1999 PLP 2087 (MLD)

(9)??????? Whether the suit land is in possession of defendant No.4 and the present suit is hit by the proviso of section 42 of the Specific Relief Act? (P. O. D). (10) Whether the suit is undervalued and proper court fees has not been affixed, if so to what effect? (P.O. D). (11) Whether Haji Khan was entitled to sell the disputed land to the plaintiff? ( P.O.D.). (12) Whether the agreement dated 22-12-1964 was legally executed/registered under the existing law, between plaintiff and Haji Khan? (P.O.D.) (13) Relief?

4. In support of their contention, the respondents produced P.W.1 Haji Habibullah, P.W.2 Mullah Nabi Bakhsh, P.W.3 Muhammad Hamal, P.W.4 Qaim Khan, P.W.5 Baz Muhammad, P.W.6 Pir Muhammad, P.W.7 Basheer Ahmad and statement of respondent No.l was recorded as Attorney for all the respondents.

5. In rebuttal the appellants produced D.W.1. Haji Khan Patwari, D.W.2 Zawair Khan, D.W.3 Basheer Ahmad, and Wahid Bakhsh Saddar Qanungu recorded his statement on behalf of all the appellants. In the first instance the learned District Judge, dismissed the suit of the respondent vide judgment and decree, dated 29-6-1996. Being aggrieved from the same, an appeal was filed before this Court being R.F.A. No.5 of 1996 which was partly accepted and the case was remanded to the learned District Judge, Loralai. After remand, the learned District Judge after hearing the parties, decreed the suit vide judgment and decree dated 29-11-1997; hence this appeal.

6. Mr. Noor Muhammad Achakzai, learned Additional Advocate-General for the appellants contended that the suit of the respondents was hopelessly barred by time but the learned District Judge has wrongly decided the question of limitation in favour of the respondents. The learned counsel further contended that the suit for declaration without seeking consequential relief of possession was not maintainable as the appellants were in possession of the property in dispute. The learned counsel further contended that appellants' claim is based on agreement dated 22-12-1964. The said agreement is on a plain paper and has not been attested; thus the claim of the respondents is not tenable under the law. The learned counsel contended that while decreeing the suit, the learned Sessions Judge has also misread and misappreciated the entire evidence.

6. Mr. K.N. Kohli, Advocate appearing for the respondents contended as follows "(i) That the respondents have been in uninterrupted possession since purchase of the property in 1964. (ii) That during the settlement operations, the entire land was entered in the name of the respondents in the Revenue Record but the property in dispute was scored out from the name of the respondents behind their back and entered in the name of Government. (iii) The Order of reversal of entries has been passed in violation of principles of natural justice. (iv) The document dated 22-12-1964 has been partly accepted as on the basis of the same, a portion of the property has been entered in the name of the appellants. (v) Government does not own any land as in the settlement of 1904-5, Government has never been recorded as owner of the property in dispute. (vi) Question of limitation would not arise as the appellants were throughout in possession of the property in dispute.

7. Adverting to the argument of Mr. Noor Muhammad Achakzai, learned Additional Advocate-General, it may be mentioned that the learned District Judge has given detailed judgment on each and every issue. As far as issue No.1 is concerned, the learned Advocate-General did not oppose the findings on issue No. 1 regarding cause of action. It is the case of the respondents that they came to know about the reversal of mutation entries in 1982 and their possession was being threatened; thus, they approached the Revenue Authorities and thereafter, the learned District Judge; thus, the respondent had a cause of action for filing the suit.

8. Adverting to the issue of limitation, I propose to decide this issue alongwith other issues as the same is connected with other issues which go to the roots of the matter. It is the case of the respondents that they had purchased the property from Haji Khan vide agreement dated 22-12-1964. As far as execution of agreement dated 22-12-1964. is concerned, the same was proved through evidence of P.W.1 Haji Habibullah who stated that in the year 1964, respondent No.1 and Haji Khan entered into an agreement whereby Haji Khan sold the property in dispute to respondent No.1 and he signed the said document as a witness. He also identified his signatures on the said agreement. P.W.6 Pir Muhammad also affirmed that Haji Khan, who is his uncle, sold the property in dispute to the respondent and handed over possession of the same to them. He further stated that Government had no property in the said Mauza. It may be stated here that on the basis of the said agreement and possession 45 acres of land was entered in the name of respondent. Even otherwise the execution of the document has not been contested by the appellant. The statement of Haji Khan was recorded before the Revenue Authorities. The said statement was tendered in evidence by the appellant as Exh.D/F wherein the said Haji Khan has admitted the execution of the sale-deed. However, he has stated the he only sold his own personal property and not the property belonging to the Government. Thus, the execution of document dated 22-12-1964 has been independently proved by the appellants.

9. Adverting to the main question regarding possession of the property in r dispute, it has been the case of the respondents throughout that after execution of the document dated 22-12-1964, they have been in cultivator possession of the property in dispute and have also built their houses and constructed Bandits over the property in dispute. Witnesses produced by the respondents have categorically stated that since the purchase of the property in dispute, respondents have been in uninterrupted possession of the same. It is the case of the respondents that after purchase of the property in dispute, they came in possession of the same and on coming to know about the entries in the name of appellant No. l they approached the Revenue Authorities. In his own statement respondent No.1? stated that after purchase of the property, they came into possession of the same and during the settlement operations, the property in dispute was entered in their name on the basis of the agreement and possession and thereafter, it was scored out from their name and entered in the name of the appellant No.

1. The learned counsel for the respondent drew my attention to Order sheet dated 13-12-1992 whereby during the pendency of the suit, the learned District Judge inspected the site and observed that the property in dispute is in possession of the respondents. The Order sheet dated 31-12-1992 is reproduced below: - The learned counsel also invited my attention to the judgment dated 14-7-1990 passed by Commissioner Zhob Division whereby the learned Commissioner while dismissing the appeal of the respondents has observed that since the possession of the respondents is illegal over the property in dispute; therefore, they may be dispossessed from the same. It may be observed here that alongwith agreement dated 22-12-1964 a map of the property was also prepared by the Patwari which was duly singed by vendor Haji Khan whereby while handing over possession of the property in dispute to the respondents Patwari of the area while preparing map of the disputed property has made the following observations: - To further substantiate the plea of possession, respondents have referred to letter dated 3-6-1966 issued by Deputy Commissioner/Political Agent, Loralai wherein portion of the property in dispute was acquired by Government for the purpose of Quetta-Killa Saifullah Road. The respondents were duly compensated for the land acquired by the Government for the construction of the road.

10. In rebuttal the appellant only relied on the mutation entry entered in the name of the respondent. As far as possession of the appellant over the property in dispute is concerned, no evidence was led by them. Thus, the respondents through documentary and oral evidence have proved their possession over the g property in dispute.

11. Adverting to the question regarding reversal of entries, it is the case of the respondents that during the settlement operations, the entire property in dispute was entered in their name and, thereafter, behind their back the property in dispute was scored out from their name and entered in the name of appellant No.

1. To substantiate their plea, the appellants produced P.W.7 Basheer Ahmad who produced document Exh.P/7-A to Exh.P/7-F and also produced the settlement record wherein entire property in dispute was entered in the name of the respondents but at the time of final attestation, an area of 128 acres, 2 rods and 30 poles being the property in dispute was scored out from the name of the respondents. It has come on record that while reversing the entry at the time of final attestation, no notice of the same was given to the respondents. Respondent No.1 in his statement also stated that at the time of reversing mutation entries' from their name, no notice was given to them and the appellants failed to controvert the said contention of the respondents and the learned District Judge has also rightly held that the property in dispute was scored out from the name of the appellant behind their back in utter violation of principles of natural justice. Thus, the appellants have proved that the property in dispute was entered in the name of appellant No.1 behind their back in violation of principles of natural justice.

12. Now adverting to the question of limitation raised by the learned Additional Advocate-General, it is the case of the respondents that as soon as they came to know about the illegal entries they approached the Revenue Authorities for redress of their grievance and as observed hereinabove, right from the date of purchase the respondents were in possession of the property iii dispute and had constructed about 40 bandits as observed by the learned District Judge in the Order sheet dated 31-12-1992 the respondents felt threatened about their dispossession from the property in dispute in the year 1982 when they approached the Revenue Authorities for the redress of their grievance and thereafter, when their appeal before. Commissioner Zhob Division was dismissed on 14-7-1990 wherein the learned Commissioner ordered that possession be taken from the respondents. Thus, the contention of learned Additional Advocate General that the suit is barred by time is without any substance. In this case limitation would start from the date when their possession was being threatened by the appellants. In this regard I am fortified with the following cases. (1) Khushi Muhammad and others v. Mst. Zainab Bibi and two others, 1981 SCMR 814. (2) Haji through his legal heirs and others v. Khuda Yar through legal heirs, PLD 1987 SC

453. In Khushi Muhammad's case while deciding the question of limitation it was held by the Hon'ble Supreme Court as under: - "The facts and circumstances emerging from the record filed with the petition show that the real owner of the land (the two ladies) were kept in dark about the attempts of Imam Din to effect the transfer of land in his own name through gift. They were lardanashin ladies, and thus, were not aware of machinations of Imam \Din. It further appears that they became aware of the threat to their rights in the land when their possession was threatened. That being so, the reliance on Article 120 of the Limitation Act by itself would not be of any assistance to the petitioners. The rule laid down by this Court in Mst. Izzat v. Allah Ditta (1) would also be attracted. It was held therein that in the circumstances as in the present case, the plaintiff was not bound to seek cancellation of the transfer deed through a suit and could wait till threat to her possession became not only visible but more real. It was further held that the right to seek relief against the defendant accrued to the plaintiff at the aforementioned stage, and thus, the starting point of limitation remained the date of sanction of mutation and thereafter, on everyday when the defendant continued making claim against the plaintiff's right to possess the suit land." The above view was also affirmed in Haji's case wherein the Hon'ble Supreme Court while deciding the similar question of limitation held as under: - "This Court had taken a similar view in Aswar Muhammad and others v. Sharif Din and others (1983 SCMR 626) and it was held that wrong mutation conferred no right in property as Revenue Record is not maintained only for purpose of ensuring realization of land revenue. We are of the view as already observed that the suit in this case was based on title and not for correction of Revenue Record. Since the respondents had been held to be in possession of their due share in the property until the date of the suit, the Courts below have rightly held the suits to be within time."

13. Coming to the issue regarding non-maintainability of the suit under section 42 of the Specific Relief Act, as observed hereinabove, the respondents were in possession of the property in dispute, thus, the suit for mere declaration filed by the respondents was maintainable.

14. As far as objection regarding mutation entries in favour of appellant No. l it may be mentioned here that it is a settled principle of law that mutation IG entries do not create title and always carry a rebuttable presumption. As observed hereinabove, the mutation entries were entered in the name of the appellant No. l in utter violation of the principles of natural justice and during this period it has been proved that .the respondents were in possession of the property in dispute. On the contrary the appellants failed to substantiate their ownership over the property in dispute. Conversely the respondents by referring to settlement record of 1904-5 have proved that the Government did not own any property in the said Mauza. The respondents have further substantiated their contention that even the Government acquired land for the purpose of Quetta? Killa Saifullah Road from the respondents for which they were duly compensated. Thus, the issue regarding reversal of revenue entries has been rightly decided in favour of the respondents. It may be observed'here that since the issues going to the roots of the case have been decided in favour of the appellant; thus, there is no need to dilate upon the other issues. ????

15. As a result of the above discussion, I see no merits in the appeal. The same is accordingly dismissed. However, parties are left to bear their own costs. H.B.T./739/Q?????????????????????????????????????????????????????????????? Appeal dismissed.