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2016 Y L R Note 77

[Peshawar]

Before Malik Manzoor Hussain, J

ABDUL WAHAB and others—Petitioners

Versus

ABIDULLAH and others—Respondents

Civil Revision No.840 of 2010, decided on 17th March, 2014.

Abdul Sattar Khan for Petitioners.

Muhammad Taif Khan for Respondents.

Date of hearing: 10th March, 2014.

JUDGMENT

MALIK MANZOOR HUSSAIN, J.—This single judgment shall also dispose of connected C.R. No.1098/2010, as both the impugned judgments arise out of common impugned judgment dated 25.3.2010, passed by the Additional District Judge, Lahor District Swabi.

2. Briefly, the facts of the case are that respondents/plaintiffs filed a representative suit bearing No.107/1 of 2003 for possession and mesne profit of the suit land, fully described in the heading of plaint, against petitioners of instant petition as well as that of connected petition. The suit was contested by the petitioners of instant petition as well as that of connected Civil Revision. Similarly another suit bearing No.103/1 of 2003 titled Sarmast Khan and others v. Imran Ullah and others, in the representative capacity was also filed for declaration, permanent injunction and recovery of amount. Both the suits were consolidated through order dated 13.5.2006 and the proceedings were carried out in Suit No.107/1, being filed earlier titled, “Abid Ullah and others v. Khan Bahadar and others“. Consolidated issues were framed and after recording pro and contra evidence, both the suits were decreed through consolidated judgment dated 21.7.2009, passed by learned trial Court. Appeal filed by petitioner was dismissed through judgment dated 25.03.2010, passed by the learned Additional District Judge, Lahor, Swabi. Against the impugned judgment, two Civil Revisions were preferred by two sets of petitioners/ defendants.

3. Learned counsel for petitioners contended that the petitioners and respondents are descendents of Azmat Khan. It was further contended that petitioners are descendents of Abdullah Khan while respondents are descendents of Said Khan both sons of Azmat Khan. It was argued that the petitioners being descendents of Abdullah Khan were entitled to legacy of Azmat Khan and are in possession of the suit property since 1868, which fact is established from the settlement, carried out in 1895 and lastly carried out in the year 1993-94. It was further argued that petitioners are incorporated in the revenue record “Tajo Khel” which fact is supported by pedigree table existed from 1895-96 till 1993-94. It was also contended that both the learned Courts below failed to appreciate the fact that authenticity and genuineness of the pedigree table supported by the settlement went unchallenged and presumption of truth was attached to these documents being part of record of rights which fact has been ignored by both the Courts below, and the same resulted into wrong decision, adversely affecting the established right and title of petitioners.

4. Conversely, learned counsel appearing on behalf of respondents contended that the property was purchased by their predecessor Niamat Khan from Azmat Khan way back in the year 1856, thus entries in favour of petitioners/ defendants, was against law, fact and ab initio void, therefore, were ineffective upon the rights of petitioners. It was also contended that the petitioners of connected Civil Revision have no concern with legacy of Azmat Khan as well as that of Said Khan, therefore, they have got no concern with the suit property.

Arguments heard, record perused.

5. There are certain facts which are admitted by both the parties. Firstly it is undisputed fact that property was originally owned by Azmat Khan and Azmat Khan was survived by his two sons Abdullah and Said Khan. Admittedly the petitioners of titled petition are descendents of Abdullah Khan whereas the respondents/plaintiffs are descendents of Said Khan. Secondly the petitioners are in possession of the suit property and are duly incorporated as such, right from first settlement of 1895-96, till that of 1993-94. Pedigree table’s along with settlement record pertaining to year 1895 -96, 1927-28 and 1993-94, are relevant documents in this regard. Entries made in record of rights prepared under any settlement have overriding effects. Similarly pedigree table is not a routine document that is why it is given the status of “record of right” and carry presumption of truth under section 52 of West Pakistan Land Revenue Act, 1967. Admittedly the property is Shamilat of Balar Khel and Tajo Khel. The name of predecessor of petitioners appeared in the pedigree table of the year 1895-96. Had Niamat Khan purchased this property in the year 1870 (as was argued by the learned counsel for respondents/plaintiffs), the name of legal heirs of Azmat Khan should not have appeared in the succeeding record of rights or the settlement conducted in 1895-96.

6. The name of predecessor of petitioners namely Abdullah Khan son of Azmat Khan appears in the revenue record of the year 1870 of Revenue Estate Baika. Abdullah Khan was succeeded by his three sons and the petitioners are descendents of Abdullah Khan. The record of 1870 was further supported by the settlement carried out in the year 1895-96, wherein Legal heirs of Abdullah Khan were incorporated as legal heirs of Azmat Khan, the forefathers of petitioners. These entries with respect to Moza Baika favouring petitioners were further affirmed in the settlement of 1927-28 up till that of 1993-94. Right from the year 1870 till date, possession is admittedly with the petitioners which fact has been admitted by the attorney of respondents, who appeared as PW-4 in the trial Court. This Court has noticed that contentions of petitioners are fully supported by long standing entries. The presumption of correctness attached to long standing entries in record of rights, which has been supported by the possession at the spot. These entries have never been rebutted by the respondents through documentary or oral evidence as the evasive assertion is not sufficient. The forefathers of respondents/plaintiffs never challenged the long standing entries during their life time. Plaintiffs/respondents had remained in deep slumber for more than century despite the fact that physical possession of property had passed on to the petitioners/ defendants. The respondents/plaintiffs had been proved to be residing in the same village and before their open eyes the petitioners were enjoying the usufruct of the suit property and also enjoying the peaceful possession. Relief sought in both the suits were by itself sufficient to establish the fact that the petitioners were receiving their share right from the first settlement. The entries appearing from more than a century were assailed by the respondents/plaintiffs in the year 2003 i.e after 108 years of original entry. Present was not a case of inheritance which has been challenged by the respondents/ plaintiffs, but it is a simple case of possession against the petitioners. No suit was brought by the respondents or their predecessor challenging the long standing entries existing in favour of petitioners and their predecessors. The petitioners are admittedly incorporated as owners in possession of the suit land and no suit for possession simply lies against the owners of suit land, even in the eventuality where the respondents claim themselves to be co-owners.

7. It is well settled by now that the requirements of public interest lies on the principle that there should be an end to litigation. That is why law of limitation provides an element of certainty in the conduct of human affairs. Whoever wishes to dispute any fact or claim any right, he must do so within the time described under the law, otherwise his rights, if any, will be forfeited as penalty for such neglect. Law requires that person must come to Court and take the course of legal remedy with due diligence and the person/plaintiff should be more conscious with he challenges the other person rights on the ground that the other person is stranger and not a co-sharer. In the case in hand the respondents/plaintiffs never admitted the petitioners to be co-sharer or having any right in the suit property, but as alleged by the them in plaint as well as in their Court statement, they alleged the petitioners as strangers. Even to claim inheritance, law of limitation has been made applicable and in this regard reliance can be placed on cases of “Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762), Mst. Phaphan through L.Rs v. Muhammad Bakhsh and others (2005 SCMR 1278), Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446), Abdul Haq v. Mst. Surraya Begum (2002 SCMR 1330), Lal Khan through L.Rs v. Muhammad Yousaf through L.Rs (PLD 2011 SC 657) and a latest Judgment of Hon’ble apex Court reported in case of Muhammad Rustam and others v. Mst. Makhan Jan and others (2013 SCMR 299)”, wherein mutations of inheritance were challenged after considerable time and the suits were dismissed as barred by time and were maintained by Hon’ble apex Court.

8. Both the Courts below failed to properly examine the revenue record available on file and also follow the settled proposition of law that presumption of correctness attached to the long standing entries of record of rights. Beside this both the Courts below failed to follow the dicta laid down in similar case by the Hon’ble apex Court referred in the above para. The claim of petitioners was based on entries made in the revenue record coupled with the peaceful possession appearing from the very first ever settlement carried out in area. In order to rebut the authenticity of the revenue record and those of the settlements, very strong evidence was required. If evidence laid by the parties is put in juxtaposition it transpires that after the death of Azmat Khan the property was inherited by his two sons. This was affirmed by first settlement record of the year 1895 -96 which was followed by the second settlement of the year 1927-28 and exists up till now.

9. Both the learned Courts below have acted with grave illegality by not attaching the statutory presumption to the settlement of 1895-96 and the successive settlements which resulted manifest in justice. The genuineness and correctness of revenue record including pedigree table was not liable disturbed by such belated stage. The dispute arose only when the compensation of Trees was deposited in the Bank and drawn by the petitioners. Had this handsome amount was not lying in the Bank, the respondents/plaintiffs would not have bothered to file suit for possession and declaration. The record of rights which remained in existence, and un-rebutted for more than a century cannot be altered without lawful justification, which is lacking in this case.

In view of what has been discussed above, while allowing the instant petition as well as connected Civil Revision No.1098/2010, the impugned Judgments of both the Courts below are set aside and in consequence thereof the suits filed by the respondents/plaintiffs are dismissed.

ZC/208/P Revision allowe

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