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Petitioner: GHULAM AHMED VS Respondent: MUZAFARA BEGUM And 8 Others
Court Name: Balochistan High Court Judge(s): Naeem Akhtar Afghan, Muhammad Noor Meskanzai Title: GHULAM AHMED vs MUZAFARA BEGUM And 8 Others Case No.: Regular First Appeal No.6 of 2007 Date of Judgment:2011-07-28 Reported As: 2011 YLR 2991 Result: Appeal allowed
JUDGMENT
JUDGMENT NAEEM AKHTAR AFGHAN, J.---This appeal is directed against the judgment-decree dated 7-10-2006 passed by learned Civil Judge-II Quetta, whereby suit for declaration, permanent injunction, cancellation of mutation entries with pattition and possession filed by the appellant- plaintiff has, been dismiised. Facts in brief are that on 30-6-1996 appellant-plaintiff filed a civil suit with contention that he was appointed in Air Force in the year 1943 and after serving till 1986 retired as Squadron Leader. During most of his service he remained out of Quetta, however for very short span of period he was transferred to PAF Samungli Base Quetta. It was contended that on 16-6-1920 the father of the appellant-plaintiff (Khan Muhammad) and the great grandfather of respondents/defendants (Mullah Abdul Rehman's) jointly purchased a house measuring 8 Poles bearing Kewat and Khatooni No.1/1, Khasra No.350/215/1 (hereinafter referred as the disputed property) from its previous owner Haji Qadir Bakhsh and with regard to this joint purchase registered sale-deed dated 16-6-1920 was executed, which is registered at Book No.1, Volume No.99 at pages No.64 and 65 bearing Registration No.143. Subsequent to the joint purchase the record was not rectified by the, parties and it continued in the name of the previous owner Haji Abdul Qadir till the year 193839. It has further been contended that since the property was jointly purchased by the predecessor of both the parties, no need was felt to get the same transferred in the record of rights as the joint purchase was based on registered sale-deed and the parties remained under impression that registration authorities will inform the revenue authorities'. The appellant-plaintiff contended that he is sole survivor of his family as in the earthquake of 1935 his entire family consisting upon mother, two brothers and six sisters died. However, the great grandfather of respondents- defendants Mullah Abdul Rehman's died in the year 1924. The family of Mullah Abdul Rehman's was
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residing in the disputed house since the time of purchase as they were previously tenants in the disputed house, however, After joint purchase (Mullah Abdul Rehman's) became 50% shareholder of the dispute property and for the remaining 50% the predecessor of the appellant-plaintiff became the shareholder. Since parties to the suit were joint owners and were close relatives being first cousins and had relations from both mother and father sides, therefore, the appellant-plaintiff did not bother about the partition or mutation. The mother of the appellant-plaintiff namely Mst. Aisha Begum was paternal aunt (ffar., {{URDU TEXT}}) of father of defendants Nos.2 to 8 and after the death of her father Mullah Abdul Rehman's she was entitled in all the assets left behind by him including the disputed property to the extent of her share according to Mohammedan Law and after her death the appellant-plaintiff is entitled for her share of inheritance. It is contended in 'the plaint that in the year 1941-45 settlement operation of Quetta Urban was carried out and during those days the, predecessor of respondents-defendants was in occupation of the disputed house, therefore, the revenue authorities without conducting any enquiry or considering the record erroneously and wrongly transferred the disputed property in the name of the predecessor of respondents Nos.1 to 8 (Sadiq-ur-Rehman's), who at that time was minor and even his name and caste was not properly mentioned. During settlement, the Kewat, Khatooni and Khasra numbers were changed as Kewat No.226, Khatooni No.274 and Khasra No.6670 measuring 1863 Sq. Ft. In the year 1971 the record of rights was got corrected by the predecessor of respondents Nos.1 to 8 (Sadiq-urRehman) to the extent of correction of his name and caste and his name remained name and as sole owner of the property in dispute and this time again Kewat and Khatooni numbers were changed as Khatooni No.372, Kewat No.328. It has been contended in the plaint that in the year 1962 in Guardianship Application No.1 of 1962 titled as "Ghulam Ahmed Khan v. Mst. Rahat Beguile the predecessor of the respondents namely Sadiq-ur-Rehman's appeared and admitted the factum of purchase of disputed property by the father of the plaintiff-applicant and great-grandfather of respondents- defendants. It was also admitted that Mullah Abdul Rehman's was owner to the extent of half share in the disputed house, remaining half share belonged to the father of the appellant-plaintiff. Similarly, Muhammad. Tufail (father-in-law of Sadiq-ur-Rehman's) and real father of respondent- defendant No.1 also recorded his statement in those proceedings, who also produced the registered sale-deed of the disputed house. Similarly, statement of Aitemad-ud-Din, nephew of Sadiq-ur-Rehman's was also recorded, who also admitted the half share of the father of appellant-plaintiff in the disputed house. It has been contended in the plaint that after retirement the appellant remained busy in other works, however, when he felt need of the disputed house he approached the respondents with request to hand over the half share of the disputed house as well as share of his mother (being legal heirs of late Mullah Abdul Rehman's) in the second half. The respondents-defendants declined on the ground that the appellant-plaintiff has no concern with the disputed property as same exists in the Revenue Record in the name of their predecessor late Sadiq-ur-Rehman's. The appellant-plaintiff has stated that on getting knowledge of the same the appellant-plaintiff obtained complete record of rights which revealed the erroneous entries in the name of the predecessor of plaintiff-appellant during the settlement of 1941-45, where after the appellant-plaintiff submitted application to Deputy Commissioner/ Collector Quetta in the year 1995, but same was disposed of with directions to approach the court of civil jurisdiction for redressal of the grievance, hence suit was filed with the following prayer:-- (A) Declaring that the plaintiff is owner of the property bearing Old Kewat No.328, Khatooni Nb. 372 and Khasra No. 6670 measuring 1863 Sq. Ft situated in Mohal Ward No. 19 Tappa Tehsil, Quetta and presently Kewat No. 81, Khatooni No. 90 and Khasra Nos. 295 and 296 measuring 1894 Sq.Ft. Situated
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at Mouza Ward No.51 Tappa Urban Tehsil Quetta with its Municipal No.8-19/ 30, Chaman Gali, Balochi Street Quetta to the extent of 50% share out of said property, as well as share to the extent of his mother namely Mst. Aisha, to which she was entitled to the extent of her share, out of the property of Mullah Abdul Rehman's, in accordance with Mohammedan Law. (B) Declaring further that the plaintiff is owner of property in the question (detailed in prayer clause "A") to the extent of half, share in view of sale-deed dated 16-6-1920 duly registered with the Sub- Registrar, Quetta, in Book No.1 Volume No.99 at page 64 and 65 with its Registration No.143. (C) Further declaring that the transfer so effected in the record of rights in the year, 1941-45 by means of settlement/Jamabandi, in name of husband and father of defendants Nos.1 to 8 and thereafter all subsequent entries in the record of right is illegal, improper, void and contrary to mutation entries effected in the record of rights in the year, 1933-34 and 1938- 39 and thus be cancelled. (D) Directing the defendants Nos.9 to cancel the mutation entries so effected in the record of rights in respect of property in dispute (detailed in prayer clause "A") and to transfer the share of plaintiff to the extent of 50 per cent, as per sale-deed dated 16-6-1920 and the share of his mother inherited to her by late Mullah Abdul Rehman's. (E) Further by passing preliminary decree the property in dispute (detailed id prayer clause "A") be partitioned to the extent of share of plaintiff including Mat of her mother, and thereafter possession be directed to be handed over to the plaintiff after passing final decree; (F) Permanently restraining the defendants, from transferring alienating or selling the property in dispute (detailed in prayed clause-A) to any other person; (G) Any other relief deems fit and proper in the circumstances of the case may also be awarded along with the cost of suit, in the interest of justice; The suit was contested by the respondents-defendants by filing written statement. The respondents-defendants agitated that suit is patently barred by time, the appellant-plaintiff has no vested right, title or interest in the disputed house, no cause of action has accrued to the plaintiff-appellant and plaint merits dismissal under Order VII Rule 11, C.P.C. Non- joiner and mis joinder of parties was also pleaded. It was agitated that the entry in the. Revenue Record in favour of predecessor of respondents-defendants was within the knowledge of plaintiff- appellant and he raised no objection during his life time and even no -objection was raised, at the time of re-construction of the house. Estoppel was pleaded against the appellant-plaintiff under Article 114 of the Qanun-e-Shahadat Order 1984. The contents of the 'plaint upon merits were contested and denied. The joint purchase of the property by the father\ of the appellant-plaintiff with the predecessor in interest of respondents-defendants was denied, the description of the property was also denied. It was agitated that the appellant-plaintiff has no concern with the disputed house. It was contended that the paternal grandfather of the respondents-defendants had purchased the disputed house from its previous owner for the predecessor of the respondents-defendants (Sadiq-ur-Rehman's), who was minor at that time and in the settlement of 1941 it was entered in his name on the instructions of previous owner, but the name and caste was wrongly mentioned, which was subsequently corrected in the year 1971 vide Mutation No.1030 and all these entries were in the knowledge of appellant-plaintiff, who raised no objection till 20-9- 1995, where after he filed a false and fabricated application to Deputy Commissioner/Collector Quetta. It has been further contended in the written statement that during his service the appellant- plaintiff used to visit the disputed house being a relative and replying defendants-respondents raised a pacca construction over a portion of disputed property and the appellant-plaintiff raised no objection. The statement recorded by the Senior Civil Judge Quetta in Guardianship Application No.1 of 1962 was also disputed on the ground that wrong person was produced by the name of the
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predecessors of the respondents-defendants with the collusion of Muhammad Tufail (father of respondent-defendant No.1) who had constrained relations with the predecessor of respondents- defendants Nos. 2 to 8 since the year 1962 till 1981: It was finally prayed that the suit be dismissed with cost. On receipt of pleadings,of parties the learned trial court framed the following issues:-- (1) Whether this court has jurisdiction to adjudicate upon the matter? (2) Whether the suit is liable to be dismissed in view of preliminary objections A, B, C and H of written statement? (3) Whether the defendants with collusion of revenue authorities, fraudulently transferred the, property in dispute in the name of defendants? (4) Whether the plaintiff is entitled for relief claimed for? (5) Relief? After framing of issues the appellant-plaintiff produced six witnesses and recorded his statement on oath. In rebuttal the respondents-defendants produced four witnesses, where after statements of their attorney Saif-ur-Rehman's (respondent/ defendant No.3) was recorded. On conclusion of trial and hearing the parties the learned trial court vide judgment-decree dated 30-6-1999 dismissed the suit holding the same barred by time, where after the appellant-plaintiff preferred R.F.A. No.37/99 before this court, which was allowed and after setting" aside judgment- decree dated 30-6-1990 the case was remanded to the trial court for decision on merits by considering the evidence available on record vide judgment-decree dated 17-6-2003. After remand by this court on 16-10-2003 the trial court dismissed the suit under Order XVII, Rule 3, C.P.C. On the ground that the counsel for the parties are not prepared to argue the matter. Again R.F.A. No.62 of 2003 was preferred by the appellant-plaintiff before this court, which was allowed and after setting aside the judgment-decree dated 16-10-2003 again the matter was remanded to the trial court for decision on the basis of evidence available on record. Subsequent, to the remand by this court once again the suit filed by the appellant-plaintiff has been dismissed vide judgment- decree impugned dated 7-10-2006. The appellant has preferred the instant appeal challenging the judgment-decree dated 7-10-2006 of Civil Judge-II Quetta. Syed Ayaz Zahoor, learned counsel for appellant-plaintiff argued that the judgment-decree impugned is based on misreading and misappreciation of evidence available on record. The findings upon the issues are contrary to record and the appellant-plaintiff cannot be non-suited on the point of limitation as the mutation entered upon the name of the predecessor of respondents-defendant is a result of fraud and in such circumstances limitation will not run. He further argued that apart from his claim the appellant-plaintiff is also claiming the inheritance of his mother and were from remaining half share of the disputed house as his mother was the paternal aunt ({{URDU TEXT}} ft, ) of the predecessor of respondents-defendants and daughter of Mullah Abdul Rehman's and his were was real sister of Sadiq ur Rehman's (predecessor of respondents/defendant) and they have been deprived of their right of inheritance throughout and in such circumstances as well, the bar of limitation is not available to the respondents-defendants. Learned counsel further argued that the basic document of title between the parties is the registered sale-deed dated 10-6-1920, which is not.a disputed document and in view of this ' registered sale-deed, the mutation entry in the name of the predecessor in interest of respondents-defendants alone is void and of no legal effect. Mr. Jamil Ramz'an learned counsel appearing for respondents-defendants while arguing the matter supported the impugned judgment-decree on the ground that the appellant-plaintiff was very well aware of the mutation of the disputed house in the name of the predecessor of respondents-defendants and had never raised any. Objection of whatsoever nature. He argued
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that the suit filed by the appellant-plaintiff is hopelessly barred by time. When confronted with the registered sale-dead dated 10-6-1920 and the share of the mother and were of appellant-plaintiff in half of the disputed house by way of inheritance, the learned counsel conceded to the same. After hearing learned counsel for both the parties at length we have thoroughly gone through the record of the case. Record reveals that basic document in this case is the registered sale-deed dated 16-6-1920 Exh.P/1 duly produced by P.W.2 representative of Sub-Registrar Quetta, which is an undisputed document as same has not been denied during cross-examination to P.W.2. The learned counsel appearing for the respondents/defendants when confronted with this registered sale-deed did not dispute or deny the same. Even otherwise this sale-deed which has been registered has been duly produced/ exhibited through proper custody i.e. Representative of Sub-Registrar Quetta, as such, presumption under Article 100 of Qanun-e-Shahdat Order, 1984 is attached to this document as well. According to this sale-deed the disputed property was jointly purchased by Mullah Abdul Rehman's son of Islam, (successor in interest of respondents-defendants) and Khan Muhammad son of Faqir Muhammad (father of appellant-plaintiff) in equal share from its owner Haji Qadir Baldish son of Dur Muhammad and according to this document i.e. Sale-deed Exh.P/1 the disputed property should have been entered in the Revenue Record upon the names of the purchaser i.e. Mullah Abdul Rehman's as well as Khan Muhammad in equal share, but same was not recorded. According to Exh.P/11 vide Mutation No.191 of 1910 Qadir Baldish had purchased 8 Poles under Khasra No.350, 215/1 from its previous owners, which he had sold to the predecessors-in-interest of parties vide sale-deed 16-6-1920. It has also come on record that the parties to the suit as well as their successors-in-interest are closely related inter se and in fact both the parties to the suit are successors-in-interest of late Islam in the following manner:,-- Islam Mullah Abdul Rehman's Faqir Muhammad Khan Muhammad Ghulam Muhammad Rahat Begum Qalandar Khan Mst Ayesha Sadiq-ur-Rehman's Ruqia Begum The mother of the appellant-plaintiff namely Mst. Aisha was real daughter of Mullah Abdul Rehman's and paternal Aunt ( {{URDU TEXT}}c" ) of Sadiq-ur-Rehman's (predecessor in interest of respondents/ defendants). Similarly, the were of the appellant-plaintiff namely Ruqia Begum was the real sister of Sadiq-ur-Rehman's (predecessor in interest of respondents-defendants). Similarly, another daughter of Mullah Abdul Rehman's namely Rahat Begum was married to Etisham-ud-Din and they both were survived by - Aitemad-udDin. The, family of Sadiq-ur- Rehman's and Etisham-ud-Din used to live in the disputed, house and on certain occasions the same was rented out to the tenants. The father of the appellant-plaintiff also lived in the disputed house for some time. It has come on record through the statement of plaintiff-appellant that his father in his half portion constructed a seven type house in the year 1936, whereas in the year 1937 his maternal uncle Sadiqur-Rehman's (predecessor of respondents-defendants) also constructed a seven type house upon his half portion and a door was also left between the two portions and subsequently in one of the portion, a double storey pacca structure of a house was raised, whereas the other half portion remained seven type. This aspect is also very significant which reflects that being conscious of the entitlement of the appellant-plaintiff in one half of the disputed property deliberately only in the other half portion of the disputed property pacca construction was raised. The evidence has also come on record that the appellant-plaintiff had been exercising proprietary
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rights in the disputed property with regard to his share as the cousin of the appellant Aitemad-ud- Din was allowed to live in the disputed house by the appellant-plaintiff and his father Etishamud- din also lived in the disputed house during his life time and after death of Etisham-ud-Din his brother Muhammad Ayub was turned out of the disputed house by the appellant-plaintiff in the year 1962, which reflects the exercise of proprietary rights by the appellant-plaintiff over the disputed property. Further it is the evidence on record that in the year 1995 for the first time the entitlement of the appellant-plaintiff was denied by respondent No.1 and real threat was offered to the title of the appellant-plaintiff by defendant No.1 on the pretext that the disputed property is upon their names, whereafter for the first time in the year 1995 the appellant-plaintiff approached the Deputy Commissioner/Collector Quetta, who directed the appellant-plaintiff to approach the court of civil jurisdiction, hence in these circumstances limitation will run from the date of denial to the right of appellant-plaintiff by the respondents/ defendants i.e. In the year 1995 and in such circumstances the suit is within time as the same was filed in June, 1996. Moresoover, the Revenue Record produced by P.W.4, P.W.5 and P.W.6 reveals that first settlement in the area took place in the year 1.898 and subsequently settlement took place in the year 1908. Previously the disputed property was falling under Khasra No.350/215/1, but subsequently it was allotted a new Khasra number i.e. 6670. Record further reflects that in the Fard pertaining to year 1941-45 the disputed property falling under Khasra No.6670 measuring 1863 Sq. Ft. Was recorded for the first time in the name of Muhammad Sadiq minor son of Qalandar Khan, Caste Rajpoot (predecessor in interest of respondents-defendants), but the perusal of Fard Exh.P/10 does not mention about any mutation number with reference to which this Fard was prepared. This is very surprising as copy of fard is always prepared from the contents of a mutation and reference of mutation number is always mentioned in the fard issued, but in the instant case neither any mutation number is mentioned nor any such mutation is available throughout the record to verify the transaction through which the disputed property was entered in the name of predecessor of the respondents-defendants excluding the name of the father of the appellant-plaintiff. Similarly the Mutation No.1030 dated 20-4-1971 Exh.P/8 is a correction Mutation (3 ) whereby correction was made with regard to the name of the predecessor of the respondents-defendants as well as his caste and word minor was removed and caste was corrected from Rajpoot to "Daar". In the last settlement of 1986 Khasra No.6670 was changed to two numbers i.e. Khasra A No.295 measuring 957 and Khasra No.296. Measuring 937 total measuring 1894 Sq. Ft. And the Fard Exh.P/16 also displays Tatima showing two different portions of old Khasra No.6670 consisting of two houses, which is again very significant and supports the contention of the appellant-plaintiff and this Fard Exh.P/16 reflects that in 1986 property still stood recorded exclusively in the name of Sadiq-ur-Rehman's (predecessor in-interest of respondents/defendants), who died in the year 1981. There are two other houses adjacent to the disputed property falling under Khasra No.6671 measuring 2303 Sq. Ft. In the name of Juma Khan son of Ali Muhammad and Khasra No.6669 measuring 1032 Sq. Ft. In the name of Juma Khan son of Hakim Dad as reflected from Exh.P12 and P/13 produced by P.W.5 Abdul Latif Patwari. Exhs.P/14 and P/15 are also very important documents produced by P.W.5, which reflect that in the Katooni of 1941-45 pertaining to disputed property initially the name of Malik Etisham-ud-Din was mentioned, but after making cutting, the name of Muhammad Sadiq minor son of Qalandar Khan (predecessor of respondents-defendants) was over written, which reflects mala fide/fraud and it seems that Malik Etisham-ud-Din maternal uncle ( 6) of the appellant-plaintiff manipulated the revenue entry in the name of the predecessor of the respondents-defendants
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during his minority in clear disregard and contrary to the registered sale-deed dated 16-6-1920, hence the fraud is evident and this wrong entry continued till today, which has been challenged by the appellant-plaintiff through the instant suit. It is settled principle of law that mere mutation does not confer any right in any property on any one and the mutation entry raises a rebuttable presumption in favour of person in whose favour the same is made. The presumption is rebuttable and in the instant case the entry in the Revenue Record has been duly rebutted by the appellant-plaintiff, who is challenging the entry by producing cogent and confidence inspiring evidence contrary to mutation entry. In the instant case the presumption attached with the mutation entry in favour of predecessor of respondents-defendants stands rebutted through registered sale-deed dated 16-6-1920 in view whereof the respondents- defendants or their predecessor cannot be held as exclusive owner of the disputed property rather the appellant-plaintiff and the respondents-defendants/ their predecessor are half owners of the disputed property in equal share. The Revenue Record reflects that the entry in the Revenue Record in the name of predecessor of respondents-defendants is a result of fraud and under the law fraud vitiates most solemn proceedings. Reliance in this regard is placed on the case of Muhammad Younus Khan v. Government of N.-W.F.P. Reported as 1993 SCMR 618, wherein it was held that, "The claim made by the appellants based on Mutation Na.36 on the basis of which further mutations were recorded. By Mutation No.36, the appellants were recorded as co-owners of the disputed land along with Nawab of Amb. If this mutation is not legal and proper, the entire structure built on it shall crumble" It has further been held that, "The entries in the mutation record are fiscal in nature, do not B…
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