SAMEEN KHAN and 4 others vs Haji MIR AZAD and others

Sameen Khan and four others, the legal heirs of one Aman Khan of Surkh Dheri, Tehsil and District Mardan, had succeeded in obtaining a decree as prayed for against Haji Mir Azad etc. In Civil Suit No,238/1 from the Court of Civil Judge 1st Class, Mardan on 18-6-1995. The same was set aside by the learned District Judge, Mardan vide his judgment, dated 16-4-1996, non-suiting the plaintiffs, and hence, this revision.

2. The predecessor-in-interest of the petitioners/plaintiffs, namely, Aman Khan and Mir Nawab were two brothers who owned the suit property in equal share. Mutation No,1398 attested on 20-8- 1942 indicates that a property measuring about 35 Kanals, 12 Marlas was sold by Mir Nawab in favour of defendant No,2 for a suin of Rs,3,000. The operative sale included the share of Aman Khan also. The legal heirs of Aman Khan, on 21-4-1993 brought the instant suit which was decreed by the Civil Judge, Mardan but dismissed by the learned District Judge, Mardan, as said earlier, on the ground that the suit was hopelessly time-barred.

3. It is proved on record that Aman Khan, the predecessor-in-interest of the plaintiffs/petitioners was not present at the time of attestation of mutation on 20-8-1942. To the contrary, it is proved th& the vendees of such mutation has since 20-8-1942 been in continuous physical possession of the property. It is also proved that throughout this period the defendants/vendees had neither paid any produce to either Mir Nawab or his brother Aman Khan or their legal heirs till the time of institution of suit. Obviously, the real owner should have become alert about the entries in the Revenue Record. This was more pertinent because they had throughout been out of physical possession without receiving any rent or produce etc.

4. The evidence further indicates that Aman Khan, the predecessor-in-interest of the plaintiffs had remained alive for a period of thirty-six years after the attestation of sale mutation without receiving either rent or produce of the property but had not resorted to any physical or legal action. It is admitted on record that Aman Khan died as many as fifteen years prior to the institution of suit. Despite this, even his legal heirs did not care to file a suit for title or for possession. Having kept silent for a period of fifty-one years, they cannot challenge the consistent entries in the Revenue Record since the date of sale mutation. Similar situation was faced by the august Supreme Court in Muhammad Hussain v. Khuda Bakhsh 1989 SCM R 1563.

The delay in that case was also more than fifty years. It was held that the plaintiff therein had no right to challenge such long-standing entries in the Revenue Record. In the instant case, the plaintiffs have come to the Court challenging the entries of Revenue Record after a delay of fifty- one, years without being in possession and C without proving to have received the share of Batai from the defendants. The suit under Article 142 of the Limitation Act is hopelessly time-barred and was rightly determined so by the learned District Judge.

5. It appears from the conduct of the vendor as well as his successors for a long period of fifty- one years that the sale was agreed upon Aman Khan as well regardless of the fact that he was not present at the time of attestation of mutation. Qua the share of Mir Nawab the question of adverse possession is not relevant because the possession of the vendee qua his share is referable to a lawful title. It is a settled principle of law that question of adverse possession is not attracted when ID possession of any person is referable to a lawful title.

6. Qua the share of Aman Khan, the vendee had remained in adverse possession because, according to the circumstances, he was not present at the time of attestation of mutation.

Having remained in adverse possession qua the share of Aman Khan, the vendee had matured title to the suit-land in the year 1954 and thus the verdict given by the august Supreme Court in Maqbool Ahmad v. Government of Pakistan 1991 SCM R 2063 is not beneficial for the plaintiffs because section 28 of the Limitation Act was declared repugnant to the Injunctions of Islam with effect from 31-8-1991.

7. Though the defendant had refused the offer of taking oath, yet under section 12 of the Oaths Act no inference can be taken against such witness.

8. In view of the circumstances, I perfectly agree with the conclusion drawn by the learned District Judge. There being no merit in the revision petition, it is hereby dismissed with no order as to costs.