2003 PLP 502 (MLD)

(2) Whether plaintiff has no locus standi or cause of action to sue? OPD. (3) Whether suit is not maintainable in present form? OPD (4) Whether description of suit land is incorrect. If so, its effect? OPD. (5) Whether plaintiff `has not come with clean hands? OPD. (6) Whether plaintiff is in exclusive possession of suit property? OPP. (7) Whether suit is time‑barred? OPD. (8) Whether suit is bad and vexatious and defendants are entitled to special costs? OPD. (8‑A) Whether plaintiff is entitled to the relief as prayed for? OPD. (9) Relief.

2. The parties were given opportunities to produce their evidence and vide judgment and decree dated 25‑6‑1987, the learned Trial Court dismissed the suit for declaration filed by the petitioner and the learned Lower Appellate Court confirmed the judgment passed by the learned Civil Judge, vide judgment and decree dated 2‑3‑1994. Against these concurrent findings the petitioner has filed the instant civil revision. Learned counsel for the petitioner submits that findings of both the learned Courts below on Issues Nos.6 and 8‑A are against law and facts of the case on record and not maintainable and sustainable. The learned Appellate Court while setting aside the findings on Issue No. 1 committed illegality and committed material irregularity because the said issue was decided by the learned trial Court against the respondent on the ground that the Revenue Courts have the jurisdiction and decision of Revenue Court did not bar the present suit. The adverse party did not challenge these findings before the learned Appellate Court by way of filing a suit or filing cross‑objections. After receiving notices in appeal and even no ground was advanced by the respondent on Issue No.1. Therefore, the learned Lower Appellate Court became prejudiced while setting aside the findings of learned Trial Court on Issue No.1 suo motu. The learned Appellate Court has erred in law in connecting principle of res judicata with Revenue Courts. When the principle of res judicata applies in civil proceedings under the provisions of Civil Procedure Code as such Civil Procedure Code is not strictly applicable in the Revenue Courts. The question of res judicata can only be decided by framing the issues by the Civil Court. He further argued that both the learned Courts below have failed to take into the consideration the documentary evidence brought by the petitioner on record and the findings of the learned Courts below on Issue No.6 and issue No.8‑A are result of misreading and non‑reading of evidence on record. As the learned Appellate Court decided Issues Nos.6 and 8‑A after considering documentary evidence produced by the respondents as Exh. D‑1 to Exh. D‑3 are previous decisions of Revenue Courts but the learned Courts below not only ignored documentary evidence of the petitioner even same was not touched and referred in the impugned judgment.

3. Learned counsel for the respondents submits that both the judgments of the learned Courts below are well‑reasoned and have been passed after perusal of the evidence on record. The petitioner first of all availed the remedy challenging the mutation in question before the Revenue Authorities. He failed from the Court of Collector till the Court of Board of Revenue, then, he filed a civil suit challenging the mutation in question, and in this civil suit he did not challenge all the judgments passed by the Revenue Courts in respect of mutation. In paragraph No. 2 of the written statement he has stated that the defendant No. 1 Ghulam Rasool tried to interfere in the property measuring 17 Marlas from defendants Nos. 3 to 17 which belongs to predecessors Alam and Shalam as is apparent from mutation No. 1019 dated 26‑3‑1973. The Khata was joint and every sharer was in possession of their Khata. He further argued that the property as per Mutation No. 1019 belongs to Ghulam Nabi, Jalal Din, Alain, Shalam and Nazar Hussain etc. according to their shares and it is also clear from the mutation that the share has been sold and the mutation in respect of the shares has been recorded. The name of the plaintiff/respondent does not appear any where. As the shares of co‑sharers were being sold. The respondent Ghulam Rasool son of Kalu could the suit for partition and then could claim that there is any interference in his share. In fact in the impugned mutation there is no name of Ghulam Rasool son of Kalu. All the Revenue Courts have decided against the petitioner and in favour of respondents. He has not challenged the judgments of Revenue Court's being outcome of malice or some illegality and did not pray in the plaint that those were illegal or ineffective upon his rights. Therefore, these judgments are res judicata. As Civil Court's jurisdiction to certain extent is barred in these matters. Reliance is placed on "Walayat Begum and others v. Wazir Begum and others (1992 CLC 553)". He further stated that the petitioner has filed the instant civil revision and the factual controversy by the learned Courts below cannot be re‑opened in exercise of powers under the civil revision. Reliance is placed on Amir Slab and 2 others v. Government of N.W.F.P. through Home Secretary at Peshawar and 4 others (1994 SCMR 1778) and Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291).

4. I have heard the learned counsel for the patties and have perused the record.

5. Both the learned counsel below have given issue‑wise findings, that plaintiff is in possession of one Kanal and 17 Marlas bearing Khasra Nos. 17/9, 17/10, and 17/11, situated in Mauza Golra Hashim, Tehsil Kharian, District Gujarat and this property is in possession of the plaintiff as co‑sharer and owner. The defendant purchased 17 Marlas of land from the defendants Nos.2 to

17. The plaintiff earlier agitated before the Revenue Authorities that the excess land was sold by the respondents The plaintiff has failed to prove that the excess land was sold to the defendant No. 1 as actually Jalal Din, Alan: and Shalam were owners in the disputed Khata to the extent of 17 Marlas where they have built their houses, and these 17 Marlas were sold to defendant No.

1. As the learned Courts below after discussing the evidence came to the conclusion that the petitioner/plaintiff could be declared as co‑sharer in respect of one Kanal and 17 Marlas of land, as joint Khata had never been partitioned So, no declaration can be made against the co‑sharer and as this Khata has never been partitioned so every co‑sharer shall be considered as owner in possession of the suit property The mutation in question also shows that 17 Marlas of land in joint Khata belongs to Alam, Shalam and one other Nazar Hussain. The predecessor‑in‑interest of the respondents and the petitioner has badly failed to prove before the Revenue Courts that excess land was sold to the respondents. He has also tailed to challenge the judgment passed by the Revenue Courts in his plaint arid failed to pray for setting aside the same. Even otherwise the perusal of oral as well as documentary evidence on record does not favour the petitioner

7. Therefore, Keeping in view the above facts, evidence on record and the concurrent findings of both the Courts below setting at naught factual controversy under appreciation of evidence no interference is made in the impugned judgment in the instant civil revision. This civil revision is dismissed. No order as to costs. M.B.A./G‑235/L Revision dismissed.