2013 PLP 1666 (MLD)

MIAN FASIH-UL-MULK, J.

The plaintiff/petitioners' suit for grant of decree of perpetual injunction and possession of property comprising of khasra No.27, situated in Moza Kotli Kalan, Tehsil and District Nowshera against the respondent/defendants was dismissed by the learned Civil Judge-II, Nowshera vide judgment dated 24-3-2008 but the learned District Judge, Nowshera accepted the appeal of petitioners, set aside the judgment of trial Court and decreed the suit of petitioners against respondents as prayed for; hence instant revision petition.

2. Brief facts of the case are that plaintiff/petitioners instituted a suit for perpetual injunction and possession against the respondent/ defendants on the ground that they are owners in possession of the property in Khasra No.27 for the last 40 years, during which period they have also constructed a 'kacha' room of bricks; that the defendants had earlier filed suit No.80/1 in the year 2002 against them which was withdrawn with permission to file a fresh suit, however, no fresh suit was filed by them and now the defendants are forcibly trying to eject them from the suit property. The defendants/respondents contested the suit by filing written statements. Evidence of parties was recorded and suit of petitioner/plaintiffs was dismissed by the trial Court. The petitioners filed a revision petition before the District Judge for acceptance of their application to exhibit the record of case file Nos.80/1 and 31/6, which was accepted and the case was remanded to the trial Court for doing the needful. Accordingly the alleged record was brought on record and again suit of petitioners was dismissed. They then filed appeal before the District Judge, which was accepted vide impugned judgment and decree.

3. I have heard arguments of learned counsel for the parties and have also perused the record.

4. The judgment of trial Court would reveal that suit of the petitioner/plaintiffs was dismissed on the grounds that according to the statement of Patwari Haqa Jan Gul (P.W.I), the petitioner/plaintiffs were not owners of the disputed property whereas the defendant/respondents were recorded so; that as per plaintiffs (P.W.2) own admission, the disputed khasra number was not entered in their names as owners in possession even after the passage of 40 years; that P.W.4 Muhammad Ali was only witness of the affidavit, Exh.P.W.3 /1, to the effect that possession of the disputed khasra number is with the plaintiffs and they have made construction of a `kacha' room on it but no khasra number is mentioned therein.

5. As against that, the learned appellate Court, has accepted the appeal of petitioners on the grounds that the disputed property is shamilat-e-deh and no official or private partition amongst the co-owners has taken place, therefore, mere entries in the jamabandi would not provide foundation of title in favour of defendant/respondents; that burden of proof was on the defendants to prove that entries in the jamabandi were correct and that the defendants have given a positive suggestion in the cross-examination of P.W.2 Gul Zad Khan that plaintiffs are in possession of the disputed property.

6. The question for determination in this case is that on one hand the plaintiff/petitioners claim their ownership of the disputed property on the basis of their alleged possession for the last forty years whereas the defendant/respondents claim the same on the basis of inheritance and entries in the revenue record in their names.

7. Admittedly, the suit property is recorded as ownership of defendant/respondents in the revenue record and suit of plaintiff/ petitioners was merely for possession without any declaration of title. The august Supreme Court of Pakistan in the case of Sultan Mahmood Shah v. Muhammad Din and 2 others (2005 SCMR 1872) has held that:-- "If title of property is in dispute, simple suit for permanent injunction or possession is not maintainable without seeking declaration of title." Similar view has been taken by the Karachi High Court in the case of Raboo and others v. Abdul Rehman and others 2010 MLD 166 wherein too it has been held that:-- "When plaintiff had not proved the title to suit property or right or interest thereto as owner suit for possession simpliciter, without seeking declaration of title was completely misconceived and not tenable in law." Similar is the position in this case where the plaintiffs have brought a suit for possession without seeking title of the property in dispute. It may also be mentioned here that there is no evidence on record to prove the possession of petitioners as owners of the disputed property on the basis of shamilat, which is exclusively entered in the name of respondents and further petitioners are also not shown in possession of the same.

8. As stated above, the plaintiff/petitioners are not seeking perpetual injunction and possession of the suit property on the basis of any title in their favour. The learned appellate Court has observed in its judgment that plaintiff's witness has not been cross-examined by the defendants on the point of possession and construction made over the suit property. When it is evident from the revenue record that defendant/ responder's are owners of the suit property, then it was for the plaintiffs to have proved their own case without taking benefit of the weaknesses, if any, of the defendants' case. Unless there existed a clear title in favour of plaintiffs, they were not entitled to any relief as prayed for in the plaint.

9. The learned appellate Court has further observed in its judgment that mere entries in the jamabandi would not provide foundation of title as entries in the record of right could neither confer any right/title nor carry any presumption of truth and parties in whose favour such entries were recorded must establish their right of title by adducing independent evidence. In this case, the title of suit property is not disputed between the parties. Even the plaintiffs have admitted the same that entries in the revenue record are not in their names. In such a situation under section 42, West Pakistan Land Revenue Act, 1967, presumption of truth is attached to the entries made in the revenue record in favour of defendant/respondents. Reliance can be placed on the judgments of august Supreme Court of Pakistan in the cases of Hajim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832) and Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another (2007 SCMR 236). The plaintiffs were therefore required to have rebutted the said entries and proved that the same have been erroneously made without any legal and solid foundation, which is not the case here.

10. For the aforesaid reasons, this Court is of the view that plaintiff/ petitioners were not entitled to any relief simply on the basis of their alleged possession over the suit property when otherwise title of the same was in the name of defendant/respondents. The learned trial Court had, therefore, rightly dismissed the suit of plaintiffs, which judgment of the trial Court has been set aside by the appellate Court on flimsy grounds. Hence, this revision petition is accepted, the impugned judgment dated 25-9-2008 of the District Judge, Nowshera is set aside and that of the learned Civil Judg-II, Nowshera dated 24-3-2008 is hereby restored. The parties are, however, left to bear their own costs. AG/376/P Revision accepted.