Shehriyar Khan etc Vs Mohammad Kareem etc

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Civil Revision No.282-Pl2013

Shehriyar Khan etc.

Petitioners

Versus

Mohammad Kareem etc.

.Respondents

Petitioner(s) by:- Mr. Inam Khan Hoti, Advocate

Respondent (s) by:- N[r. Asad Jan, Advocate

Date of hearing:- 23,4.2q25

JUDGMENT

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WIOAR AHMAD, f:- The petitioners instituted a suit against the respondents before learned Civil Judge-VII, Mardan, for declaration to the effect that they were owners of property measuring 02 kanals 0 marlas and 07 sersai out of 05 kanals 12 marlas in Khasra Nos. 1097 , 1098, 1099, l}g2, Khata No.299t437, accotding to the record of rights for the year 2006-07, of Mauza Baghi Iram, Mardan. They contendedthatthe respondents hadno rightto claim ownership of said property or to raise any construction or install a CNG station there.

The petitioners also prayed forpossession of disputed property and for CR No. 282+12013

'\-/ a pennanent injunction restraining the respondents from raising constnrction or installing a petroUCNG station on said land.

2.It was stated in the plaint that the petitioners were co-owners of suit property to the extent of their due shares, measuring02 kanals, 0 marlas, and 07 sersai, and that respondents No. I to 8 had illegally occupied the properly. The petitioners also asserted that the respondents have unlawfully installed a Petrol and CNG Station on the disputed property, without any legal right or authority to do so. It was prayed that the respondents be pennanently restrained from carrying out further constluction and that possession of the suit property be handed over to the petitioners after demolishing the structtres raised by the respondents.

3.Upon issuance of summons and appearance before court, the respondents contested the suit by filing a written statement. They claimed that predecessor in interest ofpetitioners, namely Mohammad Munir I(han (deceased), was owner ofthe property bearing old Khasra No. 1084 to the extent of 99 marlas, which he had sold through different mutations to various persons. The respondents further stated that after purchasing suit property, they constructed shops on it. These shops were later demolished by the Government under the pretext of removing encroachments. Against the demolition, predecessor of respondents had also filed a suit before the competent court of law.

During pendency of that suit, the petitioners neither raised any objection nor sought to be impleaded as parties. It was also asserted CR No. 282-Pn0l3

\-/ that the respondents have constructed a petrol station on the suit property, which remained operational, and that the petitioners had not raised any objection at the time of construction.

4.The learned Civil Court framed necessary issues from divergent pleadings of the parties. Both parties produced evidence in support of their respective claims. Upon conclusion of the proceedings, learned Civil Court dismissed the suit through judgment and decree dated 20.12.2011. Feeling aggrieved, the petitioners filed an appeal before learned Additional District Judge-VII, Mardan, which was also dismissed through judgment and decree dated 19.12.2012. Still aggrieved, the petitioners have filed instant civil revision.

5.Arguments heard and record perused.

6.It is important to note at the outset that the Ktrasra numbers of the disputed properly have undergone changes. The suit was instituted with respect to prop erty situated in Khasra numbers 1 092, 1097 ,1098, and !099, as recorded in Record of Rights for the year 200G2007 .

According to earlier revenue records, said properly was earlier part of Khasra No. 1084/1 or l}84l2, which itself was canred out of the original Khasra No. 1084. Although the record of rights prior to 1974 is not available on file, the subsequent Jamabandi for the year 1979- 80 shows that I(hasra No. 1084 had been bifirrcated into I(rasra Nos.

1084/l and l}84l2. It is now claim of petitioners that the disputed Klrasra numbers were formerly part of Khasra No. 108412, where the petitioners or their predecessor had became owners by virhre of CR No. 282-Pl20l3

\,,.' Mutation No. 5051, attested on 27.04.1980 in the revenue estate of Bagh-e-Iram, Mardan. As per copy of Record of Rights for the year 1994-1995, the present Khasra numbers t097,1098, and 1099 were formerly partof Khasra No. 108412. With respect to I(hasra No. 1096, the earlier I(hasra number is shown as l084ll.

7.Perusal of the record further reveals that the respondents (or their predecessors in interest) had purchased the property through Mutation No. 3101, attested on 19.01.1977 in the revenue estate of Bagh-e-Iram, Mardan, as well as through Mutation No. 3202, attested on 20.08.1977 in same Mauza. Learned counsel for the petitioners vehemently argued that the respondents had acquired property situated in Ktrasra No. 1084, whereas the petitioners were owners in Khasra No. 108412, and that both courts below had wrongly dismissed the suit. It is important to note that the earlier Mutation No. 2437 @x.DW- lll) was carrying Khasra No. 1084 ( undivided by them) and the year of mutation was 1974. Through this mutation NawabzadaMohammad Munir Khan and Mst. Tajbaro had transferred their respective ownerships in these properties to the extent of 5 kanals and 14 marlas in favour of Nawbazada Umar Khan. Learned appellate court therefore rightly concluded that Nawabz.adaMuhammad Umar Ktran had acquired title in Khasra No. 1084 before its division into two separate Khasra numbers. The title was later transferred to his son, I(hawaja Mohammad Khan, who subsequently transferred possession of a specific part of the immovable property to the contesting CR No. 282-Pl20l3

respondents or their predecessors. Petitioners have also been claiming to have acquired title from Nawabzada Munir Ktran on the dent of mutation No. 5051 attested on 24.7.1980 in mauzaBagh e Iram but Nawabzad Munir Khan had not been owner of the property having earlier transferred it through mutation No. 2437 attested on 10.9.1974 in same mavza( Ex.DW-lll). It was also an admiued position in the evidence that the respondents have consfirtcted a Petrol and CNG Station on the disputed property. In paragraph 4 of their written statement, the respondents claimed that the filling station was constnrcted approximately 30 years before filing of the suit. The petitioners did not produce any evidence to rebut the stance of respondents. They remained silent for decades and later instituted the suit on the basis of their entry as co-owners in the revenue record, at a time when the property had already lost its agricultural character.

Report of the local commission indicated that not only the disputed property but also the surrounding area consisted of well-constructed properties. There had been no agricultural activities on the disputed property. In these circumstances, where the contesting respondents had acquired immovable properly through a valid mutation more than three and a half decades before filing of the suit, and where properly had already lost its agricultural nature, the mere fact that the layout of the property fell within Ktrasra No. 1084/2 cannot form the basis for depriving the respondents of their valid title. Moreover, the original owners from whom respondents were deriving title, have never raised any challenge to the title or the sale in favour of the respondents. The CR No. 282-Pn0t3

subsequent splitting of the l(hasra number by revenue officials during maintenance or updating of the revenue record cannot diminish the vested rights of persons who have been in continuous possession of the disputed property. Such bifurcation in the revenue record did not affect lawful title of the respondents over the properly particularly, non-agricultural one. Learned counsel for the petitioner also inter-alia relied on rights acquired by petitioners through mutation No. 5051 attested on27 .4.1980 in the revenue estate of Bagh-e-Iram Mardan but said mutation was subsequent in time and same cannot be given effect of rights vested in contesting respondents or their predecessor through mutation effected in their favour in the year 1977 and observations to this effect, made by learned appellate Court in the impugned judgment were quite correct, reasonable and same was not requiring any interference by this court. Besides, said mutation No. 5051 was in respect of very huge chunk of property mentioned therein and same was not specific in respect of the property in dispute. It is also important to be noted that petitioners had not been recorded as sole owrers of the property lying in khasra No. 108412 but they were only shown co-owners along with other co-owners. No partition had taken place amongst the co-owners and in absence of any order of partition petitioners cannot lay hand on any particular chunk of the properly in dispute particularly when the contesting respondents could not be called as trespassers on any stretch of imagination as they have got valid transactions in their favour.

CR No. 282-Pl20l3

v 8. Transfer of property had been defined in section 5 of the Transfer of Immovable Property Act 1982, (herein after referred to as "the Acf') as follows;

5.Transfer of properly defined. In the following sections 'Transfer of Property' means and act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, [or to himselfJ and one or more other living persons: and 'to transfer property' is to perform such act. [In this section 'living person' includes a company or association or body of individuals, whether incorporated or not, but both in herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or besides of individuals."

Regarding operation of transfer, section 8 of the Act provides;

8.Operation of tansfer. Unless a different intention is expressed or necessarily implied, a fransfer of property passes forthwith to the tansferee all the interest which the tansferor is then capable of passing in the property, ffid in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profit thereof accruing after the tansfer, and all things attached to the earth; md, where the property is machinery attached to the earth, the movable parts thereof; ffid, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, ffid all other things provided for pennanent use therewithi md, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not ffansferred to the transferee), but not arrears of interest accrued before the tansfer; ord, where the property is money or other property yielding income, the interest or income thereof accruing after the fiansfer takes effect.

With transfer of property a vested right is created in the transferor under section 19 of the Act, which provides;

19.Vested interest. Where, on a transfer or propertY, an interest therein is created in favotu of a person without speciffing the time when it is to take effect, or in terms speciffing that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a confiary intention appears from the terms of the transfer. A vested interest is not defeated by the death of the transferee before he obtains possession. Explanations An intention that an interest shall not be vested is not to be infened merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a CR No. 282-Pl20l3

particular event shall happen the interest shall pass to another person ,,

Similarly sale has been defined in section 54 of the Act in the following words;

"54. Sale defined. 'Sale' is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Sale how made. Such tansfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instnrment. In the case of tangible immovable property, of a value less than one hundred rupees, such tansfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property. Confiact for sale-A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."

9 A transaction of transfer of title incorporated through a valid instrument ( in accordance with law) shall be deemed a valid and complete sale, thereby transferring ownership of the properly and carrying presumption as to vesting of title. In the circumstances when sale in favour of contesting respondents had completed, petitioners have never questioned the title of those persons from whom said respondents had acquired title, they had remained in possession which had been obtained in pursuance to the fransfer of title and property had also lost its agricultural character much before, the mere fact that the was physically lying in khasra No. 108412 cannot be made basis for grant of decree in favotr of petitioners on the basis of layout provided in the revenue record in the given circumstances of this case.

It has consistently been held by Hon'ble Supreme Court of Pakistan as well as by other constitutional courts including this cotrt that revenue CR No. 282-Pn0l3

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record is being prepared and maintain for fiscal purposesl. Vested rights of owners of property cannot be denied by mere changes in the revenue record particularly in respect of non-agricultural property unless said vested title is transferred in favour of some other persons in the mode and manner as provided under the law or such rights are extinguished through a declaration or orders of the competent court of law. In the case Bital Ahmad,2 although it was in respect of pre- emption matter, but the court observed that because the property was commercial, the plaintiff could not benefit from the Revenue Records, even if both parties were shown as owners in the same Kheutat (Revenue record). Therefore, in case of constructed properly the enfiies in revenue record regarding co-owners cannot be given much weight and precedence so as to defeat rights of those purchasers who lawfully acquired title through unchallenged valid instuments.

Furthermore, if owner of both Khasra numbers are same person, and the land has been converted into Abadi (intrabited area), then the discrepancy in Khasra numbers will not adversely affect rights of a bona fide purchaser and the revenue record would pale into (especially for Abadi Deh/constructed property) in such a case. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Arshad Khan v. Mst. Resham Jan and others (2005 SCMR 1359) has held that there is no cavil to the proposition that presumption of truth is attached with the Revenue Record but this I MUHAMMAD HUSSAIN Vs WAIIID BAI(H l2o04 SCMR 1134

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Btr-AL AHIVTAD Vs ABDUL TIAMEED (2020 SCMR 445)

CR No. 282-Pl20l3

presumption is always rebuttable. This is settled law that the mutation itself does not confer or extinguish any right or title and ifthe mutation on the basis of which right in the property is claimed is disputed, the onus of proving the correcfiress of mutation and genuineness of the transaction contained therein, would be on the party claiming right on the basis of such mutation. While in the case of Muhammad Bakhsh v.Zia Ultah and others3, it was held that the entries of the revenue record like the Jamabandi do not provide the foundation of title in property but are mere items of evidence to prove title. However, according to section 52 of the West Pakistan Land Revenue Act 1967 presumption of tuth is attached to the entries made in the periodical record of rights i.e. jamabandis/khasra girdawari trntil contrary is proved. Reference in this regard is made to the cases of "Abdul Ahad v. Roshan pior4, *Hakim Khan v. Aurangzeb,S, erAorangzeb v.

Muhammad Jaffar"6 and ttMuhammad Amir v. Mst. Beevi'7' There is no cavil with the proposition that a mutation is always sanctioned through summary proceedings and to keep the record updated and for collection of revenue such entries are made in the relevant Register under section 42 of the Land Revenue Act, 1967 .It has no presumption of correctness prior to its incorporation in the record of rights. It is also settled law that entries in mutation are admissible in evidence but the same are required to be proved

3 1983 SCMR 988

4 PLD L979 SC 890

s L979 SCMR 625

6 2007 SCMR 236

7 2007 SCMR 614

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independently by the persons relying upon it through affirmative evidence. An oral transaction reflected therein does not necessarily establish title in favour of the beneficiary. A mutation cannot by itself be considered a document oftitle.s It also need attention here that there is no title documente in respect of immovable property in Pakistan except a court decree as both mutation and registration of sale deed itself are not title documents because Land Revenue Act 1967 is for the purposes of recovery of land revenue, registration Act is for the purpose of registering instruments which itself does not create title.

Thus, in Pakistan the state does not guarantee titlel0. Across the globe, land titles are managedthrough three principal systems. The first is the unregistered title system, which depends on the custody of original title deeds. This often results in uncertainty and litigation due to the fragility and contestability of such documentation. The second system, which is more widespread, is the insfiument-based recording system.

In this model, deeds are registered in public offices, but the burden of establishing ownership remains on the buyer, who must trace and veriff the legitimacy of all prior transfers. The third, and most definitive, system is the Torrens Title Systemll. The Torrens System is a govemment-managed method of registering land ownership that replaces traditional deed-based systems. This system was introduced 8 REHMAT NOOR Vs ZULQARNAIN (2023 SCMR 1645) s Guaranteeing title to land, Dawn 22luly 2002, httos ://www. dawn.co m/n ews/48964/eua ra nteei n g-tit! e-to-la nd lnsecure Land title, Dawn April05, 20L5, https://www.dawn.com/news/1173963 u Torren system, httos://ia800608.us.archive.orsl24litems/cu31924024669404/cu31924024559404.odf CR No. 282-Pn0l3

\ \, in South Australia by Sir Robert Torrens in 1858 and is now operational in countries such as Australia, New Zealand, Canada, and the Philippines. Under the Torrens system, it is not merely the supporting documents that are recorded; rather, the system ensures that the ownership of the land itself is officially registered and guaranteed by the state. Under the Torrens system, the government issues a conclusive certificate of title that reflects actual ownership, eliminating the need to examine past deeds. This legal innovation represents a critical evolution in land law-from the days of symbolic possession through "livery of seisin,"tzto deed systems, to recordation regimes, and ultimately to conclusive state-certified title. Pakistan follows instrument-based registration, such systems merely compile the evidence of ownership rather than certiffing it. In contrast, the Torrens system records the final legal conclusion: who owns what land, subject to which encumbrances. In this system, property transfers become quick and inexpensive, and buyers are shielded from hidden claims through a government-backed assurance fund. On the other hand, Pakistan's existing system leaves ownership presumptive. Land records are maintained manually by patwaris and remain susceptible to manipulation, especially in urban areas where legal exclusions under Section 3 of the Land Revenue Act are poorly enforced. Issues -zB,i,u,4r-r? 0V,!-96.,,,t€*4,F rl*-'A,l*lut d fbetz-tvs$ti *.,,.tLt:(i 6 /y,l g O t i 6 st ; i, 0V rl,.P * : G d /t -o v,, t! d 4etr t d tf u!) t - ;;Q L t-/ fi t,rt I v

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CR No. 282-Pt20l3

\ such as adverse possession and procedural ambiguities further erode confidence in the system. Thus, a land titling legislation is required to address the issue of title registration. This transformation could be initiated through the enactnent of a comprehensive Land Titling Act, the creation of a dedicated Land Title Authority, and the digitization of land records with parcel-based mapping. Pilot programs in high- value urban zones could pave the way for broader implementation.

Such reforms would align with Articles 23 and 24 of the Constitution, ensuring the citizen' s right to acquire, hold, and dispose of property.

In the present regime of Land Revenue Act l967,the person shown on the records as responsible for paying land revenue for a particular khasra number is presumed to be the owner of such khasra number unless it is proved otherwise. Thus title to land is only incidental and springs from the presumption that whosoever pays land revenue is the owner.

Once agricultural land is converted into Abadi Deh and entered into the Laal Lakir, no mutation can be attested in respect of such property. fn this situation, the transfer of properly must take place through a sale deed or other legal instruments. The Registration Act, the Transfer of Properly Act, and the Contract Act will govern such transactions. However, if agricultural land has been practically converted into Abadi Deh but has not been marked as Laal Lakir by the Revenue Department due to the failure of conducting the required periodical assessment after every 25 years, then mutation may still be CR No. 282-Pl20t3

attested in respect of such properly. This is because the revenue record has not been officially converted into Laal Lakir and remains valid.

Although the significance of the ordinary revenue record for the purposes of title transfer and revenue matters under the Land Revenue Act, 1967, may diminish due to the changed nature of the land, if the revenue record is maintained and Jamabandi are regularly prepared without demarcating the Abadi Deh in the Laal Lakir, then such records may still serve as corroborative evidence for determining title.

A comprehensive Record of Rights (Mtsal-e-Haqiar) is prepared after conducting a proper settlement operation ofthe land, which is required to take place every 25 years. Additionally, Jamabandt is to be prepared every four years. Various sections of the West Pakistan Land Revenue Act, 1967-such as Section 40, Section 59, Section 64, and Section 116<mpower the Provincial Government and the Board of Revenue to carry out the settlement of an estate or sub-division, generally on a routine basis after every 25 years. Unfortunately, this legal obligation is not being fulfilled by the Revenue Deparfinent, despite the existence of a well-established institutional framework and a sufficient number of human resources. If this mandatory settlement operation is conducted as required under Section 64(2) of the Land Revenue Act, 1967, it will significantly reduce unnecessary litigation before civil courts and revenue officers. Therefore, this court emphasizes the importance of compliance with the law and reminds the Revenue Department and the Board of Revenue, established under the West CR No. 282-Pr20l3

\ Pakistan Board of Revenue Act, 1957, to fulfill their statutory v responsibilities.

10.Last but not the least, both the courts below conculrently dismissed the suit of the petitioners/plaintiffs. Findings of the courts below were also explicit, comprehensive, logical and reasonable.

There was no case of non-reading and misreading of the evidence.

This court as a revisional forum is not supposed to reappraise the entire evidence and reach a different conclusion. The scope of jurisdiction of the High Court under Section 115 of the C.P.C. is limited in relation to concrrrent findings of the competent courts, in such a case. Reliance in this respect may be placed on AAMIR AFZltl,Vs S. AKMAL (deceased) through L.Rsr3. In this case, the Apex court has laid down the following principles for high court while exercising its revisional jurisdiction.

6.It is settled law that while exercising jurisdiction under Article I l5 of the C.P.C. the High Court has to first satisff itself:

(i)that the order of the subordinate court is within its jtuisdiction, (ii) that the case is one in which the court ought to exercise jurisdiction; and that in exercising jurisdiction that cotrt has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some elror of procedure in the course of the trial which is material in that it may have affected the ultimate decision.la Section I 15 applies only to cases in which no appeal lies, and where the legislature has provided no right of appeal. The manifest intention of the legislature is that the order of the trial cotut, right or wrong, shall be final, except in specific circumstances. It is, therefore, obvious that rurless the case is not covered under Section I 15 of the C.P.C. and the High Cotrt was satisfied in this regard, then in such a case no power could be exercised to interfere simply because it differs, however profoundly, with the conclusions of the subordinate court regarding questions of law and facts. The scope of jurisdiction of the High Court under Section I 15 of the C.P.C. is limited in t32024SCMR1649 ra Kanwal Nain and others v. Fateh Khan and others (PLD 1983 SC 53) Umar Dad Khan and another v. Tila Muhammad Khan and others (PLD 1970 SC 288) CRNo.282-Pn0l3

\ \-, relation to concurrent findings of the competent courts. The exceptions to this rule are when the findings are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, patent errors of law, consideration of inadmissible evidence, abuse ofjurisdiction, when the conclusions drawn are perverse and based on conjectural presumptions. The eroneous decisions of fact are ordinarily not revisable and the mere fact that the High Cotlt may differ on a question of fact or mixed question of law and fact is not avalid ground for interfering with concurrent findings. Moreover, the concurrent findings recorded on the basis of evidence is not susceptible to firther review to justiff interference by the High Court in revisional jurisdiction. The interference by a High Court in such jurisdiction would not be justified on the ground that reappraisal of evidence might suggest another view of the matter unless there has been a gro-ss misreading of evidence and material evidence was ignored.ls I l. Before concluding this judgment, it is appropriate to remind the Revenue and Estate Department and the Board of Revenue of their statutory duty to regularly conduct settlement proceedings in accordance with relevant laws. Upon completion of the settlement/assessment, the deparhnent must prepare the Klasra Abadi and Shajra Abadt, and properly demaxcate the Abadi Deh in the revenue record under the Laal Lakir. The Revenue Department is further directed to initiate and expedite the computerization of the entire land record, including the record of Abadi Deh, and may develop a digital system may be on the pattem of the Torrens System, as discussed above. An appropriate legislation for the digital registration of titles in Urban areas may be initiated which may be in accordance with the Torrens System, as outlined in paragtaph of this judgment. These measures will contribute to minimizing land-related Mai Rashid Beg v. Rehmat Ullah Khan and others (PLD 2001 SC 443) Khan Mir Daud l(hat and others v. Mahrullah and o0ren @LD 2001 SC 67) Suleman v. Mst. Zeenat lan and others (PLD 2003 SC 362) Imam Din and others v. Bashir Ahmed and othen @LD 2005 Mtrtrammad Amin SC liSl Asmanrllah v. emanat Uttat itr. LRs. (PLD ZOde SC 155) Atiq ur Rehman and another v. SCMR 9M) Administator Thal fgO i6OO SC 109) Ahmed Nawaz Khan v. Muhammad lafrar Khan and another (2010 i.ritopr*t and others v. Ali Muhammad (2012 SCMR 730) Noor Muhammad and othen v. l[st. Azilat€-Bibi 2012 scMR 1373

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L7

\, litigation. A copy of this judgment shall be forwarded to the Chief Secretary, Government of Khyber Pakhtunktrwa; the Secretary, Revenue and Estate Departnent and the Senior Member, Board of Revenue for further necessary action in accordance with the observations made in this judgment.

12.In light of what has been discussed above, instant civil revision was found lacking substance and same is accordingly dismissed.

Annoanced on;

23'd of April,2025 'lt*l'

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