2006 PLP 1250 (MLD)

JAWWAD S. KHAWAJA, J.

The respondents/plaintiffs filed a suit on 16-2-1989 seeking possession of the suit-land on the basis of title. The suit was resisted by the petitioners who claimed firstly that they had purchased the same from the original owner, namely, Sardar Ali. In the alternate it was pleaded that they had acquired prescriptive title through adverse possession. The learned trial Court dismissed the suit vide judgment and decree dated 6-12-1995. However, on appeal filed by the respondents the decision of the learned trial Court has been reversed vide appellate decree dated 17-12-1999. Hence this revision petition.

2. The sole basis on which the respondents asserted title in the suit-land was the Revenue Record. The jamabandies (Exh.P.1 and Exh.P.2) were produced by the respondents in proof of their title. At this point a brief outline of the case set up in the plaint will be helpful. The respondents did not state as to when and from whom they acquired title. They alleged that the petitioners had unlawfully taken possession of the suit property and had connived with the revenue staff for the purpose of having their names recorded as cultivators of the suit-land. No details were given as to when and how the petitioners took possession of the disputed land. The averments in the plaint do not inspire confidence.

3. More importantly, the respondents themselves did not enter the witness-box. Their sole witness was Ghulam Muhammad (P.W.1), who claimed to be the general attorney of respondents. He merely reiterated the averments in the plaint by deposing that the respondents had forcibly taken possession of the suit-land. The said witness acknowledged in his cross-examination that Nosherwan, (respondent/plaintiff), was present outside the court-room even on that very date and time when he was giving evidence. This stance by itself is sufficient for holding that 'the respondents/plaintiffs, on whom the onus of proving their case lay, had failed to discharge such onus.

4. In addition to the above, the case of the respondents that the petitioners had forcibly taken possession of the suit-land from them is also proved to be false. The petitioners are recorded as being in possession of the suit-land from 1969 onward, vide girdawaries Exh.D.2 for the year 1969 to 1970, Exh.D.3 for the years 1973 to 1975 and Exh.D.4 for the years 1976 to 1978. These documents remained uncontroverted and are sufficient for the purpose of falsifying the assertion made by the respondents that the petitioners took possession of the suit-land three years prior to the filing of the suit. Here it may be noted that the suit was filed on 16-12-1989 and it was not explained as to how the petitioners appeared in the girdawaries as cultivators of the suit-land as early as 1969.

5. The learned appellate Court unfortunately has not taken note of the above circumstances. It has brushed aside the failure of the respondents to appear in the witness-box by holding that this does not make much difference because there is sufficient documentary evidence on the record to support the respondents/plaintiffs. This observation is not justified firstly because the respondent Nosherwan did not appear to testify even though he was present outside the court-room when P.W. was testifying. There can be no possible explanation for his non-appearance as a witness. Moreover, I do not find that there was sufficient documentary evidence to support the case of the respondents/plaintiffs. The jamabandies (Exh.P. 1 and Exh.P.2) do not create any title in favour of the respondents. These documents at best raise a rebuttable presumption that the entries therein are correct. This presumption was duly rebutted by the witnesses produced by the petitioners/defendants. In the circumstances, it became incumbent for the respondents to adduce evidence to prove their title. Learned counsel for the respondents stated that the respondents had obtained a consent decree against Sardar Ali. There is, however, nothing on record to substantiate this verbal assertion. Neither the pleadings in any earlier case nor the consent decree having been adduced in evidence. There is in fact no documentary or oral evidence to prove the time and the manner in which title to the suit property was acquired by the respondents. Furthermore the lack of probity of the respondents/plaintiffs is also established through the false plea set up by them alleging their forcible dispossession from the suit-land.

6. Learned counsel for the respondents placed a great deal of stress on the fact that the decision of the Board of Revenue (Exh.D.1) dated 20-2-1968, which had been produced by the petitioners in support of their plea that they had purchased the suit property from Sardar Ali, had no relevance in the case. This submission was made on the basis that the mutation relied upon by the petitioners was No.1458, while the order (Exh.D.1) did not make any mention of the said mutation. Even if this is so, it does not advance the case of the respondents/plaintiffs, who were required to prove their own title in the suit-land. Since they have not been able to do so, they are not entitled to the declaration and possession prayed for in the plaint.

7. In the above circumstances, I find the impugned appellate decree to be a result of serious non-reading of evidence and misapplication of the law. The said decree is, therefore, set aside. As a result, the decree of the learned trial Court dated 6-12-1995 stands restored. The petitioners shall also be entitled to their costs throughout. F.B./S-59/L???????????????????????????????????????????????????????????????????????????????????????? Petition allowed.