1996 PLP 1239 (SCMR)

SHAFIUR RAHMAN, J.

Leave to appeal was granted to the plaintiffs/appellants to examine whether the suit instituted by them was not within- time in view of the law laid down in Ghulam Muhammad Khan v. Samundar Khan (AIR 1936 Lahore 37), Gul Khan v: Said Hassan Shah (PLD 1968 Peshawar 148), Mst. Ghulam Sughran v. Sahibzada Ijaz Hussain (PLD 1986 Lahore 194) and Haji v. Khuda Yar (PLD 1987 SC 453). . .

2. The plaintiffs/appellants and the defendants/respondents both claimed to have purchased extensive land from the same owner Sardar Akbar Khan Sanjrani. The purchase by the predecessor-in-interest of the plaintiffs is of the year 1953 and that of the respondents' predecessor of 1964. As at that time the land was not surveyed and measured the description of the land sold was broadly given by describing its boundries -and not numbers. In the settlement that took . place in 1968, this land measuring 8 rods and 11 polls, came to be recorded in the ownership and possession of Muhammad Khan son of Azam. It was described as Banjar Qadeem. A dispute with regard to it indirectly arose just before settlement when a sale of the adjoining land was made by Sardar Akbar Khan in. 1967. X pre-emption suit was instituted on the ground of contiguity by the predecessor-in-interest of the appellants on the strength of ownership and possession of this disputed land and others which he had purchased in 1953. That suit was compromised. The sale was undone. The preferential right of acquiring the land if it was ever sold subsequently of the predecessor-in-interest of the appellants was recognized. According to the plaintiffs a tube-well came to be installed in this Khasra Number and this prompted the respondents to lay claim to it on the basis of the settlement record. This happened in 1977. Becoming aware then of the incorrect entries of the Revenue Record, the plaintiffs sought correction of it but it was refused by the Board of Revenue finally on 21-2-1980 observing as hereunder:-- "...it is evident that Khasra No.995 became the main bone of contention after installation of boring an engine by the Government free of costs for ... sic .... According to Revenue Records Khasra No.995 is entered in the name of Mir Muhammad Khan. I do not feel any fraud having been committed by the revenue staff with the connivance of respondent No. l particularly when Tehsildar Settlement (as alleged) was staying in the house of the petitioner. This point has not been contested by the counsel for the petitioner. The proceedings under section 145, Cr.P.C.. go to show that there was a dispute about possession of the land between the petitioner and respondent No.1. The Assistant Commissioner, Chagai should have acted legally in the case strictly according to the provisions of section 145, Cr.P.C. and it was wrong on his part to have referred the matter to a Jirga under the F.C.R. It is pertinent to note that the Jirga gave its award in favour of respondent No.

1. It has not been contested that no final order has yet been passed by the Assistant Commissioner; Chagai. As regards the alleged sale of land, including Khasra No.995 by Sardar Muhammad Akbar Khan to respondent No.2, it is strange that respondent No.2 failed to get the land mutated in his favour or to have filed a civil suit to establish his claim over the disputed land. The same applies in the case of the petitioner. " The keys of the tube-well were also handed over to the defendants/respondents.

3. The same year a suit was instituted claiming the ownership and possession of this property and injunction against the respondents preventing them from interfering with their possession and correction of the record where they happened to be, recorded as owners. The temporary injunction ad interim was granted. Suit was contested and the following issues inclusive of additional issues were framed (1) Whether the suit is within time? (2) Whether the plaintiffs are owners of the suit land? (3) Whether the plaintiffs are in possession of the suit land? (4) Whether the plaintiff got installed a tube-well through Government agency in the suit land? If so. what will be its consequences? (5) Whether defendant No. l without knowledge and information of the plaintiffs illegally mutated/entered Khasra No.995 Mauza Aminabad balbandin in the Revenue Record and concealed these facts from the plaintiffs? If so, to what effect? (6) Whether the suit is hit by section 53 of Balochistah Land Revenue Act? (7) Whether the plaintiffs are entitled for the relief claimed? (8) Relief? ADDITIONAL ISSUES: (9) Whether this Court has jurisdiction to entertain the present suit? (10) Whether the suit is bad for misjoinder of parties?

4. The Trial Court did not go into the merits of the case as while dealing with the question of limitation it came to the following conclusions:-- "In view of above discussion it is established that the plaintiffs were not ignorant about mutation in question at the time of settlement, but they failed to avail appropriate remedy in provided time, rather kept silent and sleep over their alleged right. While approach this Court after lapse of eleven/twelve years. Thus the suit is filed, beyond the period of limitation. "

5. On appeal, the Additional District Judge came to a different conclusion, as hereunder:-- "The above evidence shows that the plaintiffs have purchased the suit land alongwith other properties situated in Aminabad through Exh. P/7 ..The documents Exh. P/1 and Exh. P/2 also confirm that the tubewell was set up on the suit land by the attorney of the plaintiffs Mirza Tahir Muhammad Khan. In this regard I have also discussed while deciding Issue No.

1. Even otherwise there is no rebuttal from the defendant side to show that the Government had installed tube-well on their lands with their struggle. As such the issues are settled in affirmative. " The suit was held to be within time.

6. In revision, the High Court held as hereunder:-- "So much so it is not clear on record that who was in possession of the land, in question when suit was instituted. Under these circumstances no re-curring cause of action shall be available to respondents and in the circumstances of the case Article 120 shall govern the period of limitation."

7. After hearing the learned counsel for the parties we have come to the conclusion that it was not clear on the record as to who was in possession of the 8 land in question when the suit was instituted is not correct. For resolving this controversy the title to the suit land and the nature of the land should have been determined, If, for example, till 1977 it was Banjar Qadeem and the purchase of title was found to be that of the appellants, then their possession over it should follow. If the title on account of its purchase vested in the respondents then its possession would be assumed on account of the land being Banjar Qadeem. A finding of this aspect of the case could have been recorded and that would have determined squarely and fully the nature of the cause of action, the period of limitation available and the rights of the parties in the property in dispute. It is an accepted principle of law that if a party is owner. of property and in possession of it as owner then a simple entry in the Revenue Record to the contrary would not necessarily require it to institute a suit. It is only when positive, threat to its possession and title is forthcoming that it can institute the suit. It could arise in or near about. 1977 when the tube-well was installed on the land and the question of its use and custody arose.

8. We consider, therefore, that a finding on the question of limitation should have followed the determination over the title of the land and thereafter the possession and its nature over the party and the question of limitation attracted to the facts so found established. Hence, we accepted the appeal, set aside the judgment of the High Court and remand it to the High Court for decision on merits altogether without being influenced directly by any observation touching the merits recorded in this. judgment. A.A./G-513/S Case remanded.