INAYAT ALI Versus GHULAM MUSTAFA

On 23‑9‑1981 the respondents filed a suit against the petitioner. In the plaint it was alleged that the parties are very close relatives; whereas the respondent No.1 is owner of 9 Kanals, 3 Marlas of land in Khewat No.174 of Chak No.73/JB, the petitioner is owner of 9 Kanals, 2.Marlas of land in Square No.80/2. According to the respondent the two lands were exchanged in the year 1960 and possessions were delivered unto each other; that the petitioner got the respondent recorded as a tenant in the said land in Square No.80/2 and filed suit for produce. This suit was dismissed by A.C.‑I on 29‑1‑1976 but the Collector allowed the appeal on 29‑3‑1981 and the Commissioner upheld the same on 10‑‑9‑1981. These orders of the Revenue Officers were termed as illegal and without jurisdiction. With these averments a declaration was sought that the respondent is the owner of suit land measuring 9 Kanals, 2 Marlas in exchange for his land in Khewat No. 174 and is in possession thereof; that the entries in the Khasra Girdawari are illegal; in the alternative it, was prayed that since he is in adverse possession for more than 12 years he be declared as owner; that the said orders of the Revenue Officers are illegal and void. A permanent injunction was also sought restraining the petitioner from interfering with his possession.

2. In his written statement the petitioner specifically denied the said allegations of the respondent; that the lands were never exchanged; that in the column of Lagan an illegal note was got entered which is of no legal effect. It was also specifically denied that the petitioner had ever been in possession of the land allegedly given in exchange. Following issues were framed by the learned trial Court:‑‑

(1) Whether the plaintiff got the suit‑land in exchange with defendant No. l? .

(2) Whether the plaintiff has matured his title over the suit‑land by way of prescription?

(3) Whether the defendant is entitled to recover special costs from the plaintiff, if so, to what extent?

(4) Relief.

Evidence of the parties was recorded. The suit was decreed by the learned trial Court vide judgment and decree dated 21‑2‑1985. A first appea1.filed by the petitioner was heard by a learned Additional District Judge, Faisalabad who proceeded to dismiss the same on 28‑2‑1987.

8. Learned counsel for the petitioner contends that the judgments and decrees of the learned lower Courts are not supported by any evidence or material on record; that the evidence has been misread and the learned Courts below have proceeded on an erroneous premises while passing the impugned judgments and decrees. Learned counsel for the respondent, on the other hand, has tried to support the judgments and decrees under revision.

4. I have gone through the copies of the record appended with the Civil Revision, with the assistance of the learned counsel for the parties. The plea of the respondent as noted above is that in the year 1960 the two lands were exchanged and possession was delivered. As it turned out in the course of evidence the exact description of the land belonging to the petitioner is 9 Kanals, 2 Marlas in Killa No.2 of Square No.80 of Chak No.73/JB, while the description of the land allegedly given by the respondent to the petitioner is 9 Kanals, 3 Marlas in Killas No. 11/1, 13/1 and 12/2 of Square No.74 of the said Chak. The earliest Revenue Record available on the record is the Jamabandi for the year 1965‑66 (Exh.P.10). According to this document Inayat Ali, petitioner is recorded to be an owner in possession of the said land in Square No.80. The next record is for the year 1969‑70 (Exh.P.1). In this record the petitioner is entered as the owner while in the column of possession the respondent is entered as 'ghar dakeel kar''. However, in the column of Lagan it is noted Bashira malik bawaja tabadila Exh.D.l is the Jamabandi for the year 1973‑74 in which the petitioner is recorded as an owner while the respondent is recorded as a tenant at will under him. Exh.D.2 is Jamabandi for the year 1977‑78, wherein the respondent No.2 is recorded as an owner while the respondent is recorded as a tenant at will under him paying half share of produce. Khasra Girdawari for the period Kharif, 1966 to Rabi, 1970 is Exh.P.2. In this document the petitioner is recorded ‑ as an owner while the respondent is recorded to be in possession' Bawaja tabadila kood kasht Khasra Girdawari for Kharif, 1970 to Rabi, 1974 is Exh.P.3. Till Rabi, 1972 the said entries in Exh.P.2. are repeated and in Rabi, 1973 it is entered

These entries stood corrected in Girdawari for Kharif, 1974 onwards where Ghulam Mustafa respondent is recorded.

These entries continued till Kharif, 1980 i.e. before the date of filing of the suit.

5. Thus so far as the Revenue Record is concerned, the petitioner is recorded as an owner in column of ownership while the respondent is recorded as his tenant in the column of possession. So far as the said sporadic entries in the column of Lagan i.e. bawaja tabadila are concerned, the same entries per se would be of no help to the respondent for the simple reason that entries in column of Lagan, unlike the entries in column of ownership and column of possession do not enjoy presumption of correctness and unless and until it is proved as a fact that the possession is relatable to title as being claimed, it shall be presumed that the person recorded in the column of possession as a tenant is in fact a tenant in the present record in the column of ownership. Reference be made to the case of Shad Muhammad v. Khan Poor (PLD 1986 SC 91).

6. Now it is to be seen as to whether the respondent had been able to prove the exchange as pleaded by him in his plaint which was the burden of Issue No. 1. P.W.1 Mubarak Ali states that during the consolidation proceedings in the year 1965 the parties went to Patwari at the shop of Mushtaq and told him that Killa No.2 (Square No.80) be given to the respondent and Square No.74 be given to the petitioner; that the respondent cultivates the land. This is his entire examination‑in‑chief.

7. Without reference to cross‑examination a plain reading of the statement would show that the witness has contradicted the pleaded case of the respondent i.e. the exchange was made in the year 1960 (para 3 of the plaint refers). There is no mention at all by this witness as to whether the possession of the land, allegedly given in exchange to the petitioner, was delivered to him or not as pleaded by the respondent in his plaint. In cross-examination this witness again asserted that the exchange took place during the consolidation proceedings. He admitted that no proceedings took place pursuant to the said alleged exchange before any officer during the course of consolidation.

8. Piran Ditta is P.W.2. He has made a statement in line with P.W.1. Now in his cross‑examination he has stated that the consolidation proceedings started a long time after the alleged exchange. The learned trial Court intervened with a question on which the witness corrected himself and said that the consolidation proceedings were in progress when the matter of exchange was negotiated. P:W.3 is Ghulam Mustafa, respondent. He states that he obtained the land ` in Square No.80 from the respondents and proceeded to give the share he obtained in the inheritance of one Fazal Din in Square No.74 to the petitioner. Now the respondent states that a writing was made at the Baithak of Mushtaq Dogar when the agreement of this exchange was trade. He further admits that it was as a result of the consolidation that Square No.80/2 fell to the lot of the petitioner and he did not file any appeal against the said order of the Consolidation Officer; that Square No.74 fell to his lot during the consolidation and was mutated in his favour and‑ that he did not file any appeal.

9. The respondent appearing as P.W.3 has obviously belied his own witnesses P.W.1 and P.W.2. It is simply not understandable as to how before finalization of the consolidation proceedings the parties agreed to exchange with each other the land which came to vest respectively in them as a result of the consolidation proceedings.

10. The said oral evidence led by the respondent was duly rebutted by the petitioner. He appeared as D.W.2 and denied the factum of exchange, he stated that his land came to him as a result of the consolidation proceedings and that the respondent is cultivating the same on half share of produce. He categorically denied that he is or has been in possession of any land of the respondent. As is the case with all the P.Ws., it was not at all suggested to the petitioner that he was given Sq. No.74 or that he is or has been in possession of the same as a result of the said alleged exchange. The petitioner also put in Munshi Khan D.W.1 to support his version. Another fact which needs to be mentioned is that it came out in the course of cross‑examination of the petitioner that even otherwise he owned land in the said Square.

11. Exh.P.7(Jamabandi for the year 1965‑66) pertains to the said Square No‑.74. According to this document whereas Inayat petitioner has 4038/11120 share, Ghulam Mustafa, respondent alongwith his brothers and sisters has 5136/11120 share. There are other co‑owners as well and the land is recorded to be in possession of all the co‑owners.

12. Coming to the impugned judgments both the learned Courts below have placed implicit reliance on the said entry in the column of Lagan. In fact they have treated the said entry in the column of Lagan by itself to be the evidence of the plea of the respondent. Thus they have proceeded to read the documentary evidence on record in a manner which runs contrary to the dictum of the Supreme Court of the country on the subject. Both of them have proceeded to rely on an answer given in reply to a suggestion by the petitioner by P.W.1 which gives an impression that a positive suggestion was given to the witness and. he admitted it that the parties made a statement of exchange before Jaffar Patwari at the shop of Mushtaq. To my mind the said alleged suggestion does not at all derogate from the overall impact of the evidence both documentary and oral on the record. The statement made in the witness box by the petitioner and his witnesses is fully supported by the documentary evidence produced by both the parties. The respondent was a tenant under the petitioner, he was proceeded against for recovery of produce and the competent authorities in the Revenue hierarchy exercising jurisdiction vesting in them under the law decreed the said claim: On the other hand, the oral statements made by the respondent and his witnesses stand duly rebutted by the statement made by the petitioner and his witnesses. The onus to prove Issue No. l was upon the respondent and he miserably failed to discharge the same. In ultimate analysis it is a case of oath against oath and the trite law is that one who has the burden to prove on his shoulders fails in such an eventuality. In the present case the entire Revenue Record on the file supports the version of the' petitioner.

13. A very significant aspect of the case has been completely lost sight of by the learned Courts below i.e. that even the witnesses of the respondent or for that matter the respondent himself did not even dare to state in the wittiness box that the land in Square No.74 was delivered unto the petitioner. Even otherwise, it does not at all appeal to the prudence that the petitioner would hand over the land specifically defined and exclusively owned and possessed by him to the petitioner for an undefined share in Square No.74. It might have been of some consequence if the only share‑holders in Square No.74 were to be the petitioner, and the respondent but it is a matter of record that Square No.74 is owned by several persons. Rules of evidence applicable to the Courts in the country are in fact the rules of prudence. This would be evident from Article 2(4) of Qanun‑e‑Shahadat Order, 1984 which ordains that a fact is said to be proved when after considering the matter before it, the Court either believes it to exist, or considers its existence so E probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists. It is not the question of forming of a different opinion but to my mind the respondent miserably failed to prove the fact of exchange alleged by him.

14. The result of the above discussion is that both the learned Courts below have acted with material irregularity in the exercise of their jurisdiction while passing the judgments and decrees under revision which cannot be sustained. This Civil Revision is accordingly allowed. The judgments and decrees of both the learned Courts below are set aside and the suit of petitioner is dismissed with costs throughout.

Q.M.H./M.A.K./1‑32/L Revision allowed.