Salar Khan vs Umer Riaz

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

C.R. No.165-B of 2013

JUDGMENT

Date of hearing 17.4.2015 ____ .

Appellant-Petitioner: Salar Khan by Mr. Gul Diaz Wazir, Advocate.

Respondent: Umer Riaz by Mr. Pir Hamid Ullah Shah, Advocate.

MUHAMMAD YOUNIS THAHEEM, J.---Through

the instant revision petition under section 115 CPC, Plaintiffs (herein-after called as petitioners) have called in question the judgment and decree dated 28.02.2012, passed by the learned Civil Judge-VIII, Bannu and that of 16.01.2013 of learned Additional District Judge-I, Bannu, whereby former dismissed the suit of the petitioners while latter upheld the same.

2.Brief facts of the case are that plaintiff Salar Khan and others, the legal heirs of Faiz Talab, have instituted a suit against the defendants (respondents herein) seeking declaration-cum-perpetual /mandatory injunction and possession to the effect that their grand- father Akbar Khan was owner in possession of house Khana Shumari No.24. According to jamabandi for the year 1905-06 after his death Faiz Talab, father of the plaintiffs/petitioners has become owner but the respondents with the collusion of the revenue officials had made alterations in the revenue record and wrong entry relating to house census pertaining to the year 1994-95 according to a forged and fraudulent sale deed dated 25.01.1919, has been made which is wrong, ineffective upon rights of the petitioners and liable to be cancelled. They also prayed for an injunctive order against the respondents /defendants restraining them from any sort of interference in the suit property.

3.When summoned, respondents/defendants hotly contested the suit by filing their written statement.

From divergent pleadings of the parties, the learned trial court framed the following issues:-

1.Whether plaintiffs have got cause of action?

2.Whether the new census-in-question with reference to new census No.18 for old

census No.24 is validly made in census year

3.Whether the sale transaction of disputed land to predecessor defendants took place, if so then its effects?

4.Whether plaintiffs are entitled to the decree as prayed for?

5.Relief?

4.After recording pro and contra evidence and hearing learned counsels for the parties, the learned trial court (Civil Judge VIII, Bannu) granted a partial decree upto to the correction of column No.4 of Khana shumari No.18 of census for the year 1994-95 for

removing the names of defendants No.1 to 4 and name of predecessor-in-interest of defendants No.5 to 9 with the direction to the revenue department for correction of the same by inserting the name of plaintiffs being L.Rs of Faiz Talab, while rest of the claim of the petitioners was dismissed, vide its judgment dated 10.12.2010.

5.Feeling dis-satisfied of the same, the respondents/defendants filed Regular Civil Appeal before the court of learned District Judge, Bannu which was entrusted to the court of learned Additional District-I, Bannu. After hearing arguments of learned counsel for the parties, the appeal was allowed by setting aside the judgment and decree dated 10.12.2010 of the learned lower trial court and the case was remanded back with the direction to record further evidence over the following additional issues, framed by the lower appellate court and decide the case on merit afresh:-

1.Whether the deed dated 25.01.1919 is

self made, forged one, is the result of

fraud, if so with what effects?

2.Whether the suit is time barred?

6.Both the parties were directed to produce pro and contra evidence if so they desire but they relied upon the evidence already recorded. After hearing arguments of learned counsel for the parties, the learned trial court dismissed the suit vide impugned judgment dated 28.02.2012. The said judgment and decree was assailed by the petitioners/plaintiffs before the learned Additional District Judge-1, Bannu which also met the same fate vide Judgment and decree dated 16.01.2013, hence the instant revision petition.

7.I have heard the valuable arguments of learned counsel for the parties and perused the available record with their assistance.

8.Perusal of the record reveals that as per plaint, the petitioners have sought cancellation of wrong entries in the house census of the year 1994-95 in favour of respondents /defendants being effected on the basis of

sale deed dated 25.01.1919 lying on record as Ex DW 1/1 in respect of suit house which is house No.24 in Revenue record of register of Khana shumri of Mauza Khanzad Mughal Khel as Ex PW 1/1 and khaka dasti as Ex PW 3/2 on the ground that their predecessor Faiz Talab was illiterate person and always used to thumb impress the documents and never signed any document so had not signed sale deed Ex DW 1/1 dated 25.01.1919.

9.The petitioners claim that their predecessor- in-interest namely Akbar Khan was owner in possession of Khana Shumar No.24 in the jamabandi for the year 1905-06 and after his death the predecessor of plaintiffs their father namely Faiz Talab became owner but the respondents with the collusion of revenue officials, had made a wrong entry in the house census of 1994-95 on the basis of fraudulent sale deed dated 25.01.1919, but the petitioners / plaintiffs could not produce any evidence, particularly for proof of alleged fraud and

misrepresentation and only relied upon the oral testimony while on the other hand it was vehemently rebutted by the respondents by producing the mortgaged deed Ex.PW- 1/Dx-1 for the proof that Faiz Talab, the father of original plaintiffs put Urdu signatures also and same document bears the signature of the predecessor in interest of present petitioners meaning thereby that disputed property was transferred through sale vide sale deed Ex DW1/1 dated 25.01.1919 to the predecessor-in-interest of the respondents and in this respect, the respondents have also produced documentary evidence in the form of revenue record relating to House census pertaining to the year 1994-95 Ex.PW 3/1 and also Ex.PW 3/2 which is the present position of ownership and possession of house, it shows that the disputed property is coming in continuous possession of the respondents/defendants since their predecessor Mir Dil Khan in the Revenue record relating to khana shumari. So in such like circumstances entries

in Revenue record have presumption of truth. In this respect reliance can be placed on case law titled as “Muhammad Hussain and others Vs Khuda Bakhsh” (1989 SCMR 1563). The relevant portion of the same is reproduced as:-

“In the revenue record, till

1907, the predecessor-in-interest of the petitioners was shown to be the owners of the land in dispute.

However, in that year the entries in the revenue record were changed

and instead Ahmad Din,

predecessor-in-interest of the

respondent, was mentioned as the owner thereof. The case of the

petitioners was that the alternations in the revenue record were based on fraud and misrepresentation

and as such they were not bound by them”

In the same judgment it is further held that:- “Á presumption of truth is attached to the revenue record. This

presumption gets further

strengthened when the entries

therein remain unchallenged for

more than half a century. It was for the petitioners to rebut this

presumption. They took the plea of fraud and misrepresentation but

were unable to substantiate it. We would therefore dismiss the

petition”

10.An other aspect of the case is once it is established that the disputed property is the ownership and is in possession of the respondents, then the onus to

prove their (plaintiffs ) ownership is upon shoulders of the petitioners /plaintiffs who contends themselves to be the owner thereof and especially when the ownership deed and Revenue record is in favour of

respondents/defendants and have been challenged on allegation of fraud by petitioners. In this respect Article 126 of the Qanun-e-Shahadat confirms the same which read as under:

“When the question is whether

any person is owner of any of

anything of which he is shown to

be in possession, the burden of

proving that he is not the owner is

on the person who affirms that he

is not the owner”

Reliance is placed on case titled “Syed Tawakkal Hussain and others Vs Mst. Shameem Fatima Rizvi and others (1999 MLD1), wherein it is held that:-

“The above quoted provision (Article 126) evidently, is in departure from the general rule contained in Article 117 of Qanun- e-Shahadat Order. A person, who asserts that another person, in possession, is not owner of the property, is required to prove negatively that the latter is not the owner. In the present case, the defendant No.1 is, admittedly, in possession of the suit property and;

therefore, the burden to prove affirmatively that she is not the owner, lies upon the plaintiffs. The question of burden of proof, however, has lost importance since both the parties have led evidence

in view of the dictum laid down in

the case of Mst. Qaisar Khatoon

and others V. Moulvi Abdul Khaliq

and another (PLD 1971 SC 334).

(The braces and mentioning of

Article 126 is mine to emphasis the

provision).

11.Further the deed in question is admittedly having presumption of truth being 90 years old document hence, presumption of truth lies with it, so no possibility of fraud and mis representation arises. In this respect reliance is placed on the worthy judgment of the Supreme Court of Pakistan “titled Allah Dad and others Vs Dhuman Khan and others “(2005-SCMR 564) (d).

12.The plaintiffs have alleged the sale deed dated 25.01.1919 on the basis of fraud and outcome of collusion, so the plaintiffs were legally bound to mention

the fraud in a very express way by giving particulars of fraud in the plaint as by whom and when fraud was committed and secondly plaintiffs were bound by providing proof in this regard through believable evidence but plaintiffs did not produce a single witness to prove the allegations leveled in the plaint. In this regard reliance is placed on case law titled “Noor Muhammad Vs Jamal Din and others” (2000 CLC 305), wherein it is held that burden of proof lies upon party who alleges fraud”. In another judgment titled “Kaloo & 3 others Vs Hassab Buksh and 3 others” (2000 YLR 2473(c)) law is that “he who alleges fraud he proves the same”.

Particulars of fraud must be expressly pleaded and proved. Reliance can be placed on “Ghulam Rasul..VS..

Muhammad Akram “ 1988 SCMR 1080 (g),

‘Muhammad Ishfaq Vs Chouhdri Muhammad Nawaz “ (2008 SCMR 1095), Haji Abdul Ghafoor through legal heirs Vs Ghulam sadiq through legal heirs (PLD 2007

SC 43) and Muhammad Saleem Vs Muhammad Tariq”

(2009 CLC 1295)

13.The sale deed dated 25.01.1919 has been challenged by plaintiff Salar Khan on 14.5.2008 after the laps of near about 90 years and no valid explanation has been provided despite the fact that the predecessor of Salar Khan namely Faiz Talab the then vendor was a chronic litigant having strong feelings of awareness about his rights but has not challenged the same sale deed during his life time. So in view of the above terms, suit of plaintiffs/petitioners is badly time barred, hence, rightly dismissed.

14.The scope of revisional jurisdiction is very limited in which the court cannot set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor it can upset the same, unless these findings are shown patently illegal, without jurisdiction, based on conjectural presumptions or erroneous

assumption. No such infirmity has been pointed out by the learned counsel for the petitioner in the impugned judgments and decrees of the two learned courts below, which may warrant interference of this court in its revisional jurisdiction. In this respect reference is made to case titled “Muhammad Idrees and others Vs Muhammad Pervaiz and others” ( 2010 SCMR 05)

11.For the reasons discussed above, the instant revision petition being devoid of merit is hereby dismissed, with no order as to cost.

Announced JUDGE