NADIR KHAN vs MUHAMMAD ASHRAF

' WAQAR AHMAD SETH, J.---This revision petition under section 115, C,P.C. Is directed against the judgment and decree dated 2-12-2008, whereby Additional District Judge-V, Haripur dismissed the appeal of petitioners and maintained the judgment and decree of trial Court dated 28-6-2007.

2. The plaintiff/respondent No,1 instituted a suit for declaration regarding property fully described in the heading of plaint against the petitioners: The petitioners appeared and contested the suit by filing written statement and learned Civil Judge after recording evidence and hearing the parties vide judgment and decree dated 2-12-2008 decreed the suit of respondent No, l. Feeling aggrieved, the petitioners preferred appeal and learned Additional District Judge, after hearing the parties dismissed the same. Hence, this revision petition.

3. Arguments heard and record perused.

4. The record reveals that the respondent instituted a declaratory suit claiming his ownership in the suit property along with challenging the validity of Mutation No,596 attested on 10-1-1924 in favour of predecessor-in-interest of petitioner. Exh.P.W.2/3 is the said mutation exhibited by P.W.2 the SOK, Haripur, without any objection on its validity on behalf of respondent/plaintiff. It shows that the respondent/ plaintiff son of Noor Ghulam and Yousaf Sher Ghulam sons of Hayat had sold their respective 1/3rd and 2/3rd shares in the column of cultivation to Chanan Khan, the predecessor- in-interest of petitioner. Admittedly, there is no signature or thumb impression of respondent on the Exh.P.W.2/3. Interestingly respondent/plaintiff never claimed that Exh.P.W.2/3 was not rightly attested rather averred and deposed that the - said mutation was wrongly used to scratch his name from the column of cultivation of the record of rights in respect of the suit property. The non- presence or signature at the time of attestation was not the requirement of relevant law in force at the time of attestation of mutation Exh.P.W.2/3 because the same Was attested in the year 1924 and at that time Punjab Land Revenue Act, 1887 was in field and under section 24(7) of the Act ibid, it was not the requirement of said Act to obtain signature/thumb impression of vendor on the mutation or to procure the attendance of vendor at the time of attestation of mutation.

' After the repeal of said Act by the West Pakistan Land Revenue Act, 1967 the requirement .Of attestation of mutation in open assembly in presence of the vendor and witnesses and after obtaining their signatures/ thumb impressions on it had been made mandatory and the things done under the Punjab Land Revenue Act, 1887 have given protection by saving clause of the West Pakistan Land Revenue Act, 1967. Both the courts below have ignored this fact.

5. Admittedly, the possession is with the petitioner. Neither in the plaint nor in the statement, the respondent/plaintiff had alleged his physical possession over the suit property. P. W.3 is the statement of respondent/plaintiff and in his cross examination he had admitted the possession of petitioner/defendant. Since the respondent/plaintiff was not in physical possession nor had claimed any dispossession at any time/ particular point, then, he should have prayed for the recovery of actual possession or as consequential relief instead of symbolic possession or as an alternate relief by way of correction of the entries in the revenue record. Reliance is placed on Khawaja Muhammad Naeem and others v. Tasleem Jan and others reported as 1980 CLC 1483 (a), wherein it has been held as under:-- "S. 42---Declaration without consequential relief---Plaintiffs not in possession of property---Held, cannot seek a mere declaration of title without asking for possession as consequential relief'.

6. No doubt, as held by both the courts below, that every fresh jamabandi and incorrect entry would create fresh cause of action, instead of six years time for declaratory suit, the same is absolutely correct but when the possession is with the claimant. In the case in hand, it is admitted that no possession is with the respondent/plaintiff, hence, the suit for declaration of the respondent/plaintiff is clearly hit by limitation. Reliance is placed on case Mehandia v. Juma reported as 2011 M LD 1081(b); wherein it has been held as under:- "S. 42---Qanun-e-Shahadat (10 of 1984), Art. 129(c)---Limitation Act (IX of 1908), Art. 142---Specific Relief Act (I of 1877), Ss 8. 42 & 54---Suit for declaration, possession and permanent injunction--- Suit filed on 9-1-1990, challenging sale mutation attested on 20-5-1962 in defendant's favour--- Validity-- Burden was on plaintiff to prove his dispossession within 12 years of filing of suit--- Presumption of correctness was attached to long-standing entries in Revenue Record in favour of defendant---Plaintiff had not rebutted such presumption by bringing on record any evidence--- Revenue record showed that defendant and not plaintiff remained in possession of suit land within 12 years of filing of suit---Plaintiff's failure to give date of his dispossession would make his suit time barred---Suit was dismissed in circumstances".

7. Even otherwise, the action brought by the respondent/plaintiff was for declaration of his right as occupancy tenant confined to his possessory right, which in view of the available record does not exist in his favour, hence, in absence of any existing right to the suit property, his suit would not be maintainable within the ambit of section 42 of the Specific Relief Act, 1877 and Exh.P.W.2/3 is more than 30 years old document having the protection of Article 100 of the Qanun-e-Shahadat Order. In the case of Muhammad Sher and another v. Ali Muhammad and 6 others reported as 2011 CLC 1906, it has been held as under:-- "Ss. 39 & 53---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Specific Relief Act (I of 1877), S.42-- -Suit for declaration--- Ownership of suit---property---Burden of proof---Plaintiff alleged to be the owner of suit property, therefore, it was for the plaintiff to have proved the same---Question of limitation being related with the cause of action, whenever an attempt on the right of the party was made, the aggrieved party would get a fresh cause of action---Each and every wrong entry in the revenue record would provide fresh cause of action, but that would require to be established on the record through evidence-- Mere assertions in the plaint without evidence, would not be sufficient to clothe the plaintiff with decree in his favour..."

8. In the case of Mst. Naseem Akhtar and 3 others v. Nasir Javed and 7 others reported as 2005 CLC 658 (e), it has been held as under:- "Section 90---Qanun-e-Shahadat (10 of 1980, Arts. 100 & Thirty years old document--- Presumption---Attesting witness, production of---Requirement---Principles---Presumption of correctness is attached to thirty years old document as per 5.90 of Evidence Act, 1872---Disputed document being thirty years old attesting witness was not required to be called".

9. In view of the above, the judgments and decrees of both the courts below are not tenable due to their suffering from misreading and non-reading of evidence, illegal and irregular exercise of jurisdiction and being factually and legally wrong and by reversal of the said judgments and decrees, the suit of the respondent/plaintiff stands dismissed.

10. Consequently, this revision petition is allowed, impugned judgments and decrees of both the courts below are set aside and suit of respondent No,1 stands dismissed. No order as to costs.