1988 PLP 1254 (CLC)

| | | Bakhsha Noor Ahmad Khawaja __________________|_____ | | | Bahara Ahmad Salara | Defendant | | | Muhammad Yar | Defendant | _____________________________________________ |_______________ | | | | | Wasai Phaphan Sabhai Beeban Karim ______|_______ | Bakhsh | | Kaniz Fatima Bakhtan Raza Muhammad (Plaintiffs) The aforenoted successors‑in‑interest of Bahara are the plaintiffs in the declaratory suit and are the defendants in the suit for permanent injunction filed by Salara and his son Muhammad Yar. These two were defendants in the declaratory suit. The original owner of land comprised in Killa No.134 was Ahmad who was succeeded by his three sons, namely, Bakhsha, Noor Ahmad and Khawaja. Bakhsha got his share separated. The remaining land was owned in equal shares by Noor Ahmad and Khawaja. Noor Ahmad had two sons namely Ahmad and Salara and on death of Ahmad, his share also came to vest in Salara. Salara transferred his share in the name of his son Muhammad Yar and as such firstly he was impleaded as plaintiff in one suit and defendant in the other. He died and thereafter his legal representatives were brought on record.

7. Bahara father of the petitioners made a statement before the Patwari to the effect that in Khata No.134 his share is not one‑third and that Ahmad and Salara (his first cousins) and he all the three have equal shares. This statement was confirmed by him. before the Revenue Officer and as such Mutation No.1597 was sanctioned on 27‑12‑1924 accordingly respecting Khata No.134. This Khata comprised 25 Kanals and 3 Marlas of land. After excluding one‑third share of Bakhsh the third brother, land left and falling to the share of Noor Ahmad and Khawaja comes to 16 Kanals and 15 Marlas. Bahara inherited one‑half of this land and the other half was inherited by his first cousins Salara and Ahmad sons of Noor Ahmad, but he made the statement whereby he agreed to receive equal share with Salara and Ahmad. Thus as against 8 Kanals 8 Marlas, he agreed to receive 5 Kanals and 12 Marlas. This was the effect of Mutation No.1597 sanctioned on the basis of his statement on 27‑12‑1924.

8. Ahmad the predecessor‑in‑interest of parties was also share‑holder in the land of Shamilat Deh comprising 8,006 Marlas of land. In 1967‑68 Killabandi of the land in the village was effected and Shamilat land as per ownership was partitioned amongst the land owners. The Mutations respecting partition of land as per share in ownership were attested. on 15th March, 1975. These are Mutation No.2041 Exh.D.4 and Mtation No.2042 Exh.D.5. In these mutations the Shamilat land has also been partitioned on the basis of share agreed and accepted by Bahara in Mutation No.1597 dated 27‑12‑1924. The main grievance of Karim Bakhsh and others is that in Killabandi, their share in Shamilat land has also been reduced to the extent of 68 Kanals and has been recorded in the names of the respondents illegally by misinterpreting Mutation No.1597, dated 27‑12‑1924. Learned counsel argued that the statement made by Bahara reducing his share in Khata No.134 cannot be applied to his share in Shamilat Deh as there is no mention in the said statement respecting ownership rights in Shamilat land. He also referred to Act IV of 1952, Punjab Land Dispositions (Saving of Shamilat) Act, 1951 to contend that petitioners cannot be deprived of their due share in the Shamilat land. Reliance was also placed on Fazal Rahim and others v. Faqir Muhammad and others 1987 S C M R 1667 and Hakaman and 6 others v . Gulsher and 2 others Law Notes 1966 Lah. 49.

9. Learned counsel for the respondents in defence of the judgment, dated 29‑3‑1981 impugned in Civil Revision No. 1018‑D of 1981 submitted that the suit for permanent injunction was decreed as despite grant of opportunity evidence was not produced by the petitioners‑defendants and as such learned trial Court acted rightly in closing their evidence. So the evidence produced by the respondents=plaintiffs remained unrebutted. He added that the decree of permanent injunction granted by the trial Court was rightly upheld and affirmed by the learned appellate Court. It was argued that in these circumstances the discretionary order closing the evidence of the petitioners‑defendants cannot be interfered with in revisional jurisdiction. According to the learned counsel the decree of permanent injunction so obtained by the respondents‑plaintiffs is to hold the field and in the presence of the said decree the petitioners‑defendants cannot be granted the declaration prayed for in their suit.

10. I have considered the respective submissions of the parties. It is true that the learned District Judge in his judgment, dated 29‑3‑1981 (assailed in Civil Revision No. 1018‑D of 1981) held that the evidence of the petitioners‑defendants was rightly closed as they had failed to produce the same and that the material documents have been correctly appreciated to conclude the main issue against them. Learned District Judge further observed that in view of his judgment in the connected appeal (which is the subject‑matter of challenge in the connected Civil Revision No. 1118‑D of 1981) the title of the parties stands settled and as such the suit for permanent injunction must be decreed. It is, therefore, apparent that had the learned District Judge in the connected matter come to a contrary conclusion that would have naturally affected the result of the appeal in the suit for permanent injunction. Be that as it may, finality cannot be claimed in respect of the decree granted in the suit for permanent injunction as the judgment passed by the trial Court as well as the judgment in appeal passed by the District Judge have been assailed A in revision jurisdiction. It is also pertinent to note that 6th July, 1980 was the date fixed by the Reader and not by the Court as on 2nd March, 1980 the previous date when the parties appeared the Presiding Officer was on leave. 6th July, 1980 was fixed for producing the evidence by the petitioners‑defendants in the suit for permanent injunction. A few days earlier i.e. on 10‑6‑1980 their own declaratory suit was dismissed by the learned Civil Judge. The important feature to be noted in the suit for permanent injunction was that on an objection raised the issue whether the suit was liable to be stayed under section 10, C.P.C. was framed alongwith the issues on merits. This issue should have been decided first of all but for the reasons best known to the learned Civil Judge the issue was tried alongwith the issues on merits and it was decided against the petitioners‑defendants on the plea that no evidence was led to substantiate the objection raised. The. learned trial Court was oblivious of the fact that filing of the declaratory suit earlier to the second suit was not controverted in the written statement though the objection raised was repudiated saying that the objection was incorrect. Ordinarily the suit should have been stayed and had it been stayed the situation in which the parties ultimately find themselves could be avoided. In any case the judgment and decree obtained in the suit B had not attained finality as the same is subject‑matter of challenge in the other civil revision. The injunctive relief being equitable relief has to yield to the declaration respecting title qua the property made finally by the competent Court.

11. As regards the question of title and rights in the land in dispute claimed by the petitioners nothing could be urged by the learned counsel for the respondents as the legislature has intervened in the matter and has secured the rights of the petitioners beyond controversy. Moreover Mutation No.1495 dated 27‑12‑1924 being silent in respect of share in the Shamilat and being limited to the share in the Khata Malkiyat could not be made a basis at the time of partition of Khata Shamilat for reducing their share in Shamilat land. It was held in Fazal Rahim and others v. Faqir Muhammad and others (supra) by the Supreme Court that where Malkiyat land has been sold without specifying the share in the Shamilat, transfer is to be restricted to land only. In the instant case in the statement made before the Patwari and confirmed before the Revenue Officer no mention whatsoever was made of the Shamilat land. The said statement, therefore, applies only to Malkiyat land and not to Shamilat land. Mutation No. 1597, dated 27‑12‑1924 as such did not furnish basis for depriving the petitioners of their due share in the Shamilat land. The petitioners are bound by the statement of Bahara as far as the Malkiyat land is concerned. They could, however, not be deprived of their due share in the Shamilat land.

12. The net result of the above discussion is that both the revision petitions are accepted in the manner that the suit for declaration with consequential relief of the petitioners shall stand decreed to the extent of 65 Kanals 4 Marlas of land out of the land described and detailed in the plaint. The suit of the respondents‑plaintiffs to the extent of the land respecting which the suit of the petitioners has been decreed shall stand dismissed. The parties are left to bear their own costs. M.Y.H./K‑67/L Petitions allowed.