1994 PLP 1722 (SCMR)

ABDUL OADEER CHAUDHRY, J.‑‑‑Leave to appeal has been sought against the judgment of the Peshawar High Court, dated 20‑6‑1992. The facts of the case are that the parties were joint owners of land. During the consolidation proceedings, the parties were allotted land. According to the petitioners, the total land was 98 Kanals and 11 Marlas and the petitioners were allotted 48 Y1nalS 6 Marlas. The respondents were also allotted 47 Kanals 15 Marlas. The respondents filed a suit for declaration of ownership, injunction and possession of an area of 13 Kanals 11 Marlas on the ground that the land was deficient in Khasra No. 4863 allotted to him under Consolidation Scheme. The trial Court on contest of the suit decreed the same in favour of the respondents. The appeal and revision of the petitioners were dismissed by the learned District Judge arid the High Court respectively.

3. The learned counsel for the petitioners submitted that the Civil Court had no jurisdiction to adjudicate the dispute in respect of the consolidation proceedings and no measurement was taken before passing the impugned judgment. He further submitted that if proper measurement is made and in case the petitioners have got any excess land, they are prepared to surrender the same in favour of the respondents.

4. There are concurrent findings of fact by all the Courts against the. petitioners. The facts have been properly appreciated and attended to by all the Courts. At this stage, it is not possible to reappraise the evidence. The trial Court during the course of proceedings deputed a Revenue Officer who after measurement of the land, submitted his report. The learned District Judge in para. 6 of the judgment has recorded the following finding:‑‑ "From the perusal of the revenue record placed on file coupled with the statements of Muhammad Qureshi Patwari Halqa (P.W.1) lehanzeb Khan Girdawar Circle (P.W.2) Abdul Mustaqeem Khan Officer Qanungo (P.W.3) Abdul Qayum Khan, A.D.K. Mardan (P.W.4) and Muhammad Ghufran Patwari Halqa Kalu Khan (P.W.5) it would reveal that prior to the consolidation the parties were joint owners in possession of 96 Kanals 3 Marlas of land in equal shares. During the consolidation the plaintiffs were allotted 48 Kanals 1 Marla and the defendants 48 Kanals 4 Marlas out of the joint ownership. Record would further reveal that the possession of Khasra Nos. 4096, 4098 and 4102 measuring 8 Kanals 1 Marla was with the plaintiffs and on the application of the defendants warrant of possession was issued from the Court of A.C./Collector Swabi upon which the plaintiffs inspected the record and it transpired that the area of suit Khasra No. 4731 (previous) 4863 (present) included in the share of the plaintiffs in consolidation is 17 Kanals 1 Marla on the spot and not 35 Kanals 6 Marlas as recorded in the revenue papers. The plaintiffs challenged the said warrant of possession by filing the present suit on 3‑9‑1983, however, the possession of that land was taken from them and delivered to the defendants on 2‑11‑1983, vide Exh. D.W. 1/2 to Exh. D.W.1/4. D.W.1 Mukhtar Ahmad has also admitted in his cross- examination that both the parties were co‑sharers prior to the consolidation proceedings in the whole property and that the plaintiffs and the defendants were. given' equal shares in consolidation proceedings. Thus the only point for consideration is whether the area of suit Khasra No. 4731 (previous) 4863 (present) allotted to the plaintiff in consolidation is 17 Kanals 1 Marla on the spot and not 35 Kanals 6 Marlas as recorded in the revenue papers. It is proved from the statements of all official witnesses (P.W.1 to P.W.5) coupled with the revenue record placed on file that the area of suit Khasra No. 4731 (previous) 4863 (present) recorded as 35 Kanals 6 Marlas in the revenue record is 17 Kanals 1 Marla on the spot. As such there is a deficiency of 18 Kanals 5 Marlas in the said Khasra number on the spot. Thus the total area of the joint ownership of the parties was 77 Kanals 18 Marlas and not 96 Kanals 3 Marlas, out of which the plaintiffs and the defendants were entitled to 38 Kanals 19 Marlas each. The deficiency of 18 Kanals 5 Marlas will be borne by both the parties in equal shares. The plaintiffs were allotted 29 Kanals 16 Marlas and the defendants 48 Kanals 4 Marlas out of the whole property measuring 77 Kanals 18 Marlas in the consolidation. As such the plaintiffs were allotted 9 Kanals 3 Marlas less than their due share and they are entitled to the possession of the same from the defendants."

5. There is no misreading in the judgment. The learned District Judge has properly appreciated the evidence. In view of the above facts and B concurrent findings of all the Courts, this petition has no force. The same is dismissed and leave to appeal is refused. AA./M‑1927/S Leave refused.