2022 PLP 335 (CLC)

ABDUL HAMEED BALOCH, J.

Through this judgment I intend to dispose of above tilted civil revision petition filed by the petitioners/ plaintiffs against the judgment and decree (impugned judgment and decree) dated 07th March, 2016 passed by learned Qazi Bhag (trial court), whereby the suit of the petitioners/plaintiffs was dismissed and against the judgment and decree (impugned judgment and decree) dated 13th February, 2017 passed by learned Majlis-e-Shoora Sibi Division Sibi (appellate court), whereby the appeal filed by the petitioners/plaintiffs was also dismissed.

2. Concise facts of the case were that the petitioners/plaintiffs filed a suit for declaration, correction of entries and permanent injunction against the respondents/ defendants in respect of land under Khata No.399, Khatooni No. 413, bearing Khasra No.367 measuring 2546 square feet and Khasra No.366 measuring 11147 square feet situated in Mouza Town Bhag, Tehsil Bagh, with the following prayer:

3. The respondent/ defendant No.1 contested the suit on legal as well as factual grounds by filing written statement. Whereas the respondents/ defendants Nos. 2 and 3 filed their separate written statement and prayed for dismissal of the suit. After receiving pleadings of the parties the learned trial court framed five issues on which the parties led their respective evidence. On conclusion the learned trial court dismissed the suit of the petitioners/plaintiffs vide judgment and decree dated 07th March, 2016. Being aggrieved of the same the petitioners/plaintiffs filed appeal before Majlis-e-Shoora Sibi, which was also dismissed vide judgment and decree dated 13th February, 2017; hence the petitioners/ plaintiffs are before this court.

4. Heard learned counsel for respondent No. 1 as well as learned Additional Advocate General and gone through the record with their assistance. The learned trial court resolved legal issues Nos. 1 and 2 in favour of the petitioners/plaintiffs, while issue No. 3 was decided against the petitioners/plaintiffs, whereas issue No. 4 was resolved against the respondents/defendants. The petitioners/plaintiffs admitted on the basis of decree dated 31st May, 1992 that the property mentioned in para supra was mutated in their names. The petitioners/plaintiffs contended that the suit land bearing khata/khatooni No. 399/413, khasra No.367 measuring 2546 square feet was mutated in the name of respondent/defendant No.1, while khasra No. 366 measuring 11147 square feet was mutated in the name of respondent/defendant No.2 in the record of right. The pentioners/plaintiffs have disputed the suit property after more than 22 years. The petitioners/plaintiffs admitted that the property mentioned supra was mutated in their names in the settlement record in 1992, but they remained silent with regard to the suit property. The petitioners/plaintiffs filed declaratory suit in 2014 after 22 years. Under Article 120 of the Limitation Act the period provided for challenging mutation is six years. The petitioners/ plaintiffs have failed to justify such delay. The learned trial Court as well as appellate Court have wrongly resolved the issue of limitation in favour of the petitioners/plaintiffs. The suit of the petitioners/ plaintiff was hopelessly barred by time.

5. The learned trial Court as well as appellate Court resolved the issue No. 4 against the respondents/ defendants. Though the respondents/ defendants have not challenged the findings of the Courts below regarding issue No.

4. The court has power in revisional jurisdiction to correct any illegality appeared in the judgments of the courts below. Both the courts below have overlooked the mutation entries effected in favour of the respondents/defendants. The record transpires that the property bearing khasra No. 367 measuring 2646 square feet mutated in the name of respondent/ defendant No.1 in the record of right, which was transferred in his name in the year 1989 by his father Zaffarullah. While khasra No. 366 measuring 11147 square feet mutated in the name of Government of Balochistan. Both the mutations produced before the trial court as Ex: D/3-A and Ex: D/3-B respectively. The long revenue entries carries weight and presumption of truth attached with such entries which could not be discarded on verbal assertion unless proved through cogent trustworthy evidence. The documentary evidence cannot be rebutted by oral evidence. The documentary evidence prevails over the oral evidence if proved according to established procedure and law. The analogy is based on principle that men can lie but document cannot. Under Section 52 of the Land Revenue Act, 1967 (Act, 1967) presumption attached to the entries in the record of right. It would be appropriate to reproduce the relevant section: "Section

52. Presumption in favour of entries in record-of-rights and periodical records. Any entry made in the record-of-rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted thereof. " The Honorable Supreme Court of Pakistan in case Mazloom Hussain v. Abid Hussain PLD 2008 SC 571, held: "

10. The High Court has observed that the entries in the Revenue Record in favour of the appellants were not made in accordance with the prescribed procedure provided in law. The answer to the foregoing objection is that the said entries emerged in the record of rights for the year 1965-66 have not been challenged by the plaintiff-respondents Nos.1 and 2 before the Revenue functionaries or through a civil suit. As provided in section 52 of the West Pakistan Land Revenue Act, 1967, the presumption of truth is attached to the revenue entries which has also been upheld by this Court in the case of Hakim Khan v. Aurangzeb and another (1979 SCMR 625). The relevant portion of the judgment is as under: "The entries in Jamabandis, as is obvious, carried a statutory presumption of truth under section 44 of the Punjab Land Revenue Act (XV of 1887) and section 52, West Pakistan Land Revenue Act (XVII of 1967)." The documents produced by the plaintiff/respondents Nos.1 and 2 also correspond with evidence produced by the appellant. As against the aforesaid entries, mere bald verbal statements of the kind can hardly cut any ice. Even otherwise, the documentary evidence cannot be rebutted by oral evidence. Another case Mt. Wallan v. Fazala and others AIR 1939 PC 114 can also be referred in this behalf.

11. Where a presumption of truth is attached to a document, it cannot be discarded unless proved otherwise by convincing and cogent evidence and the burden of proof that the entries in the record of rights are wrong, is on the party who alleges it. Reliance can be placed in this context on the cases of Sundar Singh v. Chhajju Khan AIR 1934 Lahore 309 and The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others 1990 SCMR 725." Both the courts below have not considered the mutation entries in the record of right in their names without any reason, hence the findings on issue No. 4 is not according to law. The issue No. 4 is resolved in favour of the respondents/ defendants.

6. Admittedly it is responsibility and duty of claimant to prove his case on his own strength. Under Article 117 of Qanun-e-Shahadat Order, 1984 (Order, 1984), the burden of proof lies on person who desire the court to give decision in his/their favour. It is bounden duty of a party to prove the claim through cogent and confidence inspiring evidence. The plaintiff must prove his case on the strength of his own evidence. He cannot take benefit from the weaknesses of the defendant's case. Reliance is placed on the case of Lalzada v. Mian Tauheedullah 2007 MLD 1683.

7. The revisional jurisdiction of High Court is very limited to interfere in the concurrent findings of the courts below. While exercising jurisdiction under Section 115, C.P.C., unless judgments and decrees of the Courts below are result of non-reading, mis-reading of evidence and based against the record. The Honorable Supreme Court in case Shahbaz Gul v. Muhammad Younas Khan, 2020 SCMR 867 held: "

6. Now, coming to the alternative plea that the mutations are fraudulent, a fraud must be committed with respect to the transfer of property by getting the mutations attested. There is no evidence on the record that any fraud was committed with the donor i.e. Dr. Rab Nawaz Khan for getting the impugned mutations attested. In these circumstances, the learned Peshawar High Court was not justified in reversing the well reasoned findings recorded on the basis of true appreciation of evidence by the two learned Courts below. Furthermore, where two different interpretations were possible of the evidence brought on record, as is the matter in the instant case, then appraisal of facts of lower courts should not have been overturned by the learned High Court in its revisional jurisdiction under section 115, C.P.C. Between two possible interpretations, the one adopted by the learned Trial and Appellate Courts should have been maintained, keeping in mind the limited scope of revisional jurisdiction." In view of what has been stated above the petitioners/ plaintiffs have failed to point out any illegality, irregularity, misreading or non reading of evidence in the impugned judgments and decrees of the courts below, requiring interference by this court in its revisional jurisdiction, as such the petition is dismissed. The parties are left to bear their own costs. ZH/249/Bal. Petition dismissed.