MEHR KHAN etc vs Mst. BASAEE etc

Muhammad Akhtar Shabbir, J.--This appeal, by leave of the Court, is directed against the judgment dated 23.10.2001, passed by a learned Single Judge of the Lahore High Court, Lahore, in Civil Revision No, 667-D of 1991.

2. The brief resume of the case is that plaintiff Sultan Mehmood, predecessor-in-interest of Respondents No, 1 to 6, instituted a suit for possession of the land (property in dispute) measuring 12 kanals 16 marlas situated in Khasra No, 505 Mouza Wandhi Bhamberanwali,. Tehsil and District, Mianwali, against the defendants-appellants herein, asserting in the plaint that the defendants- appellants have encroached upon the suit land. The suit was contested by, the appellants who preferred their written statement. From the factual controversies appeared on the pleadings of the parties, the learned -trial court framed various issues. After recording, appreciating evidence of the parties, the trial Court decreed the suit, vide judgment and decree dated 11.03.1986. The judgment and decree of the trial Court was challenged through two appeals (Civil Appeal Nos, 33 and 37 of 1988) before the Additional District Judge, Mianwali, who vide judgment dated 15.03.2008, accepted both the appeals, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs. The plaintiffs-respondents then filed Civil Revision No, 667 of 1991 before the Lahore High Court which was accepted vide the impugned judgment and the judgment of the learned Additional District Judge was set aside and that of Civil Judge, Mianwali, decreeing the suit of Sultan Mehmood dated 11.03.1986 restored. Hence, this appeal.

3. The learned counsel for the appellants contended that the High Court has based its judgment on a report of "Roznamcha Wakiati" (Daily Diary) of Revenue Patwari to which no presumption of truth is attached. Further contended that the Revenue Officer who made the demarcation of the property has-not been produced by the plaintiffs to establish the demarcation report. Further argued that no sufficient evidence is available on record to prove the encroachment/illegal possession of the appellants over the property in dispute.

4. While on the other hand, the learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the appellants contending that respondents-plaintiffs produced oral as well as documentary evidence in support of their version and the entries made in the revenue record showing the encroachment made by the appellants have not been challenged by the appellants.

5. We have heard the learned counsel for the parties and perused the available record with their assistance.

6. The controversy in the case that requires determination by this Curt is whether the appellants were the encroachers of the land in dispute belonging to the Plaintiffs-Respondents No 1 to 6. The respondents in support of their version produced oral as well as documentary evidence. They asserted in their plaint that a demarcation proceeding has been conducted by the Revenue Officer who after demarcation came to the conclusion that the land measuring 12 kanals 16 marlas was under the illegal occupation of the appellants. The demarcation proceedings of the land were conducted by the Revenue Officer accompanied by Village Officers, Qanungo and Revenue Patwari. After completing the measurement proceedings, the Revenue Patwari entered a report in "Register Roznamcha Wakiati", copy of which is available on the file as Ex.P.2, containing the details of proceedings. It is a certified copy of the "Register Roznamcha Wakiati" maintained by the I Revenue Patwari who is a public servant. Article 49 of the Qanun-e-Shahadat Order, 1984, contemplates that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register .or record is kept is itself to a relevant fact" At the time of production of document (Ex.P.2) in the Court, the appellant-defendants did not raise any objection and the trial Court admitted the same. It is settled I proposition of law by this Court that a document when admitted in evidence without objection from the other side, it can be taken into consideration, as laid down in the cases of Abdullah v. Abdul Karim (PLD 1968 SC 140), Mohd. Saleem v. Mohd. Akram (PLD 1971 SC 516) and Mst. Murrian v. Suleman (NLR 1984 SCJ 324).

7. After the demarcation proceedings, entries were incorporated in the Register Khasra Gardawari and the Register of Record of Rights showing the appellants as "Tajawaz Kunindgan" (illegal occupants). The Register of Record of Rights pertaining to the years 1981-82, 1983-84 as well as Khasra Gardawari still contains such entries. The demarcation had been conducted on 01.08.1081 and the suit was instituted by the predecessor-in-interest of the respondent Sultan Mehmood in the year 1987 on the basis of this measurement of land. The appellants, defendants did not challenge the demarcation of the land made by the Revenue Officer before the next, higher revenue/colonies hierarchy nor challenged the same through the civil suit, and up till now, the entries showing the appellants as illegal occupants over the land in dispute are intact. The long standing entries in the revenue record specially in the Register of Record of Rights do carry presumption of truth and cannot be controverted by mere oral evidence unless proved otherwise by sufficient and convincing evidence as laid down in the cases of Hakim Khan v. Aurangzeb & another (1979 SCM R 625), Sundar Singh v. Chhajju Khan (AIR 1934 Lahore 309) and the Evacuee Trust Property Board & others v. Haji Ghulam Rasul Khokhar & others (1990 SCM R 725). The plaintiffs-respondents have successfully proved their case. The documentary evidence containing the entries qua the appellants have not been controverted by the appellants. They kept silent over their right and remained in a state of dormancy for such a long time.

8. The learned High Court, after appreciating the evidence of the parties, based its findings on legitimate conclusion drawn from the evidence and correctly set aside the judgment passed by, the lower appellate Court. The learned counsel for the appellants has not been able to point ,out any misreading or non-reading of evidence by the learned High Court. We do not find any infirmity or error of law in the impugned judgment of the High Court which is unexceptionable.

9. For the foregoing reasons, this appeal being devoid of any merit is dismissed.