Mst. Bibi Ayesha etc Vs Muhammad Farooq etc

Jundgmemt Sheet

M{ THE PMSHAWAR.HIGH COURT,

PMSHAWAR.

WWTCTAL MEPARTMENT"

.I{IDGMENT

CR l\o.961-P/2009 with CMs No" 1 147-Fl2 LZt, \450- Pl20l9, COC No.68A-P?A2A and CM No.892-P/2021. Date of hearimg 20.05"2023" IVIst. Bibi Ayesha etc Vs Muharmmad Farooq etc

Petitioner (s) by: SrVs Muharnmad Andn Khattak I-,achi and Ibrar ul Haq Advoeates.

Respondent(s) by: Mr.Zia ur R.ehman ,{dvoaate" WIOAR. AHMAD. J Through instant civil revision petition filed under Section 115 CPC, petitioners have challenged impugned judgment and decree dated 2V.A5.2009 rendered by learned Additional District Judge-V, Kohat, whereby appeal of respondents against impugned Judgment & decree dated 03.07.2008 of leamed Civil Judge- III, Kohat was allowed, thereby setting aside the judgrnent and decree of learned civil Court 1 Syed Flussain and LRs of one of his brother namely Hijab Gul had brought a suit against LRs of their third brother namely Akbar F{ussain, clairning therein that defendants

(respondents) had got no rights in the property described fully in the heading of the plaint and that name of their predecessor namely Akbar Hussain had wrongly been shown as co-owner therein.

Beside declaration of their title to the exch.lsion of Akbar Hussain or his LR.s, plaintiffs had also prayed for perpetual injunction against defendants for restraining thern from interfering in their ownership and possession or asserting any right of ownership in respect of the property in dispute.

Defendants were surnmoned. The suit was contested by defendants No.l to 8 by submitting their written statement denying therein the clairn of plaintiffs by raising various legal and factual objections. From pleadings of parties relevant issues were framed. After recording some evidence, learned Civil Court dismissed suit of plaintiffs by invoking Order XVII Rule 3 CPC due to non production of evidence. dggrieved from same, petitioners filed civil revision before leamed revisional Court, where they also filed application for condonation of detray. During pendency of same, ttrrey filed another application for withdrawal

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of suit with perrnission to bring fresh one, which was resisted by answering respondents. After hearing parties, said application as well as main suit of petitioners was dismissed vide judgrnent dated A6.A2.2A06. Dissatisfied frorn same, petitioners approached this Court by fitring Writ Fetition No.300/2006, which was allowed vide .judgrnent dated 5.7.2005, thereby remanding case to the learned civil Court for decision afresh Learned civil Court after trrearing the parties decreed the suit vide judgment and decree dated 3.7.2008. Aggrieved from same, defendants filed appeatr before learned Additional District Judge-V, Kohat, which was allowed by leamed appellate Court vide judgment dated 27.A5.2009, thereby setting aside .judgment and decree of leamed trial Court dated 03.07.2008, hence instant revision petition.

J tr have heard learned counsel for the parties and record gone through.

4 Perusal of record reveals that dispute before learned Civil Court was amongst Syed Hussain and LRs of his brother Hijab Gul on one

side and LRs of their third brother namely Akbar F{ussain on the other side. It is irnportant to be noted here that the disputed property had not been inherited by Syed Hussain, Hijab Gul and Akbar F{ussain. Both the sides had purchased properties through two separate mutations i.e Mutation No.10522 affested on 19"01.1963 and Mutation No.12127 attested on tr1.05.1967, in the revenue estate Moza Garhi lvlawaz Khan. Syed Flussain and Flijab Gul had purchased afi area measuring tr3 kanal, 15 marlas, through the mutation which was brought in evidence as Ex.PW.2/4. It is again relevant to note that their third brother (predecessor in interest of respondent No.1 namely ,dkbar Hussain) had not purchased any property through this mutation nor had such right been transferred in his favour. The mutation had the effect of transfer of ownership in favour of Hijab Gul and Syed F{ussain (predecessor in interest of petitioners). Fredecessor in interest of defendants had also purchased certain property rights through another mutation No. 10522 attested an 29.A1.1963 (Ex. PW 2/3) alongwith his brothers Flijab Gul and

Syed F{ussain. So far as the rights acquired through mutation Ex"FW.2/3 are concerned, these have been jointly acquired by three brothers in Khasra No.149 vide rnutation No.10522 attested on 29.AL.1963. This dispute has its genesis in the rnistake which had occurred at time of settlernent in ttre year 1973-74. The old Khasra numbers were substituted with new Khasra numbers and three brothers i.e, Hijab Gul, Syed Hassan and Akbar Hussain have all been shown co-owners in the entire properly purchased vide above mentioned two rnutations. The property acquired through nrutation l{o.12127 attested on 1tr.05.1967, had exclusively been purchased by Hijab Gul and Syed Flussain (to the exclusion of .,{kbar Hussain) but same was also shown owned by the three brothers inctruding Akbar Hussain in 1973-74. Frorn then onward said rnistake has consistently been replicated in subsequent Jamabandies in same manner. Here reference is also important to be made to extract from record of'rights brought in evidenee as Ex.PW.t/1, wherein old Khasra numbers have been shown as 442L14A6711-5A,

442314065/15A, $O/l/Z and new Khasra numbers

shown as 995, 995,999,1002 and 1004 and in the

whole of property three brothers namely Hi.jab Gul, Syed F{ussain and Akbar Hussain sons of Alam Gul, have been shown as owlers in colurnn of ownership. It is again mentioned at the cost of repetition that this was the property which had been purchased by Hijab Gul and Syed F{ussain exclusively. Name of Akbar Hussain has wrongly been inserted in colurnn of ownership in respect of this particular property which is also property in dispute in case in hand. Neither in the pleadings nor in entire evidence, respondents/def'endants have produced any other evidence or instrument whereupon entries of Akbar Hussain in the column of ownership in respect of property in dispute could be justified. No such documents could be brought in statements of FW.l (Fatwari Halqa) and PW.2 (ADK). One of plaintiff Shabbir Ahmad has deposed as FW.3 in support of plaint. He could not be confronted with any such docurnent or reliable fact where upon insertion of narne of Akbar Hussain in column of ownership of, properfy in

dispute could have been justified. It is also important to note that in cross examination it was

suggested to him that defendants had obtained possession of suit property through process of execution in revenue forum i.e, Deputy District Officer Judicial (DDOJ). Same was case with Muhammad Javed respondent No.Z when he was deposing on his behalf as well as Special Attorney for rest of respondents as DW.l. In his exarnination in chiefalso he could not produce any such instrument where upon the entry of Akbar Fllrssain could have been justified in coltmn of ownership in record of rights of 1973-74. When asked in cross examination specifically, he was not in a position to give details of mutation vide which his father might have effected any purchase in disputed property. At the end, he also adrnitted it correct that they had obtained possession of property in dispute during pendency of suit in hand, and during the process ofexecution oforder of partition separately made by revenue f,orum.

3 Dispute between the parties was

ignited by fact that respondents had filed an

application for partition bef,ore revenue Court in the year 1992. The suit had been filed on 13.04.1992 before court of learned Senior Civil Judge, Idohat. trt was during pendenoy of suit that the partition proceedings had been conducted and finalized where upon possession had also been delivered to respondents/defendants in respect of property in dispute. Learned counsel for respondents has forcefully raised the plea of limitation and also relied upon judgments of F{on'ble Supreme Court of pakistan rendered in cases of "Murharmrmad Rustarn and amother VS Mst.Makham Jam amd others', reported as 2013 SC&IR 299 amd*Mushtaq ul Aarifin amd others Vs Mrnmtaz A.hmad amd othens', reported as 2022 SCMR 55. In this respect it is important to be noted that although rvrong entries had been rnade in course of Jamabandi for the year L973-74 but proprietary rights of petitioners/ plaintiffs had not been disturbed practically. Except wrong entries in revenue record and its repetition, no fuither steps had been taken by respondents/defendants which could have been

treated as actual invasion of their rights till the year 1992. When on 02.09.1992 such an actual threat ernerged with filing an application for partition by respondents/defendant, the plaintifflpetitioner brought a suit before civil Court on tr3.04.1992. ln Faras 4 & 5 of plaint, the plaintiff had specifically mentioned as follows:_ J^? 'ny.tl+b <*, Ll- &tiits etJril Ale, I ry:LLc,.t ^S ^1 ,,.-L'- llW all.tat *zl_1t p-ii o*t*_1. ) rny,f ueui"l eJ*.-"r-;a f-,a -4 J-j+J l) *. --1 ; =j l.t1 ,-.ti.,,*i-J U bu -;hZiS f4la ^S -1 al-ts-t,o rrO Utuk * rn O -c*-) fstw *.gLpS uS d*ii:l ry cut^1t ct4: $ dl- ,ilb6 os A 6 F jt UE -rS ile b:^.5 ^t -5- LElr u-',).tl: uS 4Qcl. l+,t-t , ull ltt ay ag2lsil ,r r,K- 4rt5 -at t:t+ 6 l+oy: J 4"1 uS-,,*

Hon'ble Supreme Court of pakistan while giving its judgment irr case of o,Haji Muhammrad yunis (deceased) thnough legal heins and another Vs.

Mst. Farukh Sultan ancX others,, reported as 2022 SCMR.12E2 has held:-

"On earefwl readtng of tke above, it is evident that tkis coart kas explained the distinctton between an'naclwal denisl af rigltt', and on "apprekemded ar tkreatemed denial of, riglat* in relstion to applicability of the law af Itnaitation in cuses seektng declarstion af proprietary rtghts tn innrnovable property" It kas held tkat every new adverse entry in the revenae record being a

tnere 'bpprehended or threuten deniul' relatimg to proprietary rights of a person in possession (actual or constructive) of, the land regarding which the wrong entry ds made, gives to swch person w fresh ceuse af aetion fo instttwte tke swit for declaration. It has, however, furtker clarffied that tke sitwation is diffirent in a cwse, where tke beneficiary of an entry in the revenwe record actwally takes over pkystcal passession of the land on tke bwsis af sule or gift matation" In suck a cuse, the wlleged wrnng entry in the revenue record coapled with the very act of taking over pnssession aftke lamd by the wlleged bqter or done, in pwrsasnce of tke pwrported sale or SWn is an "actwul denial af tke proprietary rigltts" af the alleged seller or donor and thas, the ttme period to challenge the said dispwted transactton of sale or gift hy the aggrieved seller or donor waald commence from the dwte af sweh uctwal denial. Tkerefore, in swck s case, tf,tke pwrported seller ar danor does not ckallenge that actton af ('actual denisl of kts right' within the prescribed Itruitatton pertod, despite kaving knowledge tkereof, his riglat to do sa becornes barred by tke law af limitatian, snd the repetition of tke alleged wrong entry tn the swbseqaent revenwe record (.{amubawdi) does not give rtse ta afresk c$NSe af action."

6 In case in hand also, the wrong entries in revenue record could safely be treated as

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threatened denial. When actual denial of rights of petitioners/ptraintiffs had been made, they had brought a suit imrnediately thereafter and facts of accruing cause ofaction narrated in para 4 &,5 of plaint, could not be rebutted by defendants through any confidence inspiring evidence in this regard The suit had therefore, been found well within time and in this case every repetition of wrong entries in revenue record would be deemed to have been clothing the petitioners/ plaintif'fs with a fresh cause of action.

7 Learned counsel f,or respondents also relied on the presumption of correctness of revenue record. He contended that predecessor in interest ofpetitioners has been alive and present in locality but they had not raised any objection in respect of entries rnade in course of first settlement. He also relied upon an earlier.ludgment of this Court rendered in case of "Allah tr)ad Vensus Government of Patrdstam etc" reported as l{I-,R. 1989 CX-,C 497 and contended that avery strong presurnption was attached to entries made in revenue record during course of settlement. There

is no doubt about the fact that entries in course of settXement carry with it a strong presumption of correctness but presumption ls always presurnption. When an entry rnade in course of sefilement is proved by a party to be wrong then presumption rnay not be banked upon.

Presumption vanishes, the moment a fact is affirmatively proved in evidence before a civil Court. The proposition relating to presumption of oorrectness to entries made in the Court of settlernent would also be of no help to re sp ondents/defendants

I Now conning to the impugned judgrnent, it is important to be noted that the leamed Civitr Court has decreed the suit of plaintiffsi petitioners vide a very well reasoned judgment dated 03.07.2008. Said judgrnent has been set aside by leamed appellate Court vide judgment dated 27.05.2009. Learned appellate Court while setting aside a well reasoned judgment of civil Court has given a single reason of bar of jurisdiction of civil Court under Section 172 of I-and Revenue Act. Judgment of learned Appeltrate

Court was not based on correct appreciation of law on the subject" Conducting of partition proceedings particularly during pendency of a civil suit wherein substantial question of title had also been raised, would not divest a civil Court of its jurisdiction to decide qtiestion of title. Deciding disputed question of title is the primary job of civil Court.

Powers of revenue authorities under Section 135 of the West Pakistan Land Revenue Act 1967 (hereinafter referred to as Revenue Act) have not been provided for deciding question of title. If a question of title crops up incidentally, then limited powers has been given to R.evenue Officer under Sections I4I of Revenue Aot to decide such ancillary question but said power cannot be used to take away the powers of a civil Court which is specifioally established for the particular purpose The question of title or wrong entries in the revenue record had not been decided or deterrnined by the revenue forum at the time of conducting partition proceedings. Bven otherwise such a question was supposed to have been decided by civil Court under Section 53 of the Land Revenue

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Act. This Court in its earlier judgrnent rendered in case of, "Mian Shehzada Jan and others Vs Muhammad Israr and others" reported as pLD 2422 Feshawar 147 while dealing suoh like question has held that deterrnination of question of title was too serious a question to be left to determination of a revenue officer. R.elevant observations given in Fara 8 of the judgment are also reproduced hereunder for ready reference:-

8.Deterrntnation af a qwestion as wkeref,rom property af a parttcular tr ersom or persoms starts and wkere it ends, in such s sitwation as descrtbed above, woald be u pwre question of title, wktck con even otherwise not be allowed to be adjudicated wpon by a revenwe officer exercising powers wnder tke Revenwe ,Act" These ilre pwrely jadtcial functtons snd cannot be left at tke hands af a revenae officer" Right to hold properg is afundamental riglat gaaranteed wnder Arttcle 23 of tke Constitwtion" Arttcle 24 of tke Canstttwtton slso provtdes for protection af property rights. Qwestion of title of a property is a serioas qwestton wnd reqaires well dejireed meekanism for adj wdicatia n tkereupon. Tke meekanism skaald wlso be suck that parties have right to a full-fledged hearing et s well defined jadicial proceedings. trt should also tnclude pvoper riglats of appeal ta swck forums which exercises f,wll independence" The

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R.evemue Act kss not heeru enaeted for providing suck f,orwm or system af adjwdication for deterwination of questians af rights" Fwrpose of, the Revenae ,Act has mainly been providiwg .for laws relating to doewrnentation of revenae record for tke pwrpose of, generation of land reve&we. It is a special law amd tke forwms established theretn cunnot he deemed to have been establiskedfor the purpose of adjwdicuting wpmn proprietary riglcts af tke parties inalwdtng dispates of title. By now Article lCI-A also stunds inserted in the Constitwtion by way of tke Constitwtion (tdh Amendment) ,Act 2010, whtch reqwires tkat far tke determination af his ctvil riglats and ohligutians or tn any criwinwl charge wgainst kim, a person skall be entitled to a fair trial and dwe praaess. Non'ble Swpteme Coart af Fakistan wkile rendering its jwdgment in the case of ,AL-Jehsd Trust throwsk Roeesul IWaiakideen Etrsbib- al-Wahshh-al-Khairi and otkers ys. Federalion of Pakistan and others reported us FLD 1996 Sapreme Caurt 324 kus observed thst the right to have &ccess to jwstice throwgh an independenr judiciary w&s a fundamental right, and without an irudependemt jwdiciwry the rtght wowld be rneaningless arcd wowld not kave fficacy und benejicisl value for tke public at large. Same view hqd also heen reiterated in the case of Al-lehad Trwst tkrawsh Raeeswl Maiahideen Ilahtb-wl-Wahabb-ul-Idksirt and otkers vs" Federation af Faleistan and others reported as PLD 1997 Suprenne Coart E4 as well as in tke case ll Pakistan Newspauers Societv and others v,r. Federotion of Pskistsn and others reparted as PLD 2AI2 Sapreme Court

tr" trn the case af Sh, R.iaz-al-Ila q and f unother v.e. Federstion a Pulristan Tkrowsh fufinis trtt of Ls w und otkers reporied as PLD 2013 Supreme court 5Al, ffie tr{on'hle Supreme Coart of Paktstan hsd ohsen'ed tkat determinstion of a qwestion of rights csnnot be left st tke dtscretton af persons who kad not been havtng lcnowledge and experience in tke legal field" It was further held in para-4S of the jadgwent;

"The Frinciple of separatton and independence af jadiciary as envisaged in ,Article 175 of the Constitutton is also appltcable to tke lower judiciary as it is the part of tke judicial kierarchy" Tkus, its separation and independence hss to be secwred and presewed as that af swperior judictary. In terms of Article 175 rcsd with Article 203 af the Constitution, the lower jwdiciary skould be separated frorn the Execwtive and the l{igh Coart skall supervise snd control all courts swbordinate to it. Reference may be made to the case af, Governrnent af Sindh v. Skaraf, Fsridi (PLD 1994 SC MS). In tke case af Dr. Mobashir I{assan v. Federation of Fakistan (PLil 2010 SC 265) it has been held tkat tke Legklatwre is competent to legislate but sueh legislation would not be swstainable if it is contrary to the prineiple af independenee af jadiciury ws rnentioned in Article 24 af the Constitution, wkich provtdes tkut independence of jadieiary shall be fully secured read with ,A.rticle 175 of the Constitution, wktck lays down a scheme for tke establiskwent af tke Cawrts, inclwding tke swpertor Courts and sack other Coarts ss

rney be establisked by law. As it hss been held that Service Tribwmal disakarges jadicial functioms, thws fulls witkin tke definitian of a ,,Cowrt, in view of tke shave discwssion, lkerefore, the Tribwnsls kave ta he separated fronn Execwtive follawing tke principle of indeperadence of jwdiciury in vtew of Articte t7S(3) of the Constitwtion."

It was fartker clari/ied in said judgment tkat wherever a Coart rnskes deternnination of rights af parties, the fwnction woald be jwdictwl in nature und swck Cowrt or Trihanul skowld be wanned, controlled snd regwlated in aecordumce witk jadicial prtnctples.

Although appellate Court has not re-appreciated rest of evidence but this Court would not like to remand this case to appellate Court for reason that instant revision petition has been filed on 25.49.2009 and decided today t.e, 2A.A6.2A23.

Besides case in hand is quite ctrear and this Court on reappraisal of entire evidence has reached to a conclusion that .judgment and decree of leamed civil coufi had been based upon proper appreciation ofevidence brought before it I trn light of what has been discussed above, instant civil revision is atrlowed to the effect that impugned judgment dated 27"05"20A9 of

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learned Additional Dis&ict Judge_V, Kohat is set aside and judgnrent and decree of learned civil Judge-III, Kohat is hereby resfored.

Date ofheofing & announcemew ..............,...... 20.06.202i.

DGE

Dote af Neparutiofi and sigt ing afiudgnerrt ........,...

(sr.) Hdttk t i. t.!64$1e 4tdd 'Agdrud B'