2011 C L C 989

[Peshawar]

Before Yahya Afridi, J

IHSANULLAH and others----Petitioners

Versus

KHWAJA MUHAMMAD and others----Respondents

C.M. No.373 of 2010 in Civil Revision No.353 of 2009, decided on 21st February, 2011.

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

- - - - A r t s . 100 & 126---Specific Relief Act (I of 1877), Ss. 8 & 42---Suit for declaration and
possession---Burden of proof---Thirty years old document, presumption of truth to its execution-
--Plaintiffs instituted suit to the effect that they were owners in possession of suit-land; and in the
alternate they prayed for possession thereof---Defendants admitted that suit-land was originally
owned by the predecessor-in-interest of the plaintiffs, but subsequently same was sold by him to
the predecessor-in-interest of the defendants, which was duly reflected in the revenue record---
Defendants also asserted that with the transfer of title, possession of suit-land was also
transferred to the defendants---Both Trial Court and Appellate Court had dismissed the suit---
Validity---Defendants by producing revenue record had fully proved that land in dispute was in
their continuous possession---Veracity of entries in revenue record, had been confirmed---Once
it was established that suit-land was in the possession of the defendants, then the onus to prove
ownership thereof was shifted upon the plaintiffs to prove that defendants were not the actual
owners of suit-land---Basic written instruments with regard to sale of suit-land to predecessor-in-
interest being thirty years old documents, were protected under Art.100 of Qanun-e-Shahadat,
1984 which vested a presumption of truth to its execution---Said presumption was not rebutted
by the plaintiffs---Execution o f the documents required no further proof---Suit filed by the
plaintiffs, in circumstances, was rightly concurrently dismissed by the courts below---Said
concurrent judgment of courts below could not be interfered with in revisional jurisdiction of
High Court.

Syed Tawakal Hussain v. Mst. Shammim Rizvi 1999 MLD 1; Mst. Bhag Bhari v. Muhammad
Khan 2010 CLC 240; Bhambhar v. Mst. Nooria 1999 YLR 2078; Muhammad Darvesh v. Haji
Muhammad Hussain 1999 CLC 106; Ghulam Haider v. Wali Muhammad 2008 SCMR 1428;
Sameen Khan v. Haji Mir Azad 2002 CLC 754; Muhammad Hussain v. Khuda Bukhsh 1989
SCMR 1563; Shumail Begum v. Gulzar Begum 1994 SCMR 818; Muhammad Idrees v.
Muhammad Parvez 2010 SCMR 5 and Hindu Religious Endowments Board, Madras' case PLD
1949 PC 26 ref.
(b) Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction---Scope---Courts below had the jurisdiction to adjudicate

upon the matter and while exercising the said jurisdiction they had applied their conscious mind
to the facts of the case and correctly applied and interpreted the applicable law---Both courts
below had rendered their concurrent findings; which were not arbitrary, capricious or outrightly
absurd---Interference was declined by High Court in revision.

Rahmatullah for Petitioner.

Abdul Sattar Khan for Respondent.

Date of hearing: 21st February, 2011.

JUDGMENT

YAHYA AFRIDI, J.--- This revision petition is directed against the judgment and decree dated
7-3-2009 passed by Additional District Judge-IV, Swabi, whereby the appeal of the present
petitioners was dismissed and the judgment and decree dated 25-11-2008 passed by Civil Judge,
Swabi was maintained.

2. The present petitioners had instituted a suit for, inter alia, declaration to the effect that they
were owners in possession of land' measuring 10 Kanal situated in various 'Khasrajats' of Mouza
Dagai, Tehsil and District, Swabi ("disputed property") and in the alternative, they also prayed
for possession thereof.

3. The present respondents appeared and admitted that the disputed property was originally
owned by the predecessor-in-interest of the present petitioners. However, they added that the
same had been sold to the predecessor-in-interest of the respondents, which was duly reflected in
the Revenue Record. In addition thereto, the respondents asserted that with the transfer of title,
possession of the disputed property was also transferred to them.

4. Based on the contesting pleadings of the parties, ten issues were framed. The parties adduced
their evidence. Finally, the trial Court vide impugned judgment and decree dated 25-11-2008
dismissed the suit of the present petitioners.

5. Aggrieved thereof, the present petitioners impugned the same in appeal. The appellate court
also dismissed the suit of the petitioners vide judgment and decree dated 7-3-2009. Hence, the
revision petition in hand.

6. The learned counsel for the petitioners vehemently argued that the respondents had not proved
the written instruments on which they were basing their title over the disputed property; that
Raza Muhammad, one of the defendants before the trial Court had admitted the claim of the
petitioners being owners of the suit property; the order of the revenue court had not been taken
into account; that no limitation could be taken against the true owners of a property; that the title
of the respondent was based on an unregistered deed, hence the same was a nullity in the eyes of
law; and that neither the scribe nor the marginal witnesses to the deeds were produced in
compliance with Article 79 of the 'Qanun-e-Shahadat' Order, 1984 ("Order").

7. The learned counsel for the respondents, rebutting the arguments raised by the learned counsel
for petitioners, contended that the original suit of the petitioners was not maintainable as deeds
and entries in the Revenue Record in favour of the respondents, had not been challenged by the
petitioners; that as the petitioners had admitted the possession of the disputed property to be with
respondents and that the deeds were 30 years old, hence their interests in the disputed property
were protected under Article 100 of the Order, whereby the respondents were not required to
prove the contents of the same.

8. The Valuable arguments of the learned counsel for the parties heard and the available record
of the case thoroughly considered.

9. The most crucial and important aspect of the present case is that the possession of the disputed
property was admittedly transferred to the predecessor-in-interest of respondents/defendants and
after his death in 1993, the same was transferred to the present respondents/defendants. In this
regard, the present respondents produced evidence in the form of Revenue Record, which clearly
showed that the disputed property was in the continuous possession of the present respondents.
The veracity of the said entries in the Revenue Record, are confirmed, when Amjad Ali (P.W.2),
who was also the attorney of the present petitioners/plaintiffs, admitted that the disputed property
was in possession of the predecessor-in-interest of defendants/respondents.

10. Once it was established that the disputed property was in the possession of
respondents/defendants, then the onus to prove ownership thereof was shifted upon the present
petitioners/plaintiffs to prove that the present respondents/defendants were not the actual owner
of the disputed property. Article 126 of the Order confirms the same and reads as:---

"126. Burden of proof as to ownership.--- 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."

Hence, the contention of the present petitioners that the present respondents did not prove their
ownership of the disputed property is clearly misdirected and of no legal avail. Reliance may be
placed on Syed Tawakal Hussain v. Mst. Shammim Rizvi 1999 MLD 1, Mst. Bhag Bhari v.
Muhammad Khan 2010 CLC 240, Bhambhar v. Mst. Nooria 1999 YLR 2078.

11. This brings us to the issue relating to the two contesting claims of the parties; the present
petitioners seek reliance on Article 79 of Order, whereby they insist that the scribe and the two
marginal witnesses of the written instruments on which they claim ownership ("deeds") of the
disputed property were not produced and thus it adversely affected the claim of the present
respondents and on the other hand the present respondents, seek support of Article 100 of the
Order, claiming that the deeds to be thirty years old, which rendered protection to the holder of
the said documents.

12. This court agrees with the contention of the learned counsel of the present respondents.
Admittedly, the basic written instruments are thirty years old documents and thus are protected
under Article 100 of the Order, which vests a presumption of truth to its execution, unless the
same is rebutted by the other side. The said presumption was not rebutted by the present
petitioners/plaintiffs during the trial. Hence, its execution requires no further proof. In this
regard, reliance is sought from the judgment of this court in Muhammad Darvesh v. Haji
Muhammad Hussain 1999 CLC 106 wherein commenting on the said contesting two provisions
of the Order, concluded that:--

"Thus, the question to be determined is whether Article 79 or 100 of the 'Qanun-e-

Shahadat Order' be applied to resolve the controversy between the parties. If the former is
relevant, the burden would be on the defendants to prove the execution of the Sale-deed
No.171, notwithstanding its registration. If Article 100 aforesaid is found to be
applicable, the burden to disprove the execution of the deed would shift to the plaintiffs.
Under Article 100 of the Qanun-e-Shahadat Order presumption of correctness is attached
to the signature and contents thirty years old document if produced from proper custody.
When a document fulfils documents of Article 100, the person relying upon the document
is not required to prove its execution unless the presumption is rebutted. Thus, the
provisions of Article 79 of the Qanun-e-Shahadat Order would not come into play if the
benefit of Article 100 is available to the defendants."

13. This leads us to another objection raised by the learned counsel for the respondents regarding
the maintainability of the suit of the present petitioners/plaintiffs, where they have failed to
challenge the mutations, resolutions and the deeds through which their interest and title in the
disputed property has been transferred to the present respondents. This legal lacuna would surely
hit the maintainability of the original claim of the present petitioners. However, it appears that
the petitioners were aware that the same, if challenged, would have led their suit to be surely hit
by the statute of limitation, which prompted them not to specifically challenge the same.

14. In regard to the issue of limitation, this court notes that the petitioners instituted their suit in
December of 1998, to seek a declaration of their ownership over the disputed property. The
present respondents resisted the said claim of the petitioners based on deeds, resolutions and
mutations in their favour dating back to the year 1952. The particulars of the same are; Iqrar
Nama No.215 dated 12-1-1952, Resolution dated 26-11-1958, Iqrar Nama No.1184 dated 10-1-
1964, Mutation No.9431 dated 22-5-1967, Mutation No.9188 dated 25-5-1967 and Mutation
No.13053 dated 22-8-1988. It may be noted that when the original suit was instituted in 1998,
apart from one mutation dated 22-8-1988, all deeds, resolutions and mutations could not be
challenged as the statutory period of limitation of twelve years, provided under Article 142 of the
Limitation Act, 1908 ("Act"), had elapsed. Moreover, Amjad Ali (P.W.2) had admitted in his
evidence that the predecessor-in-interest of the petitioners was alive till the year 1979. There is
no evidence to even suggest that during his life time, he agitated or challenged the said transfer
of possession of the disputed property to the predecessor-in-interest of present
respondent/defendants. In a situation similar to the present case, the august Supreme Court of
Pakistan in Ghulam Haider v. Wali Muhammad 2008 SCMR 1428 declared a suit to be barred by
limitation in the following terms:---
 "The impugned mutation is dated 28-6-1953 while the suit was filed in the year 1972 i.e.
after nineteen years. It is in evidence that the mutation was duly reflected in the Revenue
Record and the respondents/defendants were in possession ever since the mutation and
when the suit was filed. Petitioners also prayed for possession. In terms of Article 142 of
the Limitation Act the period of limitation for filing such a suit is twelve years. That
being so, the suit was hopelessly time-barred and the findings on this issue are
unexceptionable.

There is nothing in evidence to indicate that the impugned mutation was collusive or
fictitious. Admittedly the petitioners the predecessor-in-interest of the petitioners were
alive 6/7 years after the mutation and he never challenged the said mutation or the entries
made in the Revenue Record. A presumption of regulatory is attached to these entries and
in absence of any credible material to rebut the above presumption the courts below had
rightly dismissed the suit."

In another case, this Court on Sameen Khan v. Haji Mir Azad 2002 CLC 754 relying on the
judgment of the Supreme Court in Muhammad Hussain v. Khuda Bukhsh 1989 SCMR 1563
clearly declared that:---

"Unchallenged consistent entries in the Revenue Record since the date of mutation could
not be agitated or challenged after the period of limitation provided under Article 142 of
the Act."

15. This court is adjudicating the present petition in its revisional jurisdiction, the scope thereof
as provided under section 115 of the 'Code of Civil Procedure, 1908 ("C.P.C.") has been dilated
upon by the august Supreme Court in Shumail Begum v. Gulzar Begum 1994 SCMR 818 and
more recently, reaffirmed in Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 and held
that:---

"The High Court in exercise of its revisional jurisdiction under Section 115, C.P.C. unless
such findings suffer from controversial defects, illegality or material irregularity as law
laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case
PLD 1949 PC 26. With regard to section 115, C.P.C. it is observed by the Privy Council
as under:-

(i) This section empowers the High Court to satisfy itself upon three matters:

(a) That the order of the subordinate Court is within its jurisdiction.

(b) That the case is one in which the Court ought to exercise jurisdiction.

(c) That in exercising jurisdiction, the Court has not acted illegally, that is breach of some
provision of law, or with material irregularity, that is, by committing some error of
procedure in the course of the trial which is material in that it may have affected the
 ultimate decision. 'If the High Court is satisfied upon those three matters, it has no power
to interfere because it differs, however, profoundly, from the conclusion of the
subordinate Court upon questions of fact or law."

Keeping in view the above guiding principle regarding exercise of revisional jurisdiction, this
Court considers that the courts below had the jurisdiction to adjudicate upon the matter and
that while exercising the said jurisdiction they applied their conscious mind to the facts of the
case and correctly applied and interpreted the applicable law. Moreover, both the courts
below have rendered their concurrent findings and this court does not find the same as
arbitrary, capricious or outrightly absurd to warrant any interference in its revisional
jurisdiction.

16. Accordingly, for the reasons stated above, this court finds that the judgments and decrees
passed by the courts below are correct and in accordance with law and hence do not deserve any
interference. This revision petition is thus dismissed.

No order as to costs.

H.B.T./139/P Petition dismissed.