P L D 2006 Peshawar 53 (PLP)

TALAAT QAYUM QURESHI, J.

The respondents/defendants purchased land measuring 40 Kanals 9 Marlas fully described in the heading of the plaint. The petitioners/plaintiffs pre-empted the transaction by filing Suit No.308/1 on 20-11-2002 in the Court of Senior Civil Judge Charsadda against the defendants/respondents. The vendees/respondents/defendants filed an application under Order VII, Rule 11, C,P.C. for rejection of plaint on the ground that the suit of the petitioners/plaintiffs is barred by time as the alleged sale Mutation No.1477 had been attested on 8-7-2002 and not on 22-7-2002 and the present suit had been filed on 20-11-2002, which after hot contest between the parties was accepted and the plaint was rejected by the learned trial Court vide judgment and decree dated 25-5-2004. Feeling aggrieved the petitioners/plaintiffs filed appeal in the Court of learned District Judge, Charasadda, who vide her judgment/decree dated 19-5-2005 dismissed the same. The petitioners/plaintiffs have now filed the revision petition in hand.

2. Mr. Syed Muhammad Attique Shah, the learned counsel for the petitioners submitted that the suit Mutation No.1477 had been attested on 22-7-2002 as is clear from Exh.P.W.1/9, therefore, the learned Courts below have wrongly held that the suit is barred by time as the same has been filed on 20-11-2002.

3. It was also argued that the cutting on Exh.P.W.1/9 was done by the officials of Revenue Department and the petitioners could not be penalized for the act of the functionaries of the Government. Reliance in this regard was placed on the following judgments:

(i) Mst. Kishwar Naseem v. Hazara Hill Tract and others PLD 2005 Pesh. 136. (ii) State Life Insurance Corporation of Pakistan through Chairman and another v. D.G. Military Lands and Cantonments, Rawalpindi and 4 others 2005 SCMR 177 (iii) Abdul Latif Qureshi v. Controller of Examinations PLD 2004 Lahore 3. ? (iv) Muhammad Ilyas v. Munshi Khan 2003 CLC 1815; and (v) Abdur Rehman Shaukat v. Sardar Muhammad Akram Javed District Officer (Revenue), Kasur PLD 2004 Lahore 815.

4. It was also argued that "Part Patwar" would be given preference over "Part Sarkar" and the suit was well within time, but the learned courts below have wrongly held the suit as barred by limitation. 4-A. On the other hand Mr.Maqsoodullah Khan, Mr. Mir Adam Khan and Mr. Suhail Akhtar Advocates representing the respondents argued that the disputed Mutation No.1477 had been attested on 8-7-2002 and suit was filed after lapse of 136 days from the date of attestation of mutation, which is badly barred by time under section 31(b) of the N.-W.F.P. Pre-emption Act, 1987, therefore, the Courts below have rightly rejected the plaint being barred by time. The concurrent findings of the Courts below need no interference by this Court in its revisional jurisdiction and the revision petition being without any substance may be dismissed. It was also argued that "Part Sarkar" would be given preference over "Part Patwar" as not only the, entries made by Patwari Halqa but verification made by Girdawar Circle and the order of the Revenue Officer is made on "Part Sarkar" and "Part Patwar" is the counterfoil of the same.

5. I have heard the learned counsel for the parties and perused the record.

6. The questions that require consideration in this case are:-- (1) Whether "Part Sarkar" would be given preference over "Part Patwar"? (2) Whether the suit filed by the petitioners/plaintiffs was within time?

7. So far as answer to the first question is concerned, the reply of the same is that Patwari keeps up the registration of mutations in which he records all acquisition of rights of the kinds reported to him or to which he has reasons to believe to have taken place, except those relating to land revenue assignment and undisputed mutations of tenant-at-will as soon as they are acted on.

8. The form of "Register Dakhilkharij" with instructions as to the entries to be made has been prescribed in Chapter 7(7.3) of the Land Records Manual. According to section 7.4 the mutation Register consists of a counterfoil and foil. The former is the Patwari's copy of the Register, the latter is removed after orders have been passed and sent to the Tehsil to be filed with the Jamabandi, now known as records of rights/periodical records. The Patwari makes his entries in Columns Nos.1 to 13 of the counterfoil and then copies these entries in the foil. After writing his report in Column No.14 of the foil, he also briefly states the facts explaining the change, the names of persons on whose information the entry is based, and requires the Numberdar concerned to attest the entry by seal or his signature. The Field Qanungo also attests by personal examination of the papers concerned, every entry made by the Patwari in the counterfoil and foil noting briefly that he has done so with date below the report in the latter i.e. "foil". He must sign the entries in both counterfoil and foil. The Revenue Officer after comparing the entries in the counterfoil and foil writes his order on the latter (i.e. "Foil"). He makes sure that all entries in the mutation sheets as well as orders thereon are neatly and legibly written. The order should also show whether the parties interested were all present, or if anyone was absent, the way in his evidence was obtained, or, if it was not obtained what opportunity was given to him to be present. Also who identified the parties present, and the place at which, and the date on which, it was written. No detailed record of the statements of the parties and witnesses need to be made but the order must state briefly the persons by the Revenue Officer, the fact to which they deposed and the grounds of order.

9. As per section 376 of the Punjab Land Administration and Management Manual the Form of mutation is kept in duplicate. One copy being retained by Patwari, which is commonly known as "Part Patwar" and the other sent to Tehsil to be attached to the Jamanbandi as an authority for the new entries which it contains commonly known as "Part Sarkar". The Patwari's report attesting to it by Field Qanungo or the order of Revenue Officer are written only in the copy of the Register to A be filed with Jamabandi i.e. "Part Sarkar". It is enough in the Patwari's copy (Part Patwar) to show how the case was disposed by entering the briefest possible extract of the order and this abstract is written by the Revenue Officer with his own hand.

10. Since the Patwari's report, the attestation of it by the Field Qanungo and the order of the Revenue Officer are available only in the copy of the Register to be filed with the Jamabandi i.e. "Part Sarkar", therefore, the said document (Part Sarkar) is to be given preference over "Part Patwar".

11. So far as the second question is concerned, perusal of the record shows that Mutation No.1477 was attested on 8-7-2002, whereas the present suit was filed by the petitioners/plaintiffs on 20-11-2002. The respondents/defendants not only in their written statement raised preliminary objections that the suit filed by the petitioners/plaintiffs was barred by time, but it was on 26-4-2003 that they filed an application under Order VII, Rule 11, C.P.C. for rejection of their plaint on the B ground that their suit was barred by the law of limitation. The learned trial Court in order to ascertain the facts as to on which date Mutation No.1477 was attested, summoned Patwari Halqa, Girdawar and the then Tehsildar, who were examined as C.W. 1 to C.W.3 respectively. All of them stated that the suit mutation was attested on 8-7-2002 and not on 22-7-2002. The learned counsel for the petitioners laid much stress on Exh.CW.1/9 and stated that the said mutation had been attested on 22-7-2002. Exh.C.W.1/9 is copy of "Part Patwar" ' whereas the Patwari Halga namely Abdullah Jan was examined as C.W.1., who placed on record copy of Mutation No.1477 Exh.C.W.1/1, which is certified copy of "Part Sarkar". In cross-examination he admitted that the said mutation had been attested during his tenure on 8-7-2002 at Khanmai in "Jalsa Aam" and he was ready to give statement on Oath that the said mutation was attested on 8-7-2002. He further' admitted that on Exh.C.W.1/9 date 22-7-2002 was written by him inadvertently, which was crossed/cut by the Tehsildar. Syed Sherin Shah Office Qanungo Charsadda was examined as P.W.2. He also produced original Mutation No.1477, copy of which was placed on record as Exh.C.W.2/1 and B stated that the same was attested on 8-7-2002 by the Revenue Officer/Tehsildar. He also stated that the mutation (Part Sarkar)" does not contain any entry of 22-7-2002 in Columns Nos.5 and

6. Similarly Haji Momin Khan, who was then Tehsildar had attested the mutation was examined as C.W.3, who categorically stated that the word "" and date 22-7-2002 were neither written nor signed by him. He however, admitted his signature on Exh.C.W.1/1 (Part Sarkar) to be correct. The Courts below after properly appreciating the -evidence available on record have rightly come to the conclusion that Mutation No.1477 was attested on 8-7-2002 and not on 22-7-2002 and the suit filed by the petitioners/plaintiffs was barred by time. I have not been able to find out any illegality or material irregularity or any misreading/non-reading of evidence or any jurisdictional error or defect in the impugned concurrent findings of the Courts below. Resultantly, the revision petition in hand is dismissed along with C.M. No.860 of 2005 with no order as to costs. H.B.T./20/P???????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.