2013 PLP 2403 (YLR)

MUHAMMAD DAUD KHAN, J.

The suit of petitioners for declaration that they are owners in possession of the suit property on the strength of registered Deed No.204 dated 1-3-1967 was initially dismissed by the Civil Court but that judgment was set aside in appeal for the reason that the N.-W.F.P. Public Property (Removal of Encroachment) Act, 1977 was already extended to Swat; hence the plaint was ordered to be returned to the petitioners for its presentation before the proper forum.

2. Accordingly, the petitioners approached the Tribunal under the Act ibid consisting of the District Judge, Swat, who entrusted the case for disposal to the Additional District Judge-IV/Izafi Zilla Qazi Swat, and vide impugned judgment dated 12-11-2010 the suit was dismissed.

3. The petitioners, feeling aggrieved of the impugned judgment of the learned Additional District Judge have filed instant writ petition on the grounds that despite the fact that the registered deed executed in favour of predecessor of petitioners remained unchallenged from the side of respondents, which was duly exhibited on record through a witness from the office of Tehsildar Babuzai, District Swat namely Said Kamal Reader, still they were non-suited by the learned Tribunal on some other extraneous grounds and the conclusion arrived at is thus without lawful authority.

4. Brief facts of the case are that the petitioner, being legal heirs of Khairati, residents of Saidu Sharif, Swat brought a suit against the Provincial Government through Secretary SMBR, Peshawar and other Revenue officials for a declaration that the suit property was purchased by their predecessor from the then Ex-Ruler of Swat through a registered deed but the Tehsildar Babuzai issued them an illegal notice for the demolition of their house and shops. According to them, the property in question was liable to be entered in the Revenue Record against their names but the respondents did not do so, which created problem for them. They further prayed for an injunction against the defendants for restraining them to interference in the suit property.

5. The defendant/respondents on the other hand relied upon a sale-deed, Exh.DW1/1 vide which the property in question was purchased by the Provincial Government from the ex-Ruler of Swat through a registered deed and during Settlement, the same was also entered in the name of Provincial Government through Deputy Commissioner, therefore, the claim of petitioner/plaintiffs is not sustainable.

6. The learned Tribunal has dismissed the suit of petitioners mainly on the grounds that from the deed relied upon by the petitioners, it is not clear that it is the same property, which the Provincial Government has purchased through deed, Exh.DW1/1 in Khasra No.686; that for rebuttal of the entries recorded in the Settlement proceedings, very strong evidence was required but petitioners failed to produce such kind of evidence and that suit of the petitioner was also barred by time.

7. On 17-6-2013 part arguments were heard and the case was adjourned for today as the learned D.A.-G. wanted to further assist the Court. Today, we have heard the learned D.A.-G., who again requested for some time but the same cannot be granted lest it would not produce any positive result because of fully exhausting his remedy of audience for two days.

8. So far as the question as to whether the property in possession of petitioners is the same property, which was purchased by their predecessor-in-interest from the then Ruler of Swat vide registered Deed No.204 dated 1-3-1967 (Exh.P.W.1/1) is concerned, we have to look at the contents of plaint, evidence of plaintiff/petitioners and that of the respondent/defendants. In the plaint not only Khasra No.686 is mentioned but it is also mentioned therein that the suit property is bounded by a Veterinary Hospital on northern side, house of Rehmani Gul on southern side, General/Shahi Road on eastern side and property of Bacha Sahib on its western side. The witnesses of plaintiffs in their statements have also stuck to the above stance so far as boundaries of the suit property are concerned. The deed relied upon by the plaintiff/petitioners was produced by the Reader to Tehsildar Babuzai in his statement as P.W.1, which is also having the same boundaries except that instead of Veterinary Hospital only the word Hospital is mentioned therein. As per above registered deed, the predecessor of petitioners had purchased the same from the then Ruler of Swat namely Mian Gul Jehanzeb for a sale consideration of Rs.1280. There is also no denial of the fact that petitioners are in possession of the suit property, on which certain shops were constructed on its ground floor and the first floor was being used by the petitioners as their residential house.

9. A look at the notice issued to the petitioners by the respondents would reveal that the plaintiff/petitioners had encroached upon the Government land; hence failure to produce a valid document would render the construction of petitioners to demolition.

10. The learned Tribunal has totally misread the evidence of plaintiffs by holding that neither khasra number has been given in the plaint, nor its area is mentioned and that the deed is also having no mention of veterinary hospital; hence from the simple word hospital it cannot be said that the same was the same hospital as mentioned in the deed. The respondents, on the other hand, have also admitted that the suit property was the ownership of the then Ruler of Swat, from whom the Provincial Government purchased the same on 6-7-1986. The respondents have produced Sher Akbar Halqa Patwari as DW-2, who in his cross-examination has clearly stated that the construction over the property is of the time of Rulers and it includes the shops and house of petitioners. There thus remains no doubt that the property in question is the same property, which the predecessor of petitioners had purchased through registered deed, Exh.P.W.1/l.

11. Now the question would arise, as to which of the registered deed would be given preference. Admittedly, the deed of petitioners is earlier in time than the deed of respondents. Over and above, the petitioners are in possession of the suit property. If it is presumed that the predecessor of petitioners died subsequent to the completion of the Settlement proceedings in the area but did not try to enter the suit land in his name, similar presumption can also be taken towards the respondents that if the property in question was the ownership of Government, then why notice of dispossession/demolition was sent to the petitioners in the year 2002, when the property was already entered in the revenue record in their names as way back as in the year 1984. How they came to know after about 18 years that the property in possession of petitioners pertains to them.

12. Another interesting aspect of the case is that the deed of petitioners has not been challenged by the respondents as witness of the petitioners was not cross-examined despite affording them an opportunity for doing so. Hence, the deed would be presumed to have been admitted by the respondents. The superior Courts have time and again laid down the principle that when a piece of evidence is not challenged during cross-examination, it would be presumed that such piece of evidence has been accepted as true by the other side. Reliance can be placed on the judgments of Muhammad Akhtar v. Mst. Manna and 3 others (2001 SCMR 1700), Faizyat Khan v. Syed Aziz Ali Chishti (1982 SCMR 358), Maderssa Darul Fazal Halani v. Muhammad Ramzan Kashmiri (2005 CLC 83) and Haji Muhammad Tawas v. Fazal Hussain and others (2005 CLC 719). In view of the above, preference is to be given to the registered deed relied upon by the petitioners, being not challenged by the respondents in cross-examination on one hand and the deed relied upon by the respondents on the other hand being executed later on could not curtail the ownership rights of petitioners over the suit property.

13. Now remains the question of limitation. According to the learned Tribunal the Settlement proceedings were completed in the year 1986 but the suit was brought in the year 2003, i.e. beyond the prescribed time of six years, therefore, the same was barred by time. In our view, the findings of the learned Tribunal on this aspect of the case are also not in accordance with law. The petitioners are admittedly in possession of the suit land and in such circumstances Article 120 of the Limitation Act, 1908 would be applicable to the case. The august Supreme Court of Pakistan in the case of Rehman v. Yara through L.Rs. and others (2004 SCMR 1502) has held that:-- "Documentary and ocular evidence produced by the plaintiff coupled with admission of witnesses had made it clear that the plaintiff was all along in possession of the suit land. Suit, in circumstances would be covered by Art.120 of the Limitation Act, 1908 and the person in possession of the land would not be obliged to rush to the Court only on the basis of adverse entry in the Revenue Record and in such a case plaintiff would get recurring cause of action by each adverse entry in the Revenue Record and plaintiff would be the sole judge of serious threat to his interest." Similar views have been expressed in the cases of Shad Muhammad Khan and others v. Government of N.-W.F.P. and others (PLD 2011 Peshawar 172), Dhani Bux v. Ali Sher and others (2007 YLR 2134), and Himat alias Allah Deva v. Rehmat (2004 YLR 2992).

14. Jurisprudentially, all human being are equal before the eyes of law irrespective of race, sex, colour, class or position in the society and are entitled to have equal protection of law. If a tribunal ruling could cause an unintended harm, then writ in the nature of certiorari can competently be issued by this Court. In our view, the impugned judgment of the learned Tribunal has caused gross miscarriage of justice to the petitioners and we, therefore, find it a fit case for setting aside the impugned judgment of the learned Tribunal, being based on wrong application of law and appreciation of the evidence on record in its correct perspective, therefore, the same is declared to be without lawful authority.

15. Accordingly, this writ petition is accepted and the impugned judgment of the Tribunal is hereby set aside. Consequently, the notice issued to the petitioners by the respondents is declared as illegal. The parties are left to bear their own costs. SAK/362/P Petition accepted.