Muhammad Ikram etc Vs Fazal ur Rehman & others

s "fmdgmemt Sheet N.,IW P,ESSfAW_A& H[S. E*" eS#"R$, sms_HA}ry-Ae

IUDT€TAT. hEPARTA$EN:N

.TT]DGMONT

Civil Revision No.1717-Pl?01 1.

Date of heaning 17.|fi "2023.

Muhamrmatl Ikram etc Versus ['azal ur Rehman & others

Fetitioner (s) by: Mn l}luhammad Shoaib Khau Advocate.

R.espondent(s) by: IrI/s Khalid R.ehman, Ghazanfar AIi, Zia ur Itehuran, Khan l{ussain, Abid Ali and A.imal Khau Barkandi Advocates.

WIQAR AE{MA&"-J" This single judgment shall dispose of instant petition (CR i.{o.1717-PDAID and CR. No.892-P/2012, filed by petitioners Muhammad Ikram etc and Muhammad Amin etc, against Fazlur Rehman and others, as both these petitions, have been filed against same judgnent dated,2911.201tr, passed by leamed Additional District Judge-Ili, Swabi, whereby appeal of respondents against petitioners was allowed thereby setting aside ju<lgment and decree dated

28.05.2010, of learned Senior Civil Judge, Peshawar passed in Civil Suit No.l84/1 of 2008 2 Brief facts as stated in instant petition are that respondentsiplaintiffs had filed a suit for declaration cum perpetual injunction in respect of suit property mentioned in the heading of plaint to the effect that suit property had been purchased by their predecessor namely Ali Khan from predecessor in interest of petitioners/ defendants No.2 to I in lieu of Rs. 180/- as per resolution dated 06.10.1952. That defendant No.l had directed plaintiffs for vacation of suit properry, which in revenue record had been entered in name of defendants as owners and plaintiffs had been shown to be in possession in the column of cultivation with the note O|KJ 4') (& u.s- Aggrieved from wrong entries in revenue record, petitioners filed above suit before leamed Senior Civil Judge, Swabi, which was contested by defendants/petitioners through filing written statements denying claim of respondents/plaintiffs by raising various legal and factual objections. From pleadings ofparties,

relevant issues were framed. After recording pro & contra evidence as well as hearing the parties, learned civil Coilrt below disrnissed suit of respondents/plaintiffs vide irnpugned judgrnent and decree dated 28.05.2010. Appeal filed by respondents/plaintiffs was allowed by learned appellate Coun vide impugned judgment and decree dated 29.11.2011. .dggrieved from impugned judgment ancl decree,

petitioners/defendants have filed these two petitions against similar judgment, which are to be disposed through this single jrrdgment 3 .Arguments of learned counsel for parties heard and available record perused.

4 Perusal of record reveals that there were sufficient evidence before leamed appellate Court whereupon it has rightly been concluded that the property had been purchased by predecessor in interest of respondents/plaintiffs namely Ali Khan. Tire property had been purchased by hirn frorn predecessor in interest of defendants. The transaction of sale had taken place at a time when the consolidation

proceedings were in progress in the concerned Moza. The sooiety established for matters in connection with consolidation proceedings had passed a resolution on the basis of said sale on 46.10.1952. Said resolution had been brought in evidence as Ex.PW.312. Entry of said resolution as well as underlying transaction may also be found in the field book prepared during course of consolidation. A copy of said field book was also brought in evidence as Ex.PlV.3/3. Record of rights have also been consistently been reflecting entry of predecessor in interest of plaintif'fs and thereafter his successor being in possession of property in dispute. In the column showing nature of their possession or their legal capacity, it has also been mentioned that they had been having possession due to sale (6+tu6L).The fact that petitioners have been having physical possession of property have also been sufficiently proved in evidence and also admitted by witness of defendant i.e, Aziz ur Rehrnan while appearing as DW.l. Learned civil Court

had not been able to appreciate the evidence in its true perspective while learned appellate Court has appreciated evidenoe in appropriate manner and on the basis of preponderance of evidence, earlier purchase of predecessor in interest of petitioners have rightly been believed by learned appellate Court and judgment and decree has appropriately been granted in their favour.

However, certain aspects of the mafier, requires reconsideration. Through mutation No.310 attested on 08.06.1997 mutation No.513 attested on 25.05.1998 in revenue estate Topi, a large portion of ploperty had been mutated which mutations had been challenged through suit filed before Court below for the reason that same also included property which had earlier been acquired through sale by predecessor in interest of plaintiffs namely Ali Khan. Perusal of said mutation reveals that rnutation was no doubt having affect of transfen'ing properly in dispute but besides property in dispute other properties had also been transferred, which part of

mutations had not been related to controversy in hand.

5.The mutation so long as it had been intended to transfer property in dispute in suit hand was not having legal affect as vendees of the case had lost legal capacity because ofearlier sale. No one can transfer a better title than he himself possess therefotre, same would be invalid to the extent of transfer of title in respect of property in dispute. DW.2 has also stated in his examination in chief regarding part of property acquired through mutation. He had also received cornpensation for some of the area acquired in Ghazi Barotha Project. The mutation itself shows that petitioners ln said V/rit Petition have received more area than the one brought under challenge in suit in hand. Learned appellate Court has declared the mutation to be unlawful in toto and thereafter it had traveled beyond scope of controversy before it. When leamed counsel for contesting respondents i.e, LR.s of Ali Khan was confronted with this situation, he frankly conceded that his clients have got no concem

with the rest of property acquired through impugned mutation. According to the learned counsel, plaintiffs had sought declaration in respect of their own rights of ownership and challenged the mutation to said extent through suit in hand. Judgment of learned appellate Court therefore requires modiflrcation to the effect that impugned mutation shall not have any effect of transfer of property fully described in heading of in instant case to said extent. However, such declaration shall not affect rights of petitioners acquired through same mutation in respect of other properties.

f, So far as question of limitation is concemed, it is admitted fact that plaintiffs of the suit had been running in possession of property in dispute since long. Their possession had never been disturbed in any manner. There had no't been any actual denial of their rights exoept through impugned mutation. One of the mutations had been attested on 28.06.1997 while other mutation had been attested on 25.05.1998.

Suit has been instituted on 23.09.2A00 i'e, within

six years of attestation of mutation and when actual denial of rights took place. Ftron'ble Supreme Court of Pakistan while giving its judgment in the case of ,,Haji Muhamrrnad Yunis (deceased) through legal heirs and anothen Vs. Mst. Farukh Sultan and othens, reported as X022 SCMR. 1282 has held;

"On careful reading af the ubove, it is evident thut this court hqs explained the disttnction between an n.actwal deniat of right" and an 'oapprchended or threatened denial of rigttt' in rclation to applicability of tke law af liwitation in cases seeking declarstion of proprietary rights in imrnovuble property. It has held that every new sdverse entry in lhe revewue record betng a mere "apprekended or tkrcalen denial" relating to proprictury rights of a person in possession (actwal or constrwctive) of the land regarcling which the wrong entry is nwde, gives to swch persail a fresh cawse of action to institute the suit far declaration" It kas, however, furtker claritied that the sttaation et dffirent in a case, where the beneliciary of an entry in the tevenue record actwally takes oyer physicul trtossession of the lund oru the basis of sale oy gift mwtation. In sueh a case, the alleged wrong entry in the revenue recard caapled with the very act of taking over possession of the land by the

alleged buyer or done, in pursuance ofthe purported sale or Etft, is an "actual denial of the proprietary rights" af the alleged seller or donor and thus, the time periad to challenge the ssid disputed lransactian of sale or gift hy the aggrieved seller or donor would coruntence from the dste of such actusl denial, Therefore, in such u case, if the purpofied seller ar donor does not challenge that action af "actual denial of his right" within the prescribed limilation period, despile having knowledge thereof, his right to do so becomes burred by the law of limitation, and the repetition of lhe alleged wrung entry in the subsequent tevenue record (lamabmdi) does not give rise to afresh caase af action.n

In light of what has been discussed above, Civil Revision No.1717-Pl20l1 is disposed of to the effect that judgrnent of leamed appellate Court is maintained to the extent of property in dispute. It is however clarified that the impugned mutations shall remain valid to the extent that it had transferred property more than or different from property in dispute. Same shall not be having any affect on ProPertY m dispute ln respect of which a declaration has rightly been

made in favour of contesting respondents who had been plaintiffs before learned civil Court.

6 So far as CR No.892-Pl20l2 is

concemed, it has been filed beyond the period of limitation but keeping in view the principle enshrined by Hon'ble Supreme Court of Pakistan in its judgrnent rendered in case of "Muhammrad Ashraf and others v/s United Bank Limited and others" reported as "2019 SCMR 1004" limitation is condoned for the reasotl that other CR. 1717- Pl2A20 filed against same irnpugned judgment, had been filed within time and same is also sought to be disposed of through this single judgrnent on merits. Relevant observations of above judgment of H,cn'ble Supreme Court of Pakistan are reproduced hereunder for ready reference:-

6It is settled law that where an order or judgment is ehallenged through separate proceedings be it uppeals or petilions, same af which are within tirue, while tke others huve been filed beyond the period of limitatiaw, all swch appeals or petitians owght to be decided on merit especially when an orders in one appeal or petition (witkin tiwe) woald apply to the ather appeal or petition, which rnay be barred by liwitation. Consequently, it is eppropriete to decille all tkree Civil Fetitions on rnerils."

This civil revision has been filed by LRs of Muhammad Arnin I{e was brother of Abdul R.aziq deceased. Through resolution dated 06.10.1952 Abdul Raziq had transferred two kanals, 17 marlas land in favour of Ali Khan, predecessor in interest of plaintiffs in suit filed before leamed civil Court. trn said suit Muhammad Amin had also been arrayed as defendant. It was conspicuous in the resolution itself that Muhammad Amin had not been party;

however Abdur Rauf had undertaken before the Committee that he would be responsible for his brother namely Muhammad Arnin and had claimed that he had been having full authorization from him. It is however clear that Muhammad Amin was not signatory to the resolution therefore same would not have the affect of transferring ownership from Muhammad Amin but problems of petitioners of instant petition are rnore complicated and not that much simple. They have a separate and more complicated grievance f,or the reason that name

of Muhammad Amin had though been reflected in earlier Jamabandi but his name could not be found in Jamabandi for the vear 1980-81 onwards. It was not abovementioned resolution through which his name has been removed from ownership but there may be certain other reasons not discoverable from available record. Besides, said issue had not been deemed to be part of controversy in suit in hand. Suit in hand had been brought by legal heirs of Ali Kharr on the basis of earlier purchase by their predecessor in the year 1952 and when their subsequent rights had been invaded through mutations No.310 and 513, they had sought declaration to the extent of their ownership of 2 kanals, 17 marlas land. The issue of Muhammad Amin or his LRs has been of a larger spectrurn in respect of larger chunks of properties earlier co-owned by Muhammad Arnin alongwith his brother Abdul Rauf. If LRs of Muhammad Amin had got any grievance, they would be at liberty to file a fresh suit (if not already filed and decided) and resolution of case in suit in hand would not affect their rights

V

adversely. Since sale in case in hand had been made by Abdur Rauf who had also been co- owner in substantial chr.lnks of properties as evident frorn mutation and other revenue record, therefore, the entire sold property i.e, 2 kanals, 17 marlas in favour of Ali Khan deceased shall be deducted from share of Abdul Rauf deceased and his LRs. This 2 kanals, 17 marlas land and every part thereof shall not be debited frorn account of Muhammad Amirr or his LRs. CR.

No.892-Pl2012 is accordingly disposed of.

GE

Dote ofhearing & announcerr,enl ofiadgment,.. ...,.,......,..,..... I 7. I 0.2023.

Dole of prepsrulion and signing ofiudgmenl ...' .. 08.11.2023.

rda.) E6'tl. ML tttds tnrd, Ardad-