2001 PLP 1489 (CLC)

On 20‑4‑1978 the petitioners filed a suit against the respondents. It was stated in the plaint that the land measuring 46 Kanals, 1 Marla owned by Muhammad Ramzan, predecessor‑in‑interest of the petitioners was exchanged with the land measuring 53 Kanals, 5 Marlas owned by Muhammad Hussain Khan, the predecessor‑in‑interest of respondents vide Mutation No. 156 attested on 23‑3‑1955; that the mutation was incorporated in the Revenue Record and the possession was exchanged; that out of the said 53 Kanals of land earlier owned by Muhammad Hussain suit land treasuring 8 Kanals, 4 Marlas comprising Pasra No.202 was given to the respondents for cultivation as non‑occupancy tenants; that about 2‑1/2 years before institution of the suit they stopped payment of produce and also denied the title of the petitioners. With these averments a decree for possession of the suit land was sought. The respondents in their written statement took the plea that the suit land was not subject‑matter of the exchange and even if it be proved that it was so, the possession was never delivered and that the respondents are in adverse possession of the same. However, on merits it was stated that a temporary exchange was made between the respective predecessors‑in‑interest of the parties for the sake of convenience. According to the respondents under the said arrangement Muhammad Ramzan had given land measuring 44 Kanals, 1 Marla comprising Khasra No.258 and Muhammad Hussain had given his land measuring 45 Kanals, 1 Marla comprising Khasras Nos. 193, 194, 201 and 286; that it was settled before the respectables that the exchange was temporary and the parties would not acquire any right in each other's land. It was alleged that Muhammad Ramzan in collusion with the Patwari got the mutation attested. Following issues were framed: (1) Whether the plaintiffs are owners of the suit land? Opp (2) Whether the suit is not maintainable in the present form? OPD (3) Whether the suit is time‑barred? OPD (4) Whether the suit is under valued and the plaint under stamped if so, its effect? OPD (5) Whether the suit is frivolous and liable to be dismissed with special costs? OPD (6) Relief. Evidence of the parties was .recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 20‑1‑1985. A first appeal filed by the petitioners was dismissed by the learned District Judge, Kasur on 24‑9‑1987.

2. Learned counsel for the petitioners contends that the learned Courts below have misread the evidence on record; that the learned District Judge in particular has erred in relying upon the entries in the column of Lagan in the revenue documents. According to the learned counsel both the learned Courts below have acted with material irregularity in the exercise of their respective jurisdiction while passing the impugned judgments and decrees. Learned counsel for the respondents, on the other hand, argues that the findings of the learned Courts below are 'supported by the evidence on record and thus, supports the impugned judgments and decrees.

3. I have gone through the copies of the record appended with this civil revision, with the assistance of the learned counsel for the parties. I have already with reference ‑to the pleadings, reproduced abode the respective pleas of the parties. Sarfraz, one of the petitioners entered the witness‑box as P.W.1 and made a statement in line with the contents of the plaint reproduced above. He was subjected to cross‑examination. I find that the plea taken in the written statement as to a temporary exchange which was supposed to be of no effect was not at all put to the witness. On the other hand, Haji Ahmad appeared as D.W.1. He states that he cultivates the suit land and pays the produce to the respondents. He admits in his cross- examination that he had been involved in litigation with the petitioners in the settlement hierarchy. When confronted he was unable to state that the petitioners are the owners of the land having obtained the same in exchange. D.W.2 is Muhammad Din. He has stated that he had been cultivating the suit land. His sister is married to the said Ahmad Din, D.W.1. He expressed ignorance that the suit land was the subject‑matter of the exchange. D.W.3 is Abdul Qayyum one of the respondents. He has stated that the exchange was temporary; that 6 acres of land was give d taken; that the "petitioners" had got the mutation of exchange attested through some machination. In his cross‑examination he stated that no appeal was filed against the mutation. Volunteered that his father had asked Ramzan and he had stated that during the course of settlement he will get the matters rectified. He denied that the land was given in exchange.

4. So far as the said evidence goes a plain reading thereof would show that an exchange did take place, the case set up in the written statement was not put to the P.W.1 while he was in the witness‑box. The witnesses produced by the respondents are unable to deny that the land was given in exchange. This leaves the Revenue Records. Exh.P.2. is the exchange mutation. It was entered on. 2‑12‑1954 and attested on 23‑3‑1955. According to this document land measuring 53 Kanals, 5 Marlas was given b) Muhammad Hussain to Muhammad Ramzan in exchange for land measuring 46 Kanals, 1 Marla. It was incorporated in the Register Haqdaran Zamin for the year 1053‑54 and entries were made in the Register Haqdaran Zamin for the year 1957‑58 (Exh.D.3) wherein Muhammad Ramzan is entered as owner of the suit land while one Baqu son of Fateh Muhammad Taili is recorded as Ghair Dakhil Kar paying 1 /4 share of the produce to Muhammad Ramzan. In the Register Haqdaran Zamin for the year 1961‑62 Muhammad Ramzan is recorded as an owner while Ahmad Din is recorded as Ghair Dakhil Kar on the same terms. In Register Haqdaran Zamin for the year"65‑66 the land is shown to self‑cultivation of Muhammad Ramzan, the owner. It is in Exh.D‑6 which is Register Haqdaran Zamin for the year 1969‑70 that respondents Nos.1 and 2 are recorded as Ghair Dakhil Kars under Muhammad Ramzan, while column of Lagan narrates:‑‑ In Exh.D.7 which is Register Haqdaran Zamin for the year 1973‑74 respondents Nos.1 and 2 are again recorded non‑occupancy tenants and the column of Lagan narrates(BAWAJA KAMI BESHI RAKBA). In Register Haddaran Zamin for the year 1977‑78 (Exh.D.8) present petitioners are recorded as owners while respondents Nos.1 and 2 are recorded as and Lagan column is to similar effect as Exh.D.7 Same is the entry in the year 1981‑82 (Exh.D‑9).

5. Learned District Judge has placed implicit reliance on the said entries in the column of Lagan. To my mind the learned District Judge had committed an error by misreading the said document. It is by now well‑settled that presumption of correctness attaches only to the column of ownership and of possession of record of right and no such presumption is attached to the column of Lagan. Reference be made to the case of Shad Muhammad v. Khan Poor PLD 1986 SC 91.

6. The available evidence on record was to be read in the light of the pleadings of the parties. It is a case where both the parties have put up their respective versions. The petitioners had claimed that an exchange as stated above was effected between Muhammad Hussain and Muhammad Ramzan while the respondents had come out with the plea that it was a temporary arrangement and never meant to take effect. Now petitioner Sarfraz P.W.1 has categorically stated that the land that was given by his father Muhammad Hussain in exchange was sold away by the respondents. This fact has neither been challenged in cross‑examination nor denied by Abdul Qayuum when he entered the witness‑box as D.W.3. Thus, the only defence raised stands whipped out by the said admission or failure of denial of the statement of P.W.I that the land given in exchange was sold away by the respondents. The plea raised by the respondents was false. Had it been a temporary arrangement the respondents would not have sold away the land given to them in exchange by the petitioners. Now if the documents are to be read in the light of the said stance, it is depicted therein that for the first time the respondents Nos.1 and 2 find mentioned in Exh.D.6 which is record for the year 1969‑

70. Thus, the suit filed in the year 1978, could not have been held to be time‑barred by the learned Courts below.

7. Learned counsel for the respondents then tried to press the reasoning adopted by the learned District Judge in his impugned judgment. The contention is that Sarfraz P. W.1 refused the offer to take an oath on Holy Qur'an to state that the land was given to his father in exchange and that the respondents had been paying him the share of produce. I find that the learned District Judge has proceeded to draw an adverse inference on the basis of said refusal. To my mind particularly in the circumstances of the present case there was no ground for raising the said inference. There is no recognised rule of law that a person refusing to take special oath will be presumed to have made a false statement. The fact remains that the statement made on oath by the said petition as P.W.1 is wholly supported by the documentary evidence on record.

8. As a result of the above discussion I find that both the learned Courts below have proceeded to misread the evidence on record, rather they have failed to read the same. The impugned judgments and decrees, therefore, cannot be sustained in this civil revision and the same is allowed. The judgments and decrees passed by both the learned Courts below are set aside and the suit of the petitioners is decreed with costs throughout. H.B.T./P‑28/L Revision allowed