Declaration and possession suit dismissed by Lahore High court

Declaration and possessions

Decree for possession

against an illegal occupant

doesnot become

inexecutable for the reason

that the said occupant has

purchased the share from

a co-sharer of the decree

holder, in a joint khata/

khewat, during the pendency

of the execution proceedings.

Civil Revision

40110/22

Mst Kaneez Batool Vs Allah

Buksh

2024 CLC 630

Case was filed for declaration and possession.
instituted the suit on the
basis of PTD No.2512 dated 08.08.1968 as well as the mutation
Suit was dismissed by Lahore High court and decree of the trial court and appeal before additional session court was dismissed
The nub of the matter is to examine whether respondent No.1
was able to discharge the burden of proof while seeking declaration
of his title to the suit property and possession thereof as also
seeking cancellation of the registered sale deed of the petitioners.
Admittedly, the suit was instituted on the strength of the mutation
bearing No.15252, which was admittedly sanctioned on the basis of
the PTD bearing No.2512 dated 08.08.1968. The PTD was the main
title document that was admittedly not produced in evidence. The
learned Courts below erred by not appreciating this aspect of the case.

Case laws on the declaration and possession.

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Civil Revision No.2534 of 2014

Nargis Bibi (deceased) through her legal heirs, etc.

Versus

Muhammad Amin, etc.

J U D G M E N T

Date of Hearing:

09.05.2023

Petitioners by:

Sh. Naveed Shahryar, Advocate.

Ms. Safina Safdar Bhatti,

Advocate.

Respondent

No.1

by:

Ustad Muhammad Iqbal,

Advocate.

Respondent No.2

by:

Mr. Tasawar Hussain Virk,

Advocate.

Respondent No.3:

Proceeded ex-parte on 05.04.2022.

Anwaar Hussain, J. Briefly stated facts of the case are that,

on 29.09.2004, respondent No.1 instituted a suit for declaration

along with recovery of possession etc., with regard to the suit

property, detail whereof, is given in the headnote of the plaint

appended with the present petition and vide judgment and decree

dated 05.01.2013, the learned Trial Court decreed the suit, after

framing of issues and recording of evidence of the parties. The

appeal preferred by the predecessor-in-interest of the petitioners

against the judgment and decree dated 05.01.2013 was dismissed by

the learned Additional District Judge, Hafizabad, vide judgment and

decree dated 17.06.2014. Hence, the present Civil Revision.

Learned counsel for the petitioners submits that the suit

property is a shop and respondent No.1 instituted the suit on the

basis of PTD No.2512 dated 08.08.1968 as well as the mutation

C.R. No.2534/2014

bearing No.15252 that was sanctioned on the strength of the PTD,

however, the said document is not available on record and

therefore, respondent No.1 failed to prove his title to the suit

property and as a consequence thereof, the concurrent findings of

the learned Courts below are not sustainable. Places reliance upon

“Manzoor Ahmad and 9 others v. Ghulam Nabi and 5 others” (2010

CLC 350) to contend that in case the title document of the suit

property is not produced, possession thereof cannot be recovered.

Further contends that the impugned judgment dated 17.06.2014

finds the petitioners to be the owner of their respective property

along with respondent No.1 in the same Khasra, and therefore,

there was no justification to disregard the sale deed of the

petitioners on the strength of which the petitioners are in

possession. Further states that the learned Trial Court was obligated

to obtain a demarcation report so as to ascertain the location of the

suit property in possession of the petitioners as well as the property

described in purported PTD as per version of respondent No.1,

within the same Khasra and without determining the same, the

learned Trial Court could not have rendered a just decision. Further

adds that the petitioners are in possession of the suit property on the

strength of a registered document that cannot be brushed aside and

has been erroneously cancelled by the learned Trial Court. Places

reliance upon cases reported as “Anwar Club and another v.

Muhammad Sarwar” (PLD 1992 Lahore 63); “Mst. Hajran Begum

v. Kh. Muhammad Yousaf and Legal Heirs” (2005 MLD 592); and

“Syed Mahboob Shah v. Tehsil Nazim, Pishin and another” (2012

SCMR 196) in support of his contentions. Concludes that a Local

Commission was appointed to ascertain the location of shop of

respondent No.1 and the said report has been relied and believed

upon by the learned Courts below although its author never

appeared before the learned Trial Court.

Conversely, learned counsel for respondent No.1 submits that

concurrent findings of fact are immune from any interference in

C.R. No.2534/2014

revisional jurisdiction unless there is any misreading and nonreading of evidence that could not be pointed out by the petitioners’

side. Adds that the suit property is part of an urbanized area and

therefore, it becomes irrelevant that the petitioners and respondent

No.1 are owners in the same Khasra. Further contends that the PTD

through which respondent No.1 purchased the suit property, in an

auction, has lost its significance inasmuch as on the strength of the

same, mutation was sanctioned and the said PTD was incorporated

in the revenue record, therefore, even if the original PTD is not

available, the same is not fatal to the case of respondent No.1.

Learned counsel for respondent No.2 has supported the

stance of the petitioners whereas proforma respondent has already

been proceeded ex-parte, vide order dated 05.04.2022.

Arguments heard. Record perused.

At the outset, it is imperative to observe that this Court in

exercise of its revisional jurisdiction is reluctant to interfere in the

concurrent findings of the Courts below, however, it is not a rule of

thumb and this Court cannot close its eyes where the learned Courts

below misinterpreted the material available on record or erred in

appreciating the same, in its proper perspective, or overlooked to

comprehend the same. Therefore, the argument of learned counsel

for respondent No.1 in this regard is misconceived that concurrent

findings cannot be set-aside in revision and hence, discarded.

The nub of the matter is to examine whether respondent No.1

was able to discharge the burden of proof while seeking declaration

of his title to the suit property and possession thereof as also

seeking cancellation of the registered sale deed of the petitioners.

Admittedly, the suit was instituted on the strength of the mutation

bearing No.15252, which was admittedly sanctioned on the basis of

the PTD bearing No.2512 dated 08.08.1968. The PTD was the main

title document that was admittedly not produced in evidence. The

learned Courts below erred by not appreciating this aspect of the

C.R.No.2534/2014

matter.In-fact,thelearnedAppellateCourtbelow

haveerroneouslycomprehendedletterbearingNo.

ADC(G)/Sett/U570H.Z(5)U,dated21.02.1991to

bethePTD,byholdingasunder:

“9.Theperusalofwrittenstatementshows

thatthepetitioner/appellantdidnottakethepleain

herwrittenstatementthattherespondentNo.1/

plaintiffpurchasedthepropertyinstreetNo.2or

thattheallegedPTDpertainedtotheproperty

situatedinstreetNo.2,therefore,shecannotbe

allowedtopleadcontrarytoherpleadings.

Further,thedocumentEx.P7isthecertifiedcopy

ofthePTD,therefore,itiswronglystatedinthe

applicationforsummoningoftherecordthat

attestedcopyofthePTDwasnotproducedbythe

respondent/plaintiff.”

(Emphasissupplied)

Atthisjuncture,itisimperativetoreproducethe

contentsoftheletterdated21.02.1991(Ex.P7),which

readasunder:

“From

TheAdditionalDeputyCommissioner(General),

DeputyAdministrator(ResidualProperty),Gujranwala.

ToTheTehsildar.

Hafizabad

(DistrictGujranwala)

NO.ADC(G)/Sett/U570H.Z(5)U

Dated:21.02.91

Subject:ConfirmationofP.T.D/TO/TDNO.2512

Dated8-8-68

IssuedinthenameofMuhammadAmin

C.R. No.2534/2014

Hafizabad (Area 143

sqft)

Checked and verified from the record kept in this office and

found in order. But it cannot the verified whether it still

holds good. The verification is valid for the purpose of

attestation of the particular mutation. Attested/photoestate

copy may not be issued.

-sdAdditional Deputy Commissioner (G)

Deputy Administrator (RP)

G U J R A N W A L A

Dated:_______”

(Emphasis provided)”

A bare perusal of the above quoted letter reveals that the same is

not the PTD and hence, the conclusion drawn by the learned Courts

below in general and the learned Appellate Court below in

particular is erroneous and gross misreading of evidence. Therefore,

on this material misreading of evidence alone, the concurrent

findings of the Courts below are liable to be set aside as it is trite

law that the Courts are expected to deliver justice, which is not only

to be done but also seen to be done, and cannot shut their eyes or

turn a deaf ear to perverse conclusion based on patent errors on

account of misreading and non-reading of evidence.

Argument of learned counsel for respondent No.1 that after

implementation of the PTD in the revenue record, the original title

document i.e., the PTD in the instant case, even if not available,

looses its significance and makes no difference is a bizarre

argument, to say the least, on two counts. Firstly, mutation of a

property in the revenue record neither creates nor extinguishes the

title to the property or has any presumptive value qua title as such

entries are relevant only for the purpose of collecting land revenue.

Secondly, if the mutation on the basis of which right in the property

is claimed, is disputed on account of absence of the original

PTD/registered deed, etc., the onus of proving the correctness of the

mutation and genuineness of the transaction contained therein

would be on the party claiming the right. Therefore, without

bringing on record the original PTD on the strength of which the

C.R. No.2534/2014

mutation was sanctioned, respondent No.1 failed to prove that he is

entitled to be declared as owner of the suit property let alone

seeking cancellation of registered sale deed of the petitioners in

respect thereof. In this regard, learned counsel for the petitioners

has correctly placed reliance on case of Manzoor Ahmad supra in

which this Court held that while seeking possession of the property,

a plaintiff is under a bounden duty to establish his ownership

without any shadow of doubt, by producing title document and

while doing so the burden of proof on a party is to be discharged

unclinchingly and not with shaky evidence. Moreover, the

application of the predecessor-in-interest of the petitioners filed

with the learned Appellate Court below for summoning the original

record pertaining to the issuance of the PTD was wrongly dismissed

that defeated the ends of justice and the letter dated 21.02.1991 has

been erroneously considered as the PTD.

Moreover, admittedly, a Local Commission was appointed to

ascertain the location of shop of respondent No.1 and report

rendered by the said Commission has been relied and believed upon

by the learned Courts below to the extent that registered sale deed

of the petitioners has been cancelled although author of the report

never appeared before the learned Trial Court. Admittedly, no

permission was obtained from the learned Trial Court in accordance

with law by respondent No.1, to lead secondary evidence in this

regard. Even otherwise, perusal of the report reveals that the same

is not comprehensive, rather unilateral and does not depict any

observation in relation to the suit property in possession of the

petitioners qua the registered sale deed in favour of the

predecessor-in-interest of the petitioners and hence, do not

constitute a reliable and conclusive piece of evidence that can form

basis of passing of declaratory decree etc., in favour of respondent

No.1.

10. There is yet another angle of the matter from which the

present lis can be examined. In his suit for declaration alongwit

C.R. No.2534/2014

recovery of possession, respondent No.1 mentioned about his

absence from Hafizabad where the suit property is situated on

account of his travel to Rawalpindi and asserted that in his absence,

allegedly occupation of the suit property was unlawfully taken by

the predecessor-in-interest of the petitioners and illegal construction

was raised thereon and upon confrontation, the rent was settled

between the parties for the occupation thereof, but none of these

assertions were proved when the evidence was led and recorded,

that fact also raises a serious doubt about the veracity of the claim

of respondent No.1 that suit property belongs to him and was

fraudulent occupied by the petitioners in addition to the fact that

original title document (PTD) was not brought on record.

11. In view of the above discussion, this Civil Revision is

allowed, the impugned judgments of the learned Courts below are

set-aside and the suit of respondent No.1 is dismissed. No order as

to cost.

(ANWAAR HUSSAIN)

JUDGE

Approved for reporting

Judge

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