1990 PLP 1865 (MLD)

‑‑‑‑S.42‑‑‑Dedaratory suit‑‑‑Competency of‑‑‑Defendants' plea that plaintiffs' suit for simple declaration was incompetent as no prayer for possession or redemption was made as consequential relief‑‑‑Plaintiffs had the choice to pray for redemption as well or to wait till the decision of their declaratory suit and in the event of success to file a fresh suit for redemption‑‑‑Defendants having claimed ownership to the entire suit land, plaintiffs were within their right to sue for bare declaration of title. (d) Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), OXXXII, R.3 & 5.115‑‑‑No guardian‑at‑litem appointed for minor defendant‑‑‑Effect‑‑‑One of the defendants was admitted to be minor and in normal course it was duty of plaintiffs to have applied for the appointment of his guardian‑at‑litem‑‑‑Record showed that counsel representing minor's mother and brothers had been representing the minor and bad obtained his thumb‑impression in revisional petition as also in appeal where he was shown to be major‑‑‑Mother and brothers of minor being parties to litigation had been seriously defending the rights acquired by their predecessor in suit property and thereby rights of minor were sufficiently safeguarded‑‑‑Substantial justice having already been done in the case, High Court declined to annul the protracted litigation between parties simply on technical omission‑‑‑Revision dismissed in circumstances. Muhammad Rafiq for Petitioners. Abdul Sammad Khan for Respondents. Date of hearing: 11th April, 1990. Ghazi Merjan and others plaintiffs/respondents herein filed suit for declaration against Kamin Khan and others defendants/petitioners herein, to the effect that they are owners of half share in the suit khasra numbers mentioned in the heading of the plaint while the other half was sold by their predecessor Khiyal Jang to Marwat Khan and Alecm Khan predecessor‑in‑interest of defendants Nos.1 to 15 vide mutation No. 3514 attested on 13‑6‑1954 and that the entries in the revenue record, whereby they are recorded as owners of the entire suit‑land, are wrong, illegal and ineffective on their rights. They also challenged the transfer of part of the suit‑land by defendants Nos.1 to 15 in favour of Arsala Khan defendant No.16 vide mutation No. 553 attested on 20‑3‑1980 (copy EX.PWI/3). The defendants/petitioners contested the suit and in their written statement denied the allegations of the plaintiffs/respondents in toto and alleged that they had purchased the entire suit‑land from the predecessor‑in‑interest of the plaintiffs/respondents and that in the alternative they had prescribed title to the suit property through adverse possession for more than 12 years. Necessary issues in the case. were framed, evidence led pro and contra thereon, recorded and the learned Senior Civil Judge, Kohat vide his judgment and decree dated 21‑1‑1985 decreed the suit of the plaintiffs/respondents. Dissatisfied with the same the defendants/petitioners preferred appeal before the learned Additional District Judge, Kohat, who too concurred with the finding of the learned trial Judge and dismissed the appeal vide his judgment and decree dated 13‑1‑1986. Hence the instant revision petition calling in question the judgments and decrees of both the lower two forums.

2. I have heard learned counsel for the parties and have perused the record of the case with their assistance.

3. The copies of the jamabandis right from 1949‑50 till the jamabandi 1965‑66 (EX.PWI/1) have been filed by Muhammad Yaqub Qureshi ADK, Kohat (P.W.1). He also produced the original mutation No. 3514 attested on 13‑6‑1954 and filed its photostat copy EX.P.W.1/2 and deposed that on the basis of the said mutation half of the suit land measuring 14 kanals 13 marlas was sold by Khiyal Jang predecessor‑in‑interest of the plaintiffs/respondents in favour of Marwat Khan and Alim Khan predecessor‑in‑interest of defendants Nos.1 to 15 but, while incorporating the said mutation in the subsequent jamabandi fur the year 1953‑54 the entire area measuring 29 kanals 6 marlas was recorded in the name of. transferees. Abdul Nabi Patwari Halqa (P.W.2) produced the subsequent jamabandis for the years 1970‑71, 1978‑79 and 1982‑83 copies Ex.P.W.2/1 to Ex.P.W.2/3 respectively and copy of khasra girdawari from Kharif, 1971 to Rabi, 1983 Ex.P.W.2/4 wherein the wrong entries in the name of the predecessor -in‑interest of the defendants/petitioners have been repeated. The perusal of mutation No.3514, copy EX.P.W.1/2, reveals that half of the suit‑land was sold by Khiyal Jang predecessor‑in‑interest of the plaintiffs/respondents in favour of Marwat Khan and Aleem Khan predecessor‑in‑interest of the defendants Nos.1 to 15 but instead of recording transferees as owners of 1/2 share in the following A jamabandi for the year 1953‑54, the entire land was shown recorded. in the names of the transferee which is patently wrong and illegal. The defendants/petitioners have not been able to lead any evidence oral or documentary to show that either the mutation was wrongly attested or that the transaction of sale comprised the entire area and not half of it as is apparent from the mutation in question. The learned lower two forums had, therefore, no option but to declare the plaintiffs/respondents as owners of the half share in the suit‑land.

4. As regards the plea of adverse possession suffice it to say that the suit land was under mortgage at the time of the transfer in favour of Marwat Khan and Alim Khan named above and the same subsisted till the attestation of redemption mutation No.90 attested on 16‑10‑1972. Additionally the parties became joint owners in equal share of the suit‑land on the attestation of sale mutation copy Ex.P.W.1/2 and neither of them could icgally claim adverse possession against the others, particularly during the subsistence of mortgage. On the redemption of the mortgage by the defendants/petitioners vide mutation No.90 they became mortgagees of the share of the plaintiffs/respondents anal were legally estopped to raise the plea of adverse possession against the contesting respondents. In the revenue record (copies Ex.P.W.2/1 to Ex. P.W.2/4) too they are recorded in possession as Hissadars. As such viewed from' any angle their possession cannot be construed as that of trespassers and they cannot be extended the benefit of prescriptive title under the law.

5. Nevertheless the learned counsel for the petitioners vehemently argued that the suit is incompetent under section 42 of the Specific Relief Act inasmuch as no prayer for possession or redemption was made as a consequential relief. It was also urged that the claim of the plaintiffs/respondents was practically one for correction of revenue record which did not fall within the jurisdiction of Civil Courts under section 172 of the West Pakistan Land Revenue Act. It was further contended that defendant No.10 was minor and without appointing guardian‑at- litem for him the suit could not be proceeded with and in consequence both the judgments, impugned herein, are materially irregular. No doubt the suit is for mere declaration but as explained above, the suit land was under mortgage which was redeemed by the defendants/petitioners and co‑mortgagors. As such it was the choice of the plaintiffs/respondents to pray for redemption as well or to wait till the decision of the present suit and in the event of success, file a fresh suit for redemption. The plaint as drafted is for declaration of title and not for the correction of revenue record. The defendants have also claimed ownership to the entire suit‑land and, therefore, plaintiffs/respondents were within their rights to sue for bare declaration of title. It is true that defendant No.10 is admitted to be minor and in the normal course it was the duty of the plaintiffs/respondents to have applied for the appointment of his guardian‑at‑litem. However, the power of attorney in favour of Muhammad Rafiq Advocate who represents the defendants petitioners in the instant revision petition as well, shows the thumb impression of the said defendant and he acted as his counsel throughout the proceedings on his behalf so much so that he showed him as major in the grounds of appeal filed by him before the Additional District Judge, Kohat and certified copy thereof already placed on the revisional file. 'The mother and brothers of defendant No.10, being parties, to the litigation, have seriously defended the rights acquired by their predecessor in the suit property and thereby rights of the minor were. sufficiently safeguarded. Substantial justice has already been done in the case and I am not pursuaded to annul the protracted litigation between the parties simply . on this technical omission.

6. The upshot of the above discussion is that I do not find any merit in the instant. revision petition and. the same is accordingly dismissed, with order as to costs. A.A/1039/P Revision dismissed.