MAZLOOM HUSSAIN vs ABID HUSSAIN and 4 others

' MUHAMMAD AKHTHAR SHABBIR, J.---Petition for leave to Appeal No,1277 of 2003 was filed against the judgment dated 15-4-2003 passed by the learned Lahore High Court, Rawalpindi Bench, Rawalpindi, out of which the present appeal has arisen.

2. Brief resume of the case is that plaintiffs Abid Hussain, Mst. Maqbool Jan (son and daughter of Fazal Hussain) instituted a suit against appellants and respondents Nos. 3-5 for declaration to the effect that plaintiffs/respondents were owner, in a "Hisadari" possession of the land measuring 19 Kanals, 13 Marlas situated in Khasra No,1893, Khaiwat No,159/367, Mouza Diryal, Tehsil Gujar Khan and the sale-deed with respect to the land measuring 20 kanals, 10 marlas of Khasra No,1893 and 1909 of the said Mouza dated 13-3-1991 by appellant in favour of the respondents No,3-5 was illegal, against facts, collusive and ineffective qua the rights of plaintiffs/respondents Nos.1-2. The defendants (appellants and respondents No,3-5) contested the suit, filed their statements. From the pleadings of the parties, the learned trial Court framed various issues, after recording, appreciating the evidence of the parties, pro and contra, decreed the suit to the extent of land situate in Khasra No,1893 in favour of the plaintiffs declaring the sale-deed ineffective qua their rights and also passed an order restraining the appellants/defendants from interfering in the said khasra.

3. Feeling aggrieved the appellants/respondents Nos, 3-5 preferred an appeal before the Additional District Judge, Gujar Khan who accepted the appeal, vide his judgment dated 2-4-1996, reversed the findings of the trial Court and dismissed the suit. The plaintiffs/respondents Nos.1-2 challenged the judgment of the appellate Court through the Civil Revision No,455 of 1996 in the Lahore High Court, Rawalpindi Bench, Rawalpindi which was accepted. Hence this appeal.

4. The learned counsel for the appellant contended that the name of the appellant Mazloom Hussian is very much reflected in the column of ownership in the record of rights/Register Haqdaran Zameen for the year 1989-90 and as per the record he is owner of 43 kanals in the said Khasra No,1893. Further contended that longstanding entries in the Revenue Record in favour of the appellant carries the presumption of truth.

5. While on the other hand, the learned counsel for respondents Nos. 1 and 2 vehemently opposed the arguments of the learned counsel for the appellant and supported the judgment of the High Court.

6. We have heard the arguments of the learned counsel for the parties and perused the record with their assistance.

7. The question that boils down for determination before this Court is whether the appellant Mazloom Hussian was the owner of the property in dispute which he had sold in favour of respondents Nos. 3 to 5 vide a registered sale-deed dated 13-11-1991. The parties have produced oral as well as documentary evidence in support of their respective versions. The contest between the parties is with regard to the entitlement and possession of the land belonging to Khasra No,1893 (old 1667). The record of rights pertaining to year 1906-07 indicates the name of Barkhurdar and others in Column No,5 of ownership with regard to Khasra No,1893 (old 1667). The same entry in the column of ownership and possession continued in the revenue record up till 1961-62. The predecessor-in-interest of the appellant Barkhurdar died and his property devolved on his legal heirs and in this regard a Mutation No,798 dated 19-1-1991 was attested in favour of Mst. Barkat Jan, widow and Mazloom Hussian appellant-son, copy of which is available on record as Exh.D.1. Mst.

Barkat Jan, widow of Barkhurdar, mother of appellant, also died and her property also devolved on her only legal heir Mazloom Hussain, appellant herein, vide revenue mutation (Exh.D.2). As per record of rights for the year 1965-66 (Exh.P-9), the name of Barldiurdar, father of the appellant, is also emerging in column of ownership, and Mir Zaman son of Noor Bakhsh was the cultivator under Barkhurdar.

8. From minute scrutiny of documentary evidence produced by the parties, it reflects that Barkhurdar, predecessor-in-interest, was the owner in possession of Khasra No,1893. The long standing entries in the revenue record were made in his favour. The said property acquired by the appellant as legal heirs from his parents had been transferred in favour of the vendees respondents Nos. 3 to 5 through registered sale-deed dated 13-11-1991.

9. As per the provision contained in section 52 of the West Pakistan Land Revenue Act, 1967, the presumption of truth is attached to A the entries in the record of rights and periodical records. This provision is reproduced herein under for further ready reference:-- "52. Presumption in favour of entries in record-of-rights and periodical records.---An entry made in a record-of-rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor."

10. The High Court has observed that the entries in the Revenue Record in favour of the appellants were not made in accordance with the prescribed procedure provided in law. The answer to the foregoing objection is that the said entries emerged in the record of rights for the year 1965-66 have not been challenged by the plaintiff-respondents B Nos.1 and 2 before the Revenue functionaries or through a civil suit. As provided in section 52 of the West Pakistan Land Revenue Act, 1967, the presumption of truth is attached to the revenue entries which has also been upheld by this Court in the case of Hakim Khan v. Aurangzeb and another 1979 SCM R 625). The relevant portion of the judgment is as under:-- "The entries in Jamabandis, as is obvious, carried a statutory presumption of truth under section 44 of the Punjab Land Revenue Act, (XV of 1887) and section 52, West Pakistan Land Revenue Act (XVII of 1967)."

The documents produced by the plaintiff/respondents Nos. 1 and 2 also correspond with evidence produced by the appellant. As against the aforesaid entries, mere bald verbal statements of the kind can hardly cut any ice. Even otherwise, the documentary evidence cannot be rebutted by oral evidence. Another case Mt. Wallan v. Fazala and others AIR 1939 PC 114 can also be referred in this behalf.

11. Where a presumption of truth is attached to a document, it cannot be discarded unless proved otherwise by convincing and cogent evidence and the urden of proof that the entries in the record of rights are wrong, is or. The party who alleges it. Reliance can be placed in this context on the cases of Sundar Singh v. Chhajju Khan AIR 1934 Lahore 309 and The Evacuee Trust Property Board and others v. Hai I Ghulam Rasul Khokhar and others 1990 SCM R 725.

12. The appellant has successfully, by producing oral as well as documentary evidence, established his version. The learned High Court has not adverted to the above legal aspect of the case. The reliance was placed by the learned High Court on the case of Karim Bakhsh v. Zulfiqar 1977 SCMR 334 which is distinguishable, from the present case inasmuch as it was with regard to the presumption of correctness attached to the entries in khasra gardawari, wherein it was held by this Court that presumption of correctness is not attached to the khasra gardawari unlike those appearing in the jamabandis. The case is not applicable to the proposition in hand.

13. In view of the above discussion, we find that the impugned judgment of the High Court is not sustainable in law. We, therefore, by allowing this appeal, set aside the impugned judgment and decree passed by the High Court and restore that of the lower Appellate Court/Addl. District Judge, Gujar Khan.