2013 M L D 1106

[Peshawar]

Before Nisar Hussain Khan, J

Pir WALI KHAN and others---Petitioners

Versus

NIAZ BADSHAH and others---Respondents

Civil Revision No.17-B of 2004, decided on 24th January, 2013.

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 129---Entries of jamabandi and settlement---

Presumption of truth---Scope---Such entries would carry strong presumption unless rebutted by
strong and cogent evidence.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 133---Particular fact deposed by witness in examination-in-chief, if not challenged

during his cross-examination, would amount to admission on part of his opposite party---
Illustration.

Mst. Nur Jehan Begum through Legal Heirs v. Syed Mujtaba Ali Naqvi 1991 SCMR
2300 rel.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 114---'Estoppel' and 'waiver'---Legal effect stated.

 Waiver and estoppel in legal parlance, are interrelated and complementary inter se.
Waiver is an intentional and conscious relinquishment of a known right. It may be, by a positive
act of relinquishment or it may be, inferred from the conduct of the party. When a party
acquiesces and waives of his known right by his overt act, which is vividly discernable from the
record, he cannot turn around after more than fifty years and re-agitate that right.

Lal Khan through L.Rs. v. Muhammad Yousaf through L.Rs. PLD 2011 SC 657 rel.

(d) Pleadings---

----Evidence on a plea/point not raised in pleadings could not be allowed to be led and if so
led, then same could not be looked into or considered by court for decreeing suit---Suit
decreed on basis of plea not raised by plaintiff in pleadings would not be sustainable.

Binyameen and 3 others v. Chaudhary Hakim and another 1996 SCMR 336 rel.

(e) Pleadings---

----Plea not raised in pleadings and in issue---Effect---Evidence in rebuttal on such plea would
not be required to be led.

(f) Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Arts. 44 & 120---Suit for declaration---Defendant's name
entered in revenue record on basis of mutation attested on 20-1-1943 was alleged by plaintiff to
be wrong---Suit filed by plaintiff in year 1995 i.e. after more than 50 years---Plaintiff's plea that
he was minor on 20-1-1943---Validity---Evidence on record showed that plaintiff was of 4 years,
3 months and 19 days on 20-1-1943---Plaintiff had attained age of majority of 21 years on 1-
10-1959---Plaintiff could file suit within three years under Art.44 of Limitation Act, 1908
after attaining majority or within six years under Art.120 thereof---Record showed that
defendants were enjoying possession of suit land openly and had raised huge construction
thereon---Factum of possession of defendant was in notice of plaintiff since 1943, thus, principle
of accrual of cause of notice on each adverse entry would not apply to plaintiff's case---Suit was
dismissed for being time-barred.

Mst. Fazeelat Jan and others v. Sikandar through his Legal Heirs and others PLD 2003
SC 475; Sardar v. Mst. Nehmat Bi and 8 others 1992 SCMR 82; Federation of Pakistan v. Mst.
Farishta PLD 1981 SC 120 and Mst. Fazeelat Jan and other's case PLD 2003 SC 475 ref.

(g) Civil Procedure Code (V of 1908)---

----S. 115---Revision---Concurrent findings of facts of courts below---Interference in such
findings by High Court in revisional jurisdiction---Scope---High Court would normally not
interfere in such findings except in case of gross misreading and non-reading of evidence and
patent violation of law.

Mushtari Khan v. Jehangir Khan 2005 SCMR 1238 and Ghulam Muhammad and 3 others
v. Ghulam Ali 2004 SCMR 1001 rel.

Kamal-ud-Din Khattak for Petitioners.

Asghar Ali Khan for Respondents.

Date of hearing: 24th January, 2013.

JUDGMENT

NISAR HUSSAIN KHAN, J.---Petitioners hove questioned the judgment and decree of
learned Additional District Judge, Karak, dated 10-3-2004, whereby petitioners' appeal against
the judgment and decree of learned Civil Judge Takht-e-Nasrati Karak, dated 15-7-2002, was
dismissed.

2. Before dilating upon the facts and merits of the case, I, deem it proper to mention that on
14-11-2012, learned counsel for the parties, sought time that compromise between the parties is
in the offing, which was accordingly allowed but could not materlize. On 21-1-2012, arguments
were heard, but before announcement of the order, both the parties again requested for
adjournment so that the matter may be patched up outside the Court amicably. Thus, keeping in
view the close relationship of the parties and their effort to reach a compromise, this Court
deemed it appropriate to provide them an opportunity of compromise before announcement and
the following order was passed:--

"Learned counsel for the parties exhaustively argued the case, but at the time of
announcement, both the parties requested for time to patch up the matter amicably outside the
Court. Allowed. Adjourned to 24-1-2012. In case of failure to reach a compromise, the case shall
be decided on merits on the date fixed".

Today the parties apprised the Court that efforts of compromise have proved abortive hence, the
case is taken up for decision on merits.

3. Succinctly stated facts of the case are that, respondents-plaintiffs Niaz Badshah and Mir
Saleh Khan, filed a suit against the petitioners-defendants, seeking declaration to the effect that
suit property, mentioned in the heading of the plaint, has wrongly been entered in the names of
petitioners-defendants by virtue of Mutation No. 31689 attested on 20-1-1943, which is wrong,
illegal and liable to be cancelled. The suit was contested by the petitioners-defendants by filing
written statement. In view of divergent pleadings of the parties, issues were framed and parties
led evidence in support of their respective stance. On conclusion of trial, suit of the respondents-
plaintiffs was decreed. Petitioners-defendants filed appeal against the judgment and decree of the
Trial Court, which was dismissed. Hence, this revision petition.

4. Learned counsel for the petitioners-defendants argued that suit mutation was entered and
attested on the instruction of respondent-plaintiff Niaz Badshah, so he is estopped to agitate any
right against the petitioners-defendants; that suit of the respondents-plaintiffs, is hopelessly time
barred, which has been filed after more than 50 years of the attestation of suit mutation; that
petitioners-defendants are enjoying possession of the suit property, since attestation of suit
mutation; that respondents-plaintiffs have not taken the plea of minority in their plaint, so they
were precluded to lead any evidence on the point which was not in issue, inter se the parties; that
out of eight legal heirs of Akbar Shah, only two have questioned the impugned mutation just for
ulterior motive, as there was a dispute of path between the parties due to annoyance of which,
this suit has been filed, which is liable to be dismissed.

5. Conversely, learned counsel for respondents-plaintiffs argued that both the Courts below
have rightly decreed the suit of plaintiffs-respondents as no witness of the suit mutation has been
produced to prove the same, hence, this petition is liable to be dismissed.

6. I have given my anxious consideration to the respective submissions of the learned

counsel for the parties and have scanned the available record with their valuable assistance.

7. The main controversy between the parties is Mutation No.31689, attested on 20-1-1943.
It is alleged by the plaintiffs-respondents that suit mutation has been fraudulently attested by the
defendants-petitioners in their favour, without informing the plaintiffs-respondents. This stance
of plaintiff Niaz Badshah, is belied by the very entry of suit mutation, made in the remarks
column, by the then Patwari Halqa, according to which, suit mutation was entered on the
instruction and behest of plaintiff Niaz Badshah on 17-8-1942. This entry is further affirmed by
Habibullah Khan A.D.K. (P.W.2) in his statement, by stating that suit mutation was entered in
pursuance of an entry in Daily Diary, made on the instruction of plaintiff Niaz Badshah, whereby
names of the petitioners-defendants Pir Wali Khan, Mir Shah Ali and Zar Shah Ali, were added
in the suit mutation. After attestation of the mutation, possession was also delivered to the
defendants, which is very much evident from the entries in the revenue-record wherein all the
three defendants are recorded in possession of their respective shares in different Khasra
numbers of Jamabandi of 1974-1975. It also appears from the revenue-record that settlement of
the village was also conducted in 1974-1975. The entries of Jamabandi, in general while that of
settlement, in particular, carry strong presumption of correctness, unless rebutted by strong and
cogent evidence. While, plaintiffs Niaz Badshah, as well as Mir Saleh Khan, both admitted
possession of the defendants-petitioners, on the suit property. Niaz Badshah admitted in his
cross-examination that defendants Nos.1 to 3 might be in possession of 12 Kanals, each. He
further admitted that parties i.e. plaintiffs and defendants, are in possession of the property, being
the legal heirs of Akbar Shah, their common predecessor, which clearly suggests that defendants
became owners in the legacy of their grandfather only on the basis of suit mutation. He further
admitted that he purchased the property situated in "Lashti Killa" from defendants Nos.1 to 3,
some 40/45 years back, which was previously the ownership of Akbar Shah, their predecessor. It
manifestly establishes that Niaz Badshah was very much aware of the impugned mutation and he
consciously purchased the property from the defendants, devolved on them from the legacy of
Akbar Shah. But they did not challenge the suit mutation at that time. He further admitted in his
cross-examination that houses and Hujra of the defendants along with respective court-yards are
also situated in the suit property, whereas his house, Hujra and mosque, are constructed in his
own share. Likewise, Mir Saleh Khan plaintiff No.2, also admitted in his cross-examination that
prior to attestation of suit mutation, there was no property in the names of the defendants.
However, after attestation of suit mutation, possession of the property was also handed over to
them. He further stated that defendants are residing in their houses, constructed in the suit
property for the last 20/25 years and there was a dispute on a path, situated near the houses of the
parties.

8. The documentary evidence in the shape of revenue-record, corroborated by admissions of

both the plaintiffs, squarely prove that petitioners-defendants are in possession of suit property,
since attestation of mutation wherein they have also constructed houses and Hujra and enjoying
possession of the property by sowing crops therein. This open possession of the defendants was a
clear message and information to the plaintiffs that they were enjoying the suit property as
owners. In view of this state of affairs, defendants-petitioners specifically raised a plea in their
written statement that plaintiffs are estopped by their own conduct, which was reflected in issue
No.4, as under:--

"Whether the plaintiff is estopped by his conduct to institute the suit?"

This issue was resolved by the Trial Court in a single sentence as follows:-

"This issue, fails for lack of evidence"

Learned Appellate Court also did not adhere to this important legal issue and dismissed the
appeal of petitioners in a cursory manner. The objection of the defendants-petitioner is based on
Article 114 of the Qanun-e-Shahadat Order, 1984, which reads as under:--

"Art.114. Estoppel, When one person has by his declaration, act or omission,
intentionally caused or permitted another persons to believe a thing to be true and to act upon
such belief, neither he nor his representative shall be allowed, in any suit or proceeding between
himself and such person or his representative, to deny the truth of that thing".

9. The bare reading of the ibid Article clearly shows that a person is barred to deny the truth
of a thing, which he by his declaration, act or omission intentionally caused or permitted another
persons to believe a thing to be true and to act upon such belief. In this case, firstly, the plaintiffs
by declaration admitted the right of the defendants in the suit property devolved from the legacy
of Akbar Shah and then by their explicit act, have got recorded the entries in Mutation No.31689,
whereby the names of the defendants were added as heirs of Akbar Shah and thereafter,
notwithstanding the knowledge of the suit mutation and open possession of the defendants,
omitted to challenge the suit mutation, within the prescribed period of limitation. Thus, on the
principle of estoppel, they are neither entitled nor can they be allowed to challenge such right of
the defendants. In view of the evidence discussed above, findings of the two Courts below are
arbitrary and perverse, which are culminations of bare non-reading of evidence.

10. Learned counsel for petitioners has also pressed for provisions of section 4 of the Muslim
Family Laws Ordinance, 1961. In support of his submission he relied on case titled, "Mst.
FAZEELAT JAN and others v. SIKANDAR through his legal heirs and others" (PLD 2003
Supreme Court 475). In the reported case, inheritance mutation was attested on 2-5-1950,
whereby grandson Sikandar was deprived from the inheritance of his grandfather, as his father
had predeceased his own father. The grandson Sikandar filed a suit which was decreed by the
Trial Court. The appellate Court reversed the findings of the Trial Court while the High Court
restored the judgment of the Trial Court in review petition and that decree was maintained by the
Hon'ble Supreme Court. In another case titled, "Sardar v. Mst. Nehmat Bi and 8 others" (1992
SCMR 82), propositus 11 a.m. Din died in 1947, and pursuant to the Customary Law, his legacy
went to his widow Mst. Nemat Bi, as her life estate, which was terminated by operation of law in
1962 and inheritance mutation was attested in favour of widow Mst. Nemat Bi, his sister Mst.
Samoo and predeceased daughter Mst. Fatima Bi's children, who had died in 1942. Sardar Khan,
a son of predeceased brother of Ilam Din, filed a suit claiming inheritance of Ilam Din, which
was dismissed by the learned Trial Court. His appeal succeeded and 1/4th share in the estate,
excluding the children of the predeceased daughter Mst. Fatima Bi, was decreed in his favour.
The latter, filed second appeal in the High Court, which was accepted and Sardar Khan, the son
of predeceased brother was excluded. While dismissing the appeal of Sardar Khan against the
judgment of the High Court, the august Supreme Court placed reliance on its own judgment,
rendered in case titled, "Federation of Pakistan v. Mst. Farishta" (PLD 1981 Supreme Court 120)
(Shariat Bench). In this case, the children of pre-deceased daughter, who herself died in 1942,
were given inheritance from the legacy of their grandfather. Although, in both the cases, there is
a reference of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, but the
children of predeceased daughters have been held entitled to the inheritance of their grandparents
on the principle of section 4 of the Muslim Family Laws Ordinance, 1961. In former case, the
propositus died in 1950, whereas in the latter the demise of the propositus was in 1947, much
prior to the promulgation of Muslim Family Laws Ordinance, 1961. But children of predeceased
daughter were held entitled to the inheritance of their grandparents. Same principle was adopted
by the august Supreme Court in Mst. Fazeelat Jan and others's case (PLD 2003 Supreme Court
475). All these cases squarely encompass the proposition involved in the instant case.

11. Besides that, it is categorically stated by the defendants on oath that suit property was
given to them by their grandfather Akbar Shah, in his life time with possession. This part of the
statement of defendants has not been challenged in cross-examination. It is settled law that when
a particular fact is deposed by a witness in his examination-in-chief and the same is not
challenged in cross-examination, it amounts to admission on the part of the adverse party. In this
regard, reliance placed on case titled, "Mst. NUR JEHAN BEGUM through Legal Heirs v. Syed
MUJTABA ALI NAQVI" (1991 SCMR 2300).

12. It appears from the evidence that the suit property was given to the defendants-petitioners
by their grandfather in his life time, which was acknowledged and affirmed by the plaintiffs, in
good times, when relations between the parties were cordial, by incorporating the names of the
defendants in the impugned mutation No.31689, which was neither a mutation of sale nor of gift,
but was an acknowledgment of the rights of the defendants. The plaintiffs-respondents are now
estopped by their conduct, as discussed in the earlier part of the judgment, as they had
acquiesced in attestation of suit mutation and had also waived of their right in the suit property, if
any, by their overt act. Waiver and estoppel, in legal parlance, are inter-related and
complementary inter se. Waiver is an intentional and conscious relinquishment of a known right.
It may be, by a positive act of relinquishment or it may be, inferred from the conduct of the
party. When a party acquiesces and waives of his known right by his overt act which is vividly
discernable from the record, he cannot turn around after more than fifty years and re-agitate that
right. The facts and legal proposition involved in the instant case, on all the fours, are identical to
case titled "Lal Khan through L.Rs. v. Muhammad Yousaf through L.Rs. (PLD 2011 SC 657),
wherein the proposition of waiver and limitation was resolved against the plaintiff in similar
circumstances, which is respectfully followed.

13. Both the Courts below have decreed the suit mainly placing reliance on the contention of
plaintiff Mir Saleh Khan that he was minor at the time of attestation of suit mutation. When one
goes through the plaint, no such plea was taken by the plaintiffs in their pleadings. It is settled
law that no one can be allowed to lead evidence on the point, which has not been alleged in the
pleadings, and if any such evidence is brought on record, that cannot be looked into. As, the
plaintiffs have not taken the plea of minority of Mir Saleh Khan in their plaint, so they were not
entitled to lead any such evidence in support thereof. Thus, the evidence of the plaintiffs which is
beyond their pleadings cannot be considered for decreeing their suit. Reliance placed on case
titled, "BINYAMEEN and 3 others v. Chaudhry HAKIM and another" (1996 SCMR 336). Both
the Courts below have decreed the suit on the plea, which was never taken by the plaintiffs in
their pleadings, hence, findings of the two Courts below, on this score, are not sustainable. The
learned Appellate Court while deciding the petitioners' appeal has committed gross illegality by
giving findings that petitioners have not rebutted the evidence of the respondents-plaintiffs on
the point of minority of Mir Saleh Khan, without adhering to the fact that no such plea was taken
by them in their pleadings. As such, no issue was framed in this regard. Thus, in the
circumstances, there was no reason or requirement to lead evidence in rebuttal on the point,
which was not in issue.

14. Besides that, even if the plea of plaintiff Mir Saleh Khan regarding his minority is
accepted, according to his evidence, he was of the age of 4 years, 3 months and 19 days on 20-1-
1943, the date of attestation of suit mutation. He had attained majority of 21 years age on 1-10-
1959. In view of Article 44 of the Limitation Act, 1908, he was legally obliged to file the suit
within 3 years of attaining majority or even within 6 years under Article 120 of the ibid Act in
other case. But plaintiffs have filed instant suit in 1995, after more than 5 decades. It is borne out
from the record that defendants were openly enjoying possession of the property and have raised
huge construction thereon, so their possession was in the notice of plaintiffs. Thus, the principle
of accrual of fresh cause of action on each adverse entry would not be applicable to the case of
plaintiffs. Because, plaintiffs have not filed suit with regard to the property, in their possession.
But it is the suit qua the property which is, openly, in possession of defendants since 1943, in
which they raised huge construction, as well. In view of this factual position, the suit of the
plaintiffs is hopelessly time barred.

15. It has been brought on record by defendants-petitioners that there was a dispute of path
inter se the parties, situated near their houses, due to which their relations got strained and
plaintiffs have filed instant suit with ulterior motive, which seems logical and convincing.

16. In wake of the above discussion, judgments and decrees of both the Courts below, being
the result of misreading and non-reading of evidence and non-adherence to the law applicable to
the points involved therein, are illegal which are not sustainable. Though, the High Court,
normally does not interfere in the concurrent findings of facts recorded by two Courts below, but
when there is gross misreading and non-reading of evidence and patent violation of the law, the
revisional Court/High Court, is under legal obligation to rectify the error by interference in such
illegal findings. Reliance placed on case titled, "Mushtari Khan v. Jehangir Khan" 2006 SCMR
1238 and case titled, "Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001)).
Thus, by following the command of law declared by the apex Court and statutory provisions of
section 115, C.P.C., instant revision petition is allowed, impugned judgments and decrees of the
two courts below are set aside and consequently, suit of the plaintiffs-respondents is dismissed.
Parties are left to bear their own costs.

SAK/88/P Revision accepted.