1989 PLP 2084 (CLC)

7. While the learned counsel for the petitioner in reply has argued that although respondent No.l has pleaded lease‑ deed yet the same has not been produced. This falsified his defence plea. It is added that there is no merit in the plea that land is a part of joint khata, therefore, the possession could not be delivered. It is explained that respondent No.l is taking contradictory and destructive pleas. He had agreed to lease out the land, as per his own showing, it clearly implies that land is capable of delivery of possession. 8. 1 have given my anxious considerations to the arguments of the learned counsel for the petitioner and gone through the paper book. The petitioner in order to prove the issue of dispossession has examined AW1 Zulfiqar Ali, AW2 Ghulam Muhammad, AW3 Muhammad Siddique and petitioner himself appeared as AW

4. The petitioner also produced sale‑decd as Exh.A.l., khasra girdawari (Revenue) as Khasra girdawan Exh.A.2 and canal khasra girdawari as ExhA.3 (CSC! ). On the other hand, respondents examined Noor Muhammad as RWl, Ghulam Murtaza RW2 and respondent No.3 appeared as RW

3. They also produced copy of khasra girdawari for the 1985‑86 as R.1, copy of the judgment and decree dated 22‑7‑1985 in the first suit as RW2 and RW3 respectively, copy of Register Haqdaran as RW4 and copy of khasra girdawari for the year 1984‑85 as P.W.5. The trial Court after detailed discussion proceeded to accept the application while the lower appellate Court had referred to the evidence of the both sides. Thereafter it straightaway proceeded to accept the appeal on a faulty, illegal and baseless presumptions. The operative portion of its judgment reads as under:‑‑ "

16. The admitted position is that wheat crop was standing in the land at the time of the alleged sale. The wheat crop had, therefore, been sown by Abdul Hamid.Ghulam Murtaza RW‑2 is son of brother of Hashmat Ali respondent. He has deposed in his statement that actually the physical possession had never been taken over by Hashmat Ali. Noor Muhammad RW‑3 has also deposed to the same effect. Abdul Hamid has himself deposed that the possession of the land had never been given. Since what crop had been sown by Abdul Hamid. Therefore the entries in Khasra Girdawari in favour of Hashmat Ali cannot be given any weight because the khasra girdawari has to contain entries in favour of the Person who has cultivated the crop." The Addl. District Judge after recording this finding proceeded to hold that there is nothing wrong with the statements of RWl, RW2 and RW3.

9. I have gone through these statements with the assistance of the learned counsel for the parties. RWl, Noor Muhammad has stated in his examination‑in chief that he did not hear anything as to the sale and delivery of possession by Abdul Hamid to anyone. He further deposed that the petitioner has not cultivated crop in the land and concluded his statement that, however, there was some negotiation between the parties about the suit land. In the cross examination he states that he did not accompany the vendor at the time of registration of sale‑deed and he did not hear anything as to the deal. He has also heard about the lease from Muhammad Ali, respondent No.3 a brother of respondent No.l. His statement as per his own showing is all hearsay and does not inspire any confidence. He, however, admitted that Muhammad Ali has filed a suit for pre‑emption: Then comes RW2, who admitted in the cross‑examination that he is occupying the land of respondent No.l and has not paid any rent. He admitted that he is m possession as licensee and has not purchased the land. He has shown complete ignorance as to the sale. His statement, therefore, is meaningless while according to the Additional District Judge there is no reason to disbelieve his statement. The relevant portion reads as under:‑‑ ......Since the wheat crop was already there and it has been sown by Abdul Hamid, therefore, there can be no reason that why the statements of Ghulam Murtaza RW‑2 the real nephew of Hashmat Ali should not be relied upon that the actual physical possession of the land and the crop had never been given to Hashmat Ali ....." This shows that the lower appellate Court has not gone through the statements of these witnesses. RW‑2 is clearly an interested witness and his statement is otherwise meaningless.

10. Now I take up the statement of RW‑1 (he should have been numbered as RW3 but it seems that just by slip of pen, he was mentioned as RW‑1). He has deposed that he leased out the land for five years to the petitioner and received Rs.9,000 as lease money. He stated that lease deed was executed and registered but the same was converted into sale‑deed. The portion of the statement reads as under:‑‑ In the cross‑examination he admitted that he went to the deed writer and appeared before the Sub‑Registrar and that he signed the same. The relevant portion reads as under:‑‑ It is clear from the statements that he executed and got the deed registered. Now whether it was a sale‑deed or a lease‑deed is not relevant here. The question at the moment is of delivery of possession. Since it is clear admitted in the document that possession has been delivered together with the standing crop, therefore the lower appellate Court was totally unjustified to record findings otherwise. The same cannot be therefore sustained.

11. Now I take up the evidence of the petitioner AWl, who has stated that the wheat crop has already been sown when the land was purchased while AW2 has stated that the standing crop was put in his custody by the petitioner and when he went for harvesting they found the respondents present there and asked us to run away. He also stated that he put fertilizer and irrigated the land. This witness was not cross‑examined on these points, therefore the same will be r deemed to have been admitted by the respondents. AW3 is a marginal witness of sale‑deed Exh.A.I. He has testified the same. He has also deposed as to the payment of consideration before the Sub‑Registrar. The statement was recorded on 13‑1‑1986 and the witness has deposed that the possession was delivered to petitioner in this season. There is nothing in his cross‑examination to shake his credit or show his interest in the petitioner. The statements of these‑ witnesses were fully corroborated by Hashmat Ali, petitioner as AW

4. The lower appellate Court has failed to give any reason to discard their statements.

12. Be as it may be even if we exclude the statements of these witnesses still documentary evidence consisting of sale deed ExhA.I., khasra girdawari Exh.A.2. and khasra girdawari Exh.A.3 read with Exh.R.5 produced by the respondents themselves clearly proved the possession of the petitioner.

13. The Additional District Judge tried to set at naught the fact of entries in the khasra girdawari with the remarks that since crop was admittedly sown by' respondent No.l, therefore in khasra girdawari his name should have appeared and the name of the petitioner was wrongly recorded therein. The justification is absolutely incorrect both legally and factually. The legally speaking the survey for the Rabi 1985 started with effect from Ist of March while the mutation in the name of the petitioner was sanctioned on 23‑2‑1985. This was based on sale‑deed dated 15‑1‑1985. This fact is clear from the documents Exh.R.4 and Exh.R.5 produced by the respondents themselves. '

14. Now before proceeding any further, I would refer to the relevant para of the Land Records Manual. The same reads as under:‑‑ "9.1. The date on which the inspection of each harvest shall commence may be fixed for each district by the Commissioner as its special circumstances may require. But in the absence of any special order, the inspection of each harvest shall commence as follows:‑‑ Kharif .. .. .. Ist October Rabi .. .. .. Ist March.... And if extra rabi crop, such, as melons and tobacco, are grown, which cannot be observed in March, the patwari shall make an inspection of these immediately after the 15th April. When for any reason the ripening of the crop is later than usual, the Deputy Commissioner may postpone the inspection for a period not exceeding fifteen days." The name of the petitioner was, therefore, rightly recorded in the khasra girdawari instead of respondent No.l. Therefore reasoning of the lower appellate Court is absolutely, baseless faulty and superficial. It seems that he was just trying justify his order. I hold that the entries in khasra girdawari were correctly made, therefore, there was neither any legal nor any factual basis to hold that possession was with respondent No.l. The learned counsel for the respondents has referred to case of Muhammad Akram and 3 others v. The State 1977 SCMR 433 to argue that under section 79 of the Evidence Act no presumption of truth is attached to the entries in khasra girdawari unlike those appearing in `Jamabandi'. The learned counsel while referring to the case probably lost sight of the fact that the respondents have themselves proved Register Haqdaran as Exh.R.4, which justified the inclusion of the name of petitioner in the khasra girdawari. This way it is not only in the khasra girdawari but also in the Register Haqdaran that the name of the petitioner has appeared. Moreover, the entry in the khasra girdawari is backed hr registered sale‑deed.

15. The order of the lower appellate Court is clearly illegal exercise of the jurisdiction, therefore, liable to be set aside in revisional jurisdiction. While the trial Court should not have stopped after ordering restoration of possession to the petitioner. It should have proceeded further with the matter as to what action to be taken against the respondents, who were guilty of violating the order secured by themselves and making the process of the Court a mockery and misusing it. The trial Court to apply its own independent mind and proceeded in accordance with law. I am not making any observation as it is likely to prejudice either of the parties. The trial Court committed irregularity while directing the petitioner to seek his remedy available under law for committing contempt of Court. The application was under Order XXXIX, Rule 2( 3 and 4) read with section 151, C.P.C., therefore, the trial Court should have itself proceeded with the matter. 1, therefore, remand this matter to the extent of further action against the respondents. Since it is a old matter, therefore, Mr.Ghaffar Jaleel, learned Civil Judge, who decided the application originally, if no longer posted at Khanewal then the matter be placed before District Judge, Khanewal, who should transfer to it an officer of known integrity. This matter to be decided by 30‑9‑1989 positively. The trial Court to submit fortnightly reports to the Additional Registrar of this Court as to the progress of the matter.

16. The upshot of this discussion is that this petition is accepted impugned order of the Additional District Judge dated 21‑3‑1988 is set aside with costs throughout and that of the order of the trial Court dated 5‑1‑1988 as to restoration of possession is confirmed. While the remaining part as to the further action is set aside and the case to that extent is remanded for fresh decision in accordance with law in the light of the observations made in earlier parts of this judgment. M.A.K./H‑130/L Order accordingly.