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Civil Appeal No. 31‑P of 1979, decided on 20th May, 1985.

(On appeal from the judgment of the Peshawar High Court dated 23‑5‑1978 in Civil Revision 326 of 1974).

‑‑‑Art. 15(3)‑‑Civil Procedure Code (V of 1908), S. 115‑‑Leave to appeal granted to consider question whether in exercise of jurisdiction under S. 115, Civil Procedure Code, High Court had properly interfered with concurrent findings of facts by Courts below.

‑‑‑S. 115‑Revisional jurisdiction‑‑Finding of fact‑‑High Court, in exercise of revisional jurisdiction, held, was not justified in reversing findings of fact concurrently arrived at by Courts below.

‑‑‑S. 115‑‑Revision‑‑Suit for declaration and possession based on mutation entries dismissed by trial Court and first appellate Court‑‑High Court, in revisional jurisdiction, decreeing suit by setting at naught concurrent finding of fact arrived at by Courts below‑‑Order of High Court, hue, not sustainable and thus set aside.

S. Safdar Hussain, Advocate‑on‑Record for Appellants.

Sardar Akhtar Ali Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Date of hearing: 20th May, 1985.

The dispute in this case relates to agricultural land measuring about 241 Kanals and 16 Marlas comprised in Khasras Nos. 79, 81 and 82 situate in village Malekhi, Tehsil and District D.I. Khan. The case of Qadir Bakhsh, respondent No. 1, in the trial court was that the said land had been purchased by his predecessor‑in‑interest, namely, Havat from Sarfraz Khan, Sardar Khan, Allah Dad Khan, Haji Khan and Nawaz Khan by means of Mutation No. 375 attested on 20th December, 1903. According to him ever since the said purchase Hayat and after his death his successors including himself were in continuous possession of the suit land. Respondent Qadir Bakhsh brought the suit on 4th February, 1971, alleging that he had discovered that in spite of the aforesaid sale in favour of his predecessor, the revenue record showed the ownership of the land in the names of Muhammad Bakhsh and Ilahi Bakhsh sons of Sarfraz Khan co‑vendor (appellants). He, therefore, prayed for declaration that the said entries in the revenue record are ineffective and void, and further prayed for a permanent injunction restraining the appellants from claiming ownership of the suit land and from interfering with the possession of the land by him and other successors of Hayat. An alternative prayer for possession of the land in suit was also made. According to the pleadings of respondent No. 1 the cause of action for the suit had accrued to him on account of an attempt made by the appellants to sell the produce of the land to one Ghulam Siddique although they allegedly had no title therein.

2. On the pleadings of the parties the trial Court framed 10 issues including the following two issues:

‑Is the suit within time

‑Are the plaintiff and defendants 29 to 33 in possession the suit land"

It may be stated that defendants 29 to 33 were pro forma defendants who were the successors‑in‑interest of Hayat alongwith the plaintiff.

3. After hearing the evidence of the parties the trial Court held on issue No. 7 that Hayat or any of his successors including respondent No. 1 was not proved to have been in possession of the suit land at any time. In this connection the conclusion of the trial Court was in the following words:

"The Mutation No. 375 attested on 20‑12‑1903 was apparently not incorporated in the subsequent revenue record for a period spreading over the span of 70 years. There is no more independent evidence to show that Hayat and after his death his successor‑in‑interest including the plaintiff and the pro forma defendants had ever remained in actual possession of the suit land. The fact that sale Mutation No. 375 did not find any place in the page (4) revenue record and that Hayat and after his death his successors‑in‑interest had never remained in possession of the suit land as owners leads to only once conclusion that Mutation No. 375 was not acted upon."

The finding of the trial Court on issue No. 1 was that the suit was based on the mutation entry, dated 20th December, 1903 and the suit for declaration and for possessory relief was, therefore, barred by limitation under Article 120 and 142 or 144 of the Limitation Act. The suit was accordingly dismissed by the Senior Civil Judge, D.I. Khan, on 16th November, 1973.

4. Respondent Qadir Bakhsh sought to challenge the decree of dismissal of his suit before the District Judge, D.I. Khan but his appeal was dismissed, vide judgment, dated 23rd July, 1974.

5. Qadir Bakhsh then came up before the Peshawar High Court in revision which was accepted by a learned Single Judge of that Court, by his judgment, dated 23rd May, 1978, as a result of which the suit of the respondents was decreed as prayed. According to the view that prevailed with the learned Judge in the High Court the suit was within time as in his opinion the starting point for the limitation was relatable to the act of the appellants in the year 1970, whereby they asserted their ownership rights by selling the produce of the land to Ghulam Siddique. Reference was made by the learned Judge to attestation of partition mutation on 11th June, 1941, in favour of the appellants, but this fact was rejected as a fact giving rise to a cause of action to the said respondent for the reason that he was not a party to the proceedings of this mutation attestation.

6. Being aggrieved by the judgment of the High Court, the appellants filed a petition in this Court and leave was granted to consider the question whether in the exercise of his jurisdiction under section 115 of the C. P. C., the learned Judge in the High Court had properly interfered with the concurrent findings of the two Courts below.

7. It has been urged in support of this appeal that in holding that the suit of respondent No. 1 was within time, the learned Single Judge in effect interfered with the concurrent findings of the two Courts below that respondent No. 1 or his predecessor‑in‑interest was never in possession of the suit land and, therefore, the terminus a quo for filing the suit for declaration and consequential relief was relatable to the date of the mutation entry, dated 20th December, 1903.

8. After hearing the learned counsel for the parties we find force in the contention advanced in support of this appeal that the learned judge in the High Court was not justified in reversing the findings of fact concurrently arrived at by the Courts below, in the exercise of his revisional jurisdiction in the circumstances of this case. In this connection it will be pertinent to refer to the judgment of the learned District Judge, in which he held that out of the five co‑vendors Haji Khan was admittedly not present and his name was missing in the order of the Revenue Officer attesting the mutation, and further that Nawaz Khan was admittedly a minor, which means his share was unaffected by the mutation. On this basis the learned District Judge held that the mutation was wrongly attested. Reference was also made to Jamabandis starting from 1901‑1902 upto 1961‑1962, on which reliance was made as these documents showed the name of vendee in the cultivation column and after his death the names of his heirs were shown in the same column. These documents were rejected for the reason that the land was shown as 'banjar' right from 1901‑1902 to 1961‑1962. On this basis the learned District Judge held that the entries in the revenue record do not support the case of respondent No. 1. Learned District Judge also relied on the evidence of the present appellants that in the partition suit filed between the co‑sharers, the suit land was given to Sarfraz Khan under partition Mutation No. 1986, dated 11th June, 1941. Eversince then the appellants enjoyed the usufruct. The argument that respondent No. 1 was not party to the proceedings of the partition mutation and, therefore, was not expected to be aware of the same, was also rejected by the learned District Judge on the ground that on partition the suit land must have been allotted to Sarfraz Khan on the spot, meaning thereby that if respondent No. 1 or any of the successors of Hayat were in possession of the land they would have come to know about it. No other evidence was produced by respondent No. 1 of any tiller through whom he allegedly cultivated the land.

9. The perusal of the impugned judgment clearly shows that the learned Single Judge did not advert to the said findings of fact recorded by the Courts below and indeed did not up set these findings, particularly that the vendee or his successors had never remained in possession of the land. Unless these findings are reversed by a competent forum, the suit for possession of land was palpably barred by limitation. We find no reason in the impugned judgment disagreeing with these findings recorded by the Courts below. There is only an assumption that the possession and enjoyment of land by the heirs of Hayat were unaffected by the partition proceedings. The Court sitting in the revisional jurisdiction could not base its decision on such assumption, setting at naught the concurrent findings of fact and hold that the question of limitation was wrongly decided by the Courts below. The judgment of the learned Single Judge is accordingly unsustainable. In the result this appeal is allowed with costs, the judgment passed by the learned High Court is set aside, and that of the learned District Judge is restored.

M. Y. H. Appeal allowed.

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