC 414), it was held:-- "Objection to admissibility of mutation cannot be taken in appeal and that too during arguments when these documents are admitted and exhibited without any objection as to formal proof".

20. It is also settled law that documents once admitted and exhibited without any objection as to the formal proof at the earliest stage are admissible in evidence and no exception can be allowed to be taken at the appellate stage and that too during the arguments. In this regard wisdom has been drawn from the following judgments: -- (i) Abdullah and 3 others v. Abdul Karim and others (PLD 1968 SC 140), (ii) Malik Din and another v. Muhammad Aslam (PLD 1969 SC 136), (iii) Abdul Hamid Khan v. Muhammad Zamir Khan and 2 others (1990 MLD 1617), (iv) Muhammad Akram v. Syed Imrao Ali Shah (1988 CLC 2228), (v) Sheikhupura Central Cooperative Bank v. Ch. Tawakalullah and another (PLD 1977 Lahore 763) and (vi) Bhupal Das v. Sheri Takerji (AIR 1943 PC 83). The respondents/plaintiffs, keeping in view, the above quoted judgments cannot be allowed to raise objection to the admissibility of mutations Exh.1/1 to 1/12 at this revisional stage.

21. The possession of the petitioner over the property in dispute was peaceful. He did not use any force or played any fraud to oust the predecessor or respondents. He has become co-owners in the Shamilat of Kandi Charinda by virtue of purchase of the land in dispute, he has stepped into the shoes of his vendors to the extent of their ownership right in the entire joint property. He has better title than the respondents/plaintiffs. He is entitled to retain possession till partition of the entire joint property takes place. Reliance in this regard is placed on Muhammad Sharif and 3 others v. Ghulam Hussain and another (1995 SCMR 514) and Muhammad Muzafar Khan v. Muhammad Yousaf Khan (PLD 1959 SC (Pak.) 9). Keeping in view the above discussion, I have no hesitation to hold that the learned Additional District Judge-I Peshawar had erred in accepting the appeal filed by the respondents/plaintiffs, I, therefore, accept the revision petition in hand, set aside the impugned judgment and decree passed by the learned Additional District Judge-I, Peshawar dated 17-3-1998 and restore that of the learned Civil Judge Peshawar dated 30-9-1996 with no orders as to costs. M.B.A./885/P Petition dismissed.