1990 PLP 2406 (MLD)

Qasim Khan plaintiff/petitioner herein, filed suit for declaration to the effect that be and defendants Nos.13 to 25 are owners of 24 kanals 1 marla equal to 1/3 share out of 72 kanals 3 marlas comprised in Khasra Nos. 903, 894 and 885 situated in village Pahar Khel Tehsil Lakki Marwat; that the other defendants have. no right or interest therein and that the entries of the Revenue Record, subsequent to the Jamabandi 1931-32 wherefrom the names of the predecessor-in-interest of the plaintiff and defendants Nos.13 to 25 were removed without any mutation, are wrong, illegal and ineffective upon their rights. The defendants Nos.2 to 5, 7, 8 and 10 contested the suit and in their written statements denied the claim of the plaintiff and also, inter alia, raised the pleas of limitation, adverse possession for more than 12 years, estoppel and protection under section .41 of Transfer of Property Act. Necessary issues in the case were framed, evidence led pro and contra thereon, recorded and the learned trial Judge, vide his judgment and decree dated 8-2-1987, dismissed the suit of the plaintiff. Dissatisfied with the same the plaintiff/petitioner preferred appeal before the learned Additional District Judge, who too vide his judgment and decree dated 22-6-1988 concurred with the finding of the learned trial Judge and dismissed the appeal. Hence the instant civil revision calling in question the judgments and decrees of both the Courts below.

2. I have heard Mr. Saadullah Khan Miankhel, Advocate for the plaintiff/petitioner, Mr. Sanaullah Gandapur, Advocate assisted by Syed Zafar Abbas zaidi, Advocate for the contesting respondents and have perused the record of the case with their assistance.

3. The learned counsel for the plaintiff/petitioner, referred to the contents of the Jamabandi for the year 1931-32, copy Ex.PWl/1, wherein, in Mad No.4 the names of Mumraiz Khan and others including Almar Khan father of the plaintiff/petitioner are recorded as owners of 1/3rd share in the suit Khasra numbers and the said Almar Khan is shown in possession of 1/3rd share as well in the cultivation column. He then referred to the Jamabandi 1935-36, copy ExPWl/2, in which though Mad No.4 is recorded but the names of the above named co-owners are conspicuously omitted. He also referred to the Gowshwara of mutations, Ex.PWl/4, showing the mutations attested after the preparation of Jamabandi 1931-32 till the current one and asserted that the same does not contain any mutation of transfer on behalf of the owners recorded in Mad No.4, in support of his contention that the omission of their names from the Revenue Record was either accidental or intentional. The learned counsel for the contesting respondents, on the other hand, did not seriously controvert this factual aspect of the case but submitted that the suit was hopelessly barred by time inasmuch as the cause of action for seeking declaration accrued to the predecessor-in-interest of the plaintiff and defendants Nos.13 to 25 on the completion of Jamabandi 1931-32 when their names were omitted therefrom and they were legally bound to sue if they felt aggrieved from the said entries within six years. They also claimed protection under section 41 of Transfer of Property Act because some of their clients had purchased land out of the suit Khasra numbers from the other co-sharers which included the suit land as well.

4. I have anxiously considered the arguments of the learned counsel of either side. It is established from the Revenue Record placed on the file to which presumption of truth is attached that Mumraiz Khan and others, predecessors in interest of the plaintiff and defendants Nos.13 to 25 were recorded as owners of 1/3rd share in the suit land and that their names were omitted from the subsequent Jamabandis without the attestation of any mutation regarding any transfer by them in favour of the remaining co-sharers to make them owners of the share of Mumraiz Khan and others as well. The contesting defendants also did not allege, muchless prove, that they validly acquired the share of Mumraiz A Khan and others. The learned trial Judge, while discussing issue No.7, positively held that the names of the predecessors-in-interest of the plaintiff and defendants Nos.13 to 25 have been wrongfully omitted from the column of ownership and decided the issue in favour of the plaintiff. The learned Appellate Court did not upset this finding of the learned trial Judge and it can safely be presumed that the Appellate Court concurred with the finding of fact of the Trial Court so far as the wrongful omission of the names of the predecessors-in-interest of the plaintiff as well as the defendants Nos.13 to 25 from the Jamabandi for the year 1935-36 and onward was concerned. No cross objection had been filed either before the learned Appellate Court or in the instant Revision Petition, by the contesting defendants/respondents against the finding of the learned trial Judge on issue No.7, with the result that the finality is attached to the said finding of fact.

5. As stated earlier the predecessor-in-interest of the plaintiff and defendants Nos.21 to 25 was recorded in possession of the suit land in the Jamabandi 1931-32 copy Ex.PWl/1. His son namely Mir Nawaz, defendant No.22 is shown in possession in the current Jamabandi 1977-78 copy EX.PWl/3 in spite of the omission of the names of the plaintiff and defendants Nos.13 to 25 from the ownership column. Even the contesting defendant Qasim Jan has, in his statement in Court as DW.1, unequivocally admitted the possession of the plaintiff and the pro forma defendants Nos.13 to 25 over part of the suit land. It is an established principle of law that entries of the Revenue Record do not create title by themselves but are normally considered as substantive evidence in proof of ownership and/or possession of agricultural land to which they pertain if such entries are admitted or proved to have been made in accordance with law and the relevant rules. In the case in hand the entries of the Revenue Record after the Jamabandi 1931-32 are undisputedly wrong and in violation of the Land Revenue Act and the rules framed thereunder to the extent of omission of the names of the predecessors-in-interest of the plaintiff and defendants Nos.13 to 25 from the ownership column. These omissions pre-se could not legally deprive the predecessors-in-interest of the plaintiff and defendants Nos.13 to 25 from their proprietary rights in the suit land and in spite of the omission of their names from the Revenue Record they are deemed to be co-owners in the suit Khasra numbers to the extent of their 1/3 share and on their demise the plaintiff and defendants Nos.13 to 25 can justifiably claim ownership of the said area. No doubt under section 45 of the Punjab Land Revenue Act, now section 53 of the West Pakistan Land Revenue Act any person feeling aggrieved from incorrect entries of the Jamabandi is required to file a suit for declaration within six years but that does not mean that if the suit is not filed within the said period the aggrieved person is debarred for ever to file the suit and that his title is also extinguished in spite of his continuing in possession of the land in question Under Article 120 of the Limitation Act the aggrieved person can file a suit within six years from the accrual of the cause of action. It was held in a Division Bench judgment of Lahore High Court reported as AIR 1936 Lahore 37 in somewhat similar situation that the cause of action accrues when the plaintiff feels aggrieved and not from the date of wrong entry in the Revenue Record and that where a person continues in possession of proprietary rights in spite of adverse entry appearing in the revenue papers, no question of limitation arises. This dictum of the Lahore High Court was followed by this Court in case "Gul Khan v Said Hassan Shah and others", reported as PLD 1968 Peshawar 148 in which the commencing point of limitation under Article 120 of the Limitation Act was declared to be the open denial of the rights of the plaintiffs by the defendants and not the first erroneous entry in the Revenue Record. Since the predecessor in-interest of the plaintiff and defendants Nos.13 to 25 continued in possession of the suit land they were to file the suit after the first entry if they had the knowledge of it or could wait till their rights of ownership are denied or repudiated and an attempt to oust them from possession is made. That is to say, fresh invasion on their rights could furnish them a fresh cause of action for instituting a suit for declaration of their title. In this connection the judgments of the Lahore High Court reported as PLD 1952 Lahore 307 and the august Supreme Court in the case reported as 1973 SCMR 279, can be referred to with advantage. The last alienation vide Mutation No.1772 on behalf of Mirza Ali defendant No.1 in favour of Ghulam Daud Khan and others defendants No.2 to 5 was attested on 25-4-1982 which included part of the land owned by the plaintiff and defendants Nos.13 to 25 and this afforded a fresh cause of action for filing the E instant suit which is within the statutory period of six years from the said date. Both the lower Courts have failed to consider this important legal aspect of the case and thereby committed illegality in holding the suit as time-barred and deprived the plaintiff and defendants Nos.13 to 25 of their valuable rights in immovable property. The findings of the learned lower forums on the issue of limitation are accordingly annulled.

6. As regards the protection allowed to the contesting defendants under section 41 of the Transfer of Property Act, suffice it to say that the contesting defendants/purchasers did not make the necessary inquiry about the title of their transferors at the time of the purchase of the suit land. The plaintiff and defendants Nos. 21 to 25 were undeniably in possession of the suit land and if the contesting defendants had made inquiry from them regarding the nature of their possession they would have come to know about their title in the suit land. Moreover, if they had consulted the Revenue Record they would have been apprised of the omission of the names of the predecessors-in-interest of the plaintiff and defendants Nos.13 to 25 from the revenue record without any rhyme or reason. Additionally the burden lay heavily on the contesting defendants to establish that they were bona fide purchasers in good faith for valuable consideration without the knowledge of the rights of the plaintiff and defendants Nos.13 to

25. They neither produced the original mutation on the file nor produced evidence regarding the payment of consideration nor substantiated their plea of acting in good faith. Consequently they were not entitled to the benefit of section 41 of the Transfer of Property Act. Findings of the learned lower two forums on this score too are based on misreading and non-reading of evidence and misinterpretation of the relevant law and are accordingly, set at naught.

7. The upshot of the above discussion is that on the acceptance of this revision petition, the judgments and decrees of the learned lower two forums are set aside and a declaration is granted in favour of the plaintiff and defendants G Nos.13 to 25 to the effect that the suit land viz 1/3rd share of the suit Khasra number shall be recorded in the names of Mumraiz Khan and others as per entries Mad No.4 of Jamabandi 1931-32 and thereafter proper inheritance mutations of the said persons shall be entered and attested so that every one of their heirs get their due share according to law. There shall be no order as to costs. A.A./1112/P Revision accepted.