2012 PLP 1522 (SCMR)

IJAZ AHMED CHAUDHRY, J.

By way of this appeal with leave of the Court appellants (defendants in the suit) call in question the legality of the impugned judgment dated 21-1-2008 passed by the Lahore High Court, Lahore in Civil Revision No.75 of 2007 whereby the said Court while reversing the findings of both the courts below has decreed the suit for declaration filed by the respondents.

2. Briefly the facts, relevant for disposal of this appeal are that Muhammad Afzal respondent filed a suit for declaration against the appellants/defendants for declaration alleging therein that he is owner in possession of land measuring 16 kanals, 2 marlas being 322/2560 share of land measuring 128 kanal, 7 marlas situated in Khata No.311 Muzafarpur Shumali and that mutation No.3623 attested on 18-1-1971 under the orders of the Collector dated 15-9-1970 and mutation No.1635 dated 29-11-1987 are illegal, fraudulent and have been attested in connivance with the officials of Revenue Department as such are liable to be cancelled. Appellants/defendants hotly contested the suit by filing written statement. Out of the divergent pleadings of the parties the learned Trial Court framed the following issues:-- (1) Whether the plaintiffs are owners in possession of the suit land and Mutation No. 3623, dated 18-1-1971 is illegal without notice and liable to be set aside and order of collector, dated 15-9-1970 and mutation No.1635 dated 29-11-1987 on behalf of the defendants Nos.1 to 3 in favour of the defendant No.4 are also illegal, against the facts and law based on fraud and liable to be cancelled? OPP 1A. Whether the mutation No. 2734 is illegal and ineffective against the rights of the plaintiffs? OPP (2) Whether the suit is bad for non-joinder of necessary parties? OPD (3) Whether the present suit is not maintainable in its present form? OPD (4) Whether the present suit has been wrongly valued for the purpose of court fee and jurisdiction? OPD (5) Whether the present suit is time barred? OPD (6) Whether the defendants are entitled for special costs under section 35-A, C.P.C.? OPD (7) Relief

3. After recording evidence of the parties learned trial Court decreed the suit on 20-6-2001 but the case stood remanded by the learned Appellate Court on appeal by the opposite party whereafter some more evidence was recorded. The suit was dismissed by the learned trial Court on 17-6-2006 and appeal before the learned District Judge failed through judgment and decree dated 15-11-2006. Feeling dissatisfied with the findings of both the courts below respondents tried their luck before the Lahore High Court by filing Civil Revision No.75 of 2007 which was accepted through impugned judgment and decree dated 21-1-2008 whereby suit for declaration filed by the respondent was decreed. Being aggrieved of the said judgment and decree Atta Muhammad and others, appellants/defendants filed C.P.L.A. No.145-L of 2008 in which leave was granted vide order dated 30-7-2008.

4. Learned counsel for the appellants contends that the concurrent findings recorded by the learned trial Court as well as by the Appellate Court were wrongly interfered with by the learned High Court without giving any cogent reasons; that the entries of mutation in the Revenue Record were sufficient enough proof regarding title of the appellants as there remained silence for about 21 years from the side of respondent as to the mutation in question as such the suit was badly barred by time. On the other hand learned counsel for the respondent while vehemently opposing this appeal contends that the learned High Court has rightly decreed the suit of the respondent and has committed no illegality or material irregularity while doing so and that the respondents were not at all able to produce any iota of evidence to prove the sale of land in question by the respondent and his late brothers in favour of father of appellants Nos.1 to 3.

5. We have heard learned counsel for the parties and have also perused the record.

6. The core issue in this appeal is sale of land in question by respondent and his late brother in favour of appellants Nos.1 to

3. Copy of mutation No 2734 produced on record as Exh.D-7 shows that the land in question is purported to be sold by the respondent and his late brother Sher Zaman in favour of the appellants wherein in the remarks column of the said mutation it has been written that the mutation has been entered pursuant to the receipt of an application from the office of consolidation officer Jauharabad but no particulars like date of said application or order of the Consolidation Officer has been written on the said document. Even there is a mention on the said document that on 15-8-1961 the parties were absent and it was taken on 21-7-1962 and the order shows that, Gama, a Special Attorney of the vendors is present and admits the sale and receipt of the consideration amount of Rs.2,

000. It is strange that the sale in question has allegedly been shown through special attorney but neither special power of attorney was produced before the learned trial Court nor the document authorizing the said attorney to enter into a sale with the vendees have been produced on record. In such circumstances, the ingredients of sale of land are lacking in the instant case and simplicitor entering of mutation in the revenue record is nothing but a fraudulent device in order to deprive the respondents for their lawful ownership. As against the said document the respondent in his suit clearly mentioned that his bother Sher Zaman was murdered by the defendants/appellants in the year 1964 and he further elaborated his stance while appearing in the witness box before the learned trial Court as P.W.1 that after the murder of his brother he abandoned his residence and settled in Pakpattan Sharif and all the proceedings of mutation in question were carried out in his absence. This explanation furnished by the respondent seems to be correct and the learned High Court has rightly reversed the findings of the learned trial Court as well as First Appellate Court on Issues Nos.1 and 1-A as the appellants have badly failed to prove sanctioning of mutation in their favour.

7. As regards the question of limitation, it has rightly been held by the learned High Court that admittedly the parties are co-sharers and the illegal change in the revenue record would not make the period of limitation running against the respondent/plaintiff as he has fully proved on record after the murder of his brother in the year 1964 that he abandoned his residence in the revenue estate in question and returned in the year 1994. Even otherwise, the point of limitation was not pressed by the appellants during the trial although there case before us is that they had very much pressed into service the issue of limitation but the courts below wrongly mentioned that the same was not pressed but they have badly failed to show us from the record anything that they had pressed Issue of limitation before the courts below. In such circumstances the learned Lahore High Court has rightly passed the impugned judgment and decree and has committed no illegality or material irregularity while decreeing the suit of the respondent warranting interference by this Court in its constitutional jurisdiction.

8. Upshot of the above discussion is that instant appeal fails and the same is hereby dismissed leaving the parties to being their own costs. M.W.A./A-22/SC Appeal dismissed.