2012 PLP 1217 (SCMR)

MIAN SAQIB NISAR, J.

This appeal, with leave of the Court, arises out of a civil suit initiated by the appellant on 24-8-1986 claiming that the suit properties measuring 17 kanals, 1 marla bearing Khasra No.7726 and 3 kanals, 16 marlas bearing Khasra No.7727 were allotted to their (plaintiffs) mother, Shafiq- un-Nisa vide parchi taqseem dated 10-6-1960, which culminated into RL-II dated 9-12-1961 and the allotment/transfer of the same land in favour of Mst. Raj Begum by the Rehabilitation Department in 1981 and the exchange by her of the said land vide mutation No.559 dated 28-7-1982 in favour of the other respondents (side) is illegal and void. The suit was contested by the respondents, who took the main pleas that the suit property was never allotted to the plaintiffs' mother, rather on account of the calculation of her units both rural and urban, she was required to surrender the land and was entitled to re-purchase the same. This was, accordingly, done by her and on the re purchase of the land by Mst. Shafiq-un-Nisa, the suit land was not a part thereof; as this was an available property, resultantly after repeal of the evacuee laws, it was transferred in favour of Mst. Raj Begum in the year 1981 and the same thereafter was transferred to the said respondents by the afore-named through exchange. On account of the divergent stance of the parties in their pleadings, issues were framed, on which evidence was accordingly led and the learned trial Court vide judgment and decree dated 15-9-1991 dismissed the suit, holding that the plaintiffs have failed to prove to be the owners in possession of the suit land and that the allotment/transfer in favour of Mst. Raj Begum firstly, and thereafter exchange by her in favour of the other defendants/ respondents was neither illegal nor void as alleged by the plaintiffs. In this respect, after evaluating the evidence on the record reasons have been assigned. Aggrieved of the above, the appellant filed an appeal, which was allowed on 19-5-1992 and by setting aside the judgment and decree of the Trial Court, the suit was decreed. This judgment and decree of the Appellate Court having been challenged by the respondents through revision before the learned High Court was accepted vide impugned judgment dated 9-10-2002 and while setting aside the Appellate Court's verdict, the decision of the learned trial Court dismissing the suit of the appellant was restored. As mentioned above, leave to appeal has been granted in this case on the questions, if the land already alloted to Mst. Shafiq-un-Nisa through parchi taqseem dated 10-6-1960 and the RL-II dated 9-12-1961 could be alloted to Mst. Raj Begum without first cancelling the allotment from her name; if the description of the suit property mentioned in RL-II would have preference over the said mutation and vice versa; if the property in the year 1982 was available for allotment in favour of Mst. Raj Begum by the notified officer as being a pending matter; if the promulgation of Martial Law Regulation 84 enforced on 28-12-1960 has any effect upon the allotment in question with reference to the time of allotment.

2. Learned counsel for the appellant has argued that learned trial Court as also learned Revisional Court have misread the evidence on the record, particularly parchi taqseem and the RL-II, as in both these documents, the suit land (khasra numbers) are shown to be allotted and thereafter confirmed in favour of Mst. Shafiq-un-Nisa. She subsequently surrendered certain land on account of her access units, but only that (land) khasra numbers which are mentioned in the order dated 18-4-1973 and not the suit land which was never surrendered, rather was retained by the lady. It is only thereafter through the order dated 18-4-1973 passed by Additional Settlement Commissioner(Land) Cambelpur that the propriety rights were conferred only in respect of the surrendered land, and this was so limited to such land because she already had retained the land, which was alloted and confirmed in her favour vide parchi taqseem and the RL-II dated 9-12-1961. The order dated 18-4-1973 (Exh.D-4) has been grossly misinterpreted by the learned two Courts. It is also argued that after the issuance of RL-II in favour of the appellant the suit property had gone out of the compensation pool and was not available for its transfer in favour of respondent Mst. Raj Begum; as Mst. Shafiq-un-Nisa had become an exclusive and absolute owner of the property, therefore any allotment in Mst. Raj Begum's favour in the year 1981 and subsequent exchange by her in favour of the other respondents are all void ab initio transactions. It is also argued that the learned Courts have rendered decisions against the appellant on the ground that her attorney namely Amir Afzal Khan had challenged the transaction of exchange by Mst. Raj Begum in favour of other respondents by filing a suit for pre emption, which means that the transaction was accepted by the appellant's predecessor; therefore as the present suit was filed much after loosing the pre-emption case, therefore appellant is estopped to file the suit. It is explained that the factual position is, that the attorney had challenged the exchange in the pre emption suit independently in his own right, whereas he was appointed as an attorney by Mst. Shafiq-un-Nisa subsequently, thus the aforesaid pre-emption suit would have no effect upon the present claim of the appellant.

3. Conversely, learned counsel for the respondents has stated that parchi taqseem, which is the foundational document of the appellant, has not been proved in accordance with law and this has been so declared by the learned Trial Court while giving its finding in respect of the document. It has been clearly mentioned that there are a lot of cuttings and interpolation on parchi taqseem, therefore no sanctity can be attached thereto. This part of the judgment even has not been reversed by the learned Appellate Court. It is also argued that RL-II had to be founded on parchi taqseem and should be inconsonance thereto, therefore when the foundational document is not proved to be beyond doubt, no credence can be given to RL-II even. Moreover, the appellant claims to have acquired the title to the suit land in the year 1960-61, but this allotment/transfer was not given effect to in the revenue record, rather the property, in fact, was shown to have allotted to one Intizar Mehdi, whereafter on the repeal of the evacuee laws it vested with the Central Government and being accordingly, available for the disposal in terms of the relevant scheme was allotted/transferred to Mst. Raj Begum from whom other respondents had acquired the title on the basis of a valid exchange. Therefore the suit brought by the appellant in the year 1986 to challenge the said transaction and to claim title on the basis of RL-II, which otherwise was not proved in accordance with law at the belated stage would not entitle the appellant to any relief. It is also argued that the entire land, which was allotted to the appellant on account of Martial Law Regulation 84 enforced on 28-12-1960 stood cancelled and the appellant was given an option to purchase such land, When she purchased the same, the suit property was not a part of it, as is/was envisaged by order dated 18-4-1973 passed by Additional Commissioner (Land) Cambelpur.

4. Heard. We are not convinced, if parchi taqseem has been proved by the appellant in accordance with law. This was the foundational document, resultantly any RL-II founded upon this parchi taqseem would have no legal sanctity. We are also of the view that on account of Martial Law Regulation 84, which came into force on 28-12-1960, the entire land of Mst. Shafiq-un -Nisa urban as well as rural stood surrendered, with the right that she could purchase the land so done away with. In the order passed by the learned Additional Commissioner dated 18-4-1973, it is conspicuously and unequivocally mentioned as to what property is being finally transferred in favour of Mst. Shafiq-un Nisa pursuant to her claim and surrender, We are also not convinced, if the two disputed khasra numbers were not part of the surrendered land as has been argued by the appellant's counsel and thus were retained by Mst. Shafiq-un-Nisa. Besides, the RL-II was not given effect to in the revenue record throughout till the time, when belatedly the son of Mst. Shafiq-un-Nisa applied for the correction of the record, however this application has not been produced and proved by the appellant in evidence, but from the report (Exh.D-12) of the concerned official thereon it is clear that the disputed khasra numbers were also the part of the land surrendered by Mst. Shafiq-un-Nisa. And through the final order dated 18-4-1973 passed by learned Additional Commissioner, these khasra numbers were not allotted to her as these are conspicuously missing in the order, meaning thereby that for all intents and purposes, it shall be deemed that these two khasra numbers were never transferred in favour of the appellant's mother and RL-II would have no precedence over the final allotment order dated 18-4-1973, rather it would be other way around, when considered in the light of the Martial Law Regulation

84. Moreover, we are also not persuaded to hold there being any ambiguity in the description of the property either in the RL-II or in the order dated 18-4-1973 as argued by the appellant's counsel. The appellant throughout being aware of the order dated 18-4-1973 had never ever claimed to be the owner of the two khasra numbers though this order was given effect in the revenue record, but she never sought the correction of the record on the basis of her RL-II and when belatedly moved the correction, was declined to her son and in the meantime the property stood transferred in favour of Mst. Raj Begum, even that event occurred in the year 1981 yet the suit was filed in the year 1986 after the exchange in favour of the other respondents made in 1982. All these factors have been duly considered by the trial Court, as also by the learned High Court, whereas those were ignored by the learned Appellate Court, thus its judgment had been rightly set aside by the learned High Court.

5. For what has been stated above, we do not find any merit in this appeal, which is accordingly dismissed. S.A.K./M-34/SC Appeal dismissed.