2015 PLP 385 (CLC)

MUHAMMAD EJAZ SWATI, J.

Through R.F.A. No. 15 of 2008, the appellant has challenged validity of the judgment and decree dated 30th April, 2008 (hereinafter the "impugned judgment and decree") passed by the learned Senior Civil Judge, Hub (hereinafter the "trial Court") in Civil Suit No. 13 of 2007 (re-numbered 18 of 2008), whereby the suit filed by the appellant was dismissed. Whereas, the Regular First Appeal No.16 of 2008 has been directed against the judgment and decree dated 30th April, 2008 passed by the learned Senior Civil Judge, Hub, whereby the suit filed by the respondents was decreed. Both the appeals involved the question of same property, therefore, are being decided through this common judgment.

2. The common facts arising out from both the appeals are that, the respondents Nos.1 to 53 (plaintiffs) arising from R.F.A. No.16 of 2008, are recorded owners of land falling under Khasra Nos. 791, 795, 795/1, 793, 794, 689, 683, 676, 696, 806 and 791/1 (11 pieces), measuring 40 acres situated in Mouza Padua, Tehsil Hub, District, Hub (property-in-dispute). On the property in dispute, the owner constructed 2/3 rooms and installed a bore. The property in dispute was given to the appellants/defendants namely Sher Muhammad, Dur Muhammad and Bakhtiar Khan for cultivation and they used to give due share to the owners i.e. respondents Nos.1 to 53 (plaintiffs), when the tenants (appellants) without consent and permission of the owners started construction of further rooms, they were stopped, as a result, the appellants stopped giving the share of ownership to them. The predecessor of respondent Nos.I to VI namely Muhammad Qasim filed a complaint under section 3 of the Illegal Dispossession Act, 2005 against the appellants, which was allowed on 15th July, 2006 and the appellants were directed to restore possession of the suit land, however, the appellants assailed the above order before this Court by way of filing Criminal Revision Petition No. 71 of 2006, which was decided with consent that the parties will approach the Civil Court-for their respective claims in respect of property in dispute.

3. The appellant/plaintiff Bakhtiar in R.F.A. No.15 of 2008 filed a suit bearing No.13 of 2007 on 28th April, 2007 for Declaration, Cancellation and Injunction before the Senior Civil Judge, Hub against the respondents and pleaded that on the basis of an agreement dated 28th February, 2008, he purchased the property from the predecessor of respondents Nos.1 and 2 namely Muhammad Ali in consideration of Rs.70,000 and sought ownership. The trial Court after recording evidence from both the sides dismissed the suit vide impugned judgment as mentioned hereinabove.

4. The respondents Nos.1 to 53 in R.F.A. No. 16 of 2008 filed a suit bearing No.29 of 2007 on 1st September, 2007 against the appellants before the same Court for possession of the property in dispute, which was contested by the appellants (defendants) by way of filing written statement. In Suit No. 13 of 2007, out of the pleadings of the parties, following issues were framed:

(1) Whether the suit of plaintiff is liable to be rejected under Order VII, rule 11, C.P.C. in view of preliminary objections raised by defendants Nos.I to 6 in their W/S? (2) Whether the plaintiff is bona fide purchaser and lawful owner of property bearing Khasra Nos.791, 791/1, 792, 792/2, 793, 94, 689, 683, 676, 796, 806 measuring 40 Acres situated at Mouza Pathra, Tehsil Hub? (3) Whether the defendant No.7 has handed over physically possession of said land to plaintiff on the basis of an agreement dated 28-2-1988? (4) Whether document dated 28-2-1988 is not a sale agreement and is it a forged, fabricated and unlawful document? (5) Whether plaintiff is entitled to the relief claimed for? (6) Relief?

5. In Suit No.29 of 2007 filed by the respondents Nos.1 to 53, following issues were framed:

(1) Whether the plaintiffs are recorded owners with possession of land falling under. Khasra Nos. 791, 795, 795/1, 793, 794, 689, 783, 676, 796, 806, 791/1 11 pieces, measuring 40 acres, Mouza Pathra Tehsil Hub District Lasbela? (2) Whether four years ago few cultivable portions of the suit land were given to defendants by plaintiff for cultivation purpose only?

6. The appellant Bakhtiar produced PW-1 Jamala, PW-2 Gohar Khan, PW-3 Wazir Khan and thereafter the appellant Bakhtiar recorded his statement and produced agreement Exh.P/1-A. In rebuttal, the respondents in R.F.A. No. 15 of 2008 produced DW-1 Ghulam Nabi, DW-2 Shoukat Ali, DW-3 Abdul Ghani, DW-4 Abdul Latif (Patwari), who produced mutation entries Ex.D/4-A.

7. It is pertinent to mention here that during pendency of the suit filed by the appellant Bakhtiar, the respondents in R.F.A. No.16 of 2008 filed Suit No.29 of 2007 on 1st September, 2007. Both the suits were consolidated on the application and with consent of the parties and the counsel requested that the evidence recorded in Suit No.13 of 2007, be considered in Suit No.29 of 2007, therefore, DW-5 Gulab Khan, DWR-6 Muhammad Siddique, DW-7 Muhammad Naeem and DW-8 Suleman are witnesses of the appellants. While in Suit No. 29 of 2007, arising from R.F.A. No. 16 of 2008, the respondents/plaintiffs produced PW-1 Abdullah, PW-2 Abdul Wahid and thereafter got recorded their statements through attorney Sadiq Ali, however, in that suit, the statements recorded in Suit No. 13 of 2007 of the respondents/plaintiffs' witnesses were also considered and DW-1 Ghulam Nabi, DW-2 Shoukat Ali, DW-3 Abdul Ghani and DW-4 Abdul Latif Patwari, who produced Ex.D/4-A along with entries in favour of respondents Nos.1 to 53 were considered and the trial Court after completion of evidence from both sides passed the impugned judgments/decrees as mentioned hereinabove.

8. The learned counsel for the appellants contended that the appellants have lawfully purchased the property in dispute from the real owners through valid agreements; that the sale agreement was produced in evidence and accordingly proved; that longstanding possession of the appellants over the suit-land further establishes their right and entitlement; that in view of the lawful transaction, the respondents are under legal obligation to transfer the suit property in favour of the appellants; that mere mutation entries do not create title in favour of respondents; that the findings rendered by the trial Court reflect misreading and non-reading of evidence, cannot be sustained. The learned counsel for the respondents contended that the appellants were inducted in few pieces of suit property only for the purpose of cultivation subject to payment of share of produce; that the appellants not only stopped the share of ownership to respondent, but illegally and unlawfully retain the possession for which they had no right or entitlement; that the suit filed by the appellant Mukhtiar was neither maintainable nor based on any title documents, therefore, the trial Court has rightly dismissed the suit; that the respondents through oral and documentary evidence established that they are lawful recorded owners of the suit property; that the impugned judgments and decrees passed by the trial Court are based on evidence and sound reasoning warrant no interference.

9. We have heard the counsel for the parties and gone through the record of the case. Considering the evidence on record in respect of R.F.A. No.15 of 2008 arising out of suit filed by the appellant Bakhtiar, wherein; he alleged purchase of the property in dispute on the basis of agreement dated 28th February, 1988 Exh.P/1-A and filed a suit for declaration. It is evident from the plaint and evidence on record that the appellant has based his claim on Exh.P/1-A, which does not by itself create any right, interest or any charge on the property in dispute and the so called agreement does not create any lawful title in favour of the appellant/plaintiff Bakhtiar. Even otherwise in presence of a purported agreement, the appellant had a remedy to seek specific performance subject to all just legal exception. Under the provisions of sections 17 and 49 of the Registration Act, every document purporting to create any right, title or interest of the value of Rs.100 and upward requires compensatory registration. Even otherwise section 54 of the Registration of Property Act, apart from other notice postulates that a contract for the sale of immovable property is a contract that a sale of such property shall take place on the terms settled between the parties subject to fulfillment of all other legal obligations. It does not itself create any interest in or charge on such property, it follows that the agreement between the parties would not confer any right, title or interest in the property in suit in favour of the plaintiff. In the case reported in PLD 1978 Lahore 113, a Division Bench of the Lahore High Court while dealing with the issue related to grant of declaratory relief in terms of section 42 of the Specific Relief Act, 1877, held that "this section applies only to a case where a person files a suit claiming entitlement to any legal character or any right to property, which entitlement is denied by the defendants. It cannot be applied to a case where the plaintiff did not allege to any legal char character or any right to property or its denial by the defendants". In the case reported in PLD 1986 Lahore 399, the view taken was that, "where the plaint reveals that there was a mere agreement to sale, plaintiff could not maintain his suit for declaration on the basis of such agreement as it did not create any right, title or interest in the property". In another case reported in PLD 1981 SC (AJ&K), it was held that "a person, who has contracted to buy a land, is not owner of any interest in the land and is, therefore, not entitled to a decree of title". In the case reported in 1982 SCMR 1178, it was held by the Hon'ble Supreme Court of Pakistan that "a suit under section 42 of the Specific Relief Act, if based on an agreement, the plaintiff is required to ask for other relief i.e. specific performance of agreement and if prayer for specific performance of agreement being not made, that suit is liable to be dismissed."

10. In the instant case, the appellant Bakhtiar in his suit has relied upon the purported agreement Exh.P/1-A dated 28th February, 1988, stipulation whereof is as under:

11. The aforesaid two lines recital produced by the appellant in his suit nowhere indicates sale of the property by the owners in favour of the appellant Bakhtiar nor imposes any performance on the part of owners nor confers any right in favour the, appellant. Even otherwise, it was incumbent upon the appellant to have produced the marginal witnesses i.e. Faqir Muhammad and Sharif Khan to prove its execution. Non-production of case witnesses are fatal to the case of appellant with the legal consequences, that the recital of these documents cannot be said to have been proved in terms of Article 79 of the Qanun-e-Shahadat Order, 1984, therefore, the appellant has miserably failed to establish his right or interest in the property in dispute. 11.A The respondents through evidence established that they are the recorded owners, besides the evidence on record certainly shows that the appellant was neither bona-fide purchaser, nor the lawful owner of the property bearing Khasra Nos.791, 791/1, 792, 792/2, 793, 94, 689, 683, 676, 796 and 806 (11 pieces), measuring 40 acres situated at Mouza Pathra Tehsil Hub, therefore, the question of handing over the disputed property to the appellant Bakhtiar by the respondent No.7 does not arise and would also not create any right or title in his favour, thus, the findings on Issues Nos.1 to 4 recorded by the trial Court are unexceptionable, warranting no interference by this Court.

12. Adverting to R.F.A. No. 16 of 2008, arising out of Suit No.29 of 2007 filed by the respondents Nos.1 to 53 against the appellant/ defendant for possession of the disputed property. The plaintiffs, besides producing PW-1 Abdullah, PW-2 Abdul Wahid and PW-3 Ghulam Nabi, DW-2 Shoukat Ali and DW-4 Abdul Latif, produced mutation entries Exh.P/4-A, indicating that they are the recorded owners of the property in dispute, whereas in rebuttal the appellant Bakhtiar relied upon the purported agreement as discussed hereinabove and the same has not been considered a valid and proved documents. Whereas the appellants Dur Muhammad and Sher Muhammad produced DW-6 Muhammad Siddique, who merely stated that the appellant No.2 Dur Muhammad purchased the property in dispute from Abdullah in consideration of Rs.300,000 and DW-7 Muhammad Naeem and DW-8 Suleman merely stated that the appellant Sher Muhammad purchased the property in dispute without specifying the name of that person or what was the consideration amount, therefore, the trial Court has rightly rejected the evidence produced by the appellants/defendants.

13. The learned counsel for the appellants laid much stress that mere the mutation entries in favour of the respondents Nos.1 to 53 does not create any right and on that strength, the mutation entries produced by the respondents confer no right. This contention of the learned counsel for the appellants is not tenable. It is a well-settled that presumption of truth is attached to mutation. The appellant6s did not lead any evidence to rebut the said entries in any manner. In the case of Hakim Khan v. Nazar Ahmed Lughmani, 1992 SCMR 1832, the claim made on the basis of revenue entries was upheld and concurrent judgments and decrees of the Courts below were set aside because no evidence was led to prove that those entries were collusive or fraudulent. In the case of Mazloom Hussain v. Abid Hussain, PLD 2008 SC 571, the afore referred view was reiterated and it was observed as under:

"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." In the case of Nawab Khan v. Said Karim Khan, 1997 SCMR 1840, the entries made in the revenue record were not interfered with as presumption of truth was attached to those entries and no strong evidence was led in rebuttal to warrant interference with those entries. The Hon'ble Supreme Court in the said judgment at page 1844 held as under:

"The contents of the record of rights which also includes the settlement record used to be followed with more or less exactness by the Settlement Officers, which included Wajib-ul-Arz, Jamabandi and the portion of the Shajra-enasb or genealogical of the proprietors. The presumption of truth is attached to the record of rights generally but to the first ever settlement record in particular. Very strong evidence is required to rebut the presumption of correctness attached to the first settlement record of an area."

14. In the present case, the respondents Nos.1 to 53 through an oral and documentary evidence, i.e. the revenue record, had proved that they are the recorded owners of the disputed property and some cultivable portion of the said land were given to the appellants/defendants for cultivation purposes only and the appellants had neither purchased any piece of the suit property from them nor had any lawful right to continue their possession over the same, thus the findings rendered by the trial Court in respect of Issue Nos.1 to 5 are based on proper appreciation of evidence, which do not call for any interference by this Court.

15. The appellants in both the appeals, though had no right or entitlement over the disputed property and they were inducted to cultivate the said portion of the property by the respondents (owners of the property) and they were under legal obligation to provide due share of produce to the owners i.e. respondents, they did not only withhold the share, but also deprived the respondents from their valuable right in the property in dispute since 2007, thus we are constrained to impose a compensatory cost of Rs.50,000 (Fifty Thousand) upon the appellants jointly and severally to be paid to the respondents Nos.1 to 53 and the concerned Tehsildar is directed to take the vacant possession of the property in dispute from the appellants and handover the same to the respondents Nos.1 to 53 within a period of one month. In view of the above, the Regular First Appeal Nos.15 and 16 of 2008 are dismissed with cost. Decree sheet be drawn accordingly. AG/82/Bal. Appeal dismissed.