1994 PLP 828 (MLD)

Nawabzada Col. Muhammad Khalid Khan filed a suit before the Civil Court at Mardan and asked for the grant of a declaratory decree, that he is in possession of a certain land measuring 7 Kanals 1 Maria as a "hissadar" owner and thereby assailed the correctness of Mutation No. 4562, dated 5.7-1979. The suit was resisted by the defendants. The learned Civil Judge, who tried the suit, after settling as many as eight issues between the parties arising out of the pleadings recorded evidence pro and contra and consequently passed a declaratory decree as prayed for in favour of the plaintiff, the petitioner herein, vide his judgment recorded on 1-12 1986. Abdur Razzaq etc. the defendants being aggrieved took the matter in appeal and the learned District Judge, Mardan after hearing the parties on both sides accepted the appeal by setting aside the judgment and decree impugned and dismissed the suit vide his judgment dated 20-10-1987. Hence this revision petition lodged under section 115, C.P.C. by Nawabzada Col. Muhammad Khalid Khan the plaintiff.

2. I have heard the learned counsel on both sides. The land in suit measures 7 Kanals 1 Maria comprised in Khasra No. 1330 in Bagh-e-Irum of Mardan Tehsil. It would be pertinent to have a look into the Revenue Record right from the settlement of 1925-26 so that correct history of the case property may be traced out. The Settlement Record of 1925-26 indicates that the land is recorded as "shamilat deh" in the ownership column on the basis of the settlement of 1890 and is mentioned in the. possession of Nawab Major Muhammad Akber Khan. Similar are the entries in the next following Jamabandis of 1935-36, 1939-40, 1943-44 and 1950-51. In the Jamabandi of 1954-55 Muhammad Umar Khan etc. are shown in possession of the suit land being heirs of Nawab Muhammad Akber Khan and the same entries are mentioned in the cultivation columns of the Jamabandis of 1958-59 and 1962-63. In the cultivation column of the Jamabandi of 1966-67 the words "Maqbuza Malkan" are recorded and the land is shown-as "banjar qadim". Abdur Razaq defendant is ..mentioned in possession of this land' in the Jamabandis of 1970-71 and 1979-80. It is not shown as how the names of Muhammad Umar Khan etc. were removed from the cultivation column in the Jamabandi of 1966-67 and how the name of Abdur Razaq defendant was thereafter entered in the cultivation columns of the Jamebandis of 1970-71 and 1979-80. No lawful basis whatsoever has been shown for making these entries or that how Abdur Razaq respondent took over possession of this property which had throughout before right from the-settlement of 1925-26 remained in the possession of Nawab Muhammad Akbar Khan and on his death with A Muhammad Umar Khan etc. his heirs. This clearly indicates that the entries made in the cultivation columns of the Jamabandis of 1966-67, 1970-71 and 1979-80 are wrong. There is no evidence, whatsoever, in support of the argument that the land is the ancestral property of the respondents and they are recorded in possession thereof being "hissadars". The suit land is no doubt recorded as "shamilat deh" but there is no proof that the respondents are owners in this "shamilat" and they had ever remained in possession thereof as such. The learned counsel also stated that the respondents after entering into possession of the property made certain construction. This argument finds no support in view of the long-standing entries of the revenue papers right from the settlement of 1925-26 wherein built up property has been mentioned over a part of the land.

3. In this view of the matter I find that the plaintiff-petitioner was able to prove his case before the trial Court and rightly granted a decree for declaration as prayed for and the judgment recorded by the District Judge, as it seems, has been based on sheer misreading of evidence and the Appellate Court has thus manifestly erred in the exercise of jurisdiction. I would accordingly reverse the same on the acceptance of the revision petition with the result that the judgment and decree recorded by the trial Court shall be restored. No order as to costs. AA./1518/P Revision accepted.