2006 PLP 927 (CLC)

JAWWAD S. KHAWAJA, J.

The petitioners/plaintiffs impugn the concurrent decrees of the learned trial Court dated 30-9-1991 and of the learned Appellate Court, dated 27-11-1999, whereby a declaratory suit filed by them claiming title in the suit-land, has been dismissed.

2. The case of the petitioners is very simple. According to them, their father Barkat Ali purchased the suit property measuring 6 Kanals from the original owner Sami Khan vide sale-deed (Exh.P.7), dated 17-3-1965. Mutation No.1780 (Exh.P.4) was sanctioned on the basis of the said sale-deed on 10-1-1967. Thereafter, the Punjab Province and its Irrigation Department (respondents herein) obtained Mutation No.1882 (Exh.P.5) on 29-6-1968 showing transfer of title in their favour. According to the petitioners, title in the suit-land stood vested in their father Barkat Ali and there was no justification whatsoever for Mutation No.1882 (Exh. P.5).

3. The respondents/defendants filed a written statement claiming that the Province, through the Irrigation Department, had become owner of the property. The respondents relied on the mutation (Exh.P.5) and subsequent Jamabandies resulting from this mutation. In a joint written statement submitted by the respondents/defendants, they made a bald assertion that they were owners of the suit property. No legal basis for this assertion was mentioned in the written statement.

4. The learned Courts below have dismissed the suit of the petitioners simply on the basis of Mutation No.1882 (Exh.P.5) and the Jamabandies pursuant thereto which were brought on record by the petitioners and were assailed in their suit. Leaned counsel for the petitioners has, with justification, argued that considering the sale-deed (Exh.P.7) and the mutation (Exh.P.4) in favour of Barkat Ali, the petitioners had fully established their title in the suit-land. If, at all, the respondents had any title to justify the recording of Mutation No.1882 (Exh.P.5), they were obliged to prove the same in order to establish the correctness of their defence. However, the respondents/defendants have not produced any document of title nor have they produced the alleged notification, dated 30-6-1959, which finds mention in column 13 of Exh.P.5.

5. Here it is relevant to note that the mutation (Exh.P.5) did not create any title in favour of the Province. It was, at best, a record of some title, which allegedly had been acquired by the respondents through other means. It was, therefore, the duty of the respondents/defendants to prove the document and/or the manner in which title came to vest in them. They have not done so. The learned Courts below have proceeded on the premise that the notification mentioned in the mutation (Exh.P.5) had resulted in the acquisition of the suit-land by the Provincial Government. This premise is entirely conjectural because the notification was not produced by the respondents. Furthermore, Abdul Majeed, Ziladar (D.W.1), who was the only witness examined by the respondents, did not assert the right of the Province on the basis of acquisition.

6. In the foregoing circumstances, the title of the petitioners stands proved through the sale-deed (Exh.P.7), while the title, asserted by the respondents in the suit-land, has not been proved. Additionally, the petitioners have also proved that they continued to be in possession of the suit-land. This is an additional circumstance, which goes against the defence set up by the respondents.

7. In view of the above discussion, I find that the petitioners were entitled to the declaration claimed by them. The learned Courts below fell in error by non-suiting the petitioners simply on the ground of mutation (Exh.P.5). The impugned decrees are, therefore, set aside and the suit of the petitioners is decreed as prayed for in the plaint. F.B./R-178/L Petition accepted