MUHAMMAD KHAN Versus HAYAT KHAN

Khawaja Muhammad Khan and others brought a suit against Hayat Khan and others for declaration to the effect that the property in dispute was owned and possessed by them and that the entries in the Revenue Record being false were ineffective upon their rights. They took cause of action from consolidation proceedings of 1965. After a contest in the trial Court and recording of evidence pro and contra, learned Civil Judge 1st Class Peshawar on 26‑5‑1979 decreed the suit as prayed for.

2. Hayat Khan etc. went in appeal which was heard by learned Additional District Judge‑II, Peshawar who, vide his judgment dated 12‑11‑1984, accepted the appeal and dismissed the plaintiff's suit on ground of limitation, mainly holding that the cause of action had accrued to the plaintiffs from the consolidation proceedings of 1934‑35 attested through Mutation No. 1030 and that they could not take their cause of action from consolidation proceedings of 1965.

3. Feeling aggrieved of the judgment dated 12‑11‑1984 of the first Appellate Court, Khawaja Muhammad Khan etc. the plaintiffs have come up in revision.

4. In the instant case despite prolonged pendency of the revision petition the respondents failed to contest although on certain occasion they have been present in Court, Finally on 11‑12‑1995, they were all proceeded against ex parte and hence Mr. Abdul Bari Khan, learned counsel for the petitioners was heard.

5. It is an admitted principle 'of law that an owner in possession is never r hit by limitation due to mere wrong entries in the Revenue Record and every fresh entry against his interest gives him a fresh cause of action. Seen in this perspective the plaintiffs etc. are in possession of the property since 'Jamabandis' 1934‑35 and 1938‑1939 up to the 'Jamabandi' of 1961‑62, Exhs.P.W.3/3 to P.W.3/8. They were still in possession despite previous consolidation when in the year 1965 fresh consolidation was approved. Being in possession, they had a recurring cause of action and hence the present suit brought in the year 1968 was well within time.

6. The learned Additional District Judge has mis-appreciated the law and hence has fallen into illegality. The revision petition is accepted, the impugned judgment and decree, dated 12‑11‑1984 is set aside and that‑dated 26‑5‑1979 of the trial Court is restored.

H.B.T./1069/P Revision petition accepted.