2006 PLP 1422 (CLC)

JAWWAD S. KHAWAJA, J.

The petitioner/plaintiff impugns the concurrent decrees of the learned trial Court dated 25-10-1989 and the learned appellate Court dated 15-10-1995 whereby a declaratory suit filed by the petitioner seeking permanent injunction by way of consequential relief, was dismissed.

2. The facts of this case are straightforward. One Mst. Meero was owner of land measuring 72 Kanals in Chak No.271 /RB, Tehsil and District Faisalabad. She died in 1952. Thereafter, an inheritance mutation relating to her estate was sanctioned on 15-10-1953 in favour of Yousaf Ali and Abdul Aziz (predecessors-in-interest of respondents Nos.3-A to 4-F). The said Yousaf Ali and Abdul Aziz sold 2 Kanals, 11 Marlas out of the aforesaid land to the petitioner vide Mutation No.422 sanctioned on 2-12-1964. Since then the petitioner is in possession of the suit-land. 3.? It transpires that subsequently on 19-1-1970 respondents Nos.1 and 2, namely, Muhammad Shafi, Advocate, and Mst. Sardaran Bibi, claiming to be respectively the brother and sister of Mst. Meero, deceased, filed an application before the Collector seeking review of the inheritance mutation sanctioned on 15-10-1953. The Collector, vide order, dated 8-8-1970 allowed the application and ordered review of the aforesaid mutation. Yousaf Ali and Abdul Aziz then filed Writ Petition No.261 of 1971 to challenge the order of the Collector. This petition was dismissed on 6-11-1978 and the order of the Collector, dated 8-8-1970 was upheld. 4.? At this juncture it is relevant to note that the petitioner was never made party either before the Collector or in the writ petition before the High Court. Learned counsel firstly contends that Yousaf Ali and Abdul Aziz were the ostensible owners of the land and were in possession thereof. The Revenue Record also showed them to be the owners of the land. Secondly it is contended that Muhammad Shafi and Mst. Sardaran Bibi (respondents Nos.1 and 2) did not assert any interest in the disputed property for a period of 18 years starting with the death of Mst. Meero in 1952 and the filing of their review petition in 1970. No valid explanation was proferred by them for their serious neglect in asserting their rights.

5. On the above basis learned counsel for the petitioner contended that the rights of the petitioner as a bona fide purchaser of the suit property for valuable consideration could not be defeated particularly in view of the conduct of respondents Nos. 1 and 2, who through their own omission, enabled Yousaf Ali and Abdul Aziz to deal with the property and to transact the sale in favour of the petitioner through Mutation No.422.

6. The above contentions are well-founded. The respondents Nos.3-A to 4-F have already been proceeded against ex parte. The respondents Nos.1 and 2 have failed to appear despite service. There as such is none to controvert the above factual and legal submissions made on behalf of the petitioner/plaintiff. In any event, as noted above, the contentions of learned counsel are borne out from the record and are well-founded.

7. It is clear that the learned Courts below have committed material error in the exercise of their jurisdiction while disregarding the law and the facts of the case, noted above. The impugned decrees are, therefore, set aside and the? petitioner/plaintiff is granted declaration of title in respect of the disputed land measuring 2 Kanals and 11 Marlas as prayed for by him. F.B./G-174/L?????????????????????????????????????????????????????????????????????????????????????? Petition allowed.