Abid Hussain Deceased etc. vs Khadim Hussain etc.

HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Civil Revision No.2280 of 2014

Abid Hussain (deceased) through L.Rs

Versus

Khadim Hussain (deceased) through L.Rs

JUDGMENT

Date of 21.04.2025 & 24.06.2025 hearing

Petitioners Mr. Anwar-un-Nabi, learned Advocate by: and Majid Hussain, petitioner No. 2 in person.

Respondents Mian Muhammad Tahir, learned by: Advocate.

Sultan Tanvir Ahmad, J: This civil-revision is filed against judgment and decree dated 27.06.2011 passed by learned Civil Judge Ist Class, Sargodha as well as judgment and decree dated 26.03.2014 passed by the learned Additional District Judge, Sargodha, whereby, suit of the plaintiff for declaration with respect to land measuring 53 kanal as detailed in the suit (the ‘suit land’) and seeking cancellation of mutation No. 426 dated 14.11.1961 has been dismissed.

2.Mr. Anwar-un-Nabi, learned counsel for the revision-petitioners has submitted that the learned Courts below have misread the evidence which led them to wrong conclusion. It is further contended that finding on issue of limitation is based on misconception of law and it has been

ignored that Abid Hussain-deceased, predecessor of the revision-petitioners, has been subjected to fraud.

3.Mian Muhammad Tahir, learned counsel for the respondents has vehemently opposed this civil-revision and submitted that findings of the learned two Courts below are concurrent and in the absence of any gross misreading by the two Courts further review of evidence is not permissible. It is stated that suit for declaration was hopelessly time barred besides the fact that the revision-petitioners remained unable to plead and then prove the particulars of fraud in terms of Order VI Rule 4 of the Code of Civil Procedure- 1908 (the ‘Code’). Learned counsel for the respondents has also raised objection that in defiance of the first proviso to sub-section (1) of section 115 of the Code the revision- petitioners have failed to furnish copies of Exh.P-1 to Exh.P-

4.Heard.

5.It is averred in the suit that Qaim Din was owner of 105 kanal land but Khadim Hussain-deceased managed tamleeq in his favouor in the year 1959. Later, when Qaim Din learnt about the same, the suit land was given by Khadim Hussain-deceased to Abid Hussain- deceased for which suit titled “Abid Hussain vs. Khadim Hussain” was filed which was decreed in the year 1961, after conceding written statement of Khadim Hussain- deceased; that in January, 2000 it was learnt by Abid Hussain-deceased that sale mutation No. 465 has been incorporated in the revenue record on 22.11.1965 which is outcome of fraud and collusiveness between Khadim Hussain-deceased and the revenue authorities.

6.Though it is pleaded in the suit that Khadim Hussain-deceased had been giving the share in the crop to Abid Hussain-deceased until rabi-2000, however, no proof

of the same is tendered. Abid Hussain-deceased appeared as PW-1 but could not give confidence inspiring answers as to the questions if any share of the crop was received by him or the suit land was given to Khadim Hussain-deceased on hissa batai or otherwise for the purposes of cultivation against any share or consideration. He conceded that the claimed share is never handed over to Abid Hussain- deceased in front of any person. The claim of giving share by Khadim Hussain-deceased from the crop is spreading over a period of three and a half decades. It is highly implausible that in such a long duration no one has ever witnessed this fact pleaded by Abid Hussain-deceased. No evidence could be produced to prove this stance.

7.The learned trial Court framed issue No. 7 regarding limitation and observed that Abid Hussain- deceased slept in deep slumber over his right for about 35 years. Same remained the findings of the learned Appellate Court regarding this issue. Both the Courts remained convinced that the suit of predecessor of the revision- petitioners is not within the period provided by law and it is hopelessly time barred. Abid Hussain-deceased attempted to make a cause of action pertaining to recent past from the date of filing the suit and then also failed to prove the same. From the reading of available record it has come to the surface that Abid Hussain-deceased was fully aware of the same but somehow he has filed the suit seeking declaration and cancellation much after the period of limitation.

8.There is yet another anomaly in this case. Abid Hussain-deceased has taken a ground of misreading of evidence but failed to attach important part of the record including Exh.P-1 to Exh.P-23. It is stated before me that the learned counsel who was authorized to institute the civil- revision met a fatal accident on the way due to which this

C.R. No. 2280-2014 4

civil-revision could not be properly documented. Even if this is taken as correct there is no reason available for not properly documenting this civil-revision or to comply with the aforementioned proviso of section 115(1) of the Code for such a long time period. In this regard, clear directions were also given to the revision-petitioners by this Court vide orders dated 08.05.2023, 18.09.2023, 16.10.2023 and then finally on 25.10.2023 a detailed order was passed as to the consequences. After the said order a new reason has been given for not furnishing the documents by stating that a fire incident has taken place in the record room of the concerned Court on 25.06.2017. I am afraid that this civil-revision was filed in the year 2014 and the fire incident is alleged in the year 2017. In view of the ground of misreading, it was significant for the revision-petitioners to furnish the relevant record. Somehow, learned counsel for the revision- petitioners has undertaken before this Court on 08.05.2023 and then on 18.09.2023 to furnish the documents. If the revision-petitioners were not in possession of the copies of the record then there was no justifiable reason for giving these undertakings and come up with the stance that fresh certified copies could not be obtained due to the alleged fire incident. In Muhammad Rafiq case1 this Court has observed that if any material is withheld, the Court would be justified to presume that had these documents been produced, the same would have gone against the petitioners.

9.I have gone through the findings of the learned two Courts below. The same are confidence inspiring and “Muhammad Rafiq vs. Salim Ahmad and others” (1994 CLC  Also see (i) “Bahawal Khan vs. Allah Wadhaya” (PLJ 1998 Lahore 835) (ii) “Mst. Sabiran Bi vs. Ahmad Khan and another” (2000 SCMR 847) (iii) “Defence Science and Technology Organization through Director General vs. Arif Engineering International through Sole Proprietor” (2021 CLC 103).

based on cogent reasons. It is settled law that concurrent findings should not be interfered with and review of evidence for third time is available only in exceptional circumstances2.

10.For what has been discussed above, the present civil-revision is dismissed. No order as to cost.

(Sultan Tanvir Ahmad) Judge Announced on 01.07.2025.

Judge

Rana Zahid Bashir

Muhammad Swaleh and another vs. Messrs United Grain & Fodder Agencies” (PLD 1964 Supreme Court 97), “Malik Muhammad Hussain vs. District Returning Officer and others” (2008 SCMR 488) and “Faqir Syed Anwar ud Din deceased through LRs vs. Syed Raza Haider and others” (PLD 2025 Supreme Court 31).