2016 PLP 108 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners/defendants have challenged the judgment and decree dated 20.02.2009 passed by the learned Additional District Judge, Lodhran, whereby the appeal filed by them was dismissed, and the judgment and decree dated 28.04.2007 passed by the learned Civil Judge lst Class, Lodhran, whereby the suit for declaration filed by the respondents/plaintiffs was decreed.

2. Briefly, the facts as leading to this civil revision are that on 08.09.2000 the respondents/plaintiffs filed a suit for declaration wherein they challenged the attestation of mutation No.162 attested on 01.06.1982. The written statement was filed and suit was contested. Out of the divergent pleadings of the parties learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 28.04.2007 suit was decreed by the learned trial Court. Feeling aggrieved thereby, an appeal was preferred before the learned first appellate Court, which was dismissed vide judgment and decree dated 20.02.2009. Hence, this civil revision.

3. Learned counsel for the petitioners/defendants argues that the mutation was attested on the basis of a decree granted by the civil Court and if the decree was not acceptable to the respondents/plaintiffs, they were required to file an application under section 12(2) of the C.P.C.; that even the application under section 12(2) of the C.P.C. was moved, which was dismissed for non-prosecution and the application for restoration of the same was filed, which was also subsequently withdrawn on the ground that the matter has been settled between the parties; that the suit has been filed with a long delay, therefore, the same was not competent. Further argues that at one hand learned trial Court has given the findings that previous decree on the basis of which impugned mutation has been sanctioned was based on fraud, on the other hand recorded the findings that second petition under section 12(2) of the C.P.C. does not lie, therefore, suit has been declared as competent. Argues that only declaration has been sought without prayer of possession and petitioners are in possession of the suit land, therefore, the suit was defective one. Further that the learned first appellate Court has not recorded the findings, which were required under Order XX, Rule 4 as well as Order XLI, Rule 31 of the C.P.C. Learned counsel for the petitioners has relied upon "2003 SCMR 1050 (Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others), 1982 SCMR 494 (Mst. Safia Bibi v. Mst. Aisha Bibi), 1989 MLD 451 (Bashir Ahmad and others v. Imam Din and others), 1991 CLC 553 (Iqbal v. Mst. Jainan Bibi), 2000 YLR 1456 (Muhammad Nawaz Shah v. Imam Bakhsh and 4 others), 2004 YLR 1535 (Mst. Feroza v. Anjuman-e-Ittehand-e-Baluchan and others), 1992 CLC 505 (Abdul Mannan and others v. Sikandar Khan), 1982 SCMR 816 (Ali Muhammad v. Muhammad Hayat and others) and 2012 CLC 411 (Malik Muhammad Niaz v. Muhammad Ayub and others)".

4. On the other hand, learned counsel for the respondents/plaintiffs argues that the suit was for permanent injunction on the basis of which the impugned mutation has been got sanctioned showing that it is a declaratory decree; that they have not challenged the decree passed in previous suit, therefore, their present suit for declaration, whereby attestation of mutation has been challenged, was competently filed and further that the plaintiffs and defendants are brothers and sisters; that the property was owned by their father and after his death they are joint owner and if the impugned mutation is declared illegal and its effect is removed from the revenue record, the plaintiffs and defendants will become joint owner of suit property, therefore, suit was competent without prayer of possession of suit land. Further argues that when the entries of suit land through wrong mutation has been changed, no bar of limitation against the correction of that entries is available. Prays for dismissal of revision petition stating that concurrent findings are against the petitioners/defendants. Reliance has been placed upon "2014 SCMR 161 (Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhalaq Ahmad), 2014 MLD 1192 (Bashir Ahmad v. District Officer (Revenue), Narowal through Province of Punjab and 9 others) and PLJ 2015 SC(AJ&K) 56 (Abdul Ghafoor v. Kiran Mukhtar Awan and another)".

5. I have heard the learned counsel for the parties at full length and also gone through the record minutely as well as the concurrent findings recorded by both the learned courts below and the case law referred supra.

6. No doubt a suit for permanent injunction was filed by the petitioners/defendants of present suit against their real father and through the judgment and decree dated 31.01.1982 Ex.P-2, Ex.P-3 respectively were passed in a suit for permanent injunction on the basis of statement of defendant and it is also admitted position that the impugned mutation No.162 was sanctioned showing the said decree as a declaratory decree and land measuring 425-kanals 11-marlas was transferred from the name of judgment debtor i.e. Faiz Muhammad Khan in favour of plaintiffs of that decree i.e. Muhammad Saeed Khan and Muhammad Rasheed Khan, that decree was not for transfer of land, rather the decree was for permanent injunction, whereas the land was transferred in the name of decree holders on the basis of said decree, which was absolutely wrong, therefore, the mutation was fraudulent and result of connivance between the revenue officials as well as the decree holders, who are the beneficiary of that decree. I am clear in my mind and has a considered view that if any entry is changed in Jamabandi through an illegal way, the last correct entry will be presumed to remain in the field unless change through through a legal and valid entry. Through the impugned mutation, which is nullity in the eye of law, entries in Jamabandi have been changed and on the basis of a decree for permanent injunction land measuring 425-kanals 11-marlas has been transferred from the name of judgment debtor against whom only a decree for permanent injunction was passed, therefore, the revenue officials were not competent to transfer the land from his name in favour of decree holders. The case law referred to by the learned counsel for the petitioners/defendants is not helpful for the petitioners, as it is not applicable to the facts of this case. I am also clear in my mind that if a compromise is recorded in a suit beyond the subject matter of the suit, the part of compromise which is beyond the subject matter of suit is not executable, therefore, even if any compromise arrived at between the parties to the suit for permanent injunction was recorded, was not liable to be implemented in the revenue record on the basis of a decree for permanent injunction.

7. Present suit for declaration was rightly filed, as after cancellation of mutation the land will revert to the original owner, who was the father of the parties and as such they will become joint owners, therefore, there was no need to ask for possession of the suit land.

8. So far as the limitation is concerned, as discussed above wrong entry was made in the revenue record and wrong mutation has been sanctioned which is absolutely illegal and without jurisdiction, therefore, the limitation cannot come in the way of the respondents/plaintiffs of present suit.

9. In this view of the matter, when there are concurrent findings of fact recorded by both the learned courts below, therefore, on the basis of case law referred to by the learned counsel for the respondents-plaintiffs this Court cannot interfere into the concurrent findings of two courts below. No case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C. has been made out. Resultantly, this civil revision having no substance stands dismissed. ZC/M-334/L Revision dismissed.