2006 PLP 921 (YLR)

JAWWAD S. KHAWAJA, J.

The dispute between the parties relates to land measuring 14 Kanals, 9 Marlas which was purchased by Fatta (predecessor-in-interest of the petitioners) from his brother Allah Din vide Mutation No.79 sanctioned on 21-4-1940.The respondents/plaintiffs, who are the successors-in-interest of a third brother, namely, Qasim, claim that Allah Din was entitled to only 8 Kanals and had, therefore, made a sale in excess of his entitlement vide aforesaid Mutation No.79.

2. In order to appreciate the circumstances leading to the filing of this petition a brief narration of facts is necessary. The three brothers, named above, namely, Fatta (predecessor-in-interest of the petitioners), Qasim (predecessor of the respondents) and Allah Din were the sons of Noor Muhammad who, in all owned 79 Kanals, 7 Malras in Mauza Kacha Pacca. This land was in two separate Khatas for the purposes of Revenue Record but was otherwise in the same block. The two Khatas bearing No.146 comprises of 28 Kanals, 9 Marlas and No.66 comprises of 15 Kanals, 18 Marlas.

3. According to the petitioners, after the death of Noor Muhammad, the three brothers had privately partitioned the entire 79 Kanals, 9 Marlas and thereby each brother had taken separate possession of 26 Kanals, 9 Marlas each Allah Din received as his share, his entire land out of Khata No.146.

4. It appears that the above arrangement remained operative and each of the brothers was cultivating separate Khasra numbers for a period of more than 54 years. According to learned counsel for the petitioners, only when a road was built through the land that the respondents filed a suit on 8-12-1994 to challenge Mutation No.79. According to learned counsel for the petitioners, it is only because of appreciation of the value of, the suit property that the respondents had become avaricious and had filed their suit on 8-12-1994. It was the case of the respondents/plaintiffs, as noted above, that Allah Din was owner of only 1/3rd in Khata No.146 which after counting for the land taken up by the road, came to 8 Kanals only.

5. The suit was resisted by the petitioners/defendants. The learned trial Court framed as many as seven issues including that of relief on which the parties led evidence. The petitioners/defendants do not dispute the fact that land was comprised in two Khatas bearing No.146 and

66. However, according to learned counsel, this is wholly inconsequential because the total area measuring 79 Kanals, 9 Marlas was in one block and was thereafter privately participated between the three brothers. As such, it is argued that the mere fact that for the purpose of the Revenue Record the land was part of two Khatas, could not come in the way of private partition of the land and subsequent sale of 14 Kanals, 9 Marlas by Allah Din in favour of Boota.

6. Fazal Ellahi, one of the respondents/plaintiffs, appeared as the only witness in support of the case set up by the respondents. In his own testimony, he acknowledged that the respondents had not asserted any claim in respect of the suit land and nor had they made any challenge to Mutation No.79 for a period of 54 years. He also categorically admitted that the three brothers had taken separate possession of their respective shares of the land. He further admitted that there was a private partition of the land between the brothers. While answering a specific question as to Khasra Nos.922, 936 and 933 in which the suit-land is comprised, he expressed his ignorance that the said Khasras fall in the share of Allah Din.

7. Considering the above evidence, the learned trial Court dismissed the suit of the respondents/plaintiffs vide decree dated 15-1-1998, however, an appeal filed by the respondents, has been allowed by means of a judgment and decree dated 15-3-2001. Hence, this revision petition.

8. The learned appellate Court has proceeded on the erroneous premises that because the land owned by the three brothers, mentioned in para-1 was in two Khatas, each brother could only have sold land up to his entitlement in each Khata separately. This premise is misconceived. The Revenue Record and the division of land into Khatas in a revenue estate, is only meant for certain procedural and revenue purposes. In the present case, there is no doubt that the land in the two Khatas, was part of one compact block. As far as its cultivation is concerned, the Khatas were wholly irrelevant as between the parties. Even the partition and separate possession of the three brothers, as acknowledged by Fazal Ellahi, one of the respondents plaintiffs, shows that there was a private partition of the two Khatas between them. The three brothers and after them their L.Rs. were adhering to the partition for a period spanning more than five decades.

9. Learned counsel for the petitioners merely reiterated that Allah Din could not have sold land in excess of his entitlement in Khata No.146. This argument loses sight of the situation prevailing ground as discussed above Khata No.146, in the circumstances of the present case, cannot be seen in isolation from Khata No.66 and the manner in which the land in these two Khatas had been dealt with and partitioned between the three brothers named above. The situation in the present case is not different from the case where co-sharers in one Khata privately partitioned the Khata by taking separate Khasra numbers comprised in the Khata. After such partition the distinct Khasra numbers come to vest individually in the respective co-sharers even though previously each co-sharer was a joint owner in such Khasra.

10. The learned appellate Court has thus proceeded on erroneous premises. The appellate judgment and decree dated 15-3-2001, as such, are not legally sustainable. The same are set aside. As a result, the decree of the learned trial Court dated 15-1-1998 stands restored. H.B.T./B-105/L?????????????????????????????????????????????????????????????????????????????????? Revision allowed.