2007 PLP 1354 (CLC)

MAULVI ANWARUL HAQ, J.

On 13-2-1993, the petitioners filed a suit against the respondents. In the plaint it was stated that the petitioners were in possession of the suit-land as occupancy tenant. Upon amendment of the Punjab Tenancy Act, 1887, the occupancy extinguished and they were declared owners vide Mutation No.278 attested on 24-11-1956. The land was mortgaged with non-Muslim but it was subject to occupancy rights of the petitioners and upon conferment of the ownership rights, the mortgage became extinguished for all purposes. The said mutation was incorporated in the Revenue Record but the factum of mortgage continued to be mentioned illegally. On the basis of the said illegal entry the Federal Government transferred the land to the respondents Nos.3 and 4 vide Mutation No.233 attested on 25-4-1983. It was stated that they have been illegally dispossessed in the year 1986-87. They accordingly sought a declaration and possession. The suit was contested by the respondents Nos.3 and

4. They claimed to be bona fide purchasers 'for value from the Central Government with notice. Following issues were framed by the learned trial Court:-- (1) Whether this Court has got jurisdiction to try the suit? (2) Whether the plaintiffs have no cause of action and locus standi? (3) Whether the plaintiffs are estopped by their conduct to file the suit? (4) Whether the suit is bad for non-joinder of necessary parties? (5) Whether the suit is wrongly valued and deficiently stamped, If so, its effect? (6) Whether the suit is within tune? (7) Whether the defendants Nos.3 and 4 are bona fide purchasers for value without notice. If so, its effect? (8) Whether the suit is frivolous and as such defendants are entitled to recover special costs under section 35-A, C.P.C.'? (9) Whether the plaintiffs were occupancy tenants of the suit-land, as such Mutation No.278 dated 24-11-1956 is valid and by virtue of that mutation plaintiffs are owners of the suit-land? (10) Whether the transfer of the suit-land in favour of defendants Nos.3 and 4 vide Mutation No.233 dated 25-4-1983 is illegal, against facts, ex parte void and in effective upon right of the plaintiff? (11) Relief. Evidence of the parties was recorded. Vide judgment and decree, dated 5-11-1996, learned trial Court dismissed the suit. I may note here that under Issue No.6 the suit was found to be barred by time. Issues Nos.9 and 10 were taken up together. It was observed that it is an admitted fact that the petitioners were occupancy tenant and have become owners by operation of law. However; it was held that since the rights were subject to the mortgage and it was not redeemed, the land was accordingly transferred to respondents Nos.3 and

4. Both the issues were accordingly answered against them. Issue No.7 was found in favour of the respondents. Issues Nos.4 and 8 were not pressed. Under Issue No.1 it was held that the Civil Court has no jurisdiction. Issue No.3 was also found against the petitioners along with Issue No.2. Under Issue No.5 it was held that the value of the suit for the purposes of court-fee and jurisdiction is Rs.55,000 and court-fee of Rs.3,775 is payable. They were directed to pay the court-fee failing which it was to be recovered as arrears of land.

2. The petitioners filed first appeal which was heard by learned District Judge, Khushab who reversed the findings of the learned trial Court on Issues Nos.1 and

9. However, findings on remaining issues were confirmed. Regarding Issues Nos.4 and 5 it was observed that this Court has settled the matter vide judgment dated 15-3-2002 and the requisite court-fee has been paid. The appeal accordingly dismissed on 25-9-2002.

3. Learned counsel for the petitioners contends with reference to the case 1989 SCMR 780 that upon conferment of proprietary rights, the mortgage stood extinguished. Further contends that the learned Courts below have failed to see that only 1/18 share of the land in ownership column was mortgaged and as such the transfer of entire land was wholly without lawful authority. Learned counsel for the respondents, on the other hand, contends that the mortgage remained subsisting and equity of redemption stood extinguished. He also states that proper court-fee has not been paid on the civil revision with reference to the contents of the decree prepared by the learned Appellate Court. Learned counsel for the petitioners rejoins to state that the court fee was paid under orders of this Court on the plaint as well as the memo of first appeal and in the decree the entire amount of court-fee was shown. According to him the court-fee paid on the memo of civil revision is rather excessive.

4. I have gone through the copies of the records appended with this file. There is no dispute at all that the petitioners were occupancy tenants. Upon extinguishment of the occupancy tenancy they were declared owners and Mutation No.278 was attested on 24-11-1956 accordingly. The parties produced Revenue Record. Earliest being for the years 1944-45 i.e. Exh.P.11. The land has been divided into 18 shares. Lal Khan is recorded to be the owner of 17/18 shares while 1/18 shares of land is stated to be mortgaged with non-Muslim and the said mortgagee further mortgaged the land with other non-Muslim. There is no entry of any mortgage in column of possession where the predecessor -in-interest of the petitioners are recorded as occupancy tenants. The rent is payable in cash. Said Mutation No.278 attested on 24-11-1956 (Exh.P.8 and D.3) was incorporated into Revenue Records showing the petitioners to be owners of 17/18 shares and mortgagers of 1/18 shares with Central Government as mortgagee of 1/18 share.

5. The rent being payable in cash, the matter is covered by section 114(2)(c) of the Punjab Tenancy Act, 1887. The mutation was, of course attested after payment of the cash compensation. Section 114(5) of the said Act, lays down in categorical term that an occupancy tenant acquiring land in accordance with the provisions of section 114(2) shall acquire it free from all encumbrances created in respect of that land by the landlord. The mutation was, thus, wrongly incorporated in the Revenue Records in violation of the said clear provision of law. The mortgage itself extinguished upon conferment of proprietary rights on the petitioners. The learned Courts below have failed to read the relevant law and thus, acted without jurisdiction in refusing the relief to the petitioners to which they were .otherwise entitled.

6. So far as question of court-fee is concerned, I found that after recording evidence of the parties on the said issue as directed by this Court vide judgment dated 15-3-2002 in Civil Revision No.266 of 2001, learned District Judge worked out the court-fee payable on the appeal as Rs.2,

385. He accordingly directed the petitioner to pay the said court-fee on the plaint as well as on the appeal, which has been paid as observed by the learned. District Judge. In the decree sheet, the court-fee has been mentioned as Rs.4,750 which of course, is the total amount of court-fee paid on the plaint as well as the first appeal. Thus, the court-fee of Rs.2,400 paid on this civil revision is not only sufficient but is in excess.

7. There is, no question of the respondents being bona fide transferees for value in view of the admitted factum of extinguishment of occupancy tenancy and conferment of proprietary rights upon the petitioners by operation of law free from all encumbrances. The civil revision accordingly is allowed. Both the impugned judgments and decrees are set aside and the suit filed by the petitioners is decreed as prayed for. No orders as to costs. M.H./W-2/L Revision allowed.