2022 PLP 1616 (YLR)

SAFDAR SALEEM SHAHID, J.

Through the instant constitutional petition, the petitioner has called into question the legality of the judgment and decree dated 22.12.2017 passed by the learned Additional District Judge, Gojra District Toba Tek Singh, whereby civil revision filed by the respondents was allowed and judgement and decree dated 26.11.2016 passed by the learned trial court was set aside.

2. Brief facts of the case necessary for the disposal of instant writ petition are that respondents Nos.1 and 2 filed a suit for possession under Section 9 of Specific Relief Act, claiming that they are in possession of Ihatas Nos. 191 and 192 measuring 2-Kanals 2-Marlas and they had possession over the suit land since long and their names were mentioned in the revenue record. Petitioners tried to dispossess the respondents Nos.1 and 2 from the land. Respondent Nos. 1 and 2 filed suit for permanent injunction which was disposed of on the statement of learned counsel for one of the petitioners vide order dated 14.07.2012. On 12.03.2013 at about 11:00 a.m. petitioners along with other unknown persons while armed with weapons came at the suit property and made firing, injured father of respondents Nos. 1 and 2 and destroyed Toka Machine and illegally and forcibly occupied the suit land. FIR regarding this, incident was also lodged. Respondents Nos.1 and 2 then filed suit for possession under Section 9 of Specific Relief Act. The petitioners contested the suit and filed their written statement, where they have taken many preliminary objections including that the property was owned by the Provincial Government and suit was bad due to non-joinder of the necessary parties. Out of divergent pleading of the parties learned trial Court framed the following issues:--

1. Whether plaintiffs were forcibly dispossessed from the suit property? OPP.

2. If above issue is proved in affirmative whether the plaintiffs are entitled to decree as prayed for? OPP.

3. Whether the plaintiffs have no cause of action to file this suit? OPD.

4. Whether plaintiffs have approached the court with un-clean hands? OPD.

5. Whether the suit property is owned by the Provincial Government and it is bad due to non-joinder of necessary parties? OPD.

6. Whether this court has no jurisdiction to try this suit? OPD.

7. Whether the suit has been filed in connivance with Revenue officials to obtain possession from the defendant? OPD.

8. Whether plaintiff is liable to be rejected under section VII, Rule 11, C.P.C.? OPD.

9. Relief. Evidence was then advanced by the parties. Learned trial court dismissed the suit of the respondents. This judgment and decree was assailed before learned Additional District Judge in revision petition who after hearing the parties and examining the record, set aside the judgment and decree passed by learned trial court. Hence, this writ petition.

3. Learned counsel for the petitioners argued that learned Addl. District Judge has mis-read the documents and has not appreciated the evidence on record properly. All the documents and oral evidence produce by the petitioners support them. The name of respondents Nos.1 and 2 was mistakenly mentioned in, some previous revenue record but on the application of the petitioners, with the order of DDOR revenue officer/ Patwari corrected the entries in the revenue record but in-fact petitioners were in possession of the suit land from the very beginning and court has not correctly analyzed the evidence on the record. Further argued that name of the petitioners were appearing in the revenue record since long and they are continuously having possession of the land. Land under the possession of the respondents was some other portion adjacent to that land.

4. To rebut this, learned counsel for respondents, Nos.1 and 2 referred the case laws reported as 'Riaz and others v. Razi Muhammad' (1982 SCMR 741) and 'Late Mst. Majeedan through Legal Heirs and another v. Late Muhammad Naseem through Legal Heirs and another (2001 SCMR 345) and argued that revenue record shows that at the time of event i.e. dis-possession, name of the respondents, were appearing in the previous Jamabandi for the year 2007-2008 and on that date respondents Nos.1 and 2 were in possession of the suit land. It was argued that all the ingredients is mentioned in the above citations are fulfilled. Learned Additional District Judge, after examining the record decided the matter rightly Patwari, was not authorized to make such statement in the Court. Learned Addl. District Judge has also rightly pointed that Patwari did not bring the relevant record and there is no note of the learned trial court on Ex.C-1 to Ex.C-5 mentioning therein that Ex.C-1 to Ex.C-5 were compared with original record.' These Ex.C-1 to Ex.C-5 were tendered in evidence under objection and learned trial court did not decide the said objection at the time of final, judgment, therefore, learned Addl. District Judge held that these documents cannot be led in absence of relevant record, so, these were de-exhibited by the Court. The court also decided the matter of Ex.C-1 keeping in view Article 76 of Qanun-e-Shahadat, Order, 1984.

5. Arguments heard. Record Perused.

6. This is suit for possession under section 9 of Specific Relief Act, and there are certain special provisions on the basis of which the suit can be proceeded. Firstly, claimant has to prove its possession and his possession must have been dis-possessed and such dispossession must be from immoveable property and such dis-possession must be without consent of the person. The said dis-possession must be otherwise i.e. without cue course of law and within six months of the dispossession suit is to be filed. According to respondents Nos.1 and 2, they were dis-possessed from the suit land on 12.0,3.2013 and on 30.04.2013 they filed the suit. The possession of the respondent Nos. 1 and 2 is clear from the admission of one of the petitioner namely Aitzaz Ahmad and his learned counsel made statement in a suit filed by the respondent Nos. l and 2 before Civil Court it, Toba Tek Singh, regarding the possession of the respondents Nos.1 and 2 who stated that they will not dis-possess the respondents Nos.1 and 2 without due bourse of law. This statement was made on 14.07.2012 and this document has authenticity in the eye of law as it is a court document. The aforesaid statement was made before the court of competent jurisdiction. Furthermore, in the documents and in the last Jamabandi name of respondents Nos. l and 2 has been appearing in the column of possessors. CW2 did not adopt the procedure and violated Section 39 of Record of rights and Documents while making entries in the revenue record. Entries, in the revenue record are hot foundation of title. Presumption of correctness though is attached to entries in record of rights but it is rebuttable. In case of dispute the non-production of Revenue Officer who attested the mutation or any other witness testing the factum of transaction would certainly diminish the evidentiary value of the entries in the revenue record. In this regard, reliance is placed on the case law reported as 'Muhammad Bakhsh v. Zia Ullah and others' (1983 SCMR 988), 'Mst. Bibi Mukhtiar v. Mst. Amrezan and another' (PLD 1968 Pesh. 169), 'Muhammad and others v. Sardul' (PLD 1965 Lah. 472). The Revenue Officer shall note briefly the presence of the parties interested, the persons examined and the facts to which they deposed. The entries in the record-of-rights are no doubt admissible in evidence but their evidentiary value depends on the circumstances of each case. A party who relies on an admission recorded in the order of the Revenue Officer, sanctioning mutation, about the identity of the maker or the contents of the statement attributed to him, has to prove, same like any other fact in issue. The onus lies on the person who wants to establish the genuineness of the transfer. The Court can only presume about the regularity of the official acts performed by the Revenue Officer and not that the same were performed correctly as well. Presumption can only be raised as to regularity in the form and procedure adopted in performance of official and judicial act, but it cannot be raised about the correctness of decision taken by the Revenue Officer. In this regard reliance is placed on the case law reported as Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others (PLD 1986 Lah. 194). So-far-as, the contention of petitioners regarding the documents Ex.C-1 to Ex.C-5 is concerned, learned Addl. District Judge, rightly observed that these documents were neither tendered in accordance with law nor their authenticity was established and proved. The respondents were already on record, their names ere appearing in the revenue record as possessors. The admission on the part of one of the petitioner is admitted through his statement before the Court. The Court was to just see the possession of the property at the time of alleged event. The suit for possession under section 9 of Specific Relief Act was filed within time. The respondents proved that they were dispossessed from the land without their consent. FIR in this regard is a vital document. Learned counsel for the petitioners was unable to point out any illegality or irregularity in the order of learned Addl. District Judge. The learned District Judge decided the matter in accordance with law keeping in views the evidence on record.

7. In view of what has been discussed above, petitioners have failed to point out any infirmity on the basis of which this Court could interfere in the impugned judgment. Hence, instant writ petition is dismissed. No order as to costs. ZH/F-18/L Petition dismissed.