1980 PLP 282 (SCMR)

The respondents herein filed a suit (No. 132;1 of 1962) against the petitioners in the Court of Civil' Judge Ist. Class, Abbottabad, for declara ti on to the effect that they were owners in possession of the suit land measuring 34 kanals 2 marlas, bearing Khasra No. 970 (Khata No. 267/560) situated in the area of village Banda Qazi, Tehsil Abbottabad as hissadars since time immemorial, and that the contrary entries appearing in the revenue record in favour of the petitioners were illegal, ineffective and inoperative against their rights. In the written statement filed by them, the petitioners denied the claim of the respondents on a number of grounds which gave rise to the framing of following issues by the trial Court :‑ (1) Whether the plaintiffs are in possession of the suit land as hissadars and the entries in the revenue record in favour of defen dants are wrong ? (2) Is the suit within time ? (3) Whether the suit is competent in its present form ? (4) Whether the suit is bad for non‑joinder of necessary parties and miss-joinder of parties (5) Relief. Upon these issues the parties led their evidence, but the trial Judge preferred the evidence of the respondents, accordingly answered all the issues in their favour and decreed their suit. Being aggrieved, the petitioners went in appeal in the Court of District Judge, Abbottabad, who, in so far as the merits of the case are concerned, agreed with the findings recorded by the trial Court. But on the issue of limitation, he disagreed and consequently dismissed the suit of the respondents. The respondents, therefore, went in appeal to the High Court where a learned Single Judge, who heard the appeal, approved all the findings recorded by the District Judge with the result that he dismissed the appeal only on the question of limitation. Before the Letters Patent Bench of the High Court, however, the respondents succeeded on the issue of limitation with the result that the judgment of the learned Single Judge was set aside and their suit decreed. It is in this background that the petitioners have come up to this Court praying for leave to appeal against the judgment of the High Court. Malik Muhammad Jafar the learned counsel for the petitioners has assailed the judgment of the Letters Patent Bench of the High Court only on the issue of limitation. in order to appreciate his contention, it would be necessary to briefly recall the facts relevant to the determination of the said issue. Now the admitted position, which transpires from the record is, that the respondents were shown in the jamabandi of the year 1935‑36 in hissadari possession of the suit land. In the jamabandi of the year 1939‑40 they were likewise shown to be in possession. But in the jamabandi of the year 1942‑43 the entries in the column of cultivation were so recorded that instead of the respondents the suit land was shown to be in possession of the petitioners as co‑sharers. The Misle‑Haqiat of the year 1948‑49 more or less reflected the same position. But in the jamabandi of the year 1951‑52 in the column of cultivation the petitioners were shown to be in possession through Noor Ahmad, the father of the respondents, and in the column of Lagan the entry recorded was Bila Lagan Ba. Tasawar Hissadari. Faced with this situation, the respondents filed against the petitioners the aforesaid civil suit which was finally decreed in their favour by the Letters Patent Bench of tile High Court. The contention of the learned counsel for the petitioners, who confined his arguments only to the issue of limitation, was that the cause of action in favour of the respondents had arisen in the year 1942 when for the first time in the revenue record their names were displaced by the names of the petitioners and consequently the suit filed by them in the year 1962 was barred under Article 120 of the Limitation Act, which alone was applicable to the suit. The learned counsel also attempted to distinguish the various judgments relied upon by the Letters Patent Bench of the High Court mainly on the ground that whereas in all of them the plaintiffs had successfully proved the fresh invasion of their rights, so as to repel the objection of the defendants that their suits were barred under Article 120 of the Limitation Act, in the present case the respondents had failed to prove that ever since the jamabandi of the year 1942‑43; in which the petitioners were recorded in possession of the suit land, there had occurred any fresh invasion of their rights. In support of his contention the learned counsel relied on Mohd. Shah and another v. Mir Zaman arid others (A I R 1943 Pesh. 83) and Gul Khan v. Said Hassan Shah and others (P L D 1968 Pesh. 148). After having heard the learned counsel at some length, however, we feel disinclined to consider his said contention, or the effect of the judgment relied upon by him, as in view of the peculiar facts of this case this petition can be disposed of on another ground. It is a matter of record that at all levels of the proceedings, the Courts below, including the High Court, the respondents have been found in possession of the suit property since time immemorial, and the contrary entries recorded in the revenue record in favour of the petitioners (beginning with the first entry in the jamabandi of the year 1942‑43) have been held to be ineffective against their rights. Furthermore, the learned counsel conceded before us that the suit land forms part of the shamilal land in which the petitioners are also co‑sharers. In this view of the matter, therefore, the petitioners cannot be said to have suffered any tangible grievance inasmuch as they can still seek the partition of the shamilat land in case they would be able to establish their title as co‑sharers. We are, therefore, of the view that since all the Courts below, including the 'High Court, have on the merits of the case found in favour of the respondents, it is not a fit case in which leave ought to be granted to the petitioners against the judgment of the High Court, the more so when by the grant of simple declaratory decree in favour of the respondents they cannot be said to have suffered any material prejudice, as also that claiming to be co‑sharers in the shamilat land (of which the suit land is only a part) the remedy by way of partition is still available to them. This petition, therefore, fails and is dismissed. Petition dismissed.