P L D 2026 Supreme Court 269 (PLP)

SHAHID BILAL HASSAN, J.

Brief facts germane to the filing of the instant petition are as such that respondents Nos. 1 to 8 (plaintiffs) instituted a civil suit for declaration against the present petitioners (defendants) and respondent No. 9, asserting that land measuring 66 Kanals 9 Marlas, comprised in Khata No.10/9, Khatuni Nos.92 to 100, total 21 Qitat, situated at Chak No.61/TDA, Tehsil and District Bhakkar, had earlier been allotted in favour of respondent No.9 through R.L-II No.188, and consequently Mutation No.1 was sanctioned in his favour. It was further asserted that the plaintiffs/respondents Nos. 1 to 8 subsequently purchased the land from respondent No.

9. The present petitioners contested the suit by filing written statement, taking the stance that the land in question belonged to the Thal Development Authority ( TDA ), therefore no allotment could legally be made by the Settlement Department. After full-fledged trial, the trial Court vide judgment and decree dated 24.12.2004 decreed the suit in favour of respondents Nos. 1 to 8/plaintiffs. The present petitioners, being aggrieved, preferred an appeal before the District Judge, Bhakkar. The Appellate Court vide judgment and decree dated 31.01.2006 accepted the appeal, set aside the judgment and decree dated 24.12.2004 ibid, and dismissed the suit of the respondents Nos. 1 to 8/plaintiffs. Feeling aggrieved of the same, the respondents Nos. 1 to 8/plaintiffs filed Civil Revision No.247/2006 before the Lahore High Court. The High Court vide judgment dated 23.05.2014 accepted the revision petition, set aside the judgment and decree dated 31.01.2006, and restored the judgment and decree dated 24.12.2004 passed by the trial Court. Hence, the present Civil Petition for Leave to Appeal.

2. The controversy in the present petition centers around the claim of title and possession set up by the respondents Nos. 1 to 8/plaintiffs over the suit land on the basis of an alleged allotment reflected through R.L-II No.188 and Mutation No.1, followed by its purported transfer in their favour through respondent No.9. The petitioners, however, assert that the suit property is State/TDA land and therefore not capable of lawful allotment by the Settlement Department, and that the subsequent orders passed by the competent revenue authorities, including the order dated 12.10.1992 passed by the Additional Commissioner (Revenue), Sargodha, the order dated 02.07.1995 passed by the Chief Settlement Commissioner, Lahore, and the resumption order dated 17.10.1995, whereby Mutation No.65 was sanctioned in favour of the Provincial Government, were legal, valid and binding. In this backdrop, the question involved is whether the respondents were able to establish a valid allotment and lawful title.

3. Learned Addl. Advocate General for Punjab, representing the petitioners avows that the entire suit of respondents Nos. 1 to 8 had been founded upon an alleged allotment, however, the very foundational document, namely R.L-II No.188, had never been produced in evidence. It has been further submitted that the said document had merely been referred to during cross-examination, which did not amount to proof of the alleged transaction. Adds that mutation entries, being at best maintained for fiscal purposes, did not confer title, and once such mutation was disputed, the party relying thereupon was bound to prove the original transaction, giving rise thereto. It was also argued that the mode of proof of the alleged documents had remained defective and the respondents had failed to establish their claim through legally admissible evidence. Lastly submits that the respondents, having already availed a complete round of litigation before the revenue hierarchy up to the highest competent authorities, had thereafter instituted a fresh round of litigation before the Civil Court through a full-fledged trial, which was not legally permissible. According to him, the appropriate remedy, if any, was either to invoke the constitutional jurisdiction by filing a writ petition under Article 199 of the Constitution of Islamic of Pakistan, 1973 against the final order passed by the revenue authorities, or to institute a limited civil suit confined to examining the legality of such orders on the basis of the existing record, without seeking a complete retrial through additional evidence.

4. Per contra, learned counsel for respondents Nos. 1 to 8/plaintiffs has supported the impugned judgment and contended that the respondents Nos. 1 to 8/plaintiffs had successfully established their title and possession over the suit land through oral and documentary evidence in shape of revenue record produced before the learned Trial Court. It has been further argued that the allotment in favour of respondent No.9 and the subsequent transfer in favour of respondents Nos. 1 to 8 stood duly reflected in the relevant record and had been rightly accepted by the learned trial Court.

5. Heard and record has been gone through with their able assistance.

6. The entire edifice of the respondents Nos. 1 to 8/plaintiffs claim rests upon the assertion that the suit land was allotted in favour of respondent No.9 through R.L-II No.188, followed by sanction of Mutation No.1, and thereafter purchased by respondents Nos. 1 to

8. However, it is an admitted position on record that the pivotal document R.L-II No.188 itself was never produced in evidence. The respondents Nos. 1 to 8 did not tender it as primary documentary evidence, nor did they prove its contents through any competent witness from the concerned department. The document is merely stated to have surfaced only in cross-examination. In law, mere mention of a document during cross-examination does not constitute proof of its existence, authenticity or legality. In civil proceedings, the burden lies squarely upon the party who asserts a fact to establish it by lawful evidence

1. The principle has been elaborately reaffirmed by this Court in Nasir Ali2 case, wherein it has been held: According to the Article 117 of the Qanun-e-Shahadat Order, 1984, if any person desires a court to give judgment as to any legal right or liability, depending on the existence of facts which he asserts, he must prove that those facts exist and burden of proof lies on him. The terminology and turn of phrase "burden of proof" entails the burden of substantiating a case. The meaning of "onus probandi" is that if no evidence is produced by the party on whom the burden is cast, then such issue must be found against him It is a well settled exposition of law that the plaintiff must succeed on the strength of his own case rather than the weakness of the defendant. The above enunciation of law squarely governs the present controversy. Respondents Nos. 1 to 8 sought a declaration of ownership and possession. Such relief could not be granted unless the respondents discharged the burden of proving the primary transaction, namely the allotment through R.L-II No.188, proving the conferment of proprietary rights upon the respondent No.9, of course, by brining on record any document in this respect. However, when the foundational document i.e. R.L-II No.188 itself was not produced, the respondents Nos. 1 to 8/plaintiff could not succeed merely on the basis of mutation entries or oral assertions.

7. Learned counsel for the respondents attempted to argue that the existence of R.L-II No.188 stood admitted or established through cross-examination, therefore its formal proof was unnecessary. This submission, however, is misconceived. The settled law is that an obligating statement made during cross-examination does not by itself constitute binding proof, and such statement at best may be treated as inferential evidence. In Mst. Farrukh Jabin3 case this Court has held: His submissions were that since one of the witnesses of petitioner i.e. D.W. Jaffar Khan had admitted the relationship between the vendors and vendee in his cross-examination, therefore, there was no need to prove the same. We are not inclined to accept this argument for the reason that the evidence given by one of the witnesses of defendant in cross-examination would not bind the petitioner in view of the judgment reported as Jalal Din v. Nawab (AIR 1941 Lahore 55) and secondly for the reason that in cross examination if an obligating statement is made by a witness, it would be treated only as inferential evidence. (Underlined for emphasis) The above precedent is directly attracted. Here too, reliance upon a supposed mention or admission during cross-examination cannot replace strict proof of the allotment record. The respondents Nos. 1 to 8 were under a legal duty to produce and prove R.L-II No.188. Thus, reliance upon cross-examination for proving the foundational transaction is legally untenable and discarded.

8. The respondents Nos. 1 to 8 have also attempted to build their case on mutation entries, particularly Mutation No.1, claiming that the same established allotment and title. This approach is also contrary to settled law. Mutation entries are primarily maintained for fiscal purposes and do not by themselves create, extinguish, or confer title. Once a mutation is disputed, the party relying upon such mutation is bound to revert to the original transaction and prove it through lawful evidence

4. The above principle is decisive in the instant matter since the petitioners disputed the mutation and challenged the allotment, respondents Nos. 1 to 8 were bound by law to prove the primary transaction i.e., the allotment and record thereof. They failed to do so and consequently, the mutation, even if attested, could not become a substitute for title.

9. Furthermore, the petitioners had consistently maintained that the suit land constituted Government/TDA land and, therefore, was not amenable to lawful allotment in the manner alleged by respondents Nos. 1 to

8. It was further pointed out that respondents Nos. 1 to 8 had earlier instituted a civil suit for declaration on the basis of their alleged purchase from respondent No.9, which came to be decreed in their favour primarily on the statement of respondent No.9; however, the Government, being the real owner and a necessary party, was conspicuously not impleaded in the said proceedings. On the strength of such a decree, respondents Nos. 1 to 8 succeeded in getting mutation sanctioned in their favour, which was subsequently reversed and the land stood resumed and restored in favour of the Government through the competent revenue authorities. Even if it was assumed, for the sake of argument, that certain subordinate officials at any stage failed to effectively safeguard Government interest, such omission or negligence could not be allowed to operate as a means to deprive the State of its property. This Court has consistently held that Government land could not be permitted to be taken away or dolled out on account of negligence, connivance or lapses of subordinate functionaries

5. In Ashiq Hussain Shah case it was held: we cannot permit the taking away the Government property for the negligence of subordinate officials. The manner in which the matter was pursued by the subordinate officials would show that they did not properly watch the Government interest and the possibility of their being in league with the petitioner being not ruled out The above principle assumes added significance in matters involving public land, alleged allotments and revenue mutations, wherein the possibility of collusive decrees, manipulation of official record and abuse of governmental process cannot be lightly brushed aside. Courts are, therefore, duty-bound to exercise greater circumspection and heightened vigilance so as to ensure that public property is not unlawfully diverted into private hands under the cloak of defective documentation, engineered revenue entries, procedural irregularities, or proceedings in which the Government, despite being a necessary and proper party, is consciously and deliberately kept out.

10. For what has been discussed above, we are of the considered view that respondents Nos. 1 to 8 have failed to establish lawful title and valid allotment in respect of the suit land. The alleged allotment record, namely R.L-II No.188, being the very foundation of their claim, was never produced in evidence and remained wholly unproved; its mere reference during cross-examination could not substitute the strict proof required by law. Likewise, the mutation entries relied upon by the respondents Nos. 1 to 8, being at best fiscal in nature, did not by themselves confer title, and once disputed, the respondents were bound to prove the original transaction giving rise thereto. Furthermore, documentary material could not be treated as legally proved merely because it had been exhibited, particularly where the mode of proof remained defective. In these circumstances, where the very foundation of the respondents claim stood unsubstantiated and legally infirm, the entire superstructure raised thereupon could not be allowed to stand and was liable to fall.

11. Another aspect which goes to the very root of the maintainability of the suit relates to limitation. Where relief is sought to set aside an act or order of a government officer made in his official capacity, the matter is governed by Article 14 of the First Schedule to the Limitation Act, 1908, which prescribes a period of one year from the date of such act or order. This legal position stands reaffirmed by this Court in Muhammad Din v. The Deputy Settlement Commissioner and others (2022 SCMR 1481) wherein it was has held: As per Article 14 of the First Schedule to the Limitation Act 1908, the period of limitation for instituting a suit to set aside any act or order of an officer of Government made by him in his official capacity, not otherwise expressly provided for in the said Act, is one year from the date of the act or order. In the present case, the respondents Nos. 1 to 8 sought to question orders passed as far back as in the years 1992 and 1995, including the resumption order dated 17.10.1995, whereas the suit was instituted long thereafter. No plausible explanation has been furnished to justify such delay, nor has any material been brought on record to demonstrate that the suit was within time or that the bar of limitation stood lawfully overcome. In these circumstances, apart from the failure of the respondents Nos. 1 to 8 to prove their title, the claim also appears, prima facie, to be barred by limitation, thereby striking at the very maintainability of the proceedings.

12. Lastly, a rather disquieting feature in cases of the present nature is that the record indicates that the matter had already travelled through the revenue hierarchy, resulting in orders passed by competent authorities, including the Additional Commissioner (Revenue), Chief Settlement Commissioner and ultimately resumption in favour of the Government. Instead of assailing the final orders of the revenue authorities through constitutional jurisdiction or challenging the legality thereof in a summary suit confined to the existing record, respondents Nos. 1 to 8 instituted a fresh civil suit which culminated into a full-fledged trial, with oral evidence and exhibits, thereby reopening the entire controversy as if it were a first instance dispute. This course is legally objectionable. This Court in Nausher v. Province of Punjab through District Collector, Khanewal and another (PLD 2022 SC 699) has comprehensively clarified the scope of civil court jurisdiction in such matters. It has been held: in view of the general jurisdiction conferred by section 9 of the Code of Civil Procedure 1908 ("C.P.C."), Civil Courts have the ultimate jurisdiction, even where their jurisdiction relating to certain civil matters is barred, to examine the acts, proceedings or orders of those special tribunals and determine whether or not such acts, proceedings or orders have been done, taken or made in accordance with law Accordingly, when a special tribunal is found to have acted not in accordance with the law under which it purportedly acted, its act does not come within the scope of the exclusionary provisions of the law that bar the jurisdiction of Civil Courts. The above makes it clear that the civil court s role is not to sit as an appellate authority over revenue tribunals, but to examine legality and lawfulness of their acts. The said judgment further explains: By examining and determining whether or not the plaintiff has been dealt with in accordance with law by the administrative tribunal or authority in making the impugned order, a Civil Court enforces this right of the plaintiff, and does not deal with and decide upon the merits of the lis decided in the impugned order by the administrative tribunal or authority in exercise of its exclusive statutory power. The principle is that civil courts are not to conduct a fresh trial to re-determine factual controversies already adjudicated by statutory authorities, unless the impugned order is shown to be without lawful authority, or based on no evidence, or suffering from jurisdictional defect or result of mala fide. The Court in the same judgment further held: A Civil Court, therefore, may opt for the summary procedure provided in Rules 3 and 4 of Order XV, C.P.C., in such suits and treat the complete record of the proceedings conducted by the administrative tribunal as sufficient evidence. This passage is of critical importance. It reinforces that once the revenue hierarchy has decided the matter, any civil challenge should ordinarily remain confined to examining the legality of such orders on the basis of the existing record, rather than permitting parties to initiate a fresh round of litigation by leading additional oral and documentary evidence through a full-fledged civil trial. In the present case, the respondents approach appears to have been to relitigate the entire controversy afresh, which not only defeats the statutory scheme but also amounts to an abuse of process. Such conduct is impermissible particularly in view of the doctrine of election, whereby a litigant, having consciously chosen one statutory remedy and pursued the same to its logical conclusion, cannot be allowed to reopen the matter through another forum merely because the outcome did not suit him. In Qazi Mumtaz Hussain and others v. Government of Sindh through Secretary Revenue and others (2025 SCMR 939), this Court held:

5. Indeed the jurisdiction of the Civil Court under the special circumstances could be exhausted but not in a case where the appellant and/or a litigant has attempted a forum other than the Civil Court, as in this case, by not only filing declaration under MLR 115 but also when the Deputy Land Commissioner Tharparkar, after assuming lawful jurisdiction, resumed the excess land; the appellants under the hierarchy of 1977 Act invoked the jurisdiction of Land Commissioner Mirpurkhas Division by filing their respective appeals which were taken to their logical end. By applying the principle of Doctrine of Election the appellants cannot be permitted to have another bite of the cherry by invoking original jurisdiction of Civil Court for a similar recourse. As per the doctrine of election a person aggrieved of an order/judgment may have a host of remedies to challenge the same but he shall have to elect one of those remedies and after choosing one he may not avail another remedy. Thus, the appellants themselves have chosen to be ousted from availing the jurisdiction of Civil Court long back when they opted to invoke the jurisdiction in pursuance of 1977 Act. Similarly, in Mir Mujib-Ur-Rehman Muhammad Hassani v. Returning Officer and others (PLD 2020 SC 718), this Court emphasized that permitting such successive rounds of litigation would directly offend the doctrine of election, and observed:

16. If this was allowed, it would go entirely contrary to the "doctrine of election" which exists to ensure that once a litigant has made the choice of pursuing a certain course of action available to him or has abandoned a certain plea/action, that he is not allowed to reopen the same matter only because he has received unfavorable results as a result of his first choice. The Court further elaborated the doctrine by relying upon Trading Corporation of Pakistan v. Devan Sugar Mills Limited (PLD 2018 SC 828) in the following terms: The moment suitor intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and or choose from amongst host of actions or remedies available under the law. The choice to initiate and pursue one out of a host of available concurrent or co-existent proceeding/ actions or remedy from a forum of competent jurisdiction vest with the suitor. Once choice is exercised and election is made then a suitor is prohibited from launching another proceeding to seek a relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/ action and or remedy, which in legal parlance is recognized as doctrine of election, which doctrine is culled by the courts of law from the well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief. In view of the above authoritative pronouncements, it becomes manifest that the institution of a complete civil trial after exhaustion of statutory remedies before the revenue hierarchy is inconsistent with settled principles of law, and such a course cannot be permitted to perpetuate endless litigation or undermine finality attached to decisions rendered by competent statutory forums.

13. For reasons recorded above, this petition is converted into an appeal and the same is allowed, the impugned judgment dated 23.05.2014 passed by the learned High Court is set aside, and the judgment and decree dated 31.01.2006 passed by the learned Appellate Court is restored. Consequently, the suit filed by respondents Nos. 1 to 8 stands dismissed with costs throughout.

14. Before parting, we are constrained to observe that Courts are under a solemn obligation to jealously guard public property and to ensure that entries in the revenue record, alleged allotments, or fiscal mutations do not become instruments for the unlawful deprivation of State land through defective proof, procedural laxity or collusive conduct. It is equally important to underscore that where the statute provides a complete mechanism of adjudication before the revenue hierarchy, and parties exhaust such remedies up to the highest competent forum, the initiation of a fresh round of litigation before the Civil Court by way of a full-fledged trial, with the object of re-opening settled controversies by leading additional oral and documentary evidence, is neither conducive to certainty in administration of justice nor consistent with the scheme of the law. In such circumstances, the proper recourse ordinarily is to assail the final order of the competent revenue authority by invoking the constitutional jurisdiction of the High Court, rather than embarking upon a parallel and protracted civil trial. Such parallel proceedings not only undermine the finality attached to decisions of statutory forums but also encourage litigants to engage in forum-shopping, thereby burdening civil courts with disputes which essentially fall within the domain of revenue administration. Civil Courts, no doubt, retain jurisdiction under section 9, Code of Civil Procedure, 1908, to examine whether the acts or orders of special tribunals were passed with lawful authority and in accordance with law, but such jurisdiction is circumscribed and cannot be permitted to operate as an appellate forum to conduct a complete retrial on merits. The sanctity of revenue proceedings, the discipline of statutory remedies and the principle of finality must be preserved, otherwise public administration and the justice system would remain hostage to endless cycles of litigation.

15. We would like to appreciate the meticulous research and insightful analysis provided by Mr. Haseeb Ahmad Randhawa, Law Clerk, which were invaluable in shaping the final outcome. MH/P-2/SC Appeal allowed. 1 Article 117 of the Qanun-e-Shahadat Order, 1984. 2 Nasir Ali v. Muhammad Asghar (2022 SCMR 1054). 3 Mst. Farrukh Jabin v. Maqbool Hussain through Legal Representatives and others (PLD 2004 SC 499). 4 Nasir Ali v. Muhammad Asghar (2022 SCMR 1054). 5 Ashiq Hussain Shah v. Province of Punjab through Collector District, Attock and others (2003 SCMR 1840).