2006 PLP 1279 (MLD)

SHAIKH AZMAT SAEED, J.

This civil revision is directed against the judgment and decree dated 17-2-2004 whereby the appeal filed by the petitioner against the judgment and decree dated 8-7-2000 was dismissed.

2. The brief facts leading to the finding of this petition are that one Syed Zafar Ali Shah was an allottee of land measuring 240 Kanals, 2 Marlas who transferred the same to the petitioner and respondents Nos. 1 to 22 (or their predecessor-in-interest) after allegedly obtaining requisite permission in terms of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. The rights in the land were purchased and acquired by the present parties (or their predecessor-in-interest) in accordance with the requisite fractional shares and Mutation No.34 was attested in this behalf. The present petitioner aggrieved of the said mutation applied to the Collector concerned for its rectification on the ground that the said Mutation No.34 did not accurately reflect the proportionate share of the petitioner purchased by him from the said Syed Zafar Ali Shah. The said application did not find favour. Aggrieved the petitioner filed an appeal before the Additional Commissioner (Revenue) who accepted the same vide order dated 1-9-1979. In the meantime, it appears that litigation ensued between the petitioner and the respondents (or their predecessor-in-interest) on the one hand and Syed Zafar Ali Shah on the other hand which is still pending. However, Mutation No.1785 was attested in favour of the petitioner on 27-10-1994. Respondents Nos.2 to 4 challenged the said mutation along with the orders of the Additional Commissioner (Revenue) by way of a civil suit which was decreed in their favour vide appellate judgment and decree dated 8-7-2000. Aggrieved the petitioner filed an appeal which failed to find favour and was dismissed vide the impugned appellate judgment and decree 17-2-2004.

3. Learned counsel for the parties have been heard and the record appended with this petition has been perused.

4. The only dispute inter se the parties is as to the fractional' share to which the petitioner and respondents are entitled to. All the counsel agree and rightly so that the said fractional share of the parties can be best determined and identified on the basis of the affidavit filed by Syed Zafar Ali Shah while seeking permission to transfer his rights in the land in favour of the parties under the Colonization of Government Lands (Punjab) Act, 1912. The said affidavit is on the record as Exh.D.3 which verbatim reads as follows:-- Statement of Syed Zafar Ali Shah son of Syed Nadir Shah caste Syed aged 45/50 years allottee in Chak No.93-D on Oath; stated that the land measuring 30 acres, 0 Kanal, 3 Marlas was allotted to him which has been transferred in lieu of Rs.24,000 in favour of Waryam Khan, Pehlwan, Sultan, Ghulam sons of Hadayet half share, Mutalli, Sher sons of Tatar 1/5th share, Wahgh (petitioner) 1/5th share, Ramzan son of Hayat, Qasim Ali, Ahmad, sons of Allah Ditta, Mst. Bakhan daughter of Allah Ditta (respondents Nos. 1 to 4) 1/10th share.

5. The real matter in controversy between the parties is whether the petitioner was entitled to 1/5th share of the total 30 acres or 1/5th share of half of the total land i.e. 15 acres as contended by the counsel for the respondents. I am afraid to accept the contention of the learned counsel for the respondents would mean that the petitioner would get three acres, Mutalli and Sher would also get three acres and Ramzan, Qasim All, Ahmad and Mst. Bakhan would get one and a half acre totalling 7-1/2 leaving the balance 7-1/2 acres un-accounted for. The contention of the learned counsel for the respondents would result in a mathematical impossibility. Consequently this Court has no hesitation in holding that the petitioner is entitled to 1/5th share of the total land of Syed Zafar Ali A Shah being 1/5th of 30 acres i.e. 6 acres and Mutation No.1785 in his favour to this effect was correct and the challenge of the respondents by way of instant civil suit was erroneous and without any legal or factual basis. Consequently the impugned judgments and decrees of the two Courts below suffer from an obvious error of fact and law. As a consequence whereof the said judgments and decrees cannot be sustained. In view of the above, this revision petition is accepted and the impugned judgments and decree dated 8-7-2000 and 17-2-2004 are hereby set aside. F.B./2-9/L??????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.