2006 PLP 944 (MLD)

JAWWAD S. KHAWAJA, J.

The case has been called twice. None has appeared for the respondents although they are represented by two learned counsel, namely, Mr. Hakim Qureshi and Mr. Nauman Qureshi. A written request for adjournment from one of these counsel, namely, Mr. Hakim Qureshi has been submitted on the ground that he is unwell today. There is no explanation as to why the other learned counsel has not appeared. In the circumstances, the respondents are proceeded against ex parte.

2. The petitioners/defendants impugn the appellate decree dated 9-4-2004, whereby a suit filed by the respondents Nos.1 to 7 seeking declaration of title and possession of the suit-land has been decreed. The learned appellate Court has set aside the decree of the learned trial Court dated 28-5-2001, whereby the said suit had been dismissed.

3. The facts of this case are relatively simple. The suit-land measures 12 Kanals 12 Marlas and is located in Village Sikandarpur, Tehsil Pasrur, District Sialkot. The admitted position is that the said land was owned by one Boota s/o Karim Bukhsh. The respondents Nos.9 to 14 are the L.Rs. of Boota s/o Karim Bukhsh. Boota died somewhere prior to 1994. Thereafter, inheritance Mutation No.266 was sanctioned on 2-6-1994 in favour of the aforesaid L.Rs. of Boota.

4. The petitioners/defendants purchased the suit-land from the L.Rs. of Boota vide Mutation No.356 dated 2-4-1997 and Mutation No.357 dated 3-4-1997 for a total consideration of Rs.9,00,000.

5. The respondents/plaintiffs filed their suit, out of which the present revision petition arises, on 3-6-1998. They assailed inheritance Mutation No.266 and sale Mutation Nos.356 and 357, referred to above. It was the case of the respondents/plaintiffs that Boota had originally sold the land to respondents Nos.6 to 8 in 1958, and that the petitioners had filed a suit on 18-12-1959 against Boota for possession of the suit-land through pre-emption. It was further averred in the plaint that the aforesaid pre-emption suit was decided on the basis of a consent decree dated 14-4-1961, whereby the respondents/plaintiffs became entitled to 1/2 of the suit-land, while remaining 1/2 was allowed to remain with Boota. At this juncture, it is important to note that the sale in 1958 allegedly made by Boota in favour of respondents Nos.6 to 8, was not recorded in any mutation and, as such, was not reflected in the Revenue Record. Likewise, the consent decree dated 14-4-1961 was also not implemented through any mutation in the Revenue Record. As such, the suit-land continued to appear in the name of Muhammad Boota during his lifetime and in the names of his L.Rs. after his death as per Mutation No.266.

6. In addition to the above, it has been shown from the record that even the respondents/plaintiffs had acknowledged that they did not take any steps for implementation of the decree (Exh.P.5) in the Revenue Record. Furthermore, according to them, they became aware of the omission in 1985. This has been deposed by P.W.1, namely, Muhammad Ali, who is one of the respondents/plaintiffs. There is no explanation as to why the suit was filed on 3-6-1988 i.e. almost 13 years after the date of knowledge.

7. The above circumstances have not been attended to by the learned appellate Court. Furthermore, the well reasoned judgment of the learned trial Court dated 28-5-2001 has been reversed by the learned appellate Court without adverting to the evidence duly brought on record which has been discussed in the judgment of the learned trial Court. There, as such, has been a serious misreading of the record and a failure by the learned appellate Court to take note of the material aspects of the case noted above. In this view of the matter, I am not in any doubt that the learned appellate Court has exercised its jurisdiction with material irregularity. The appellate judgment and decree, therefore, are not legally sustainable, and are set aside. As a consequence, the judgment and decree of the learned trial Court dated 28-5-2001 stand restored. H.B.T./M-1195/L??????????????????????????????????????????????????????????????????????????????? Revision allowed.