P L D 1993 Peshawar 127 (PLP)

This revision is directed against the judgment and decree dated 5‑7‑1987 of the learned District Judge, Karak whereby the appeal of Atta Muhammad plaintiff‑petitioner against the judgment and decree dated 22‑4‑1985 of the Civil Judge, Karak, was dismissed.

2. The facts giving rise to the present revision are as follows:‑ Atta Muhammad plaintiff‑petitioner through Ajab Khan, his attorney instituted suit against Naseeruddin defendant‑respondent in the Court of Civil Judge, Karak for declaration to the effect that the entry in the `Jamabandi' of the year 1974‑75 showing defendant‑respondent as owner of 1/48 share was wrong as it included plaintiff's share also which he never sold to defendant -respondent. The suit was contested by the defendant‑respondent who in his written statement besides raising preliminary objections took the plea that he had purchased plaintiff's share in the land also. The pleadings of the parties were reduced to the following issues:‑‑ (1) Whether the suit is incompetent in its present form? (2) Whether the suit is within time? (3) Whether the plaintiff is estopped to sue? (4) Whether the plaintiff has got a cause of action? (5) Whether wrong entries have been made in the Revenue Record? (6) Whether the plaintiff is entitled to the decree as prayed for? (7) Relief.

3. The learned trial Court recorded the evidence which the parties wished to be recorded and then while discussing issues Nos.4 and 5 in the impugned judgment observed that the plaintiff‑petitioner and Mst.Rahamzada etc. through `Roznamcha Waqiati' Exh.P.W.l/4 sold their entire share to the defendant and that on the strength of `Roznamcha' a mutation was entered. At. the time of attestation of mutation, the share of the plaintiff was excluded from being sold while that of Mst.Rahamzada was sold but the entry in the `Midi Haqeeat' 1974‑75 and `Jamabandi' 1978‑79 would reveal that instead of transferring only 17/1152 shares as shown in the mutation, the whole 24/1152 share was transferred in the name of the defendant‑respondent. The learned Civil Judge therefore held that entries with respect to 7/1152 shares were wrong and liable to be rectified. On issue No. 1, the findings are that since the plaintiff did not ask for consequential relief for possession of the land therefore the suit was not competent under section 42 of the Specific Relief Act. The suit was held as time‑barred under Article 120 of the Limitation Act on the view that the defendant‑vendee took possession of the suit land on 27‑8‑1971 whereas the suit was instituted on 31‑7‑1982 beyond the period of six years, from the date of accrual of cause of action i.e. 27‑8‑1971. Issue No.2 was therefore decided against the plaintiff. Issue No. 3 was decided in favour of the defendant‑respondent. In view of the findings on issues Nos.l, 2 and 3 plaintiff petitioner's suit was dismissed vide judgment and decree dated 22‑4‑1985.

4. The plaintiff‑petitioner assailed the judgment and decree of the lower Court in appeal before the learned District Judge, Kohat, who in a very brief judgment dated 5‑7‑1985 concurred with the findings of the lower Court that the suit for declaration under Specific Relief Act without consequential relief for possession was not maintainable, and that the plaintiff‑petitioner's suit was time‑barred under Article 120 of the Limitation Act. The appeal was accordingly dismissed with costs. The plaintiff‑petitioner has now come to this Court in revision assailing the findings of the two Courts below on issues Nos.l, 2, 3 and 6.

5. Mr. M. Amin Khattak, Advocate, for the plaintiff‑petitioner contended that the findings that the suit for declaration is not maintainable as no consequential relief was claimed, are the result of misreading of evidence because the plaintiff being in possession of the land was not required to ask for consequential relief for possession.

6. Mr. Khial Muhammad, Advocate, for the defendant‑respondent contended that the Courts have rightly held the suit as time‑barred under Article 120 of the Limitation Act, for, plaintiff's suit was for correction of revenue entries and when wrong entry crept in `Misli Haqeeat' of 1974‑75, the suit should have been filed within six years. PLD 1972 Karachi 103 was cited.

7. Having considered the respective contentions of the learned counsel for the parties and the law on the point I am of the view that a declaratory suit under section 42 of the Specific Relief Act, 1877 is not maintainable when the plaintiff being able to seek further relief than mere declaration of title omits to do so. Here in the instant suit prayer is for declaration to the effect that entry of 1/48 share in the `Jamabandi' of 1974‑75 in the name of the defendant is wrong and not binding on the plaintiff and, that plaintiff is owner in possession of 7/1152 share. Ajab Khan attorney of the plaintiff‑petitioner has not dis owned possession of the land. He has in very clear words deposed that plaintiff is a co‑sharer in the land and has not sold his share to the defendant. He denied the suggestion that the plaintiff‑petitioner was not in possession of the suit land. The defendant‑respondent by purchasing share of the land from the other co‑owner has become a co‑owner with the plaintiff‑petitioner whose share was not sold on the strength of Mutation No. 53228 attested on 27‑8‑1971. In this situation when the plaintiff‑petitioner has not transferred his share to the defendant respondent, he remained co‑owner and could institute suit for declaration without praying for consequential relief of possession. The suit would have been barred only if plaintiff being able to seek further relief than mere declaration of title had omitted to do so. While discussing issues Nos.4 and 5 the learned Civil Judge is quite clear in his mind that the entries in the revenue papers with respect to 7/1152 share are wrong and liable to be rectified but could not grant the relief to the plaintiff‑petitioner because no prayer for consequential relief was made. To this the learned District Judge has also agreed. It is 'sad to Note that the Courts knowing full well that entries in the `Jamabandi' 1974‑75 were proved to be wrong dismissed the suit on the mistaken view of the law. It is now fell settled that wrong entry in the `Jamabandi' gives a fresh cause of action and suit for declaration and for correction for wrong entries may be filed within six years from the date of knowledge of wrong entries in the `Jamabandi'. Burden of proof is on the party in whose favour entry exists and not on party challenging correctness of such entry. Jamsher and others v. Abdul Jalil and others PLD 1964 (W.P.) Peshawar 159 may be referred. The defendant‑respondent has not been able to prove as to how the plaintiff‑petitioner's share was shown in their name in the `Jamabandi' of 1974‑

75. Solitary statement of Nasiruddin defendant‑respondent to this effect cannot be accepted as correct. The concurrent findings of the ' Courts are against the law and are the result of misreading of evidence. I would therefore set aside the findings of the Courts on issues Nos.1, 2, 3 and 6 and declare the suit maintainable, within time and plaintiff‑petitioner entitled to decree as prayed for.

8. The result therefore, is that his revision is accepted, judgments and decrees of the lower Courts are set aside and the plaintiff‑petitioner's suit for declaration as prayed for is decreed against the defendant‑respondent. Parties are left to bear their own‑costs. AA./1466/P Revision accepted.