2016 PLP 136 (YLRN)

MUHAMMAD IQBAL KALHORO, J.

This order shall dispose of instant revision application in the terms as discussed herein below.

2. Relevant facts in nutshell are that the applicants filed a civil suit for declaration, permanent injunction, cancellation of documents and mense profits before Sr. Civil Judge, Tando Adam District Sanghar claiming ownership of agricultural land admeasuring 35.34 acres spread out over different survey numbers in deh and Taluka Tando Adam District Sanghar. The said land was left by their parents. Their father Shah Azizullah Abbasi died on 30.05.1992 leaving behind applicants and their mother Mst. Tayyaba Khatoon. They inherited the said property and enjoyed its possession. Their mother Mst. Tayyaba died on 17.09.2002. After her death, applicant No.1 approached Mukhtiarkar Revenue Tando Adam in March 2007 for transfer of her land to their name, but he was surprised to know that the said land was shown to have been sold in the record. And this was all done by respondents/defendants Nos.1 to 4 with the active connivance of revenue officers. Bogus entries were maintained showing transfer of their parents' land through sale in favour of respondents Nos.3 and 4 respectively, and such transactions were shown to be executed through sale statements recorded at the back page of the relevant entries. Applicant No.1 also came to know that respondent Nos.3 and 4 had sold the suit land further to respondents Nos.1 and 2 through registered sale deeds. Applicants' case is that their parents had not sold the suit land to the respondents Nos.3 and 4 as alleged by them and all the subsequent entries showing further transactions were false and fabricated, which were got prepared by respondents Nos.1 to 4 with the collusion of revenue officers and were liable to be cancelled.

3. In response respondent No.1 namely Manzoor Hussain filed his written statement. The others did not and were declared ex parte. In the written statement, respondent No.1 has denied the case of the applicants and has stated that the applicants had filed an appeal under section 161 of the Land Revenue Act, 1967 before DDO Revenue Tando Adam District Sanghar against him and others which was dismissed on merits on 20.09.2007, whereafter the applicants did not file any revision application against such order. According to him, the subject land was sold by applicants' father on 12.10.1987 to respondent No.3 (Ghulam Rasool) on the basis of sale statement which was initially made in deh form XV and subsequently in deh forms VII-B and duly verified. Similarly Mst. Tayyaba Khatoon, mother of the applicants had sold out her land viz. 20.34 acres to respondent No.4 on the strength of sale statement on 08.11.1986, whereafter such entry was made and duly verified. He has further stated that subsequently respondent No.3 sold out 10 acres to him through registered sale deed dated 09.04.2007 and such entry was also recorded in the record of rights; respondent No.3 sold 5.24 acres to respondent No.2 and such mutation was also recorded in the relevant record of rights. As per his statement, he and respondent No.2 have become sole owners of suit land through the registered sale deeds and the applicants have no right, title or interest over the suit land. Respondent No.1 has additionally taken the plea of non-maintainability of the suit on the point of limitation.

4. The trial Court found the parties at variance on following issues.

1. Whether suit is not maintainable under law?

2. Whether the suit is barred by law?

3. Whether the plaintiffs are legal and sole owners of properties of their late father Shah Azizullah son of Shah Karimullah Abbasi Agrl: land bearing Survey No.51/A (223 acres), 483/1 (011 acres), 256 (0-06 acres), 481/3 (4-00 acres), 488/3 (3-10 acres) and 488/2 (4-00 acres) total admeasuring 35-34 acres, situated at Deh and Taluka Tando Adam, District Sanghar Sindh?

4. Whether Shah Azizullah Abbasi father of plaintiffs died on 30.05.1992 and after that said agrl: land was transferred in the name of plaintiffs and their mother Tayyaba Khatoon through Foti Khata?

5. Whether the mother of the plaintiffs died on 17.09.2002 and after that plaintiff No.1 filed an application on 27.03.2007 before the respondent No.6 for transfer of the land of their deceased mother in their name?

6. Whether it came to the knowledge of the plaintiff that defendants Nos.1 to 4 have manipulated record of rights with the collusion o defendants Nos.5 to 12 and plaintiffs Nos.1 and 2 also tried to encroach the land of plaintiffs and thereafter plaintiff No.1 rushedly contact with the defendant No.6 in this regard?

7. Whether the said property in question with ulterior motives/mala fide intention with the collusion of defendants Nos.5 to 12 have transferred in the name of defendants Nos.1 to 4 fraudulently and by way of illegal means?

8. Whether the plaintiff's mother sold out her land admeasuring 20-34 acres situated in deh and Taluka Tando Adam District Sanghar to defendant No.4?

9. Whether the defendants Nos.1 to 4 manipulated the record of rights of defendant No.6 with the collusion of defendants Nos.5 to 12?

10. Whether the plaintiff is entitled to take peaceful possession from the defendants Nos.1 to 4?

11. Whether the entries made in the name of defendants Nos.1 to 4 are liable to be cancelled and treated the same as bogus and fabricated?

12. Whether the plaintiff is entitled to get mesne profits?

13. Whether the plaintiffs have got cause of action against the defendants to file the present suit?

14. Whether the plaintiffs are entitled for the relief claimed?

15. What should the decree be?

5. Parties led their evidence in the trial, produced evidence, and at the end of the trial, the suit was decreed vide judgment and decree dated 30.4.2010. In appeal, the findings of the trial court were reversed and the suit was dismissed vide judgment and decree dated 24.9.2011.

6. The applicants being aggrieved by the said judgment and decree have filed the instant Application.

7. Syed Abdul Waheed, learned counsel for applicants argued that learned Appellate Court had not properly appreciated the evidence and it was swayed by the considerations extraneous to the dispute involved. He next emphasized that the applicants were the successor-in-interest of their parents and after their death they had inherited the suit land, but the Appellate Court ignored this fact entirely and relied upon some dubious sale statements showing transaction of the suit land. He next argued that as per established principles of law, the respondents Nos.3 and 4, who were the beneficiaries, were required to prove actual transaction whereby they had purchased the suit land from the parents of the applicants. According to him the respondents had completely failed in this connection as even no documents were placed on record to show payment of sale consideration, no witness of sale or the officials before whom alleged transaction took place were examined by the respondents, in spite of that the appellate court dismissed the suit by holding that the applicants had not been able to prove their case. He urged that such approach of the appellate court was not according to law. He next argued that applicants had seriously disputed relevant entries and mutation recorded in favour of respondents Nos.3 and 4 as such they were under heavy burden to prove sale of the suit land to them. He also contended that respondent No.1, who filed the written statement, did not appear in the trial court for evidence and on his behalf his attorney turned up, therefore, such evidence could not be taken into consideration. Further explaining his case, learned counsel maintained that learned Appellate Court wrongly believed evidence of Mukhtiarkar who claimed entry No.261, showing change of Foti Khata Badal in favour of the applicants, as false without realizing that the applicants were admittedly the legal heirs of original owners of the suit land, therefore it was against common prudence to expect from them making a false document indicating their inheritance to the suit land. According to him, the applicants were not in need of any proof to establish their status. He was of the view that the entry No. 261 was given undue importance by the appellate court.

8. Mr. Suresh Kumar, learned counsel for respondent on the other hand argued that the suit filed by the applicants was time barred, explaining it he stated that the sale transactions in respect of the suit land took place in the years 1986 and 1987 and which were in knowledge of the applicants but they challenged it only in the year 2008 after more than 20 years. He referred to Articles 14, 90, 120 and 142 of Limitation Act to support his point. On merits his case was that parents of the applicants had sold out the suit land to respondent Nos.3 and 4, who subsequently sold the land to respondents Nos.1 and 2 and they were in its continuous possession since then. Applicants had challenged the mutation in their favour before DDO (Revenue) Tando Adam but remained unsuccessful, and then instead of filing revision against that order, they filed the suit. He further contended that the trial court without properly appreciating the evidence had wrongly decreed the suit. The applicants had utterly failed to establish their case but the trial court being influenced by the fact that the applicants were the legal heirs of original owners had decreed the suit. According to him, the appellate court had discussed the entire evidence thread-barely and had reached right conclusion by referring to relevant provisions of law. He also read out evidence of all the defense witnesses and particularly referred to the deposition of Mukhtiarkar Badin namely Ajaz Ahmed to show that claim of applicants had proved wrong as he had confirmed that entry No. 261 showing Foti Khata Badal in respect of suit land in favour of applicants was a false and fabricated document. He also emphasized that against documentary evidence showing title and status of the respondents, which was produced by the relevant revenue officials, nothing was offered by the applicants in rebuttal. Their case was based on a false document and could not have been decreed. Learned counsel lastly prayed for dismissal of the application in hand.

9. I have considered all these submissions and perused the entire record. A perusal of the evidence of parties reveals that father of the applicants namely Shah Azizullah was owner of agricultural land admeasuring 35-34 in deh Taluka Tando Adam, who died in May 1992 and after his death applicants and their mother Mst. Tayaba Khatoon inherited his property. Mst. Tayaba Khatoon died in September 2002 leaving behind applicants as her heirs. After her death, when in 2007 applicant No.1 approached the revenue authorities for change of khatas, he came to know of sale of the suit land and change of Khata in favour of respondents Nos.3 and 4, which he asserts was achieved through fraud and cheating. And initially he tried to undo it by filing appeal before revenue authority but was advised to approach the civil court. His evidence supports the said facts; he further asserts in deposition that his parents had never sold the suit land to the respondents. In cross-examination, no specific question relating to his acquiring knowledge in the year 2007 about alleged sale and mutation in favour of respondents has been asked from him. Although, it has been suggested to the applicant that since 1986 the respondents have been in possession of the suit property but record reveals that he has denied it specifically. So his assertion to the extent of getting knowledge of the alleged fraud in respect of the suit property in 2007 is literally unchallenged. In his suit, the applicant has seriously questioned mutation of the suit land in favour of the respondents and has remained consistent over such claim in his evidence. In addition to the scheme of the Limitation Act, 1908, which by and large defines certain period for launching an action against the wrong, and lapse of such period putting up a legal bar to the intended action, the point of time a victim gains knowledge of the alleged wrong plays a determinative role in deciding the limitation that can be allowed to him/her to initiate an action against it. Notably, it has been consistent view of the superior courts that where a fraud and fabrication over some transactions are alleged by the victim, then limitation to initiate an action would start from the date of gaining such knowledge and not from the date of actual fraud. To support this view case of Mst. Fatima v. Attaullah (2009 SCMR 693) can be cited. In the matter in hand applicant's assertion of getting knowledge of the wrong in the year 2007 is unchallenged, thus, in my estimation, any objection over maintainability of the suit on the point of limitation is unsustainable and the findings of the trial court that the suit is not time-barred is unexceptional.

10. Plea of the applicants since beginning is that the mutation in record of rights has been effected by the respondents in collusion with revenue officers and their parents had never sold the suit land to anyone. In rebuttal respondent No.4 Mubeen has appeared in the witness box. His evidence is that he had purchased land measuring 20-34 acres (part of the suit land) from mother of the applicants in the year 1986 against consideration of Rs.500000/-(five lac), which he paid in presence of Mukhtiarkar and two witnesses namely Sher Muhammad and Yaqoob. He has failed to examine these witnesses to support his claim. His assertion in relation to paying the sale consideration (Rs.500000/-) to Mst. Tayyaba in her house situated in Gulshan-e-Iqbal Karachi in presence of Raees Khuda Bux and. Tapedar Malik Nazir Ahmed is also unsubstantiated. None of these persons came forward to vouch for his claim. In law, he being beneficiary of alleged sale is required to prove actual transaction of the property and its possession. Record however speaks otherwise as there is factually no evidence in this regard. The evidence of some revenue officers i.e. Mukhtiarkar and Tapedar is of no help to conclude determinatively in favour of such transactions, for they have simply produced the relevant record and have spoken out what is recorded therein. When the very record (which creates rights over the property in favour of some persons in disregard to the rights of ostensible owners of the property) is alleged to have been tampered with, its production to support a claim is of no consequences. The claim endorsed in such record has to be first proved to lend degree of reliability to it. The respondents have not examined either the revenue officers who allegedly attested such mutation in their favour. And notably there is nothing on record to explain such failure on their part. Even no plea has been taken by them that these witnesses are either not available or their whereabouts are not known. In these circumstances the presumption in terms of Article 129 of Qanun-e-Shahadat Order, 1984 would be against them. Evidence of respondent No.4 Mubeeen further indicates that he out of 20-34 acres purportedly purchased by him sold 16-34 acres to Manzoor Hussain/ Respondents Nos.1 and 4 acres to Asghar/Respondent No.2. As discussed above, he has not filed written statement and merely in support of respondent No.1 has given evidence. It is not out of place to state here that respondent No.1 in written statement has not described the events with such detail as deposed by respondent No.4. His evidence has to be seen therefore in isolation of the pleas taken by respondent No.1. On behalf of respondent No.1, who is the only one among respondents to have filed the written statement, his son namely Attaullah has examined himself. He simply reiterates the assertion of his father that he purchased the suit land from Mubeen/respondent No.4 and Ghulam Rasool/respondent No.3 through registered sale deeds in the year 2007. The original transactions of the suit land are said to have taken place between father of applicants and respondent No.3 namely Ghulam Rasool; and mother of the applicants and respondent No.4 namely Mubeen. And there is nothing on record to prove these sales except seriously questioned sale statements recorded on the back of relevant entries. In absence of any supporting evidence the sale statements which purportedly speak of alleged sale transactions have to be looked with extreme care and caution. For, admittedly, such record remains in possession of lower staff of revenue hierarchy about whose competency and performance the Courts of this country have always been wary of. A reference in this regard for support can be made to the Suo Motu Case No.16/2011 where Honourable Supreme Court in its order dated 28.11.2012 has made a reference to the observations of a Division Bench of this Court passed in C.P. No.D-265 of 2004 on 23.12.2004, and has reproduced it in its para No.4, which reads as under:- "

12. Under these circumstances, we would direct the Senior Member Board of Revenue to order the concerned officials that the original revenue record shall be kept with the concerned Mukhtiarkar in future and shall not be removed from his office by any of his subordinates. The Tapedars and/or Supervising Tapedars shall not be handed over the original revenue record. The entries in the record shall be kept and signed by the Supervising Tapedar along with the concerned Mukhtiarkar. The DDO (Revenue) shall verify such entry. The concerned Mukhtiarkar shall be made custodian of the record and the Tapedars of the beat shall have no access to the original record in future. These directives are issued in order to minimize tampering of the revenue record which has become a common feature of the day and high-ups in the revenue department have failed to take the required steps to check the forgeries in the record of rights resulting in usurpation of thousands of acres of government lands by land grabbers through the blessings of the subordinate revenue staff besides depriving the private owners from enjoying their own properties. The aforesaid directives shall be forthwith circulated by the Senior Member, Board of Revenue, to all concerned for compliance under intimation to the MIT, of this court. Non compliance of any of the directives contained in this order would expose the concerned officials to contempt proceedings." (Emphasis supplied) The Honourable Supreme Court in the said order has remarked on the rampant corruption in the ranks of revenue staff in following words:- "Under these circumstances, we are constrained to direct that the Deputy Commissioners/District Coordination Officers of Sindh, to ensure that imrnediately the entire revenue record of all the districts is kept in the custody of Mukhtiarkar in terms of the directives contained in the aforesaid judgment of the High Court and shall not be removed from the office of the Mukhtiarkar to any other place. Moreover, mindful of rampant corruption and organized crime of land grabbing, particularly, regarding prime state land, and mismanagement/forgeries in the revenue record, we hereby, until further orders restrain the Government/Revenue Department from mutation, allotment, transfer and or conversion of any state land and or keeping any transaction or entry in the record of rights in this regard in revenue record of Sindh or till the entire revenue record in Sindh is reconstructed."

11. I cannot remain oblivious of these remarks of the Honourable Supreme Court, and am of the view that a blanket reliance on the revenue entries depriving the original owners or their legal heirs of their property in absence of supporting evidence to establish the original transaction would. be stretching too far, besides it would be against the principles of care and caution which in the cases like in hand the courts are required to strictly adhere to. The alleged transactions are based on sale statements, but on neither of them the NIC number of the vendors Shah Azizullah and Mst. Tayyaba Khatoon is mentioned. No witness of such transactions has come forward to support them; even the revenue officials who allegedly attested such entries were not examined by the respondents to confirm such transactions. No documents are available on record to prove payment of consideration of the suit land to the vendors. Since the applicants have seriously questioned veracity of such sale statements, the burden of proof was on respondents Nos.3 and 4 i.e. Ghulam Rasool and Mubeen, the alleged original vendees, to establish the transactions, which as discussed above, they have utterly failed to discharge.

12. I have gone through the judgment of the trial court. It has adequately and legally dealt with this aspect of the case and has rightly relied upon the cases decided by Honorable Supreme Court {2007 SCMR 996, 2004 SCMR 1342 and 2008 SCMR 855 (and additionally 2007 SCMR 729)} that whenever genuineness of any mutation is called into question, the burden squarely lies on the party relying upon the mutation to prove the actual transaction. Learned appellate court has been influenced by the fact that Mukhtiarkar in his evidence Exb.75 has deposed that entry 261 dated 13.03.1996 showing Foti Khata Badal in favour of the applicants appears to be forged without considering that such entry in the peculiar circumstances of the case was of not much importance. Such entry merely records change of khata in favour of the applicants on the basis of their status of being legal heirs of the owners of the property. The fact that they are the legal heirs of original owners has not been disputed by any party. Learned appellate court has also lost sight of the fact that applicants have alleged collusion between revenue officials and respondents for manipulating the documents of mutation; and seen in the backdrop of such allegations it would require extra care and caution for a court to rely solely on the evidence of revenue officials, who have just produced the record. I have seen Mukhtiarkar's evidence, he has stated therein that entry No.261 is not available in record and it appears to be forged one. This is a vague statement, for it does not specifically says, the entry to be forged one and does not furnish any explanation of the fact of its availability with the applicants. In cross-examination, he has admitted that the entry bears signature and seal of Mukhtiarkar on it; and in second breath he states that he does not know whether the signature and seal are genuine. He himself being Mukhtiarkar was expected to be able to at least distinguish clearly between a sham seal and the genuine one. But he himself appears to be doubtful about it. In the facts and circumstances, his deposition showing some doubt over the entry of applicants should not have been made a touchstone by the appellate court to allow the appeal of the respondents, when they had absolutely failed to prove the actual transactions of the suit property. The fact that registration of mutation or transfer of land was made compulsory in Sindh vide a notification issued on 23.06.1994, as noted by the learned appellate court, would not mean that respondents were stopped to get their sale transactions from being registered. On the contrary, registration of the sales would have added a degree of truthfulness to the alleged transactions. From the record, it is also clear that the applicants are residing in Karachi since long, and have hardly an access to either the record of their property which undoubtedly has remained in possession of lower staff (Tapedars etc.) of Mukhtiarkar office thus chances of its tampering not altogether ruled out, or the property itself. But the learned appellate court has failed to take into account all these necessary facts and circumstances and dismissed the suit. Obviously it did not exercise the jurisdiction vested on it that has resulted into erroneousness and illegality which in my view need to be rectified.

13. Resultantly, I set aside the judgment and decree of the appellate court dated 24.9.2011 and restore that of the learned trial court dated 30.4.2010. The instant revision application is allowed in these terms. Parties to bear their own cost. MH/K-7/Sindh Revision allowed.