2013 PLP 565 (MLD)

AMIN-UD-DIN KHAN, J.

This single judgment shall deal with and decide Civil Revisions Nos.2132 and 2133 of 2001 as common questions of law and fact are involved in both these petitions.

2. Through the aforesaid two civil revision petitions, the petitioners have challenged the judgment and decrees passed by the learned Additional District Judge, Shakargarh, dated 4-7-2001, whereby the appeals filed by the respondents were accepted and the judgment and decrees passed by the learned Civil Judge, Shakargarh, dated 4-2-1996, decreeing the suit of the petitioners for possession, and dismissing the suit for declaration, filed by the respondents, were set aside.

3. Brief facts of the case are that the petitioners filed a suit for possession of the suit land measuring 1 kanal 7 marlas, situated in khasra No.319, fully described in the plaint. The respondents filed a suit for declaration praying therein that they be declared as the owners of the suit land on the basis of 'Parcha Zamindaran Ishtimal' and the entries of 'jamabandi' in the name of the defendants may be declared as illegal. In both the suits, written statements were filed, learned trial Court framed issues and invited the parties to produce their evidence. The record shows that both the parties produced their respective evidence. At the time of hearing of the final arguments, the learned trial Court observed that as the subject matter of both the suits is the same, therefore, while adopting the issues framed in the suit titled "Abdul Ghani v. Abdul Majeed", filed by the respondents for declaration and presuming Abdul Ghani etc. as plaintiffs and Abdul Majeed etc. as defendants in the suit, decided the matter through a consolidated judgment whereby the suit of Abdul Majeed etc. for possession was decreed whereas suit filed by Abdul Ghani etc. was dismissed. Two appeals were filed by Abdul Ghani etc. Vide consolidated judgment and decrees the learned first appellate Court accepted both the appeals and reversed the findings of the learned trial Court and set aside the decrees passed by the learned trial Court. Resultantly, the suit for possession of the petitioners was dismissed and the suit for declaration filed by the respondents was decreed.

4. Learned counsel for the petitioners states that the documentary evidence supported the version and claim of the petitioners that the impugned khasra number was given in the Consolidation Scheme of the petitioners, which is evident from Exh.D-2, Register Hakdaran for the year 1985-1986, which is after 'Ishtimal'; it contains the impugned khasra number. In Exh.D-3, which is mutation of distribution of the property after confirmation of the scheme of 'Ishtimal' this khasra Number is in the 'wanda' of the petitioners. Further states that the claim of the respondents is just only on the basis of "Parcha Ishtimal" and further that in accordance with section 26 of the Consolidation of Holdings Ordinance, 1960, civil court was not having jurisdiction to entertain and try the suit, filed by the respondents as after confirmation of the scheme of 'Ishtimal' there was right of appeal, provided to the respondents before the higher forum and even right of second appeal was provided before the Board of Revenue. Learned counsel further states that the first appellate court fell in error while relying upon the reports of the 'patwari' and 'gardawar', which were inadmissible in evidence as without the original record as well as the statement of the person making the report, the copy of that report was not admissible in evidence.

5. On the other hand, the learned counsel for the respondents has supported the judgment and decrees passed by the first appellate Court and has highlighted the findings recorded by the first appellate Court wherein it has been observed that there are some cuttings in the proceedings of 'Ishtimal', therefore, the learned first appellate Court has rightly reversed the findings recorded by the learned trial Court.

6. I have heard the learned counsel for the parties at full length and have also gone through the record with their able assistance.

7. I have minutely observed the record. The claim of the petitioners for possession is on the basis of the existing record. There is no denial that in the 'jamabandi' after the consolidation proceedings, the petitioners are recorded owners of the impugned khasra number. It is also not denied that the same khasra number is mentioned in the mutation of distribution of the property in the 'wanda' of the petitioners, after confirmation of the consolidation scheme. The respondents based their claim only on 'Parcha Zamindaran Ishtimal', whereas in the mutation and in the subsequent 'jamabandies' khasra number in dispute is mentioned in the ownership of the petitioners. The respondents were having right to file appeal in the consolidation hierarchy as in consolidation proceedings the land of all the land owners of the 'mauza' is consolidated and then it is distributed according to the entitlement of every person or group of persons. In every scheme the land is distributed according to the entitlement. In this case, when the impugned khasra number is given by the consolidation authorities in the entitlement of the petitioners/Abdul Majeed etc. If there was any claim of the respondents with regard to this khasra number then in case of filing appeal by the respondents in the consolidation hierarchy their right of entitlement of this khasra number was if to be accepted then Abdul Majeed etc. would have been compensated by an alternate land. The respondents opted not to file any appeal etc. against the confirmation of consolidation proceedings, therefore, when Abdul Majeed etc. are recorded owners of the impugned khasra number in the 'jamabandi' as well as in the mutation of distribution of the consolidated land, therefore, the judgment and decree passed by the first appellate court is against the available record and the law as under section 26 of the Consolidation of Holdings Ordinance, 1960 jurisdiction of the civil court is barred. Further I am clear in my mind that a declaratory decree declares a pre-existing right and it does not create a new right in favour of the plaintiff. In this case the plaintiffs of suit for declaration i.e. Abdul Ghani etc./respondents required that a decree creating rights in khasra No. 319 be passed in their favour, which is not permissible under the law. The respondents themselves have adopted this wrong forum, therefore, in the above circumstances, the decrees passed by the first appellate Court are held to be against the record and law and the same are set-aside. Both the civil revisions are accepted. Resultantly, the suit for possession, filed by the petitioners stands decreed and the suit for declaration, filed by the respondents stands dismissed. MH/A-122/L Revision allowed.