2016 PLP 77 (YLRN)

S. 52

Specific Relief Act (I of 1877), S. 8

Suit for possession of immovable property

Limitation

Long standing entries in the record of rights

Scope

Pedigree table

Contention of plaintiffs was that they had purchased suit land

Suit was decreed concurrently

Validity

Defendants were in possession of suit property and their names were incorporated in the settlement record

Entries made in record of rights prepared under any settlement had overriding effects

Pedigree table had the status of record of rights and same would carry presumption of truth under S.52 of Khyber Pakhtunkhwa Land Revenue Act, 1967

Name of predecessor of defendants appeared in the pedigree table for year 1895-96 which had been further supported by revenue and settlement record

Long standing entries in the record of rights having presumption of correctness had supported the contentions of defendants

Such entries had not been rebutted by the plaintiffs through documentary or oral evidence as evasive assertion was not sufficient

Plaintiffs had never challenged such entries and they remained silent for more than a century despite the fact that possession of defendants was in their knowledge

Defendants were receiving their share right from the settlement who were owners of suit property

No suit for possession would lie against the owners of suit land

Both the courts below had failed to examine revenue record available on file properly

Claim of defendants was based on entries made in revenue and settlement record

Strong evidence was required to rebut the authenticity of the same

Genuineness and correctness of revenue record and pedigree table were not liable to be disturbed at such a belated stage

Record of rights which remained in existence and un-rebutted for more than a century could not be altered without lawful justification which was lacking in the present case

Illegality had been committed by both the courts below

Impugned judgments and decrees passed by both the courts below were set aside and suit was dismissed

Revision was accepted in circumstances. [Paras. 5, 6, 8 and 9 of the judgment]

Preamble

Scope

Law of limitation would provide an element of certainty in the conduct of human affairs

Public interest required an end to litigation

Persons who wished to dispute any fact or claim any right must do the same within the time described under the law otherwise his rights if any would be forfeited as penalty for such neglect

Law required that a person must come to court and take the course of legal remedy with due diligence and he should be more conscious when he had challenged the rights of other person on the ground that he was stranger and not a co-sharer

Law of limitation had been made applicable even to the claim of inheritance. [Para.7 of the judgment] Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762; Mst. Phaphan through L.Rs. v. Muhammad Bakhsh and others 2005 SCMR 1278; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Abdul Haq v. Mst. Surraya Begum 2002 SCMR 1330; Lal Khan through L.Rs. v. Muhammad Yousaf through L.Rs. PLD 2011 SC 657 and Muhammad Rustam and others v. Mst. Makhan Jan and others 2013 SCMR 299 rel. JUDGMENT MALIK MANZOOR HUSSAIN, J.

This single judgment shall also dispose of connected C.R. No.1098/2010, as both the impugned judgments arise out of common impugned judgment dated 25.3.2010, passed by the Additional District Judge, Lahor District Swabi.

2. Briefly, the facts of the case are that respondents/plaintiffs filed a representative suit bearing No.107/1 of 2003 for possession and mesne profit of the suit land, fully described in the heading of plaint, against petitioners of instant petition as well as that of connected petition. The suit was contested by the petitioners of instant petition as well as that of connected Civil Revision. Similarly another suit bearing No.103/1 of 2003 titled Sarmast Khan and others v. Imran Ullah and others, in the representative capacity was also filed for declaration, permanent injunction and recovery of amount. Both the suits were consolidated through order dated 13.5.2006 and the proceedings were carried out in Suit No.107/1, being filed earlier titled, "Abid Ullah and others v. Khan Bahadar and others". Consolidated issues were framed and after recording pro and contra evidence, both the suits were decreed through consolidated judgment dated 21.7.2009, passed by learned trial Court. Appeal filed by petitioner was dismissed through judgment dated 25.03.2010, passed by the learned Additional District Judge, Lahor, Swabi. Against the impugned judgment, two Civil Revisions were preferred by two sets of petitioners/ defendants.

4. Conversely, learned counsel appearing on behalf of respondents contended that the property was purchased by their predecessor Niamat Khan from Azmat Khan way back in the year 1856, thus entries in favour of petitioners/ defendants, was against law, fact and ab initio void, therefore, were ineffective upon the rights of petitioners. It was also contended that the petitioners of connected Civil Revision have no concern with legacy of Azmat Khan as well as that of Said Khan, therefore, they have got no concern with the suit property. Arguments heard, record perused.

6. The name of predecessor of petitioners namely Abdullah Khan son of Azmat Khan appears in the revenue record of the year 1870 of Revenue Estate Baika. Abdullah Khan was succeeded by his three sons and the petitioners are descendents of Abdullah Khan. The record of 1870 was further supported by the settlement carried out in the year 1895-96, wherein Legal heirs of Abdullah Khan were incorporated as legal heirs of Azmat Khan, the forefathers of petitioners. These entries with respect to Moza Baika favouring petitioners were further affirmed in the settlement of 1927-28 up till that of 1993-94. Right from the year 1870 till date, possession is admittedly with the petitioners which fact has been admitted by the attorney of respondents, who appeared as PW-4 in the trial Court. This Court has noticed that contentions of petitioners are fully supported by long standing entries. The presumption of correctness attached to long standing entries in record of rights, which has been supported by the possession at the spot. These entries have never been rebutted by the respondents through documentary or oral evidence as the evasive assertion is not sufficient. The forefathers of respondents/plaintiffs never challenged the long standing entries during their life time. Plaintiffs/respondents had remained in deep slumber for more than century despite the fact that physical possession of property had passed on to the petitioners/ defendants. The respondents/plaintiffs had been proved to be residing in the same village and before their open eyes the petitioners were enjoying the usufruct of the suit property and also enjoying the peaceful possession. Relief sought in both the suits were by itself sufficient to establish the fact that the petitioners were receiving their share right from the first settlement. The entries appearing from more than a century were assailed by the respondents/plaintiffs in the year 2003 i.e after 108 years of original entry. Present was not a case of inheritance which has been challenged by the respondents/ plaintiffs, but it is a simple case of possession against the petitioners. No suit was brought by the respondents or their predecessor challenging the long standing entries existing in favour of petitioners and their predecessors. The petitioners are admittedly incorporated as owners in possession of the suit land and no suit for possession simply lies against the owners of suit land, even in the eventuality where the respondents claim themselves to be co-owners.

7. It is well settled by now that the requirements of public interest lies on the principle that there should be an end to litigation. That is why law of limitation provides an element of certainty in the conduct of human affairs. Whoever wishes to dispute any fact or claim any right, he must do so within the time described under the law, otherwise his rights, if any, will be forfeited as penalty for such neglect. Law requires that person must come to Court and take the course of legal remedy with due diligence and the person/plaintiff should be more conscious with he challenges the other person rights on the ground that the other person is stranger and not a co-sharer. In the case in hand the respondents/plaintiffs never admitted the petitioners to be co-sharer or having any right in the suit property, but as alleged by the them in plaint as well as in their Court statement, they alleged the petitioners as strangers. Even to claim inheritance, law of limitation has been made applicable and in this regard reliance can be placed on cases of "Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762), Mst. Phaphan through L.Rs v. Muhammad Bakhsh and others (2005 SCMR 1278), Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446), Abdul Haq v. Mst. Surraya Begum (2002 SCMR 1330), Lal Khan through L.Rs v. Muhammad Yousaf through L.Rs (PLD 2011 SC 657) and a latest Judgment of Hon'ble apex Court reported in case of Muhammad Rustam and others v. Mst. Makhan Jan and others (2013 SCMR 299)", wherein mutations of inheritance were challenged after considerable time and the suits were dismissed as barred by time and were maintained by Hon'ble apex Court.

8. Both the Courts below failed to properly examine the revenue record available on file and also follow the settled proposition of law that presumption of correctness attached to the long standing entries of record of rights. Beside this both the Courts below failed to follow the dicta laid down in similar case by the Hon'ble apex Court referred in the above para. The claim of petitioners was based on entries made in the revenue record coupled with the peaceful possession appearing from the very first ever settlement carried out in area. In order to rebut the authenticity of the revenue record and those of the settlements, very strong evidence was required. If evidence laid by the parties is put in juxtaposition it transpires that after the death of Azmat Khan the property was inherited by his two sons. This was affirmed by first settlement record of the year 1895 -96 which was followed by the second settlement of the year 1927-28 and exists up till now.

9. Both the learned Courts below have acted with grave illegality by not attaching the statutory presumption to the settlement of 1895-96 and the successive settlements which resulted manifest in justice. The genuineness and correctness of revenue record including pedigree table was not liable disturbed by such belated stage. The dispute arose only when the compensation of Trees was deposited in the Bank and drawn by the petitioners. Had this handsome amount was not lying in the Bank, the respondents/plaintiffs would not have bothered to file suit for possession and declaration. The record of rights which remained in existence, and un-rebutted for more than a century cannot be altered without lawful justification, which is lacking in this case. In view of what has been discussed above, while allowing the instant petition as well as connected Civil Revision No.1098/2010, the impugned Judgments of both the Courts below are set aside and in consequence thereof the suits filed by the respondents/plaintiffs are dismissed. ZC/208/P Revision allowe