P L D 2023 Sindh 44

Before Muhammad Junaid Ghaffar, J

LAL BUX and 2 others---Appellants

Versus

GOVERNMENT OF SINDH through Executive District Officer (Revenue), Khairpur

and 4 others---Respondents

IInd Appeal No. S-02 of 2009, decided on 4th March, 2022.

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

----O. IX, R. 6---Ex-parte proceedings---Duty of Court---Scope---Appellants filed suit for

declaration and injunction on basis of inquiry report before Trial Court, which
proceeded ex-parte against respondents---Trial Court dismissed the suit and
Appellate Court also dismissed appeal thereagainst---Held, that the case in hand of
the appellants was hit by the provisions of O. II, R. 2, of the C.P.C., as earlier, a suit
was also filed by the same parties wherein the plaint was rejected under O. VII, R. 11
of the C.P.C, as being barred in terms of S. 42 of Specific Relief Act, 1877 hence, the
second suit was not maintainable---Said findings had been set aside through
impugned judgment by deciding the same in favor of the appellants, whereas, no
appeal had been preferred by the respondents, hence, the said issue did not need to
be addressed by High Court---Respondents had failed to lead any evidence before
Trial Court, however, they had filed their written statement which was a matter of
record and the entire contention of the appellants had been controverted and
denied---Respondents failed to lead any evidence nor cross-examined the witnesses
of the appellants, nor had led any arguments in the case---Where ex-parte
proceedings are carried on, additional burden and duty was cast upon the Court to
ensure that the ends of justice are met and the interest of the party who has not
been able to defend its case for any reason, whatsoever, should be protected and
must be dealt with in accordance with law---Court is required to examine the
evidence as well as material brought on record and to see that the contention so
raised is supported by evidence and supporting material or not---Trial Court had to
see whether the plaintiff/appellant is entitled to the relief being claimed and if yes,
then to what extent---Suit could not be decreed as prayed in such matters---Trial
Court and Appellate Court were fully justified in dismissing the suit of the
appellants as no case was made out either on facts or in law---Appeal was
dismissed, in circumstances.

Nisar Ahmed and another v. Habib Bank Limited 1980 CLC 981 and Messrs Al-Pak
Ghee Mills through Managing Partner v. Zeeshan Traders through Proprietor 2008
CLC 120 rel.

The Evacuee Trust Property Board v. Haji Ghulam Rasul Khokhar 1990 SCMR 725;
Muhammad Sidik v. Ghulam Hyder PLD 1961 (WP) Kar. 511; Sheikh Akhtar Aziz v.
Mst. Shabnam Begum 2019 SCMR 524; Muhammad Akram Qureshi v. Pakistan
Defence Housing Authority 2017 CLC 495 and Imam Bux v. Daim PLD 2007 Kar. 358
and Fateh Muhammad v. Pervaiz Ali 2021 CLC 1644 distinguished.

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

----Art. 85---Admissibility of public document---Scope---Inquiry report not a title

document---Appellants' (plaintiff) counsel contented that since no evidence was led
on behalf of the respondents, whereas, reliance was placed on public documents by
the plaintiffs, their suit could not have been dismissed---Validity---Said argument
was misconceived and was not tenable in the given facts and circumstances of
case in hand---Public documents, were admissible in terms of Art.85 of the Qanun-
e-Shahadat, 1984 and need not to be proved strictly; however it was not always true
in each and every case---Onus was on the plaintiffs to prove their case first---
Nothing was available on record to substantiate the claim of plaintiffs, except an
inquiry report purportedly held back in 1921; even prior to creation of Pakistan---
Subsequent entries and the entire record being claimed as public document was
based on that inquiry, which by itself was not a title document, nor had been proved
in any manner---Claim of the appellants was denied on the ground that it was
Government land belonging to the Forest department and had been encroached
upon by influential persons on the basis of forged and managed documents---In
such a situation protection under Art. 85 of the Order, 1984, appeared to be a far-
fetched proposition and apparently could not come to rescue of the appellants---
Appeal was dismissed.

(c) Sindh Land Revenue Act (XVII of 1967)---

----S.41---Revenue record---Mutation entry---Scope---Mutation entry in Revenue
Record can neither create nor extinguish title to property as these are only
maintained for fiscal purposes---Right to title or ownership of any property depends
entirely on the title, source of acquisition of the right while an entry in the records of
rights is not conclusive evidence of the right of ownership---Mere mutation does not
confer any right in any property on anyone and the mutation entry raises a
rebuttable presumption in favour of person in whose favour the same is made---In
the present case the appellants (plaintiffs) failed to discharge the burden which in
the given facts lay on them heavily as their only piece of evidence and document
was some inquiry report of the year 1921 which they could not prove satisfactorily---
Appeal was dismissed.

Muhammad Ali v. Hassan Muhammad PLD 1994 SC 245; Bahadur Khan v. Qabool
Ahmed 2005 CLC 1937 and Ghulam Ahmed v. Muzafara Begum 2011 YLR 2991 rel.

Deedar Ali M. Chohan holding brief for Malik Naeem Iqbal for Appellants.

Ahmed Ali Shahani, Assistant Advocate General Sindh for Respondents.

Dates of hearing: 24th January, 14th and 28th February, 2022.

JUDGMENT

MUHAMMAD JUNAID GHAFFAR, J.---Through this 2nd Appeal, the Appellants have
impugned judgment and decree dated 10-10-2009 and 12-10-2009, respectively,
passed by the 2nd Additional District Judge, Khairpur in Civil Appeal No.83 of 2009,
whereby while dismissing the Appeal, judgment and decree dated 18-08-2009 and
22-08-2009, respectively, passed by the Senior Civil Judge-II, Khairpur in F.C. Suit
No.77 of 2008 (Old No.56 of 2001) has been maintained, through which the
Appellants' Suit was dismissed.

2. Mr. Malik Naeem Iqbal learned Counsel for the Appellants while assisting the
Court on the earlier dates of hearings had contended that the two Courts below
have seriously erred in law and facts while passing the impugned orders; that the
respondents had all along failed to lead any evidence, and therefore, the Suit of the
Appellants could not have been dismissed; that the suit land was owned by the
Appellants on the basis of an inquiry dated 9.12.1921 of the then Khairpur State in
favor of the their predecessor in interests, which has gone unchallenged; that the
claim of the Appellants was supported by the attested copy of order of Minister,
Khairpur State, whereby, the inquiry as above was affirmed; that suit property was
duly mutated in favor of the Appellants as legal heirs; that the same was also
allowed sub-division by the concerned authorities; that all such documents are
public documents within the meaning of Article 85 of the Qanun-e-Shahadat Order,
1984; hence, were not required to be proved strictly; that the Courts below have
failed to appreciate these documents, hence, the impugned judgments are liable to
be set-aside by allowing instant Appeal. In support he has relied upon the cases
reported as The Evacuee Trust Property Board v. Haji Ghulam Rasul Khokhar (1990
SCMR 725); Muhammad Sidik v. Ghulam Hyder (PLD 1961 (W.P.) Kar. 511); Sheikh
Akhtar Aziz v. Mst. Shabnam Begum (2019 SCMR 524); Muhammad Akram Qureshi
v. Pakistan Defence Housing Authority (2017 CLC 495); Imam Bux v. Daim (PLD
2007 Karachi 358) and Fateh Muhammad v. Pervaiz Ali (2021 CLC 1644).

3. On the other hand, learned Assistant Advocate General has opposed this Appeal
by arguing that two courts below have recorded concurrent findings of facts against
the Appellants, whereas, no case has been made out to overturn these concurrent
findings; that no supporting documents were placed on record to support the
stance of the Appellants; that a mere inquiry report does not create title or
ownership; that instead of a second appeal, they ought to have filed a Revision, and
therefore, the Appeal is liable to be dismissed.

4. Heard learned Counsel for the Appellant as well as learned A.A.G. Today, written
arguments have also been filed by Counsel holding brief. I have also gone through
the same including the R & Ps of the case file. Since the Appeal has been heard at
length on merits on several dates; therefore, the same is being decided on its own
merits, without touching upon the issue that whether a Revision was competent
instead of an Appeal as apparently there is no issue of limitation either way; nor
office has raised any objection; and lastly, even if that be the case, the Court can
always convert the same into a Revision.

5. It appears that the Appellants had filed a Suit for declaration and injunction
before the Court of Senior Civil Judge, and sought the following relief(s);

i. That by decree of this Hon'ble Court, it be declared that the plaintiffs are owners in
possession of the Agricultural land measuring 17-15 acres out of S.No.1 of deh
Bhambho Khoram taluka Kingri Distt. Khairpur having valid title and khata on the
basis of enquiry order passed by the Enquiry Officer Khairpur State and inherited
from their father.

ii. That permanent injunction be granted whereby restraining the defendants or any
other claiming through them from making any kind of interference in the rights, title
and possession of the plaintiffs in respect of suit land as per sketch prepared by the
Revenue and Survey Deptt., in any manner whatsoever in nature.

iii. To grant costs of the suit and any other relief deem fit and proper in the
circumstances of the case.

6. The learned trial Court after exchange of pleadings settled various issues and by
way of its judgment dated 18.8.2009 was pleased to dismiss the Suit in the
following terms;

"ISSUE NO.1.

To prove above issue burden lies upon the plaintiff as it is settled principle of law
that plaintiff have to prove its case by producing oral evidence and documentary
proof and not on the weakness pints/evidence of defendants. It is admitted position
that plaintiffs named above already filed civil suit bearing No.25/2001 (Lal Bakhsh
and others v. Government of Sindh and others) for declaration and permanent
injunction on the same suit property, area and survey number, claiming for
ownership of suit property, the said suit was rejected by this court vide order dated
02.5.2001. The copy of said order lying on record, the said order reveals that the
earlier suit was in respect of same subject matter and in between the same parties,
in the said suit, the plaintiff claimed to be the owners in possession of suit land by
inheritance. From perusal of said order further reveals that in the said suit the
plaintiffs had not sought declaration in respect of their title and resulting thereby
the plaint was rejected holding that suit was barred under section 42 of Specific
Relief Act. The plaintiffs failed to prefer appeal against the above order dated.
02.5.2001 and brought the fresh suit by adducing the prayer of declaration to the
fact that they be declared as owner of suit land. Since the earlier was between the
same parties in respect of same subject matter, therefore, the present suit on the
basis of same cause of action is not maintainable and barred by law under Order II,
Rule 2, C.P.C.
Even otherwise the defendants have denied about title of the plaintiffs and stated in
their written statement that the documents in favour of plaintiffs are forged,
fictitious manipulated with collusion of Revenue Staff, than the plaintiffs was duty
bound to prove the above documents in favour by examining official
witnesses/authors of documents that above documents are issued by the officer
concerned and are genuine, the plaintiffs failed to do so, inspite of opportunities.
Admittedly, the defendants failed to adduce their evidence in the first round as well
as in the second round after remand of suit, but it is well settled principle of law that
plaintiff have to prove their case by examining oral evidence and documentary proof
i.e. author of documents, and not on the weakness points of defendants. It is also
admitted position and well settled principle of law that pleadings cannot be treated
as evidence, but as per settled principle of law that the plaintiffs are duty bound to
prove their case accordingly. In the present suit the plaintiffs have failed to examine
the author of the documents, plaintiffs have failed to produce original documents
too. In the absence of above evidence, I am of the humble opinion that plaintiffs
failed to prove their case i.e. to prove issue No.1, that their suit is maintainable
according to law, hence, I decide issue No.1 as affirmative.

ISSUE NO.2.

To prove above issue burden lies upon the plaintiffs as they are claiming to be the
owner of the suit land through their ancestors, inheritance from their father
according to the ownership of the suit land under the inquiry held on 04.12.1921,
the plaintiffs have failed to produce original record regarding the suit land in favour
of their father and subsequently in their favour and not examined competent official
of Revenue Department as well as author of the documents. All the documents
produced by the attorney of plaintiffs in evidence are attested photo copy, the said
can not be relied upon to prove the ownership of plaintiffs over the suit land. In the
light of above discussion and discussion on issue No.1, I decide issue No. 2 as
affirmative.

ISSUE NO.3.

In the light of discussion on issues Nos. 1 and 2, the plaintiffs are not entitled for
relief claimed, therefore, I decide issue No.3 as negative.

ISSUE NO.4.
In the light of discussion on issues Nos. 1 to 3 that suit of plaintiff is not
maintainable, the plaintiffs are not owners of the suit land, therefore, they are not
entitled for relief claimed, hence, suit of plaintiffs is hereby dismissed with no order
as to costs."

7. The Appellants being aggrieved with the above judgment filed an Appeal and the
learned Appellate Court through impugned judgment has been pleased to dismiss
the same in the following manner;

"POINT NO. 1.

8/- The learned trial Court has observed that the suit is barred under Order II, Rule 2
C.P.C. mainly on the ground that the appellants/plaintiffs previously filed Suit No:
56/2001 praying for declaration, permanent injunction and in that suit relief of
declaration regarding title over the suit land was not prayed. The perusal of order
dated 2.5.2001 shows that the plaint was rejected on the ground that the suit is
barred under section 42 of Specific Relief Act for failure to seek relief of declaration
regarding the right and title over the suit property and in pursuance of that order the
appellants/plaintiffs filed fresh suit. Learned advocate for the appellants/plaintiffs
contended that the Suit No: 25/2001 was filed with the prayer that the respondents/
defendants have no authority to dispossess him and according to him at that time
the title of appellants/plaintiffs was not under challenge hence that relief was not
sought.

9/- Order 2, Rule 2, C.P.C. provides that every suit shall include the whole of the
claim which the plaintiff is entitled to make in respect of the cause of action.
Provision of Order II, Rule 2, C.P.C. relates the relief to be sought to the cause of
action and the learned advocate for appellants/plaintiffs contends that at the time
of filing the suit his right and title was not under challenge and due to that reason
he had not prayed for the relief of declaration for their title over the suit property. I
agree with such contention of the learned advocate for the appellants/plaintiffs that
the suit does not come within purview of Order II, Rule 2, C.P.C. and hold that suit is
maintained. Accordingly the point No.1 is replied in negative.

POINT NO: 2.
10/- P.W Ghulam Jaffar has deposed that the land is situated in Katcha area and it
was brought in the Khata of ancestors of the appellants/plaintiffs on the basis of
enquiry conducted in the year 1921 and during cross-examination to learned DDA
the P.W 1 stated that he heard from the ancestors that the plaintiffs
(appellants/plaintiffs) are in possession of the suit land. PW 2 Sharafuddin Ghumro
has also taken the same plea in his evidence recorded at Ex: 32 that 17-15 acres out
of S.No.1 belongs to appellants/plaintiffs while 25-05 acres belongs to Government
Revenue department. Admittedly the appellants/ plaintiffs claim the title on the
basis of enquiry report and neither enquiry officer has been examined and nor
original report is brought on record. Mere fact that the appellants/ plaintiffs is in
possession since long does not entitle him as exclusive owner of the suit property.

11/- The entire land of the country is the Government property and different persons
derive their title through any lawful manner but here the appellants/plaintiffs have
sought relief of declaration that he is owner of the suit property on the basis of
enquiry report which itself does not create the right and title in favour of
appellants/plaintiffs as exclusive owner and accordingly the point No: 2 is replied in
negative.

POINT NO: 3.

12/- In view of my findings on point No.2, I am of the considered view that opinion
recorded by learned trial court is based on well appreciation of the evidence on the
record and it does not require interference and the Civil Appeal No: 83/2009 stands
dismissed with no order as to costs."

8. As per the findings of the trial Court, the case of the present Appellants was hit
by the provisions of Order II, Rule 2, C.P.C., as earlier, a Suit was also filed by the
same parties wherein the plaint was rejected under Order VII, Rule 11, C.P.C., as
being barred in terms of section 42 of the Specific Relief Act; hence, the second

Suit was not maintainable; however, the said finding has been

set-aside through impugned judgment by deciding the same in favor of the

Appellants, whereas, no Appeal has been preferred by the respondents; hence, the
said issue need not be addressed by this Court any further.
9. As to the argument of the Appellants' Counsel that since no evidence was led on
behalf of the Respondents; whereas, reliance was placed on public documents by
the Appellants; hence, the Suit could not have been dismissed, it would suffice to
observe that this argument is misconceived and is not tenable in the given facts
and circumstances of the case. Though public documents, as rightly contended, are
admissible in terms of Article 85 of the Order, and need not be proved strictly;
however, it is not always true in each and every case. Here, the onus is on the
Appellants to prove their case first. For that there is nothing on record to
substantiate, except an inquiry report purportedly held way back in 1921; that is
even prior to creation of Pakistan. The subsequent entries and entire record being
claimed as public documents is based on that inquiry, which by itself is not a title
document; nor has been proved in any manner. Moreover, the claim is being denied
on the ground that it is Government Land belonging to the Forest Department and
has been encroached upon by influential persons on the basis of forged and
managed documents. In such a situation protection under Article 85 of the Order
appears to be a far-fetched proposition and apparently cannot come to the rescue
of the Appellants. It is settled law that a Mutation Entry in Revenue Record could
neither create nor extinguish title to property as they are only maintained for fiscal
purposes1. Further a right to title or ownership of any property depends entirely on
the title i.e. source of acquisition of the right while an Entry in the Record of Rights
is not the conclusive evidence of the right to ownership2. It is further settled that
mere mutation does not confer any right in any property on any one and the
mutation entry raised a rebuttable presumption in favour of person in whose favor
the same is made3. Unfortunately, the Appellants have miserably failed to discharge
the burden which in the given facts lay on them heavily as their only piece of
evidence and documents is some inquiry of the year 1921 which they could not
prove satisfactorily.

10. As to the argument that Respondents had failed to lead any evidence to rebut
the contention of the Appellants; hence, Suit ought to have been decreed is
concerned, the same again is misconceived and not tenable. Though the
Respondents had failed to lead any evidence before the trial Court; however, they
had filed their written statement which is a matter of record and the entire
contention of the Appellants has been controverted and denied. Notwithstanding,
that the Respondents failed to lead any evidence nor cross-examined the witnesses
of the Appellants; nor have led any arguments in the instant matter so as to defend
their case, however, the Court in matters wherein Ex-parte proceedings are being
carried on, has an additional burden and duty cast upon it, to ensure that the ends
of justice are met and the interest of the party who has not been able to defend its
case for any reason whatsoever, shall be protected and must be dealt with in
accordance with law. The Court is required to examine the evidence as well as
material brought on record and to see that the contention so raised is supported by
evidence and supporting material or not. It is the duty of the Court to see whether
the Plaintiff / Appellant is entitled to the relief being claimed and if yes, then to what
extent. The Suit cannot be decreed as prayed in such matters, until and unless the
Court is satisfied in this regard. Reliance in this regard may be placed on the cases
of Nisar Ahmed and another v. Habib Bank Limited (1980 CLC 981) and Messers Al-
Pak Ghee Mills through Managing Partner v. Zeeshan Traders through Proprietor
(2008 CLC 120). Therefore, the contention in this regard is hereby repelled.

11. In view of hereinabove facts and circumstances of the case, it appears that the
two Courts below were fully justified in dismissing the Suit of the Appellants as no
case is made out either on facts nor in law, whereas, additionally, concurrent
findings have been recorded by two Courts below, which are seldom interfered in
exceptional circumstances which in the instant matter are completely lacking;
hence, by means of a short order on 28.02.2022, this Appeal was dismissed and
these are the reasons thereof.

MHS/L-4/Sindh Appeal dismissed.