2007 PLP 351 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed the judgments/decrees dated 11-3-2002 and 6-1-2005 passed by the learned Civil Judge and the learned Additional District Judge, Gujranwala, whereby suit for declaration filed by respondents Nos.3 and 4 was decreed and petitioners' appeal was dismissed, respectively.

2. Succinctly, relevant facts are that respondents Nos.3 and 4 filed a suit for declaration with consequential relief to the effect that land measuring 37 Kanals, 5 Marlas, duly detailed in the plaint, was never mortgaged by their predecessor-in-interest to any Muslim, non-Muslim, Government or predecessor-in-interest of the appellants by receiving mortgage money thus, it had incorrectly been shown under mortgage in the Revenue Record. Respondents Nos.3 and 4 prayed that entries in the Revenue Record showing their land under mortgage may be declared illegal, void and accordingly may be adjudged, declaring them exclusive owners. It was further prayed in the plaint, by way of consequential relief that the petitioners/defendants may be restrained from taking benefit of the incorrect entries in the Revenue Record.

3. Petitioners being defendants in the suit contested the same by filing their written statement wherein they raised certain preliminary objections and controverted the stance of respondents Nos.3 and

4. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge; seized of the suit, after doing the needful, decreed the suit vide his judgment/decree dated 11-3-2002. Petitioners were not satisfied with the decision of the trial Court and consequently filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed on 6-1-2005. They, therefore, filed instant revision petition and respondents in response to notice by this Court appeared and were represented through their counsel.

4. I have heard the learned counsel for the parties and have examined the record, appended herewith. Besides the lawful reasons which concurrently weighed with the two Courts below in support of the decrees in favour of respondents Nos.3 and 4, they examined 2 witnesses in proof of their stance that suit-land was never mortgaged and statements of both these P.-Ws. Nos.1 and 2 are consistent on the point. Another witness, P.W.3 Ghulam Rasul Patwari deposed that suit-land was purchased by the respondents Nos.3 and 4 vide Mutation Nos.828 and

829. According to this witness, suit-land had been shown under mortgage with non-Muslims but without reference to any mutation in this behalf which was also not available on the record. In view of this evidence and clear denial of the respondents about creation of the mortgage, onus shifted towards the petitioners/defendants to prove creation of mortgage through positive evidence. Mst. Razia Bibi, one of the petitioners/defendants, appeared in the witness-box as D.W.1 and simply asserted that suit-land was allotted to her husband Gulzar Hussain as temporary allottee and that land was already under mortgage.

5. The pivotal question which hinges for determination by this Court is as to whether the suit-land temporary allotted to Gulzar Hussain husband of D.W.1, was according to law and as to whether land was under mortgage with non-Muslims whose rights could have been transferred to the predecessor of the petitioners as refugees from Jammu and Kashmir State. It was not denied by the petitioners that suit-land was Muslim owned property, title of which was never transferred by the owners in favour of the non-Muslim. Now though there is no proof of creation of mortgage in favour of non-Muslims yet if such mortgage was ever granted, only mortgagee rights were to vest in Federal Government to form part of the compensation pool created under the settlement laws. There is not an iota of evidence on the file that mortgagee rights of the land in question ever became part of the compensation pool or were transferred to the Ministry of Kashmir affairs for onward allotment to the petitioners. The petitioners also did not produce any evidence showing that which land and what rights thereto, were allotted to their predecessor Gulzar Hussain. In absence of any such evidence, petitioners were not in a position to have the well-reasoned concurrent judgments adjudged.

6. Respondents Nos.3 and 4 also produced copy of a plaint in earlier suit filed by the petitioners, titled "Mst. Razia Bibi and others v. Muhammad Boota and others" as Exh.P.2 which according to the statement of D.W.1, was dismissed in earlier round of litigation. Dismissal of petitioner's suit rendered substantial support to the case put forth by the respondents. It goes without remarking that petitioners never received any Lagan from respondents and did not approach the Court concerned, in this behalf. Scan of record and the impugned order revealed that controversy was correctly put to rest without committing any illegality/irregularity amenable to revisional jurisdiction of this Court.

7. For the reasons noted above, no case for interference in revisional jurisdiction of this Court could be made out and consequently instant revision petition being devoid of any merit, is dismissed with no order as to costs. F.B./R-66/L Petition dismissed.