2007 PLP 794 (SCMR)

HAMID ALI MIRZA, J.

This civil appeal with leave of the Court is directed against judgment, dated 9-6-2003 in Civil Revision No.2073 of 1996 passed by learned Single Judge of the Lahore High Court, Lahore, whereby said civil revision filed by the appellant/ defendant was dismissed thereby judgment and decree, dated 12-5-1996 passed by learned Additional District Judge was reversed and suit of the respondent/plaintiff was decreed in toto hence this appeal with leave of this Court.

2. Brief facts of the case are that the respondent/plaintiff Mst. Nighat Iram Alam filed suit for declaration and permanent injunction against the appellant/defendant Alam Khan praying therein to declare Mutation No.1339 attested on 17-7-1969 to be void ab initio and the respondent/plaintiff continued to be owner in possession of the suit-land measuring 199 Kanals, 17 Marlas, bearing Khasra Nos. 503, 504, 409, 510, 519/1, 648 to 656, 851 to 854, 859 to 862, 867, 869 to 871 and 872/1 situated in Ferozewala, District Sheikhupura with a consequential relict' that the appellant/defendant Alam Khan be restrained permanently from asserting himself to be the owner of the suit-land or to deny the title of the respondent/plaintiff and further he be restrained not to interfere in the possession of the respondent/plaintiff. It was further prayed by the respondent/plaintiff that it be also declared that Mutation No.2788 of the Revenue Estate Ferozewala, was inoperative against (be rights of the respondent/plaintiff and that the appellant/defendant had no share hi the land owned by the respondent/plaintiff in Khata No.263 of 1976-77 in Revenue Estate Ferozewala of which the appellant was sole owner.

3. The appellant/defendant filed written statement denying and controverting the contents of the plaint. He stated that written family settlement was arrived at between the respondent/plaintiff and other legal heirs of deceased Shah Nazir Alam and inconsequence thereof Mutation No.1335 dated 16-7-1969 and Mutation No.1339 dated 17-7-1969 were sanctioned, whereby appellant/defendant was given 199 Kanals, 17 Marlas as per Revenue Record whereas the said family settlement stated that an area of 12-1/2 acres of land from the estate of deceased S.N. Alam was given to the appellant/defendant in view of latter's oral Will which was signed by the respondent/plaintiff and all other legal heirs of the deceased. In view of the said family settlement Exh.D.1 arrived at between the legal heirs in order to honour the oral Will of the deceased, the mutation was effected in favour of appellant/defendant as well. It has further been stated that Mutation No.1339 was sanctioned correctly as per family settlement Exh.D.1 which was never challenged by the respondent/plaintiff of which she was well aware of all facts. It was stated that the appellant/defendant in view of the family settlement was put into physical possession of the land given to him and mutation entered in the Revenue Record for the year 1970-71. However, subsequently, respondent/plaintiff fraudulently as well as through influence managed to get review of Mutation No.197 so as to get rid of Mutation No.1339 which order of review was subsequently set aside by the Additional Commissioner, Rawalpindi, vide order, dated 14-7-1981 by restoring the original Mutations Nos.197, 1334 and 1335. The appellant/defendant further stated that the respondent/plaintiff herself appeared before the Assistant Collector, Ferozewala to get the mutation sanctioned in favour of appellant/defendant when she was identified by Agha Muhammad Ali, Additional I.-G. Punjab, Lahore. It was further stated that identification of respondent/plaintiff at the time of sanction in respect of Mutation No.1335 dated 16-7-1969 was also made by Agha Muhammad Ali, Additional I.-G. before the Assistant Collector, Ferozewala. He stated that no violation of Martial Law Regulation No.64 was committed and no permission was given to review the Mutation No.197.

4. The respondent/plaintiff challenged the order, dated 14-7-1981 passed by Additional Commissioner before the Member Board of Revenue Punjab by filing revision but the said revision was also rejected. Thereafter the appellant/plaintiff filed the above suit in the Civil Court which suit after framing of issues and recording of evidence and hearing learned counsel was dismissed. The respondent/plaintiff preferred Civil Appeal No.21 of 1996 before the Additional District Judge, Sheikhupura which was partly allowed whereby suit of the respondent/plaintiff was partially decreed in her favour thereby appellant/defendant was given land to the extent of 1/2 share in the suit-land who was held to be joint owner in possession to the extent of 1/2 share from suit-land measuring 199 Kanals, 17 Marlas, which was ordered to be mutated and attested accordingly and if the parties so desired could get the same partitioned in accordance with law.

5. Both parties being aggrieved preferred civil revisions when respondent/plaintiff's Civil Revision No.2593-D of 1996 was allowed while Civil Revision No.2073 of 1996 filed by appellant/defendant was dismissed, thereby suit filed by the appellant/defendant was decreed against the respondent/defendant.

6. We have heard learned counsel for the parties at length and perused the record and the parties' learned counsel have taken us through the record.

7. Contentions of learned counsel for the appellant are that learned Single Judge of the High Court has erred in reversing the finding of fact arrived at by two Courts below and has also failed to assign any valid and legal reason for reversing the said finding of fact, considering that there was no misreading or non-reading of evidence materially affecting the merits of the case. He further submitted that learned Single Judge in his civil revisional jurisdiction was not competent in law to disturb the finding of fact of two Courts below with regard to the family settlement Exh.D.A. when the said document being admitted one and in consequence of that necessary steps were taken to execute and complete the settlement arrived at between the respondents and remaining L.Rs. of late Shah Nazir Alam. He also submitted that revenue hierarchy has determined the claim of the appellant in view of the material on record, therefore the said finding could not have been undone without cogent and valid reason under the law considering also that no sanction for review was obtained to undo what was legally done on the revenue side in favour of the appellant.

8. Learned counsel for the respondent submitted that the appellant by practising fraud got mutation made in his favour therefore, same was challenged before the Civil Court. He further submitted that learned Single Judge has appreciated the evidence in accordance with law when there was misreading and non-reading of material by the two Courts below, hence finding arrived at by learned Single ' Judge cannot be disturbed by this Court. He also submitted that the appellant got mutated land in excess even to that what was stated in the family settlement Exh.D.1, therefore, the said entry in the mutation was rightly undone. He also submitted that neither there was Will made by deceased Shah Nazir Alam nor any gift, nor any possession was passed on in favour of the appellant to complete the gift. He also submitted that the respondent Mst. Nighat Iram Alam was observing Iddat therefore, her going to the office of the Revenue Officer was incorrect and false for the purpose of attestation and consent to effect the mutation in favour of the appellant.

9. We do find merit and substance in the contention of learned counsel for the appellant while no merit and substance is found with the submissions made by learned counsel for the respondent.

10. The main controversy between the parties is whether the respondent/plaintiff and other legal heirs of deceased S.N. Alam had settled their dispute in respect of estate left by the deceased Shah Nazir Alain and in consequence of family settlement they also agreed to give 12-1/2 acres of land as per oral Will of deceased S.N. Alarm to the appellant/defendant and in lieu thereof necessary mutations in the Revenue Record were made.

11. We have perused family settlement Exh.D.1 at page 126 of the paper book which is dated 30th June, 1969. Exh.D.1 is signed by (i) Shah Jamil Alam son of Shah Zaheer Alam, (ii) Mian Anwar Ali son of Mian Ramzan Ali, (iii) Col. Syed Abid Hussain son of Syed Raj Shah, (iv) Agha Muhammad Ali Khan son of Agha Saadat Ali Khan, (v) Nighat Iram alias Roshan Nazir Alam widow of Shah Nazir Alam and (vi) Abdul Hameed Qureshi, Petition-Writer. The relevant para. therefrom is reproduced below:-- Through document Exh.D. 1 viz. family settlement the respondent and other L.Rs. of deceased Shah Nazir Ali resolved their dispute in respect of the estate of deceased Shah Nazir Alam. The land of the deceased which was at Ferozewala was given to the appellant/plaintiff in lieu of her inheritance right while the land at other places, namely, Sahiwal, Ghotki, etc. was given to the other sons of deceased. However, it was resolved through the above family settlement that out of the land consisting of eight squares at Ferozewala, 12-1/2 acres of land was given to the appellant/defendant by all the legal heirs including respondent/ plaintiff to honour the oral Will of deceased Shah Nazir Alam to the appellant/defendant who had served the deceased throughout his life as driver. The said document Exh.D.1. is an admitted document which is also admitted by the respondent/plaintiff when she appeared as P.W. in the Court, she admitted that Exh.D.1 is in Urdu which she could not read, however, she stated that it bore her signature. P.W.2 Agha Muhammad Ali admitted his signature. D.W.1 Shah Jaleel Alam and D.W.2 Shah Rafi Alam sons of deceased Shah Nazir Alarm admitted that Exh.D.1 bore their signatures and that of Agha Muhammad Ali and further that the land in dispute was given to the appellant/defendant to honour the oral Will of deceased Shah Nazir Alam. D.W.2 Shah Rafi Alam in his deposition has deposed that family settlement was signed by three brothers, one sister including the respondent/plaintiff and three witnesses had also signed the same. Exh.D. 1, family settlement is an admitted document between the parties. This document of family settlement is corroborated by Exh.D.2 by entry made in Register Intqalat, whereby implementation of the family settlement was made in the Revenue Record. It is also corroborated by Exh.D.3 by entry made in the Register Intqalat, whereby implementation of family settlement was made thereby the appellant/defendant's name was entered in Column 8 of Exh.D.3 on 7-7-1969 and is also corroborated by Exh.D.4, whereby name of the respondent was entered in column 3 of Register Haqdaran Zamin. It is also corroborated by Exh.D.5 whereby entry in the Register Girdawari mentioned the name and possession of appellant/defendant in column 7 in respect of' suit-land. Exh.D.2 to Exh.D.5 arc the copies of public documents and their authenticity and genuineness cannot be doubted and the authenticity of the same was also not challenged by the respondent/ plaintiff. Record would show that after the death of Shah Nazir Alam, his oral Will in favour of the appellant/defendant was acknowledged by all the legal heirs of the deceased as would appear from Exh.D.1, which ultimately in terms thereof was executed and implemented in the Revenue Record to the extent of 12-1/2 acres of land in favour of appellant so also in respect of' the rights of the respondent and other L.Rs. of deceased Shah Nazir Alain and entered in the Revenue Record. Mere fact that separate mutation in respect of 12-1/2 acres was not attested on the same day would not have material effect upon the authenticity of the same considering that there was concurrence of all legal heirs of the deceased to it. So far on the revenue hierarchy the appellant/defendant succeeded in getting the entries made in his favour in view of family settlement Exh.D.1 under the orders passed by Additional Commissioner, Rawalpindi which was maintained by the Member Board of Revenue. Revenue hierarchy has also held that sale made in favour of deceased Shah Nazir Alam was not violative of Martial Law Regulation No.64 considering also that no sanction for review of order from Collector was obtained to review the Mutation No.197 on the ground that it was in contravention of the provisions of MLR 64 and that the necessary party who had acquired vested interest in the land was neither called nor heard before passing order.

12. In the circumstances we find that impugned judgment passed by learned Single Judge of the Lahore High Court, Lahore cannot be sustained as the same has been passed on misreading and non-reading and misinterpreting the evidence and law, therefore, the same is set aside and appeal is allowed and judgment and decree passed by learned Additional District Judge, Sheikhupura is restored, whereby appellant/ defendant is held to be entitled to the extent of 12-1/2 acres of land being 1/2 share in the suit-land. No order as to costs. S.A.K./A-87/SC Appeal accepted.