2015 PLP 2072 (YLR)

QALANDAR ALI KHAN, J.

This single judgment is directed to also dispose of C.R. No.872-P/2012 and C.R. No.1140- P/2012, as parties, land in dispute, as well as subject matter are the same.

2. The background of all the three revision petitions, briefly stated, is that land measuring two 'kanal' 10 'Marla' comprised of 'Khasra' Nos.2000, 2001, 2002, 2003, 2004, 2005 and 2006 situated in village Swabi, Tehsil and District Swabi, belonging to Ashraf Khan, predecessor of the petitioners, was exchanged with land measuring 4 'Kanal' comprised of 'Khasra' No.774 in village Swabi, Tehsil and District Swabi, belonging to Ghulam Habib, respondent; and exchange Mutations Nos.11209 and 11210 were, accordingly, attested simultaneously on 7-2-1970. The land measuring 4 "Kanal" received in exchange from respondent by the predecessor of the petitioners was sold by the latter in favour of the former for consideration of Rs.800 vide Mutation No. 11969 attested on 28-4-1973. The dispute between the parties cropped up because of entry of only 1 Kanal 13 Marla in the revenue record instead of 2 Kanal 10 Marla transferred in exchange in favour of the respondent vide Mutation No.11209 attested on 7-2-1970. The stance of the petitioners is that their predecessor was owner in possession of the suit land/property only to the extent of 1 'Kanal' 13 'Marla', therefore, he could not transfer share more than his entitlement; whereas the respondent claimed that predecessor of the petitioners had received more share through inheritance Mutation No.11084 from Mst. Bas Jan and gift Mutation No.11097 from other legal heirs of Mst. Bas Jan, namely, Mian Dad and Mst. Mahtaba, attested on the same date when exchange mutations were attested i.e. 7-2-1970.

3. The respondent assailed entries in the revenue record in favour of predecessor of the petitioners after the latter had transferred his entire share, firstly, through exchange and later through sale of 4 'Kanal' received by him from the respondent through exchange. The suit instituted on 4-3-2004 was resisted by the petitioners, inter alia, on the grounds that their predecessor had exchanged his share to the extent mentioned in the revenue record in favour of the respondent. The trial Court framed as many as 13 issues in the case, and after recording evidence of both the parties, the learned trial Court/Civil Judge-IV, Swabi, granted decree, as prayed for, in favour of the respondent against the petitioners vide judgment dated 31-1-2011. The petitioners preferred appeal, which was dismissed by the learned appellate Court/District Judge, Swabi, vide judgment dated 17-1-2012, hence this revision petition.

4. The petitioners, Farman Ullah and Salim Khan, instituted a suit for possession through partition of their share (1 'Kanal' 13 'Marla') in the suit land measuring 10 'Kanal' on the basis of entries in their favour in the revenue record. The suit was instituted against respondent and several others on 10-11-2003, and vehemently resisted by the respondent on a number of grounds, including the ground that predecessor of the petitioners had exchanged his share with land/property of the respondent and had also sold back the land received by him in exchange to the respondent. The pleadings of the parties were reduced to as many as 9 issues, and after recording evidence of the parties, the learned trial Court/Civil Judge-IV, Swabi, dismissed the suit of the petitioners vide judgment dated 31-1-2011. The petitioners preferred appeal, which also met the same fate and was dismissed by the learned appellate Court/District Judge, Swabi, vide judgment dated 17-1-2012, hence revision petition No.872-P/2012.

5. Of late, the petitioners lodged yet another suit for declaration on 27-1-2011, thereby claiming ownership of land measuring 4 "Kanal", and also challenged sale Mutation No. 11969 attested on 28-4-1973 by their predecessor in favour of respondent. The respondent resisted the suit on several grounds, including the same being hit by principle of res judicata and liable to dismissal under Order VII, Rule 11, C.P.C. as well as Section 11, C.P.C. The respondent also moved application under Order VII, Rule 11, C.P.C. read with Section 11, C.P.C., which was replied to by the petitioners. However, the plaint was rejected under Order VII, Rule 11, C.P.C. being barred by Section 11, C.P.C.; by the learned Civil Judge-I, Swabi, vide order dated 21-5-2011. Dissatisfied with order of the learned trial Court /Civil Judge-I, Swabi, the petitioners filed revision petition which too was dismissed by the learned District Judge Swabi vide judgment/order dated 17-1-2012; hence Revision Petition No.1140 of 2012.

6. Arguments of learned counsel for the parties were heard, and record perused with their assistance.

7. Undoubtedly, in a revision petition under Section 115, C.P.C. a petitioner is invariably bound to show non-reading and/or misreading of evidence by the Courts below. Admittedly, there are concurrent findings by both the trial Court as well as appellate Court against the petitioners in all the three revision petitions; and the petitioners have not been able to point out improper exercise of jurisdiction or illegality/irregularity in the impugned judgments of both the Courts below.

8. The revenue record, including relevant mutations, together with evidence recorded in the trial Court and above all admissions on the part of the petitioners, leave no doubt about exchange of land measuring 2 'Kanal' 10 'marla' by the predecessor of the petitioners for 4 'kanal' by the respondent vide exchange Mutations Nos.11209 and 11210 attested simultaneously on 7-2-1970 and further sale of land measuring 4 'Kanal' received in exchange by predecessor of the petitioners from respondent for consideration of Rs.800, back to the respondent vide sale Mutation 11969 attested 28-4-1973. The respondent was able to prove the sale mutation in his favour by predecessor of petitioners through production of the attesting witnesses, whose testimony remained unshattered. Besides, the predecessor of the petitioners, who is shown as vendor in the sale mutation, did not challenge the mutation during his life time, and suit of the petitioners, lodged in 2011, challenging the sale mutation attested in 1973, is certainly time barred; and the plaint could be rejected on this score alone. The respondent, on the other hand, could file a suit in the year 2004 thereby challenging entries in the record of rights for the year 1999-2000, because every successive entry in the periodical record of rights accrued a fresh cause of action in favour of the respondent.

9. As pointed out above, the exchange mutations as well as sale mutation have been proved on record, and it has also been proved through evidence that predecessor of the petitioners had acquired more share through inheritance and gift prior to the exchange and sale mutations. Therefore, this contention of the petitioners that their predecessor was owner in possession in the suit land only to the extent of 1 'Kanal' 13 'Marla' is also belied by the record.

10. As such, the decree for correction of revenue record on the basis of exchange and sale Mutations was correctly passed and upheld by the Courts below through their concurrent findings. Likewise, the petitioners were rightly held not entitled to decree for possession through partition when they were found not owners in possession of any share in the suit land. However, plaint in suit of the petitioners for declaration in respect of land measuring 4 'Kanals' transferred by their predecessor in favour of the respondent vide sale Mutation No.11969 dated 28-4-1973 could not be rejected on the ground of application of principle of res judicata under section 11, C.P.C.; as their earlier suit in respect of the same matter was still pending and not yet decided, which was dismissed on 31-1-2011, whereas subsequent suit was lodged on 27-1-2011. Any how, apart from non maintainability of a revision petition against an order/judgment in the revision petition by the revisional Court, the suit was hopelessly time barred, and could have been disposed of on that score under Order VII, Rule 11, C.P.C.

11. As a sequal to the forgoing discussion, all the three revision petitions are bereft of merit, hence dismissed. SL/272-/P Petitions dismissed.