P L D 2022 Balochistan 89 (PLP)

ABDUL HAMEED BALOCH J.

The petitioners assailed judgments and decrees dated 30th April, 2015 and 24th March, 2017 (impugned judgments and decrees) passed by Senior Civil Judge, Pishin and Additional District Judge, Pishin, (trial and appellate court), whereby the suit filed by the plaintiff was dismissed and appeal filed by the plaintiff also met with the same fate.

2. Precise facts of the case are that the predecessor of petitioners filed a suit for declaration, cancellation of instruments and permanent injunction against the respondents/defendants in the court of Senior Civil Judge, Pishin with the prayer: a. To declare that the Patta No. 569 dated 28.07.2005 and in consequence whereof the mutation having khasra Nos. 525, 526, Khasra Kishtwar, Khewat No. 70, Mouza Bazar Funt, Tappa Saddar Surkhab, Tehsil and District Pishin issued by the defendants Nos. 8 and 9 respectively in favour of father of defendants Nos. 1 to 7 are illegal and unlawful, as such the same may be ordered to be cancelled; b. To further declare that plaintiff is legal and lawful possessor of the property in question which was evacuated by Hindus one since decades and the father of defendants Nos. 1 to 7 has no right, claim or entitlement to interfere in the same; c. To restrain the defendants Nos. 1 to 7 permanently and direct them not to interfere in the property in question in any manner; d. Any other relief which this Hon'ble Court may deem fit and appropriate in the circumstances of the case may also be awarded in favour of plaintiff and against the defendants in the interest of justice."

3. The respondents/defendants Nos. 1 to 7 filed written statement, controverted the contention of the plaintiff by raising legal as well as factual objections and prayed for dismissal of the suit.

4. Out of pleadings of the parties the trial court framed following issues: i. Whether the plaintiff has no cause of action to institute the present suit? ii. Whether the property measuring 1984 sq: ft: situated in Ward No. 4 Babu Mohallah City-Pishin is evacuee property, which is in possession of the plaintiff from decades? iii. Whether the Patta No. 569, dated 28th July, 2005 and mutation having khasra Nos. 525, 526, khasra Kishtwar, khewat No. 70, Mouza Bazar Funt, Tappa Surkhab, Tehsil and District Pishin are illegal and liable to be cancelled? iv. Whether the plaintiff is entitled for the relief claimed for? v. Relief?

5. The parties to the lis produced pro and contra evidence. On conclusion the trial court vide judgment and decree dated 30th April, 2015 dismissed the suit. Feeling aggrieved the plaintiff filed appeal before appellate court which too met with the same fate vide judgment and decree dated 24th March, 2017, hence this revision petition.

6. Learned counsel for the petitioners stated that the judgments and decrees of both the courts below are contrary to law and facts. The courts below have failed to appreciate the evidence in its true perspective. Prior to that the predecessor of respondents filed eviction application which was dismissed by Rent Controller and same upheld up to Honorable Supreme Court of Pakistan, meaning thereby that the respondents have failed to establish their right. The judgment passed by the trial court is in violation of Order XX, Rule 5, C.P.C. The documents annexed by the respondents are forged and fabricated. The electricity bill is in the name of plaintiff. The concurrent findings of the courts below are based on misreading and non-reading of evidence. The learned counsel placed reliance on cases 2001 SCMR 1700 and 2009 SCMR 979.

7. The learned counsel for private respondents contended that the judgments of the courts below are well reasoned and based on the material on record. Mere rejection of eviction application does not bestow the ownership of premises in question. The plaintiff has to stand on its own legs. The concurrent finding of fact cannot be reversed on flimsy grounds. The petitioners have failed to point out any illegality or irregularity in the judgments of the courts below.

8. The learned AAG supported the arguments of learned counsel for private respondents.

9. Heard and perused the record with the assistance of learned counsel for the parties. The record reveals that the predecessor of petitioners filed suit in the trial court. The private respondents filed written statement. The plaintiff in support of the plea produced three witnesses. PW-1 Naimatullah deposed that he knew the plaintiff from childhood as the resident of the disputed house. The witness in cross-examination stated as under:

10. PW-2 Asmatullah deposed that the plaintiff is owner of the house and is residing in the same. The witness in cross-examination stated as under:

11. PW-3 Saifullah Senior Clerk of the office of Senior Civil Judge, Pishin produced the record of eviction application.

12. The attorney of plaintiff namely Bashir Ahmed deposed that the property in question is owned by his father since independence. The property in question is evacuee property. In cross-examination the witness replied as under:

13. It is settled proposition that the party alleged some fact must prove the same. In other words the plaintiff has to prove the case on its own strength. Under Articles 117 and 118 of Qanun-e-Shahadat Order, 1984 (Order 1984) the person who approached the court for seeking right upon existence of a fact must prove the same by producing trustworthy, consistent and not with shaky evidence. It is settled principle of law that heavy burden is on plaintiff to prove his title/ ownership through cogent, trustworthy and reliable evidence. A party approaching the court for the relief has to discharge his own burden and stand on his own legs to succeed and cannot take benefit from the weaknesses/shortcomings of defendant's side. Reliance is placed on the case Sultan Muhammad v. Muhammad Qasim 2010 SCMR 1630.

14. So far as the contention of petitioners that electricity bill issued is in the name of plaintiff, has no force on two aspects, one is that the plaintiff neither produced the electricity bill in accordance with law, nor exhibited. Mere placing the photocopy of bill with the plaint cannot be considered, secondly the document of electricity connection was best document that would entitle the department to recover the bill from the occupants and never be taken to be the evidence of ownership of premises. Reliance is placed on case Muhammad Ismail v. Maqbool Ahmed 2001 CLC 252, wherein it was held: "

The installation of electricity connection does not confer any right on the petitioner. Electricity is not provided to the owners only but any occupant can get the connection after fulfilling theformalities required by WAPDA. "

15. Now adverting to another contention of the petitioners that the eviction application filed by the respondents against the plaintiff before Rent Controller Pishin was dismissed. The order of the Rent Controller upheld up to Honorable Supreme Court, meaning thereby that the possession of the petitioners is admitted in the property in question. The contention of the petitioners has non legal backing firstly on the ground that the Rent Controller was not mandated under the law to decide the title/ownership of the property. There is no cavil to the proposition that the ownership of party is not an essential condition to create relationship of landlord and tenant. Reliance is placed on the case of Saifuddin v. Senior Civil Judge/Rent Controller-VIII, Karachi (South) 2007 SCMR

128. Secondly the pivotal question is whether the possession is legal or not. Mere possession of property without any legal backing/justification would not create title. Reliance is placed on case Secretary Board of Revenue, Government of Balochistan, Quetta v. Qadir Bakhsh 2012 CLC 1165.

16. The record transpires that DW-5 exhibited the document of disputed house, produced the order of Deputy Commissioner Pishin Quetta dated 27th November, 1969, wherein khasra Nos. 525 and 526 have been sanctioned transfer of lease in favour of Muhammad Sharif vide Ex: D/5-A, approval to sell house Ex: D/5-B, Ex: D/C, letter of Chairman Town Committee dated 7th November, 1969, wherein khasra Nos. 525 and 526 were transferred to the name of Muhammad Sharif Ex: D/5-D, application to Deputy Commissioner for obtaining Patta in khasra Nos. 525 and 526 Ex: D/5-E dated 24.11.1969, agreement, payment of Boom Bara Ex: D/5-F, Ex: D/5-G, Ex: D/5-H, Patta No. BDLF/1/60 Land 6042-43 dated 27.11.1969, receipts of sale and purchase Ex: D/5-I, agreement Ex: D/5-J, application dated 4.11.1969 Ex: D/5-K, receipts 2008 Ex: D/5-L, receipt 2005 Ex: D/5-M, Patta 2005 Ex: D/5-N, renewal of Patta Ex: D/5-O. The above referred documents were issued by the respondents. The petitioners failed to controvert the documents and placed evidence in regard that the referred documents are forged and fabricated one. The documents were duly exhibited without any objection. Presumption of truth attached to such documents. It is settled proposition of law that the man can tell lie but document cannot. The documentary evidence has been given greater weight as compare to oral evidence. Mere oral assertion is not sufficient to rebut documentary evidence. Reliance is place on case Manzoor Hussain v Abid Hussain PLD 2008 SC 571, wherein it was held: "

9. As per the provision contained in section 52 of the West Pakistan Land Revenue Act, 1967, the presumption of truth is attached to the entries in the record of rights and periodical records. This provision is reproduced herein under for further ready reference: "

52. Presumption in favour of entries in record-of-rights and periodical records.

An entry made in a record-ofrights 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 therefor."

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."

17. The scope of High Court in revisional jurisdiction is limited. In revisional jurisdiction this court cannot reopen the case. High Court can interfere in the concurrent finding of courts below only if it shows that the finding of the courts below are based on misreading and non-reading of evidence or overlook the material evidence or the courts below failed to exercise jurisdiction vested in it or assume jurisdiction not vested in it. Reliance is placed on case Ansar Iqbal v. Muhammad Ahsan Khan 2021 CLC 1394, wherein it was held: "

5. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity, misreading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect in the concurrent findings of fact which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the cases titled as Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304), Rashid Ahmad v. Said Ahmad (2007 SCMR 926), Asmatullah v. Amanat Ullah through LRs (PLD 2008 SC 155) and Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469). " The citations relied upon by the learned counsel for the petitioners are distinguished. Each case has its own peculiar facts and circumstances. In view of above discussion the instant revision petition being without merit is hereby dismissed. The judgments and decrees dated 30th April, 2015 and 24th March, 2017 passed by Senior Civil Judge, Pishin and Additional District Judge, Pishin respectively are upheld. The parties are left to bear their own costs. ZH/180/Bal. Revision dismisse