SAMAR GUL Versus MOHABAT KHAN

CH. MUHAMMAD ARIF, J.---The background of this appeal by leave of the Court has two parts:

Part I: Civil Suit No.381-I, dated 2-10-1972

The appellant filed Civil Suit No.381/1 against the respondents before the Civil Court at Swabi seeking a declaration to the effect that they are mortgagees in possession of property bearing Khasra Nos.1339/1 and 1339 measuring 5 Kanals 10 Marlas situated in Mauza Yar Hussain, Teshil Swabi, District, Mardan. An alternative prayer for possession was also made in the plaint, dated 2-10-1972. The trial Court decreed the suit on 13-12-1974 which decree was affirmed in appeal. However, the High Court: (1) allowed Civil Revision No.62 of 1976 titled Arsala Khan and others v. Samar Gul and others on 24-5-1976; (2) sent the case back to the trial Court, and (3) allowing an application of the respondents in Civil Revision No.62 of 1976 under section 151 and Order VI, rule 17, C.P.C. permitted them to amend the plaint.

Part II: Suit No.46/1 of 19981, dated 24-3-1980

After the remand of the case by the High Court the plaintiff filed an amended plaint,, as below:-

2. Respondents/defendants contested 'the suit by submitting their respective written statements in three batches: lst defendants Nos. 1 to 3, 2nd defendants Nos. 4 to 6 and 9 to 22, including L.Rs. of defendants Nos.18, and Std defendants Nos.24 to 28-31 by respectively taking 5, 1 and

3. The pleadings of the parties are duly reflected in the issues framed by the trial Court which read thus:

"(1) Whether the suit is within time?

(2) Whether the plaintiffs have .a cause of action?

(3) Whether defendants Nos. l to 3 have made improvements in the suit land, if so, to what effect and to what extent?

(4) Whether defendants Nos. l to 3 are owners as well as mortgagees of the suit land?

(5) Whether defendants Nos. l to 3 have become owners of the suit land by adverse possession for more than 12 years.

(6) Whether defendant No.7 is minor and her legal representative has not been appointed if so its effect?

(7) Whether the plaintiffs are mortgagees in possession of the suit land and defendants were tenants under them?

(8) Whether the plaintiffs are entitled for declaration as prayed for?

(9) Whether plaintiffs are entitled to the decree prayed for in the plaint?

(10) Relief."

4. After taking whatever evidence the parties wanted to produce in support of their respective causes and after hearing them through their learned counsel, the trial Court decided Issue No.1 against the defendants. Issue No.3 was answered in the negative. Issues Nos,.4 and 5 were decided in the negative and Issue No.7 in the affirmative. Issue No.6 was. not pressed .and as the guardian ad litem for minor defendants Nos.5 to 8 had been appointed, it was resolved accordingly. Issues Nos.2, 8 and 9 respectively regarding plaintiffs cause of action; their entitlement to a declaration as prayed for and their entitlement to the decree prayed for, were answered in the affirmative and the suit decreed as prayed for in the plaint vide judgment and decree, dated 11-12-1982.

5. Respondents Arsala Khan (now deceased), as also Najeem Khan and Sardar sons of Abdul Qayyum remained unsuccessful in their 1st appeal under section 96, C.P.C. against the judgment and decree of the trial Court, dated 11-12-1982 before a learned Additional District Judge on 23-12-1986, as below:--

"3. By going through the evidence of the parties and specially 'Midi Haqiat' and Fard Jamabandi beginning from Exhs.RDW/1/1 to RDW 1/9 as well as RDW 1/1 to RDW/9 it transpires that the land in question i.e. Khasra numbers 1329/1 and 1329 was the ownership of Karam and Mukadam sons of Dost to the extent of half, Nawab son of Kashkar to the extent of remaining half share so far Khasra Number 1329/1 is concerned. So far Khasra number 1329 is concerned it is the ownership of Kharif son of Zarif to the extent of half and Sardar,. Nader and,Jamdar sons of Zamir to the extent of the remaining half. So far Khasra number 1329/1 is concerned vide Exh.R.W 1/1 the record of rights (Misli Haqiat of 1926-27) it is entered that Saida Gul and Bacha Gul sons of Zamin Shah to the equal shares are mortgagees. In the column of cultivaiion they are entered as in possession because the entry is "Khudkaasht Murtahinan. Similarly in Khasra No.1339 Saida Gul and Bacha Gul sons of Zamin Shah and Mirza Gul son of Faqir have been entered as mortgagees. In the columns of cultivation it has been entered as self-cultivated by the mortgagees". In the Jamabandi of 1933-34 Exh.RDW 1/2 the same entry continues excepting the fact that instead of Khudkaasht one Awal Khan son of Mir Afzal has been mentioned to be tenant-at-will. In the Jamabandi of 1936-37 Exh. R.W.1/3 the same entry continues. In the Jamabandi of 1940-41 against Awal Khan disappeared and mortgagees mentioned earlier have been entered as in self-cultivation. In the Jamabandi earlier have been entered as in self-cultivation. In the Jamabandi of 1947-48 only the name of owners changed by reason of inheritarice about the first time as mortgagees in the columns of cultivation but we do not find any such entry to be supported by any mutation etc. in the columns of remarks. Hpwever, this Arsala alongwith Sardar, Najeem sons of Abdul Qayyum have been entered as mortgagees ' Awal' whereas Sadia Gul and Bacha Gul the earlier mortgagees are entered as mortgagees ' Sani' . This entry seems to be extremely strange because as already submitted above Sadia Gul and Bacha Gul and Mirza Gul sons of Faqir have been mortgagees right from the record-of-rights from 1927-28 and there is an absolute presumption of genuineness in favour of record-of -rights (Misli Haqiat). These entries not only were present in the record-of-rights but in the subsequent Jamabandis as mentioned above, therefore, the entries in the Jamabandi of 1947-48 to respect of Arsala and Sardar etc. seem to be riot only unjustified but uncorroborated and unsupported by any mutation of right through a mutation. These entries, therefore, cannot be upheld as true or genuine. Even if this entry would have been supported by a mutation a further mortgage cannot be created by the owners unless the former mortgage is redeemed or the mortgagees sub-mortgage the property in question: In the Jamabandi of 1951-52 the same entries continue with certain changes in the column of ownership by reasons of inheritance. In the Jamabandi of 1955-56 Exh.R.W.1/7 the same entries continue in the column of cultivation. However, the name of Arsala disappears and only Sardar and Najeem Khan sons of Abdul Qayyum, are entered therein as mortgagees in possession. The same entry also continues in the Jamabandi of 1959-60 Exh.DRW 1/8 in the Jamabandi of 1977-78 in Khasra Number 1329/1. Sardar Khan etc. are entered in possession as owners but so far Khasra No. 1339 is concerned Hazrat Gul and Samar Gul are entered as mortgagees in possession. The contention of the defendants/apellants is that firstly they became owners by reasons of Mutation No. 12157 attested on 20-9-1972 to the extent of 1 Kanal, 2 Marlas through sale from Naik Azam etc. sons of Karam. The second contention of the appellants/defendants is that by reason of unregistered sale-deed, dated 29-6-1943 copy Exh. RDW1/1 and Exh.RDWI/2 they got the mortgagees rights over the land iii question. By going through these unregistered sale-deeds we find that the mortgagor is one Mian Khan son of Harifullah. However, in the Jamabandi of 1940-41 we do not find this person, entered as owner, however, one Harif son of Zarif is entered as owner but he has not mortgaged the land to these 3 persons, namely, Arsala Khan, Najeem Khan and Sardar Khan son of Abdul Qayyum. Similarly we do not find the name of Nawas Khan, Abdar and Sardar sons of Namdar to be owners in the Jamabandi of 1940-41 in these two Khasra numbers, therefore, the question of becoming mortgagees by all these persons through these unregistered sale deeds do not arise. The entries being fraudulent and unlawful cannot be accepted to confer any rights whatsoever on the appellants/defendants. Therefore, the plea of the plaintiff/respondent was rightly accepted by the lower Court and decree was properly granted in respect of possession on the basis of their being mortgagees and also a declaration to that effect. I, therefore, do not find any force in the appeal and the same is dismissed with no order as to costs-"

6. However, respondents' Civil Revision No.87 of 1987 challenging the judgment and decree, dated 23-12-1986 of the 1st Appellate Court before the Peshawar High Court, Peshawar was accepted through the impugned judgment, dated.8-6-1994 with the result that the judgments and decrees of the Courts below were set aside and the appellants' suit dismissed. The learned Judge in Chambers took into consideration certain facts of the case of the appellants, including (i) that they did not claim any ownership rights in the suit land; (ii) in their initial plaint, dated 2-10-1972 only the attestation of mutation in relation to suit land on behalf of Naik Azam etc. in the name of Arsala Khan etc. was objected to; (iii) the amended plaint, dated 24-3-1980 contained the assertion that Arsala Khan etc. were inducting .into possession by them as tenants for which they never paid rent afterwards and (iv) the entries in the Revenue Record since the Settlement of 1972 as "Bila Legan Bawaja Rehn/ were continued with certain variations up to year 1940-41 but in the Jamabandi for the year' 1947-48 Arsala Khan etc. are shown in possession and the entries in the rent columns stand changed to "Bila Legan Bawaja "Fak-ur-Rehn/" pup to the year 1972 when Mutation No. 12157 was attested in relation to Khasra No.1339/1 measuring 2 Kanals 15 Marlas, in favour of Arsala Khan etc. from Naik Azam etc. the owners, and came to the following conclusions.'

3. No mortgage mutation or any document of mortgage in the name of the plaintiffs-respondents has been made available in evidence. It is also not shown as what was the amount of mortgage charge and when the property was initially mortgaged. The land involved in suit Khasra No.1339 measuring 2 Kanals 15 Marlas is said to have been purchased by the petitioners-defendants from Nawas Khan etc. the original owners as back as in the year. 1943 on the basis of certain unregistered deed. These deeds which are said to have been duly proved. Anyhow, there is of course no mention of these documents in the revenue papers. We also find on record certified copy of judgment passed in Civil Suit Nos.778/1 of 1944, decided on 23-11-1944 from the Court of Sub-Judge 4th Class. Swabi. This suit was brought by Saida Gul etc. the predecessors-in-interest of the plaintiffs-respondents against Alif Khan etc. the predecessors of the contesting defendants with regard to an area of 9 Kanals 2 Marlas, of land comprised in Khasra Nos.1338,, 1339 and 1339//1 and they were granted a- decree for possession of total Khasras Nos. 1338, 1339/1 and half of Khasra No.1339 as mortgagees. The plaintiffs claim that they had afterwards taken possession. of the land in consequence of that decree but have not been able to establish this claim through any cogent evidence. Even we find in this Court judgment that. Alif Khan etc. the defendants in the said suit had wrongly taken possession of the land from them.

"4. The plaintiffs now again claim possession of the very land on the basis of mortgage and they being admittedly out of possession of the property since the year 1947 were required to bring very strong evidence in support of the accusation as how and why they had remained out of possession of the land for a period of more than four decades. We do not otherwise, find any evidence of mortgage in their favour save the entries made in the rent of cultivation columns of the revenue papers. The plaintiffs-respondents were expected to bring forth some cogent supporting evidence in proof of these revenue entries; and this was most needed, when we (find them) out of possession of the land since after 1947 which they have of course not done. On the contrary we find that both the disputed fields have been transferred in favour of their adversaries by the owners and these alienations have not been only proved but admitted by the transferors themselves.

"5. In this background 'of the matter I find that the two Courts below have fallen into error in the exercise of jurisdiction in the disposal of the case in this manner. Their judgments are based on total misreading and non-reading of evidence. I would, in the circumstances, set aside the judgments and decrees impugned on the acceptance of this revision petition. The result would be that the suit filed by the plaintiffs-respondents before the trial Court shall be dismissed. No order as to costs."

7. Paras. 3, 4 and 5 of the Leave Grant Order, dated 19-2-1995 read thus:--

"3. It was contended by the learned counsel for the petitioners that the learned High Court misread the evidence and misapplied the law to the facts of the present case and in that context referred to the Settlement Record of 1870 and subsequent thereto in which existence of mortgage and the mortgage money is specifically mentioned. He also referred to the subsequent record in which the petitioners are consistently shown in possession as mortgagees of more than 60 years.

"4. From the perusal of the judgment of the learned High Court it appears that the concurrent findings of the Courts below have been set aside after making the following observation:--

No mortgage mutation or any document of mortgage in the names of the plaintiffs-respondents has been made available in evidence. It is also not shown as what was the amount of mortgage charge and when the property was initially mortgaged. The land involved in Suit Khasra No.1339 measuring 2 Kanals 15 Marlas, is said to have been purchased by the petitioners-defendants from Nawas Khan etc. the original owners as back as in the year 1943 on the basis of certain unregistered deeds ....'

"5. In view of the above contention leave is granted to consider the question, whether the High Court was justified in holding that neither the date of mortgage nor the mortgage amount of entered in the Revenue Record and such finding is sustainable in view of the evidence referred to above, and as to whether the learned High Court was justified to interfere with the concurrent findings of the Courts below based on . proper appraisal of evidence on record.

9. It appears that the concurrent findings of the two Courts below favouring the plaintiffs were set aside by the High Court on, among others, the findings that ... ... ... ... ... .... ... ... ... ... ... ... .... (1) they do not claim any ownership rights in the suit land ... ... ... (2) in their suit, dated 2-10-1972 they had objected to the attestation of a mutation in relation to the suit land on behalf of Naik Azam etc. the owners in the names of Arsala Khan etc ... .. ... ... ... ... ... .. ... ... (3) the defendants claimed mortgagee rights in the amended plaint, dated 24-3-1980, ... ... .. ... ... ... ... ... ... .. ... ... ... ... ... ... ... ... ... ... ... (4) Arsala Khan etc. were inducted into possession by them as tenants on payment of rent which they never paid afterwards ... ... ... (5) through decision of Civil Suit No.778/1 of 1944 on 23-11-1944 by the then Sub-Judge IV Class Swabi, brought by Saida Gul etc. predecessors-in-interest of the plaintiffs against Alif Khan etc'. the predecessors of the contesting defendants, with regard to an area of 9 Kanals and 2 Marlas of land comprised in Khasras Nos.1338, 1339 and 1339/1, they were granted a decree for possession of Khasras Nos, 1338 and 1339/1 and half of Khasra No.1339 as mortgagees which was executed but they had failed to establish the said claim through any cogent evidence ... ...

The learned Judge in Chambers also observed that they now again claim possession of the very land on the basis of mortgage and they being admittedly out of possession of the property since the year 1947 were required to bring ' .. very -strong evidence in support of the accusation as how and whir they had remained out of possession of the land for a period of more than four decades ....The plaintiffs respondents were expected to bring forth some cogent supporting evidence in proof of these revenue entries ....both the disputed fields had been transferred in favour of their adversaries by the owners and these alienations have not been only proved but admitted by the transferors themselves. " (Underlining is for emphasis)

10. Mr. Muhammad Zahoor Qureshi Azad, learned Advocate Supreme Court appearing in support of this appeal, was critical of the impugned judgment with the submissions that: . . . ... .... ... ... .. ... ... .... ... ... ... ... ... .. ... (i) the High Court could not interfere with the concurrent judgments and decrees of the Courts below in the exercise of its revisional jurisdiction and ... ... (ii) the learned Judge in Chambers misread the evidence on the record to come to the conclusion that no mortgage mutation or any documents or mortgage in the names of the plaintiffs has been made available in evidence, although the Settlement Record of 1870 and subsequent thereto is replete with entries indicating existence of mortgage and the mortgage money ... ... ... ... ...

He has also referred to the pleadings of the parties to contend that the claim of the appellants has not received due consideration in the judgment in appeal. The plea was that had the learned Judge in Chambers considered the findings respectively reached by the trial Court and upheld by the learned Additional District Judge/1st Appellate Court that defendants (Nos.l to 3) had controverted the mortgagee rights of the plaintiffs but pleaded that a part of the suit land was purchased by them from its real owners:--

According to him, the learned Judge in Chambers was in error of law in observing that their plea. was contradictory in that, as pleaded by them in ground ' f' at page 6 of the memo. of this appeal .... . . . . . at the one hand defendants 1 to. 3 contended that they became owners by reason of Mutation No.(12157) (incorrectly mentioned as 27157) attested on 20-9-1962 (to) the extent of one Kanal, 2 Marlas through sale from Naik Azam etc. sons bf Karam and secondly that by reason of unregistered sale deed, dated 29-6-1943 Exh.D.W.1/1 and Exh.D.W.I/2 they got the mortgagees right over the land". Contrarily, Mr. Saeed Baig has supported the impugned judgment generally and submitted that the plaintiffs' suit was beyond time under Article 142 of the Limitation Act (No.IX of 1908) and the findings of the trial Court as well as that of the 1st Appellate Court were also liable to be reversed by the learned Judge in Chambers on that ground.

11. We have considered the arguments addressed at the Bar and have also been taken through the available material by the learned counsel for the parties.

12. The first plea raised on behalf of the appellants is that the, learned Judge in Chambers misread the evidence on the record to hold that neither any mortgage. mutation nor any documents of mortgage has been made available in evidence, although the above observation runs counter to the. Settlement Record of 1870 and subsequent thereto. It is trite law that if the concurrent findings of the Courts below are the result of misreading of evidence on the record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C. Put differently, if the issues struck in a given case are found to have been resolved by bringing to bear the oral as well as documentary on such findings by both the trial Court and the. Appellate Court concurrently, then the revisional jurisdiction of the High Court will riot be attracted. This assertion by Mr. Azad is not without merit, in part. Issues Nos.4 and 7 respectively related to (1) the assertion of respondents Nos. l and 3 that they are owners as well as mortgagees of the suit land and (2) the assertion of the plaintiffs that they are mortgagees in possession of the surt land and defendants are tenants under them It is common ground between the parties that the trial Court decided: (1) Issue No.4 against defendants Nos. l to 3 and that (2) Issue No. 7 was resolved in favour of the plaintiffs. The learned Additional District Judge upheld the above (as well as other) findings of the trial Court through his judgment, dated 23-12-1986 with, among others, the observations that "Arsala alongwith Sardar, Najeem sons of Abdul Qayyum have been entered as mortgagees "Awal" whereas Saida Gul and Bacha Gul the earlier mortgagees are entered as mortgagees "Sani". This entry seems to be extremely strange because as already submitted above ... ... ... have been mortgagees right from the record-of-rights from 1927-28 and there is an absolute presumption of genuineness in favour of record-of-rights (Misli Haqiat) ... ... ... ... .. .. ...... ... ... ... .. ... ... ... ... ... ... ... ... ... ... ... ... ... .. ... entries in the Jamabandi of 1947-48 in respect of Arsala and Sardar etc. seem to be not only unjustified by uncorroborated and unsupported by any mutation of right through a mutation. These entries, therefore, cannot be upheld as true or genuine. Even if this entry would have been supported by a mutation a further mortgage cannot be created by the owners unless the former mortgage is redeemed or the mortgagees submortgage the property in question ... ... ... ... .. ... ... ... ... ... ... ... ... .. ... .. ... ... ... .. ... ... ... ... ... .. ... However, the name of Arsala disappears and only Sardar and Najeem Khan sons of Abdul Qayyum are entered therein as mortgagees in o. The same entry also continues in the Jamabandi of 1959-60 Exh. DRW 1/8 in the Jamabandi of 1977-78 in Khasra No 1329/1 Sardar Khan etc. are entered in possession as owners but so far Khasra No. 1339 is concerned. Hazrat Gul and Samar Gul are entered as mortgagees in possession. The contention of the defendants is that firstly they became owners by reasons of Mutation No. 12157 attested on 20-9-1972 to the extent of 1 Kanal 2 Marlas, through sale from Naik Azam etc. sons of Karam. The second contention of the /defendants is that by reason unregistered sale-deed, dated 29-6-1943 copy Exh. RDW 1/1 and Exh. RDW 1/2 they got the mortgagees rights over the land in question .... ... .. ... ... ... .. .:. ... ... ..... in Jamabandi of 1940-41, we do not find this person entered as owner, however, one Harif son of Zarif is entered as owner but he has not mortgaged the land to these 3 persons namely, Arsala Khan Naieem Khan and Sardar Khan sons of Abdul Qayyum. Similarly we do not find the names of Nawas Khan, Abdar and Sardar sons of Namdar to be owners in the Jamabandi of 1940-41 in these two Khasra numbers, therefore, the question of becoming, mortgagees by all these persons through these unregistered sale-deeds (does) not arise. The entries being fraudulent and unlawful cannot be accepted to confer any rights whatsoever on the ... .../defendants. Therefore, the plea of the .. .../respondent was rightly accepted by the lower Court and decree was properly granted in respect of possession on the basis of their being mortgagees and also a declaration to that effect. 1, therefore, do not find any force in the appeal and the same is dismissed with no order as to costs."

(Underlining is for emphasis).

The underlined excerpt/s relating to 1 Kanal, 2 Marlas of land, claimed to have been purchased by respondents/defendants Arsala Khan, Sardar and Najeem sons of Abdul Qayyum, who had submitted their written statement with 5 preliminary objections, from Naik Azam etc. sons of Karam who, in their own turn, had submitted their written statement in the abovementioned 2nd and 3rd 'Batches' supporting defendants Nos.l to 3 in relation to the assertion by them that 1 Kanal, 2 Marlas out of the suit lands was purchased by them and that Mutation No. 12157 was attested on 20-9-1972, do not, qualify to be equated with such concurrent findings of the two Courts which ; can't be interfered with by the High Court in revision under section 115, C.P.C. in that both, the trial Court and the 1st Appellate Court did not give 8 due weight to the evidence on record consisting of: (1) two statements of (a) D.W.1 Arsala Khan, (b) D.W.2 Naik Azam, (c) D.W.3 Noor Khan and (d) D.W.4 Mian Khan as also (e) copy of Mutation No.12157, dated 20-9-1972, Exh. D.W.1/1. Further, the learned Judge in Chambers reversed the findings of the trial Court as well as the 1st Appellate Court with the result that the plaintiff's suit was dismissed. The observation that the judgments and decrees of the trial Court and the 1st Appellate Court were based upon total misreading and non-reading of evidence about the suit. land; including the abovementioned 1 Kanal, 2 Marlas, can be sustained to the ,extent of 4 Kanals, 8 Marlas of suit land. We find that the appellants/plaintiffs were non-suited by the learned Judge in Chambers without noticing that the evidence on the record generally and documentary evidence 'in relation to 1 Kanal, 2 Marals of suit land in particular, was not brought to bear on the said findings which were to say the least, immune from attack under section 115, C.P.C. More about this aspect of the matter, later.

13. The plea raised on behalf of the contesting defendants that the suit of the appellants-plaintiffs was beyond time under Article 142 of the Limitation Act, 1908, need not detain us any farther. We suffice by of the trial Courts under Issue No.l that the suit was- not beyond time, were not challenged by the respondents/defendants through cross objections before the 1st Appellate Court. Thus, they cannot be permitted to fill in the lacunae in their cause at this stage.

14. Before parting with this judgment it may be noticed that the learned trial Judge as also the learned Additional District Judge had included the land measuring 1 Kanal, 2 Marlas also in their respective judgments and decrees, dated 11-12-1982 and 23-12-1986 favouring the plaintiffs. Copy of Sale Mutation No.12157 sanctioned on 20-9-1972 was produced on the record through Arsala Khan D.W.1/defendant No.l as Exh.D.W.I/1. The possession of the contesting respondents over 1 Kanal and 2 Marlas of the suit land comprised in Khasra No.1339/1 as purchasers from Naik Azam etc. does qualify for its exclusion from the decree to be passed in these proceedings.

15. In view of the above discussion, the instant appeal is allowed, the impugned judgment and decree of the High Court, dated 8-6-1994 dismissing the suit of the appellants/plaintiffs is set aside and they are granted the declaratory decrees as prayed for the extent of 4 Kanals and 8 Marlas of land in Khasras Nos. 1338 and 1339 only with the observation that the concerned party may, if so advised, take out appropriate proceedings in relation to 1 Kanal, 2 Marlas of land in Khasra No.1339/1 before the competent forum in accordance with law.

16. In view of the partial success in this cause, the parties are left to bear their respective costs.

M.B.A./S-15/S Appeal allowed.