SARDARAN BIBI vs MUHAMMAD ARSHAD S — 2022 CLC 1703 LAHORE-HIGH-COURT-LAHORE

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SARDARAN BIBI VS MUHAMMAD ARSHAD S.8---Civil Procedure Code (V of 1908), Order II, R.2 & O.XXIII, R.1---Punjab Land Revenue Act (XVII of 1967), Ss.42 & 52---In prior suit for declaration and permanent injunction, petitioner alleged that she was owner in possession of the suit property---Respondents contested on the ground that they were in possession of the same as their predecessor-in-interest was in possession of the suit property since 1964---Local commission submitted report that the respondents were in possession and name of the grandfather of respondents was engraved on the front wall of the property---Petitioner filed another suit (later suit) for eviction and mandatory injunction, wherein claimed that she, being the owner on the basis of revenue record, had given the suit property to the grandfather of the respondents some 30 years ago for tethering the horse/cattle; and after the demise of their grandfather, respondents continued to use the said property and denied to hand over the property back to the petitioner---Prior suit was withdrawn a month after the institution of the later suit---Respondents contested on the ground of being owner in possession and that the suit was barred by law as the same was filed during the pendency of the prior suit---Suit was concurrently dismissed---Petitioner contended that the bar contained in O.XXIII, R.1 of Civil Procedure Code was not attracted where the second suit was filed during the pendency of the first suit and the first suit was withdrawn subsequently---Validity---Both the courts below proceeded on wrong premises while dismissing petitioner's latter suit and appeal on the basis that the same was barred in terms of O.II, R.2 of Civil Procedure Code---Possession was claimed on the basis of the revenue record reflecting the petitioner to be owner of the suit property---Respondents merely denied the ownership of the petitioner through verbal assertion without proving their possession on the basis of some title---Respondents admitted that name of their grandfather/father was not reflected anywhere in the revenue record, rather petitioner's name was reflected therein---Respondents' witnesses did not deny in cross-examination that the petitioner was owner of the land---Respondents failed to dispel the presumption of correctness of revenue entry in favour of petitioner through preponderance of evidence which was sufficient to hold that petitioner had proved her entitlement to the possession---Petitioner could not be non-suited on the ground that complete revenue record for the last 30 years had not been brought on record by the petitioner and only a copy of Record of Rights for the years 2001-2002 was submitted, without appreciating the presumption of truth attached to the record produced before it---Petitioners claimed a right on basis of adverse possession which was not permissible---Revision petition was allowed accordingly.

SARDARAN BIBI vs MUHAMMAD ARSHAD S — 2022 CLC 1703 LAHORE-HIGH-COURT-LAHORE

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