P L D 2009 Supreme Court (AJ&K) 9 (PLP)

MUHAMMAD AZAM KHAN, J.

This appeal, by leave of the Court, is addressed against the order of the Azad Jammu and Kashmir High Court dated 10-9-2008, whereby Revision Petition No.67 of 2007 from the judgment of District Judge Mirpur, has been dismissed.

2. The appellants/plaintiff filed a suit for declaration along with perpetual injunction and for direction in the Court of Senior Civil Judge Mirpur on 12-12-2006 to the effect that he is owner in possession of land comprising previous survey No.2445/3 present survey No.3808 measuring one Kanal 13 Marlas, No.3810 Measuring 9 Kanals 19 Marlas and No.3811 measuring 12 Marlas situate in village Dhari Phalli on the basis of agreement dated 5-5-1979 and the decree passed by the Sub-Judge Mirpur on 31-10-1977 and partition-deed (Sanad Nama) on the basis of partition order issued by the Revenue Assistant (Mall Officer) Mirpur in respect of land, is against the rights of the plaintiff and the pro forma-defendants, therefore, is inoperative on the rights of the plaintiff and is liable to be cancelled. Along with the plaint an application for stay order was also moved for maintaining the status quo. The Senior Civil Judge Mirpur issued the stay order on 12-12-2006 initially. Later on, on objections filed by the defendant/respondent, herein, the stay order was recalled on 16-3-2007. The plaintiff/appellant, herein, filed an appeal before the District Judge Mirpur which was dismissed on 28-5-2007. This judgment of the District Judge Mirpur was challenged before the Azad Jammu and Kashmir High Court through a revision petition. A learned single Judge in the High. Court dismissed the revision petition vide impugned order on 10-9-2008, hence this appeal.

3. Ch. Muhammad Yunus Arvi, the learned counsel for the appellant, argued the following points:-- (a) That the appellant has a good prima facie arguable case. The land came under his ownership on the basis of a decree passed by the Sub-Judge Mirpur on 31-10-1977 and on the basis of this decree agreement was signed between the plaintiff and defendant on 5-5-1979 for private partition. On the basis of this -agreement parties were to get the certificate of partition from the Revenue Assistant (Mall Officer). The defendant obtained partition-deed from the Revenue Assistant without the knowledge of the plaintiff and against the spirit of the agreement. The plaintiff filed an application for partition of the land before the Revenue Assistant, whereupon it transpired that the defendant has got partitioned the land without the knowledge of the plaintiff. His application for partition was dismissed on 5-7-2006. After dismissal of the application plaintiff filed the above titled suit; (b) That the Courts have not considered the agreement dated 5-5-1979 and decided the application without perusing the same. Had the Courts below perused the agreement (Iqrar Nama) dated 5-5-1979 they should have confirmed the stay order; (c) That if the stay order in respect of previous survey No.2445/3 present survey Nos.3808, 3810 and 3811 situated in village Dhari Phalli is not issued the defendant/respondent No.1 will interfere in the survey number or will sell it to any other party. Since the land has been acquired for Mangla Dam Upraising Project the defendant will receive the compensation amount from the defendants Nos.2 and 3 in that case he will suffer an irreparable loss; and (d) That the balance of convenience lies in favour of the plaintiff/appellant, herein.

4. While controverting the arguments, Choudhry Muhammad Mumtaz, the learned Advocate appearing on behalf of respondent No.1, argued that parties had entered into compromise through agreement (Iqrar Nama) for private partition of the land dated 5-5-1979. On the basis of this agreement an application for partition of the land was moved before the Revenue Assistant and regular partition order was made on 21-2-1989. The father of the plaintiff moved an application to the Tehsildar Mirpur for sanctioning of mutation. On his application Mutation No.530 was sanctioned on 1-4-1989. After himself moving for sanctioning of mutation the plaintiff cannot take the plea that he was not in knowledge of the partition. He further argued that in result of partition separate Khewat of the parties were entered in record. The plaintiff's Khewat number is 228, the land measuring 28 Kanals 17 Marlas is entered in this Khewat, while Khewat No.229 is allotted to the defendant/respondent and the land measuring 25 Kanals 9 Marlas is entered in this Khewat in his ownership. The defendant is the sole owner in Khewat No.229. The plaintiff has no concern whatsoever with this Khewat, while a separate Khewat of the plaintiff was entered in the record under the decree of Sub-Judge Mirpur dated 31-10-1977 and the defendant has no concern with it. Previous survey No.2445/3 present Nos.3808, 3810 and 3811 falls in Khewat No.229 which is under the sole ownership of the plaintiff. He contended that the plaintiff has no prima facie arguable case. The defendant is in possession of the land which has been acquired for upraising of Mangla Dam Project and the defendant has to receive the compensation from defendants Nos.2 and

3. If the stay order is issued he will suffer irreparable loss, balance of convenience also lies in his favour. Lastly, he argued that the order of partition passed by the Revenue Assistant Mirpur and Partition-deed (Sanad Nama) issued on the basis of partition order was issued with the consent of the parties. This order of Revenue Assistant is an appealable order, if the plaintiff/appellant had any grievance against the partition he should have filed an appeal before the competent forum. The Civil Court has no jurisdiction in the matter and partition proceedings cannot be challenged through a civil suit.

5. We have heard the learned counsel for the parties and gone through the record of the case. The plaintiff seeks stay order in respect of previous survey No.2445/3 presently renumbered as 3808, 3810 and 3811 previous Khewat Nos.176-min and 177 Khata Nos.377-min and 374 new Khewat No.229, Khata No.665 situate in village Dhari Phalli. The defendant has filed a copy of Jamabandi pertaining to year, 2000-2001, copy of Misslehaqiyat pertaining to year, 1991-1992 with regard to Khewat No.229. A perusal of Misslehaqiyat and Jamabandi reveals that previous survey No.2445/3 present survey Nos.3808, 3810 and 3811 is entered in the name of Muhammad Afsar, defendant. The name of plaintiff, Khadim Hussain, is not entered as owner in Khewat No.229, only. Muhammad Afsar's name is entered as sole owner in this land, therefore, prima facie the plaintiff has no concern whatsoever with the land in dispute. The version of the plaintiff/appellant, herein, to the effect that he was not in knowledge of partition proceedings till 1991-1992 when he filed the application for partition, is falsified from the perusal of Mutation No.530, copy of which has been filed with the plaint by the plaintiff. This mutation was entered on 2-3-1989 by Patwari concerned and was attested by the Revenue Assistant (Tehsildar) on 1-4-1989 on the basis of partition-deed (Sanad Nama) issued by the Revenue Assistant on 21-2-1989 on the application of Allah Ditta, father of the plaintiff. Although the agreement (Iqrar Nam) entered between the parties on 5-5-1979 is not relevant at this stage. It was relevant only for the purpose of partition, but we, for our own satisfaction, have perused this agreement. A perusal of this agreement shows that the land situate in village Dhari Phalli which was in the share of Mst. Bagma and others, legal heirs of Godar, which was obtained by father of the plaintiff and defendant No.1, Allah Ditta and Muhammad Afsar through the decree passed by the Civil Judge Mirpur on 31-10-1977 was given to Allah Ditta and the whole land in ownership of father of Allah Ditta in village Dhari Phalli shall go to Muhammad Afsar, defendant, therein. As such, the total land situate in village Dhari Phalli in ownership of their father was given to the defendant and land situate in village Pind Khurd except survey No.1334 measuring 1 Kanal 6 Marlas was given to defendant No.1, Muhammad Afsar. The contention of the plaintiff, that there is no land in the share of defendant No.1 in village Dhari Phalli, appears to be incorrect from the perusal of this agreement. Prima facie the plaintiff has failed to make out a good arguable case for maintaining the suit.

6. Both the parties state that the land in dispute has been acquired for the construction of Mangla Dam. The defendant's name is entered as owner in Khewat No.229. A lawful owner cannot be deprived of his right. If an interim injunction is issued in the manner that defendants Nos.2 and 3 shall not pay the compensation to defendant No.1 then he will suffer an irreparable loss. From a perusal of the record filed in the trial Court the balance of convenience appears to be in favour of defendant/respondent No.1. Keeping in view the principles governing the issuance of injunction i.e. prima facie case, irreparable loss and balance of convenience, we are of the view that the orders passed by the High Court and subordinate Courts are perfectly legal and merit no interference by this Court. Our above view is only for the purpose of interim injunction and will not prejudice the case of any of, the parties.

7. As far the contention of the learned counsel for the defendant that the order passed by the Revenue Assistant on 21-2-1989 on the partition application was an appealable order and in presence of remedy of appeal the civil suit is not competent and the Civil Court has no jurisdiction to entertain the suit is concerned, we refrain from commenting upon this aspect of the case because the trial Court has to decide this issue, any observation by this Court may adversely affect the case of the parties.

8. The upshot of the above is that finding no force in this appeal, it is hereby dismissed with no order as to costs. H.B.T./12/SC(AJ&K) Appeal dismissed.