2023 PLP 600 (CLC)

ABDUL HAMEED BALOCH, J.

In order to avoid conflict in findings I intend to dispose of Civil Revision Petition No.209 of 2017 and Civil Revision No. 210 of 2017 through this common judgment. Civil Revision No. 209 of 2017:

2. Concise facts of the case are that the petitioners/plaintiffs filed a suit for declaration, correction of entries of Mouza Karam Abad, permanent injunction and possession against the respondents/ defendants in the court of learned Additional Qazi Kharan in respect of 1/3rd share in property of property of Karam Abad with the following prayer:

3. The respondents/ defendants Nos.1 to 4 filed written statement alleging therein that the suit is time barred. The suit land was mutated in the name of respondent/defendant No.1 about 26/27 years ago during final attestation. They prayed for dismissal of the suit.

4. The respondents/ defendants Nos.6 to 16 filed their separate written statement and admitted the contents of the plaint.

5. The learned Additional Qazi Kharan (trial court) framed following issues out of the pleadings of the parties: Civil Revision No. 210 of 2017:

6. The petitioners/plaintiffs filed amended suit for declaration, permanent injunction, correction of entries, possession against the respondents/ defendants before the court of Additional Qazi Kharan (trial court) stating that on the basis of family partition in the year 2000 between the legal heirs of Nawab Habibullah Khan 1/2 share of property in Mouza Patkan was given to the petitioners/ plaintiffs and prayed as under:

7. The respondents/defendants filed written statement and controverted the claim of the petitioners/plaintiffs by stating that the final attestation of Mouza Patkan was completed about 25/26 years ago. The suit land was mutated in the name of defendant No. 2 without any objection. They prayed for dismissal of the suit.

8. The learned trial court out of the pleadings of the parties framed following issues:

9. The record transpires that the counsel for the petitioners remained absent on 24.7.2020, 7.8.2020, 17.8.2020, while appeared on next date and requested for adjournment, but again remained absent on 25.8.2020, appeared on 3.12.2020, but again despite service remained absent on 18.12.2020. The instant petitions were filed in the year 2017, cannot be kept pending for indefinite period, therefore, I left with no other option but to hear learned counsel for the private respondents, learned AAG and decide the petitions on the basis of available material on record.

10. The learned counsel for the petitioners contended that both the courts below failed to appreciate evidence in accordance with law. The photocopies of the documents were produced by the petitioners without any objection. Subsequent objection with regard to admissibility of documents could not be raised. The petitioners/plaintiffs through oral as well as documentary evidence proved the burden which lies on them. The judgments of both the courts below are based on supposition and presumptions. The learned counsel placed reliance on: Mst. Rehmat Bibi v. Haji Allah Dewaya 2009 CLC 390, S.A.K Rehmani v. The State 2005 SCMR 364, Malik Din v. Muhammad Aslam 1968 SCMR 1102, Sheikh Muhammad Anwar v. Sheikh Muhammad Iqbal 1984 CLC 103

11. Conversely the learned Additional Advocate General strongly opposed the contention of the petitioners and stated that the petitioners/plaintiffs have failed to prove the case. It is settled principle who alleged a thing must prove the same trough evidence. The petitioners/plaintiffs and on its own footing and cannot take benefit from the shortcoming of defendants.

12. On 26th February, 2021 the learned counsel for the petitioners filed an application under Order XIII, Rule 2 read with Section 151, C.P.C. for placing documents. The record transpires that the petitioners/ plaintiffs filed suit before the trial court on 18th January, 2013, which was dismissed on 19th May, 2016. The appeal was met with the same fate on 4th April, 2017, whereafter, the petitioners/ plaintiffs filed instant revision petition on 21st August, 2017. The petitioners/ plaintiffs filed the above referred application for placement on record certain documents after more than three years of filing of revision petition. It would be appropriate to reproduce Order XIII, Rule 2, C.P.C. for ready reference: "Effect of non-production of documents.

No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing."

13. It appears from the plain reading of above referred rule that the parties and their pleaders have to produce all documentary evidence at first date of hearing. It is requirement of law. No document in possession and power of any party shall be received at subsequent stage of proceeding unless good cause is shown to the satisfaction of the court for non-production thereof. The petitioners failed to show good cause for non producing the document on first date of hearing. The application is merit-less, thus dismissed accordingly.

14. Heard and have gone through the record. The record transpires that the petitioners filed both the suit in regard 1/3rd share of inherited property of Nawab Amir Habibullah Khan in Mouza Karam Abad and 1/2nd share in inherited property for Monza. Patkan stating that the petitioners are legal heirs of Nawab Amir Habibullah Khan. The entire estate of Kharan was kept in Court of Ward and Deputy Commissioner Kharan was appointed as receiver. Later on through order No. F.4(1) DSIL-VII/93 one man commission was appointed. Nawab Abdul Rehman Khan in the year 2000 distributed/ partitioned the inherited estate of late Nawab Amir Habibullah despite knowing that the suit land belongs to petitioners/plaintiffs being legal heirs of Nawab Amir Habibullah. The suit land was mutated in the name of Government of Balochistan which was illegal. The official respondents/ defendants refuted the claim of the petitioners by alleging that the suit land was mutated about 25/26 years ago in the name of Government of Balochistan without any objection. The petitioners/plaintiffs produced PW-1 Abdul Manum and PW-2 Muhammad Alam Assistant/ Record Keeper and attorney of plaintiffs recorded his statement. PW-1 in cross-examination replied as under: Zafar Ali Khan recorded his statement as attorney, who replied to questions as under:

15. It appears from the record that the plaintiffs have not disputed that the settlement was carried out in the year 1987. The witnesses further stated that the plaintiff has remained secretary in different departments. How it could be believed that a secretary was not in knowledge of final attestation. The petitioners filed suit for cancellation of mutation entries after 25/26 years. Admittedly no one can keep mum for such a considerable time. Even as per petitioners in the family settlement the entire estate of Nawab Amir Habibullah was distributed/ partitioned in the year 2000. It cannot be accepted that without ascertaining in regard of mutation entries made family settlement despite knowing that the settlement has already been completed. The evidence of petitioners/plaintiffs reveals that the plaintiff has not been in possession of the suit land. Under Article 142 of the Limitation Act, 1908 (Act, 1908) the period for filing suit for possession of immoveable property is twelve years. The plaintiff has not stated when he was dispossessed. The plaintiff's case is that he is owner of the suit land which has illegally been mutated in the name of the Government of Balochistan. Reference is made to the case of Feroz Din Khan v. Muhammad Latif Khan, PLD 2012 (SC AJ&K) 13, in which it was held: "

6. We have heard the learned counsel for the parties and perused the record. The question which needs determination is whether Article 142 of the Limitation Act, 1908 is applicable in the case or not. Under Article 142, the period of limitation for filing a suit for possession of an immovable property, when the plaintiff while in possession of property has been dispossessed from or has discontinued possession, is 12 years from the date of dispossession or discontinuance of possession. The determining factor is date of dispossession or discontinuance of possession. The expression "dispossession" refers to actual physical dispossession and involves collision and expulsion. Constructive possession in spite of mere abandonment or non-use remains with the owner. To establish "discontinuance of possession" it must be shown that the owner has withdrawn with the intention of abandoning the property and the gap has been filled in by another person, who has come to occupy in consequence of such withdrawal. When a suit is filed, not on the basis of dispossession or discontinuance of possession, but on the basis of title, Article 142 is not attracted in such case. The proposition came under consideration of this Court in a case titled Maqsood Hussain Shah v. Moor Hussain Shah and 3 others [PLD 1989 SC (AJK) 45] wherein it was observed as under: "Next, it is to be seen as to whether the suit would be governed by Article 142 or Article 144 of Limitation Act. The plain reading of Article 142 of the Limitation Act shows that the Article will be attracted only if there is an averment in the pleading that the party seeking possession was 'dispossessed or discontinued the possession'." It was further observed as under: "

14. It follows from the above survey of the case-law that before Article 142 of the Limitation Act could be held applicable to a case it is to be shown that either the party seeking possession was forcibly dispossessed or it voluntarily abandoned the possession and the other party entered into possession. No such eventuality exists in the case in hand and as such Article 144 of the Limitation Act would govern the case and Article 142 has no application. Evidently, the suit filed by the plaintiffs is based on their title and the defendants-respondents resisted the same on the ground of adverse possession and not on the ground of 'dispossession' or 'discontinuance of possession'. Therefore, the proper Article of Limitation Act applicable in the instant case would be Article 144 and not Article 142 of the Limitation Act." The same view was reiterated in another case titled Dewan Ali Khan v. Jehandad Khan and others [1995 CLC 136] wherein after detailed survey of case-law on the subject it was observed as under: "....... As is evident from the case law, referred to above, it is now settled law that Article 142 of the Limitation Act is not applicable to a case where the plaintiff himself does not allege in the plaint that he was 'dispossessed' or 'discontinued the possession' of the disputed land from a certain date. Thus, we approve the view taken by this court in Maqsood Hussain Shah v. Moor Hussain Shah [PLD 1989 SC (AJ&K) 45] and are constrained to dissent from the one taken in Abdul Rehman's case. In another case titled Haji Muhammad Hussain v. Malik Fateh Muhammad [PLD 1953 BJ 10] it was observed as under: "The main question on which the present suit hinges is whether Article 142 or Article 144 applies to such a case. Article 142 of the Limitation Act deals with a case when a plaintiff while in possession of his property has been dispossessed or has discontinued the possession. Article 144 of the Limitation Act is a residuary Article and applies only to suit far possession of immovable property to which no other Article is applicable. The very wording of Article 142 clearly shows that this Article would be applicable to suits for possession of immovable property when the plaintiff while in possession of the property had been dispossessed. Such a suit must be brought within 12 years of the date of dispossession. Therefore the plaintiff who sues for recovery of possession of the land alleging that while in possession of such property he was dispossessed Article 142 of the Limitation Act clearly applies. The burden of proving the date of dispossession would be on plaintiff, who in order to succeed, must show that the dispossession was not prior to 12 years before the suit was filed. Article 144 of the Limitation Act would only apply to suits far, possession where no other Article is applicable. A plaintiff who was never in possession but has acquired a title which entitles him to possession and he brings a suit for possession, then the limitation would be governed by Article 144 of the Limitation Act. In short the main difference between Article 142 and Article 144 of Limitation Act is that when a plaintiff is suing for possession on the ground of dispossession, the onus lies on him to prove that the date of his dispossession was within 12 years of the suit, while if the suit is not for possession based upon dispossession but is a suit for possession of immovable property not especially provided for in any other Article of the Act then on proof of title the plaintiff's suit cannot be dismissed until the defendants further prove his adverse possession as against the plaintiff for more than 12 years." (Underlining is ours)"

16. The Article 142 of the Act, 1908 is not applicable to the cases where the plaintiff himself does not seek in the suit that he was dispossessed from the suit land from certain date.

17. The plaintiff has to prove the allegation made in the pliant in regard of mutation entries. The plaintiff has not stated that when he came to know about mutation entries. The final attestation was completed in the year 1987 but the plaintiff kept mum and does not file suit for cancellation of mutation entries. The period provided for challenging the mutation entries under Article 120 of the Limitation Act, 1908 is six years. Reliance is placed on case Muhammad Haroon v. Mst. Razia Begum, 2001 CLC 810, wherein it was held: "

20. So far as the argument of the learned counsel for the respondents that the suit of the plaintiff was hopelessly barred by time is concerned, this argument has force in it. The Mutation No. 16094 was attested on 28-4-1973. The suit in hand was filed on 24-7-1983, i.e. after 10 years of the attestation of the mutation. The petitioner/plaintiff had the knowledge of attestation of mutation in favour of respondents/defendants but he did not bother to challenge the same. It is in the statement of Muhammad Ayub P.W.6 the attorney of the petitioner/plaintiff that plaintiff/petitioner for the first time in the year 1973 came to his village Mansehra, verified the revenue documents and came to know that his property has been mutated in the names of respondents. Relevant portion of his statement is reproduced hereunder:-- The above statement indicates that the plaintiff/petitioner had the knowledge of the said mutation in the year, 1973 but he kept mum and did not file any suit. The period of limitation prescribed under Article 120 of the Limitation Act for filing declaratory suit is 6 years but the suit in hand as mentioned above was filed after period of 10 years. No explanation worth the name for the delay has been given by the plaintiff/petitioner. In this respect, reliance is placed on:-- (1) Noor Bibi and 6 others v. Fazal Hussain and others 1998 SCMR 230; and (2) Shah Muhammad and others v. Central Government and others 19981C SCMR

341. The present suit is, therefore, hopelessly time-barred."

18. Mutation procedure is not designed for final determination of right/ title. The Revenue Officer is final Settlement Court, cannot decide the question of right over the suit land. The civil court alone is competent to determine the right of person. Mutation is not proof of title as same is maintained for keeping the record right. Entry made in the record of right in accordance with law entitled to a rebutable presumption of correctness. The mutation entries do no per se confer ownership but are in the nature of presumptive piece of evidence to establish the title. It would be relevant to reproduce Section 52 of the Land Revenue Act, 1967: "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 "

19. The entries in the record of rights are strong piece of evidence in support of a person, title to a moveable property and ought to be relied upon in absence of satisfactory evidence. Reference is made to the case Muhammad Jameel v. Karam Khan 2002 YLR 1680, wherein it was held: "

12. The submission of the learned counsel for the appellants that mutation in question was, attested in violation of the provision of section 42, of the West Pakistan Land Revenue Act, 1967 is also fallacious. Firstly, entire proceedings conducted in the course of attestation of mutation is in accordance with law and has been sufficiently established by responsible Revenue officials who deposed in favour of the said mutation. Secondly, the mutation having been incorporated in the subsequent Jamabandies shall carry a presumption or correctness and cannot be dismissed lightly in the absence of any strong evidence in rebuttal."

20. The scope of revision is limited. Reappraisal of evidence is not function of High Court. Where conclusion of law and fact do not in any way affect the jurisdiction of the court no matter however erroneous, the decision might be on question of fact unless decision involves matter of jurisdiction. The power under Section 115, C.P.C. cannot be involved. High Court while exercising revisional jurisdiction was not supposed to interfere in concurrent findings of the courts below without jurisdiction or with material illegality, irregularity resulting to miscarriage of justice. The Honorable Supreme Court of Pakistan in Mst. Kulsoom Bibi's case 2005 SCMR 135 held: "--While exercising revisional jurisdiction, the High Court should satisfy itself upon three matters: firstly, whether the subordinate Court had the jurisdiction vested in it; secondly, whether the case is one in which the Court ought to exercise the jurisdiction and thirdly, that whether the lower Court acted illegally or with material irregularity resulting into miscarriage of justice.

"

21. The record reveals that photocopy of document has been produced before the trial court and same was exhibited. The learned counsel contended that when a photocopy of document was admitted in evidence without objection from other side and placed on record no objection could be raised on its admissibility at a later stage. Reliance is placed on the case of Mst. Rehmat Bibi v. Haji Allah Dewaya, 2009 CLC

390. The referred case law is relating to matrimonial dispute. The defendant in the referred case admitted the factum of marriage and out of wedlock a daughter was born. But the facts and circumstances of the case in hand are entirely different. The petitioners have not produced original of Ex: P/1-A to Ex: P/1-D at the time of exhibition. Under the law the same cannot be taken into consideration as held by Honorable Supreme Court of Pakistan in Abdul Rehman's case 2007 SCMR 61, wherein it was held: "

In the absence of any evidence with regard to loss of such document, photocopy, even if taken on record and exhibited without any objection, would not qualify the document as admissible piece of evidence.

"

22. Under Article 72 of Qanun-e-Shahadat Order, 1984 (Order, 1984), the contents of documents may be proved either by primary or by secondary evidence. Mere production of copy of original document would be entitle the party of the suit to produce secondary evidence unless the condition laid down in Article 76 of Order, 1984 for production of secondary evidence stood satisfied. There is no evidence on record that the original document was lost which was intended to be produced by the petitioners/plaintiffs. Reliance is placed on case Muhammad Azam v. Abdullah 1999 CLC 200 [Quetta].

23. Under Article 117 of Order, 1984 the onus of proof lies on party who desire any court to give judgment as to any legal right or liability. It would be relevant to reproduce Article 117 of Order, 1984 as under: "Article-117: - Burden of proof. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

24. Onus was on the petitioners/ plaintiffs to prove the loss or non-availability of original document as envisaged under Article 76 of the Order, 1984. Articles 117 and 118 of the Order, 1984 made it clear that a person who desire any court to give judgment to any legal right or liability he must prove that those facts exist. The petitioners/plaintiffs alleged ownership through the document. Obviously the petitioners/plaintiffs were required to prove the fact which they asserted in the suit. Reliance is placed on Aamir Ghous Hashmi v. Nusrat Hussain 2017 MLD 2057 and Khan Muhammad v. Muhammad Din, 2010 SCMR 1351. The citations relied by the learned counsel for the petitioners are distinguishable. Each case has its own facts and circumstances. 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 Civil Revision Petition No.209 of 2017 and Civil Revision No. 210 of 2017 are dismissed. The parties are left to bear their own costs. MH/105/Bal. Revision dismissed.