Nasir Khan vs Lal Muhammad Khan

2013 M L D 1557

[Peshawar]

Before Rooh-ul-Amin Khan, J

NASIR KHAN and others---Appellants

Versus

LAL MUHAMMAD KHAN and others---Respondents

C.M. No.687-P of 2012 with Civil Revision No.759 of 2012, decided on 15th April, 2013.

(a)Qanun-e-Shahadat (10 of 1984)---

----Arts. 70 & 71---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Oral sale---Burden to prove the transaction of sale was on the shoulders of the plaintiffs-petitioners---Patwari halqa had produced the record of right which depicted that suit property was the joint ownership of the parties---Inheritance mutations were attested but at the time of attestation of inheritance mutations by the Revenue Officer, no question of sale was raised by the plaintiffs-petitioners---Plaintiffs-petitioners were in possession of the suit property but they were cultivating the same being co-owners---Halqa Patwari had admitted that no sale consideration or any deed was entered in the revenue record in favour of the plaintiffs- petitioners---Plaintiffs-petitioners failed to prove oral sale---No misreading and non-reading of material evidence having been noticed, revision petition was dismissed.

(b)Co-owner---

----Possession of each co-owner would be constructive possession of the other joint owners.

(c)Limitation Act (IX of 1908)---

----S.3---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction--- Dismissal of suit instituted after period of limitation---Plaintiffs-petitioners had brought the suit after 40 years which was beyond the prescribed period of limitation.

Abdul Sattar Khan for Appellants.

Ghulam Mohyuddin Malik for Respondents.

Date of hearing: 15th April, 2013.

JUDGMENT

ROOH-UL-AMIN KHAN, J.---Impugned herein is the judgment and decree of learned Additional District Judge Charsadda dated 9-6-2012, and that of learned Civil Judge Charsadda dated 5-1-2011, whereby petitioners' suit was concurrently dismissed by both the courts below.

2.Brief but relevant facts forming the back ground of instant revision petition are that Nisar Khan etc. plaintiffs (petitioners herein) brought a suit against the defendants (respondents herein) for declaration, permanent injunction and possession qua property bearing Khasra No.211 etc. fully described in the heading of the plaint, situated in the revenue estate of Moza Ocha Wala Tehsil Shabqadar District Charsadda. It is averred in the plaint that suit property was originally the ownership of one Fazl ur Rehman (father of predecessors of the plaintiffs and defendants Nos.2 to 7). It is further averred that Mst. Morana (predecessor of defendants Nos.2 to 7), sold her share to her mother Mst. Said Marjana (mother of predecessors of the plaintiffs), followed by delivery of possession; that defendants Nos.1 to 7, filed suit for produce as well as an application for partition of the suit property, by virtue of which the plaintiffs acquired knowledge of existence of the names of defendants as owners in the revenue record. Hence the present suit.

3.The suit was contested by the defendants by filing written statement, raising therein variety of objections factual as well as legal. The controversial pleadings of the parties were formulated into issues. Both the parties produced pro and contra evidence in favour of their respective claims. On conclusion of trial, the suit of the petitioners was dismissed by the learned Trial court. Feeling aggrieved from the judgment and decree of the trial court, petitioners challenged the same through appeal before the learned Appellate court, but their appeal also met the same fate. Hence, this revision petition.

4.Learned counsel for the petitioners argued that the impugned judgments of the two courts below are the result of misreading and non-reading of material evidence available on record resulting into grave miscarriage of justice; that in light of findings of the trial court on issues Nos.1 and 9, the suit should have been decreed but by non-suiting the petitioners, the trial court has committed gross illegality. Learned counsel further argued that findings of the two courts below on the point of limitation are also misconceived thus both the courts below have not applied their judicial mind while dismissing the suit of petitioners which findings are liable reversal; that both the courts below have neither discussed the statements of P.Ws.3, 4 and 5 nor discarded it, even then the petitioners were non-suited, which is sheer violation of principle of appreciation of evidence.

5.Conversely, learned counsel for the respondents while controverting the contentions of the learned counsel for the petitioners contended that both the courts below have properly appreciated the evidence on record; that the petitioners have failed to prove the oral sale and that

their suit is badly time barred. He supported the impugned judgments of the two courts below and sought dismissal of instant revision petition.

6.I have heard the comprehensive arguments of the learned counsel for the parties and have gone through the record.

7.The main bone of contention between the parties is an alleged oral sale qua the suit property allegedly executed between Mst. Morana and her mother Mst. Said Marjana. It is well entrenched principle of law that burden to prove heavily lays on the shoulder of the plaintiff the transaction of sale. Petitioners alleged that Mst. Morana (mother of the respondents) sold her share in the suit property to her mother Mst. Said Marjana, i.e. the grand mother of the respondents. To substantiate their stance, petitioners examined Patwari Halqa as P.W.1 and Rehmat Khan, Ali Rehman and Ghyulam Rasool, the witnesses of the alleged sale. Patwari halqa has produced the record of right of the suit property for the year 2001-2002, which depict the suit property was the joint ownership of the parties.

8.Inheritance mutations of Mst. Said Marjana and Mst.Morana, have been brought on record which shows that at the time of attestation of these mutations by the Revenue Officer, no question of alleged sale has been raised by the petitioners. After attestation of mutations, the names of the respondents are still intact in the record of right. No doubt, the petitioners are in possession of the suit property but the available revenue record, run contrary to their claim, which depicts that they are cultivating the same being co-owners. It is settled law that possession of each co-owner would be constructive possession of the other joint owners.

8(sic) Record depicts that originally the suit property was the ownership of one Fazl-ur-Rehman. After his demise his inheritance Mutation No. 1909 was attested in favour of his legal heirs Mst. Said Marjana, Masal Khan, Noor Rehman, Mst. Fatima and Mst. Norana. Similarly, on demise of Mst. Said Marjana (the widow of late Fazl ur Rehman), her inheritance was devolved upon her sons Masal Khan, Noor Rehman, Mst. Norana (predecessor of petitioners) and Mst. Fatima vide inheritance Mutation No.4001 attested on 29-11-2007. The inheritance of Mst. Norana (predecessor of petitioners) vide inheritance mutation No.4002, was devolved upon defendants Nos.1 to 7 in 2007. Perusal of the revenue record available on the file reflects that name of Mst. Morana is still intact in the column of ownership and the suit property is shown as joint one. There is nothing in the revenue record to support the alleged oral sale between Mst. Morana and her mother Mst. Said Marjana. In this regard, statement of Patwari halqa (P.W.1) is clear then crystal where, he has admitted that no sale consideration or any registry is entered in favour of the plaintiffs on behalf of Mst. Morana (predecessor of the respondents). As evident from the statement of this witness, respondents have became owners in the suit property on the basis of inheritance Mutation No.4002 attested on 29-11-2007. Plaintiff No.2 was examined as P.W.2, but he has failed to prove the oral sale. Rather his statement is contradictory. He categorically admitted in his cross-examination that on behalf of Mst. Morana no mutation or registry or any other entry in the revenue record in respect of sale has been entered in favour of Mst. Said Marjana. Moreover, at the time of attestation of inheritance mutation of Mst. Morana, the petitioners have not raised any objection. No information regarding the alleged sale has been provided to the revenue officials at the time of preparation of Khasra Girdawari. The petitioners alleged the oral sale to be some 40 years before while the suit was filed in 2010, thus they have kept mum for a long period of 40 years. During the life time of the predecessor of the parties the alleged oral sale has not been brought on surface before any forum. After the demise of the predecessors of the parties, inheritance mutations were attested and after a long period of 40 years the petitioners have brought the instant suit which is beyond the prescribed period of limitation and both the courts below have rightly held the same to be time barred.

9.Both the courts below have properly appreciated the entire evidence available son the record in its true perspective and have arrived to a right conclusion by non-suiting the petitioners. There is no misreading or non-reading of material evidence nor is there any illegality or material irregularity which may warrant interference in the concurrent findings of facts recorded by two courts below. Resultantly, this revision petition stands dismissed. No order as to costs.

AG/213/P Petition dismissed.