1994 PLP 2432 (MLD)

In this second appeal filed by the plaintiff a concurrent finding of fact that the house in dispute was not situated in Khasra No. 6699/381'3/2 as claimed by the appellant whereas it had been constructed on Khasra No.6699/3813/1. Which part of Khasra No. 3813 is the same which was sold by Muhammad Din, grandfather of the appellant who was the original owner to Mst. Khushalia Rani who constructed the said house, has been challenged.

2. The appellant in the suit claimed possession of the said house alleging that it was the house which was situated on Khasra No. 6699/3813/2 which was that part of Khasra No. 6699/3813/ which remained with Muhammad Din his, grandfather after the sale of a portion of the same numbered as 6699/3813/1 to Mst. Khushalia Rani. Therefore, the dispute was about the identity of the land and whether the house was situated in Khasra No. 6699/3813/1 sold to Mst. Khushalia Rani or on Khasra No. 6699/3813/2 owned by Muhammad Din grandfather of the appellant from whom he inherited it. The suit ftom which this appeal has arisen was filed on 4-5-1966. The evidence in the case of the appellant was recorded in the year 1968. Both the Courts below have held that the house was situated in Khasra 6699/3813/1 which was constructed by Mst. Khushalia Rani after purchasing the land from Muhammad Din the grandfather of the appellant. The appellant could succeed in this appeal only if it could be established that this concurrent finding had suffered from mis-reading of evidence produced on the record.

3. I have been taken through the oral as well as documentary evidence Produced by the parties and in particular the appellant on whose onus to prove the said fact had been placed in order to determine whether the said concurrent finding of fact was liable to be set aside having suffered from any legal infirmity.

4. Exh. D.3 is copy of Jamabandi for the year 1940-41. It is established from this document that Muhammad Din grandfather of the appellant was owner of Khasra No. 3813 measuring 7 Kanals 8 Marlas and through Mutation No. 4336 which were produced in evidence as Exh. D.1 as also Exh. P.11 Muhammad Din sold an area of one Kanal to Mst. Khushalia Rani from this Khasra number. A Tatima was prepared at the time of sanction of this mutation which shows that Khasra No. 3813 was divided into two Khasra Nos. and the part of the said Khasra No. sold to Mst. Khushalia Rani was allocated Khasra 6699/13/1 whereas the remaining part of the said Khasra No. 3813 which was retained by Muhammad Din in his ownership was separated and given Khasra No. 6699/3813/2. It is also clear that Mst. Khushalia Rani purchased the said land for residential purposes and at that time the said portion was surrounded by a boundary wall and it was recorded as Ghair Mumkin Abadi. From copies of Jamabandis for the year 1944-45 (Exh. D/8), for the year 1951-52 (Exh. D/9) for the year 1956-57 (Exh. D/10) and for the year 1960-61 (Exh. D/11), it is established that Mst. Khushalia Rani was recorded as owner of Khasra No. 6698/3813 measuring 1 Kanal as Ghair Mumkin Abadi. Jamabandi for the year 1964-65 produced by the respondent as Exh.D/12 shows that Mst. Khushalia Rani was owner of Khasra No. 6698/3813 and according to column No. 10, the same had been changed to Khasra No. 6699/3813/1 through Fard Badar

464. Copy of Jamabandi 1964-65 produced by appellant as Exh. P.3 shows that Muhammad Ashraf present appellant was recorded as owner in possession of Khasra No. 6699/3813 through his tenants Muhammad Akbar and Muhammad Asghar. According to Column No. 13 of this Jamabandi the said Khasra No. was changed through Fard Badar No. 5 as 6699/3813/2. The appellant's case was that the house in dispute was situated in this Khasra No. owned by him. According to P.3 the land comprised in this Khasra No. was 5 Kanals and 8 Marlas and under cultivation and there is no entry that there existed any house on this Khasra N& All the witnesses examined by the appellant in support of his case deposed that the house was constructed by the appellant 10/11 years before, whereas P. W .6 and P. W .7 stated that it was constructed 12/13 years ago. As observed above their evidence was recorded in the year 1968 whereas the suit was filed in 1966 as such their evidence stood contradicted by the entries in the Jamabandi 1964-65 Exh. P/3 produced by the appellant himself which does not record the presence of any house of this Khasra No. If the house had been constructed as alleged on this Khasra No. 12/13 years ago the entries in the said Jamabandi would not have shown the same being a land under cultivation of the tenants of the appellant. Exh. P/10 is the mutation which shows that Khasra No. 6699/3813/2 was carved out of original Khasra No. 6699/3813 and it has been recorded that it was Banjar Qadeem. This mutation was attested in the year 1950.From this document 'it was established that there was no house when this document cjme into being on 30-5-1950.

5. Learned counsel for the appellant referred to Exh. P.4, -copy of Khasra Gardawari from Rabi 1966 and copy of Khasra Gardawari Exh. P.13. Exh. P?4. was prepared during pendency of the suit in which it was shown that Khasra No.6619/3813/2 owned by the petitioner was Ghair Mumkin Haveli measuring 15 Marlas. According to P/13 Khasra No. 6698/3813 owned by Mst. Khushalia Rani was shown to be under cultivation being Nehri and Khasra No.6699/3813/2 owned by the appellant was recorded as Ghair Mumkin Haveliover 15 Marlas. These entries were contradictory to the long-standing entries in the Revenue Record like Jamabandi for the year 1940-41 up to 1964-65 as also documents Exh. D/8 to Exh. D/12 according to which Khasra No. 6699/3813/1 owned by Mst. Khushalia Rani was Ghair Mumkin Abadi till. 1964-65 and Khasra No. 6699/3813/2 as recorded in Exh. P/3 was agricultural land. It was rightly held by the trial Court that these changes in the .long-standing entries were made by the Patwari without any legal sanction behind it as the same could be changed only if there was an agreement between the parties and according to my view if there was any decree passed by the Court. Entries of Exh. P/4 and P/13 were rightly discarded.

6. After undertaking close scrutiny of the evidence both oral and documentary produced by the parties. I am not persuaded to take different view from the one taken by both the Courts below as the findings recorded by them are based on elaborate and careful appraisal of evidence which has not been 4 shown to have suffered from misreading, misconstruction and non-reading of evidence.

7. The appeal for the foregoing reasons has no force which is accordingly dismissed with no order as to costs. A.A./M-1658/L?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.