P L D 2011 Supreme Court 657 (PLP)

TASSADUQ HUSSAIN JILLANI, J.

Through this appeal by leave of the Court, appellants have challenged the concurrent judgments and decrees passed by the three courts below in terms of which the suit filed by the predecessor-in-interest of the respondents namely Muhammad Yousaf was decreed.

2. Facts giving rise to the instant appeal briefly stated are that one Sher Ali, predecessor-in-interest of the parties was allotted land measuring 222 kanals 10 marlas situated in Chak No.736, Tehsil Toba Tek Singh then District Faisalabad under the special recruitment grant. He died in the year 1946 and a mutation of inheritance dated 13-2-1947 was effected in favour of both his sons i.e. Lal Khan, predecessor-in- interest of the appellants/defendants and Muhammad Yousaf, the predecessor-in-interest of the respondents/plaintiffs. On 13-5-1970, the latter filed a declaratory suit claiming exclusive ownership and possession of the suit land asserting that on the basis of rule of primogeniture he was entitled to the ultimate transfer for the propriety rights in his favour as it was a State land. The suit was contested and in terms of the divergent pleas, following issues were framed:

1. Has Civil Court jurisdiction to try this suit?

2. Is the suit not maintainable in its present form?

3. Is the suit property valued for purposes of court-fee and jurisdiction? .

4. Is the suit within time?

5. Is the plaintiff estopped from instituting the suit?

6. Has the plaintiff waived of acquired his rights in respect of the land in suit?

7. Is the plaintiff sole occupant of the land in suit and the attestation of Mutation No. 632 dated 18-6-1947 is ineffective against his rights?

8. Is the defendant co-occupant of the land in suit to the extent of 1/2 share according to the private family settlement?

9. Is the plaintiff entitled to the issuance of injunction prayed for?

10. Is the defendant entitled to recover costs under section 35-A of the C.P.C.?

11. Relief."

3. The learned trial Court in terms of its judgment dated 14-4-1973 primarily decreed the suit on the basis of its findings on Issue Nos. 1, 4, 6, 7 and

8. The appeal was dismissed by the learned Additional District Judge on 23-4-1978 and the learned High Court maintained the concurrent judgments and decrees by dismissing the Regular Second Appeal filed by the appellants/defendants.

4. Learned counsel for the appellants submitted that the learned three courts below have failed to appreciate that there was family settlement in terms of which the impugned mutation was entered and that the suit land was governed by statement of conditions issued under section 20 of the Colonization of Government Lands (Punjab) Act, sub-clause 'a' of which provides that "the male lineal descendents of the tenant in the male line of descent. (The term, lineal descendant, shall include an adopted son whose adoption has been ratified by a registered deed)". The rule of primogeniture on which reliance was placed by the courts below could not have precedence over the afore-referred statutory provision. He further contended that the learned High Court has wrongly decided the question of limitation because the respondent/plaintiffs had challenged the mutation of inheritance dated 18-8-1947 after 23 years i.e. 13-5-1970 which suit was hopelessly time-barred as limitation would be governed by Article 120 of the Limitation Act. In support of the submissions made, learned counsel relied on a judgment of this Court reported at Mst. Fateh Bibi v. Mst. Fatima Bibi (2010 SCMR 760).

5. Learned counsel for the respondents, on the other hand, submitted that the concurrent judgments have been passed strictly in terms of the evidence led and the law declared by this Court; that the suit land being a State land is subject to the conditions issued for the said grant under section 10(2) of the Colonization of Government Lands (Punjab) Act; that on 26-11-1945 the suit land was regulated by the statement of conditions were issued for Special Recruitment Grant, Rule 3 of Schedule 'B' provides that upon the death of the original allottee, the succession shall devolve on the eldest son in terms of rule of primogeniture; that the argument with reference to section 20 of the Colonization of Government Lands (Punjab) Act, 1912, was never raised by the appellant/defendants either in their written statement or before the Court of planery jurisdiction; that the learned courts below have correctly decided the question of limitation as no evidence was led to prove that the mutation of inheritance was in the knowledge of the respondent/plaintiffs. In support of the submissions made, learned counsel relied on various judgments of this Court i.e. Muhammad Asghar v. Safia Begum (PLD 197 SC 435), Ch. Munir Hussain v. Mst. Waziran Mai alias Mst. Wazir Mai (PLD 2005 SC 658) and Mst. Hussain Bibi and others v. Barkat Ali and others (2004 SCMR 1391).

6. We have heard learned counsel for the parties at some length and have gone through the evidence on record.

7. The learned Additional District Judge in affirming the findings of the learned Trial Court on Issues Nos. 5, 6 and 8 held as follows:-- "The respondent No. 1 is admittedly the eldest son of Risaldar Sher Ali Khan, the deceased-allottee whereas the appellant is younger to respondent No.

1. This allotment was admittedly made to said Risaldar Sher Ali Khan in the year 1946 and he is said to have died on 6-12-1946. The terms and conditions of the allotment of this land have been produced as Exh.P.40, on the record. According to Sub-Rule 3 contained in schedule 'B' attached to the terms and conditions of this allotment upon the deceased of the tenant, the succession was to devolve on surviving descendants, according to the rule of primogenitime. (sic) Under Sub-Rule 2 of the same rule upon the death of a tenant, the tenancy in every case was to devolve as a compact holding upon the single person. According to these terms and conditions of the tenancy, therefore, after the death of Risaldar Sher Ali Khan his tenancy was to devolve as a complete holding on his eldest male-child and it was not to be inherited under the Muhammandan Law. The mutation of inheritance, therefore, sanctioned, in this respect by A.C. Kamalia on 18-8-1947 was clearly in violation of the terms and conditions of this tenancy and was, therefore, ab-initio void and cannot be said to have created any title in the tenancy in favour of the present appellant. No doubt, the appellant has produced on the record oral evidence to show that after the death of Risaldar Sher Ali Khan, the parties had agreed to share in inheritance in equal shares For arguments sake even if the evidence of the appellant is accepted this contentions cannot be said to have any force as it was in contravention of the terms and conditions of the tenancy of Risaldar Sher Ali Khan."

8. The learned High Court in dismissing appellants' appeal and affirming the concurrent judgments and decrees of the courts below, repelled the argument relatable to the Islamic Law of Inheritance and held as follows:-- "The learned counsel for the appellant has failed to show if the terms and conditions, under which, the allotment was made, are in any manner, violative of the injunctions of Islam or the provisions of any statute referred to by the learned counsel for the appellant. It may be pertinent to state here that the terms and conditions of the allotment have the force of statutory instruments, as has been held in Sub. Muhammad Asghar v. Mst. Safia Begum and another (PLD 1976 SC 435). The judgment cited by the learned counsel for the appellant is not attracted to the facts of the case."

9. The learned High Court also found the respondent/ plaintiffs' suit within time by observing as follows:-- "It may be held that as per the findings of the two courts below, it is not established on the record that the respondent (plaintiff) was ever present, when the mutation in question was sanctioned or was aware of the same, therefore, the cause of action would accrue in favour of the respondent, when he attained the knowledge of the said mutation, which according to the case of the respondent was within the period of six years from the filing of the present suit."

10. One of the pivotal issues framed was Issue No.6 i.e. 'has the plaintiff waived of acquired rights in respect of the land in suit'. To appreciate the evidence led by the parties qua this issue, it would be imperative to dilate on the concept of waiver which has been a subject of comment by courts. In Manak Lal v. Dr. Prem Chand Singhvi (PLD 1957 SC (Ind) 346), this Court while explaining this concept held as follows:-- "waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim. Waiver, therefore, cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question".

11. In Mademsetty Satyanarayana v. G. Yellogi Rao (AIR 1965 SC 1405), This Court observed as under:-- "We have used the expression 'waiver' in its legally accepted sense, namely, 'waiver is contractual, and may constitute a cause of action: it is an agreement to release or not to assert a right'; see Dawson's Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha, 62 Ind App 100 at p. 108: (AIR 1935 PC 79 at p.82)."

12. In Mustaqim v. Sher Bahadur (PLD 1962 (W.P.) Peshawar 14), the Court construed the concept as follows:-- "Waiver, as commonly understood, is an intentional relinquishment of a known right. It may consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of the right."

13. To decide whether a party had waived his right by any overt or covert act, court has to scan the evidence; oral, documentary or circumstantial, as the case may be. A careful analysis of the evidence led by the parties would show that there was not only oral but also documentary evidence to show that after the death of the original grantee/allottee, the predecessor in interest of the parties namely Sher Ali, the land was mutated in the name of both the legal heirs vide mutation of inheritance dated 13-2-1947 (the said Sher Ali died in the year 1946) not without the consent of the respondent/plaintiff. This can be inferred from the fact that a copy of the said mutation dated 13-2-1947 of inheritance was produced by the plaintiff Muhammad Yousaf himself before the revenue officer on 20-7-1948 which reads as follows:--

14. The learned Additional District Judge/Appellate Court summoned the original Revenue Record and examined it but did not appreciate its true import and merely observed in Para-3 of its judgment dated 14-4-1975 as follows:- "I had perused the original mutation and found that the date of attestation was 18-8-1947. Accordingly the plaintiff was directed to file on attested copy of Mutation No.62 dated 18-8-1947."

15. The proceedings of attestation/verification dated 20-7-1948 which have been reproduced in the preceding paragraph reflect that Muhammad Yousaf himself appeared with a copy of mutation of inheritance dated 13-2-1947. The impugned mutation of inheritance was entered in the Revenue Record twice i.e. the initial entry and its subsequent attestation. While appearing as P.W.9, Mohammad Yousaf did not specifically deny that mutation of inheritance was duly entered (the initial entry dated 13-2-1947) in the Revenue Record. He however, alleged that in his absence, defendant took a copy of the said mutation before the Revenue Officer (20-7-1948) in collusion with the revenue staff. There is nothing in evidence that he ever lodged a complaint against any revenue official or challenged the mutation or its attestation in the revenue hierarchy.

16. The case of the defendant has been that the land was mutated in equal shares in the name of both the legal heirs by a family settlement. Plaintiff had to lead evidence to show that the entries made in the Revenue Record were incorrect, collusive, fraudulent and there was no family settlement. The best evidence would have comprised of those persons who were closely related to the parties or Revenue Officers who had directly or indirectly dealt with the matter. No such evidence was produced nor fraud was alleged against any Revenue Officer. Most of the witnesses produced by the plaintiff were either revenue officials who had not in any manner dealt with the impugned mutation or persons not directly related to the parties. They, therefore, were not in the best position to know about the family settlement. For instance, P.W.1 Abdul Wahid who is a colony clerk who referred to the statement of conditions No.3679 dated 6-3-1946; P.W.2. Abdul Waheed, he was a clerk in the office of the Assistant Commissioner. He deposed about the nature of the grant; P.W.3 is Muhammad Najib. He just knew the parties and deposed that it was the respondent/plaintiff who was in possession of the suit land and used to engage its tenants to get produce thereof; P.W.4 is Muhammad Ameer Khan. He again is not related to either of the parties and made statement similar to P.W.3; P.W.7 is Hakim Ali who stated that the suit land is in self-cultivation of the plaintiff. In cross examination he admitted that he was not Numberdar of the village and he was not aware of any objection raised with regard to the entries qua possession in the Revenue Record; P.W.8 is Bashir Ahmed Khan, Patwari who stated that the suit-land was in possession of the plaintiff.

17. On the other hand the evidence led by the appellant-defendant comprised mostly of persons who were related to both the parties and they endorsed the factum of family settlement. DW-1 Rehmat Khan is a cousin of both the parties; DW-2 is Marja Khan. He though not related is the resident of the locality. DW-3 is Hawaldar Muhammad Anwar who testified that the appellant-defendant used to get half share of the produce of the suit land. He in cross-examination affirmed that he is related to both the parties. DW-4 is Nizam-ud-Din. He is real brother of wife of respondent-plaintiff. He specifically testified that there was family settlement and that defendant had been taking half share of the produce. D.W.5 is Subedar Abdul Majeed. He resided in the adjacent Chak and testified that after the death of Sher Ali, all the legal heirs were given their due share under law of inheritance. D.W.6 is Jamal Din. He corroborated the fact that the appellant- defendant was in army and he occasionally used to visit the village but would get his share of the produce. D.W.7 is Rehmat Ali. He had land adjacent to the suit land which was never disputed. According to him, the appellant used to get his share of the produce and there was not dispute regarding the share until 3/4 years back. Statement of these witnesses was recorded on 10-4-1973. He enjoyed a respectable status in society i.e. was a school teacher and had no reason to falsely depose in favour of any one. D.W.8 is Lal Khan defendant himself who made statement consistent with his pleadings i.e. the land after their father's death was mutated equally in favour of the both the sons.

18. Besides the evidence led by the defendant with regard to family settlement, the belated challenge to mutation of inheritance is a circumstance which would cast a serious doubt on the bona fides of plaintiff's claim that the mutation impugned was not the result of a family settlement. He challenged the mutation of inheritance dated 13-2-1947 by way of a civil suit on 13-5-1970. With a view to explain the delay, he averred in the plaint that the said mutation and its attestation on 20-7-1948 were without his knowledge and the moment he came to know about it, he filed a suit does not inspire confidence because, first, as per the endorsement by the Revenue Officer dated 20-7-1948, he himself appeared; second on his own showing (as per averment in the plaint) he was settled in the village since 1961 and to say that he was not aware of the afore-referred mutation does not appeal to reason; third he does not mention as to when did he come to know for the first time about the impugned mutation.

19. It would be pertinent to note that under the West Pakistan Land Revenue Act, 1967, an elaborate procedure is laid down to ensure that the Revenue Record is maintained with care and any change sought to be made on account of acquiring a right by a person by way of inheritance, purchase or otherwise, is duly recorded by the Patwari' and subsequently verified by the Revenue Officer. It is on account of this elaborate procedure for maintenance of record that a presumption of truth is attached to Revenue Record in terms of section 52 of the Act which of-course is rebuttable. It would be in order to refer to the relevant provision of the West Pakistan Land Revenue Act which spells out how the record is. maintained. It reads as follows:-- "

42. Making of that part of periodical records which relates to land owners.--(1) Any person acquiring by inheritance, purchase, mortgage, gift; or otherwise, any right in an estate as a land owner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall

(a) record such report in the Roznamcha to be maintained in the prescribed manner; (b) furnish a copy of the report so recorded, free of cost, to the person making the report; and (c) send a copy of the report, within a week of its receipt by him, to the Union Committee, Town Committee or Union Council within which the estate is situated. (2) If the person acquiring the right is a minor, or is otherwise unable to report, his guardian or other person having charge of his property shall make the report to the Patwari. (3) The Patwari shall enter in his register of mutations every report made to him under subsection (1) or subsection (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those subsections and has not been so made. (4) The report made to the Patwari under subsection (1) or subsection (2) or recorded by him under subsection (3) shall be displayed in such manner as may be prescribed. (5) If the Patwari fails to record or to display a report made to him under subsection (1) or subsection (2); the person making the report may make the report, in writing, to the Revenue Officer concerned and the Chairman of the Union Committee, Town Committee or Union Council in which the estate is situated, by registered post acknowledgment due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations. (6) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired. (7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Town Committee or Union Council concerned, whose signatures or thumb impressions shall be obtained by the Revenue Officer on the register of mutations. (8) An inquiry or an order under subsection (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the inquiry, relates. (9) Where a Revenue Officer makes an order under subsection (6) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct. (10) If within three months of the making of a report of the acquisition of a right under subsection (1) or subsection (2), or the recording by the Patwari of an entry in the Roznamcha under subsection (3) respecting the acquisition of any right, no order is made by the Revenue Officer under subsection (6), he shall report the cause of delay to the Collector in the prescribed manner. (11) The Revenue Officer shall, in the prescribed manner, send or cause to be sent, the gist of an order made by him under subsection (6), to the person whose right is acquired, and also to the Union Committee, Town Committee or Union Council in which the estate is situated. Balochistan Amendment:. (12) Notwithstanding anything contained in the foregoing subsections, the Revenue Officer shall in cases of transfer by registered deeds, have the mutations entered and attested within a period of thirty days, on receipt of the registration memorandum along with a photo copy of the registered deed, without summoning the parties."

20. With a view to rebut the said presumption of truth attached to mutation, the plaintiff did not lead any evidence to prove the allegation of fraud against any revenue official or that the entries were forged. In Hakim Khan v. Nazeer Ahmad Lughmani (1992 SCMR 1832), the claim made on the basis of entries made in the Revenue Record was upheld and the concurrent judgments and decrees of the courts below were set aside by the court because no evidence was led to prove that those entries were collusive or fraudulent. In Mazloom Hussain v. Abid Hussain (PLD 2008 SC 571) the afore-referred view was reiterated and it was observed as follows:-- "

Ss. 39 & 52

Punjab Land Revenue Act (XV of 1887), S.44

Qanun-e-Shahadat (10 of 1984), Art.2(b)

Long-standing entries in record of rights not challenged earlier before Revenue functionaries or through a civil suit by party

Effect

Presumption of truth was attached to such entries, which could not be discarded unless proved otherwise by convincing and cogent evidence

Documentary evidence could not be rebutted by oral evidence

Mere bald verbal statement against such entries could not cut any ice

Burden of proof that such entries were wrong, would lie on a party alleging so. Hakim Khan v. Aurangzeb and another 1979 SCMR 625; Mst. Wallan v. Fazla and others AIR 1939 PC 114; Sundar Singh v. Chhajju Khan AIR 1934 Lah. 309 and The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others 1990 SCMR 725 rel. Karim Bakhsh v. Zulfiqar 1977 SCMR 334 distinguished."

21. In Nawab Khan v. Said Karim Khan (1997 SCMR 1840), the entries made in the Revenue Record were not interfered with as presumption of truth was attached to those entries and no strong evidence was led in rebuttal to warrant interference with those entries. The court at page 1844 held as follows:-- "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 first settlement record of an area. (9) In the light of the principle enunciated above for the adjudication upon the authenticity of the entries of the revenue papers and those of the first ever settlement record very strong evidence is required in rebuttal of those entries. In the instant case as has been held by all the three Courts below no evidence of any consequence has been adduced by the petitioners in rebuttal of the entries of the settlement record."

22. Similarly in Mehr Khan v. Basaee (PLD 2008 SC 12), the court upheld the judgment of the High Court by observing that a presumption of truth attached to the Revenue Record which could not be controverted without sufficient and convincing evidence. Notwithstanding the mandate of section 52 of the West Pakistan Land Revenue Act, there is no cavil to the proposition that mutation of inheritance itself does not create title and the person acquiring any title pursuant thereto has to prove that the transferor, of his own volition, transferred the ownership.

23. If the evidence led by both the parties is put in juxtaposition, it lends credence to the claim of the appellant-defendant that after the death of their father by way of family settlement, the land was distributed equally between both the heirs; that it was so as per the family settlement and that the parties jointly owned and possessed the suit land ever since then. That being so, even if the plaintiff had any right under the rule of primogeniture mandated in Rule 3 of Conditions of Special Recruitment Grant (Exh.P.40) the same stood surrendered by him by his own conduct and family settlement.

24. It appears that the parties were conscious of the Islamic Law of inheritance which is evident from the family settlement and the mutation of inheritance sanctioned pursuant thereto.

25. Even the Issue No. 4 i.e. "if the suit is within time?" has not been correctly decided. The limitation to file a declaratory suit in terms of Article 120 of the Limitation Act is three years. In the instant case the suit filed on 13-5-1970 to challenge the mutation of inheritance dated 13-2-1947 was barred by 23 years. It has time and again been held by this court that any aggrieved person has to pursue his legal remedies with diligence and if a petition or a suit is filed beyond limitation, each day's delay has to be explained. In the instant case vague explanation was given without even specifying the date of knowledge of the impugned mutation. In Muhammad Raz Khan v. Government of N.-W.F.P. (PLD 1997 SC 397) this court relying on the precedent case law held as follows:-- "Principle of justice and fairplay does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumber. Therefore, according to our considered opinion, facility regarding extension of time for challenging orders cannot be legitimately stretched to any length of unreason period at the whims, choices or sweet will of affected party. Thus, order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same. When a person presumes that adverse order is a nullity or totally devoid of lawful authority and ignores it beyond the period specified by law of limitation, then he does so at his own risk. Therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge of alleged void order; which too must be independently established on sound basis. In this behalf, we derive strength from the observations contained in PLD 1975 Baghdad-ul-Jauta 29 (Sayed Sajid Ali v. Sayed Wajid Ali) and 1978 SCMR 367 (S. Sharif Ahmad Hashmi v Chairman, Screening Committee)."

26. In Jamila Khatoon v. Aish Muhammad (2011 SCMR 222) this Court upheld the judgment of the High Court wherein the suit was held to be time-barred. The court held as follows:-- "In the memo of plaint no averment was made as to how and when the disputed mutation first came to the knowledge of the appellants/ plaintiffs except making a vague averment without any particular when and how the appellants came to know about the mutation of land in question in favour of the respondent and what steps were taken by them to protect their interest nor any particular has been given if the land in question was allotted to them what would they do to take possession of the same and why they kept quiet for a period of 28 years."

27. In the case in hand, a bare look at the plaint of respondent's suit would indicate that he neither specified the date when he came to know about the impugned mutation nor gave any explanation tenable in law to justify condonation. In these circumstances, the findings on issue No. 4 are violative of the law declared and therefore, not sustainable.

28. For what has been discussed above, we are of the view that the findings of the learned three courts below on Issues Nos. 4, 6, 7 and 8 reflect non-reading and misreading of material evidence on record and are against the law declared. The same therefore, are not sustainable. Consequently, this appeal is allowed, the judgments dated 14-4-1975 of the Trial Court, dated 23-4-1978 of the Appellate Court and dated 21-5-2001 of the High Court are set aside and respondent/plaintiffs suit is dismissed throughout with no order as to costs.

29. Since the parties are closely related and pitted against each other since, 1970, a copy of this judgment shall be sent to the Executing Court, Toba Tek Singh to ensure that the executing proceedings, if commenced, are concluded within three months of the receipt of this judgment. M.A.K./L-1/SC Appeal allowe