2006 PLP 918 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioner/plaintiff impugns the appellate decree dated 22-5-1978 whereby the decree of the learned trial Court dated 30-3-1976 was set aside the petitioner's declaratory suit was dismissed.

2. This long drawn out litigation commenced as far back as 1967. Despite the prolonged period spanning almost four decades during which the parties have been litigating the facts of the case are simple.

3. The petitioner purchased the suit property measuring 34 Kanals, 6 Marlas from the respondent through mutations being Mutation No.181 (Exh.P.1) dated 24-9-1961 in respect of 13 Kanals, 7 Marlas and Mutation No.239 (Exh.P.2) dated 16-8-1965 in respect of 20 Kanals and 19 Marlas. The aforesaid mutations, however, were reviewed and cancelled by the Collector vide order dated 11-7-1966 in respect of Exh.P.1 and order dated 13-8-1966 in respect of Exh.P.2. The basis of the cancellation of the two mutations given by the Collector was that the same violated paragraph 25 of the Marital Law Regulation, 64 (hereinafter referred to as MLR 64).

4. At this juncture it is relevant to note that the petitioner had earlier purchased land measuring 25, Kanals, 5 Marlas from Mst. Rabia vide Mutation No.172 (Exh.D.1) dated 11-10-1959. This mutation was set aside on the ground that it was violative -of MLR

64. As a consequence, it was contended by the respondent/defendant that the petitioner was not an owner in the estate when the two mutations (Exh.P.1 and Exh.P.2) were sanctioned in his favour. Subsequently, Mutation No.172 was restored by the Commissioner.

5. Based on the above facts the issue in this case is clear. If Mutation No.172 (Exh.D.1) was not violative of para 25 of MLR 64, then the petitioner would be an owner in the estate and the sales made in his favour vide Mutation Nos.181 (Exh.P.1) and 239 (Exh.P.2) would be unassailable. On the other hand, if Mutation No.172 was void on account of infringement of MLR 64, the petitioner would be a non-owner in the estate and as a consequence the sale mutations in his favour Exh.P. 1 and Exh.P.2 would be invalid.

6. This controversy can easily be decided on the basis of available evidence in the light of paragraph 25 of MLR

64. Mst. Rabia, as allottee, was owner of 125 Kanals, 5 Marlas. Vide Mutation No.172 (Exh.D.1), she sold 25 Kanals, 5 Marlas to the petitioner. This sale as such did not violate paragraph 25 of MLR 64 because Mst. Rabia, even after the said sale, retained the subsistence holding of 100 Kanals. The fact that Mst. Rabia originally owned 125 Kanals, 5 Marlas has been confirmed by the respondent's own witness, namely, Pehlwan, who appeared as D.W.2.

7. Unfortunately the learned appellate Court did not advert to the above circumstances established on the record. It proceeded on the premises that the order of the Commissioner restoring Mutation No.172 (Exh.D.1) was a result of a concession made by Mst. Rabia and was, therefore, collusive. It should be noted that whatever Mst. Rabia stated was of little consequence because the sale made by her in favour of the petitioner through Exh. D.1 did not reduce her holding to an area less than a subsistence holding. Thus Mutation No.172 (Exh.D.1) was fully effective and could not have been held to be void under MLR

64. From this it follows that the petitioner being an owner in the estate, the two disputed sales in his favour vide Exh.P.1 and Exh.P.2 were also valid.

8. In view of the foregoing discussion, I find that the learned appellate Court fell into error. The appellate decree dated 22-5-1978, therefore, is not legally sustainable. The same is set aside. As a consequence to the decree of the learned trial Court dated 30-3-1976 is affirmed.

9. The petitioner shall also be entitled to his costs throughout. F.B./S-515/L?????????????????????????? ??????????????????????????????????????????????????????????? Petition accepted.