1988 PLP 1272 (CLC)

Muhammad lqbal for Petitioner. Nemo for Respondents. Date of hearing: 30th January, 1988. The respondents filed a suit for declaration that they were owners in possession of the land in dispute measuring 5 Acres, 5 Kanais and 19 Marlas situated in Chak No. 133/R.B., Tehsil and District Lyallpur (now Faisalabad) and were entitled to rectification of revenue record. They also prayed for the issuance of a perpetual injunction restraining the petitioner from interfering in their said ownership and possession. The case of the respondents is that they purchased the land in dispute in an open auction held in 1956 and a registered sale deed was also executed in their favour by the Government. However, later on it was found that Killa Nos. 24 & 25 in dispute were mistakenly omitted from the sale deed and on the basis of the same the land situated in the said Killa Nos. 24 and 25 was ordered to be resumed by the Collector. This order was challenged through the present suit. The petitioner contested the suit on various legal grounds as also on facts. They alleged that the land comprised in Killa Nos.24 and 25 was not sold in favour of the respondents. The following issues were framed:‑‑ (1) Has Civil Court no jurisdiction to try this suit? (2) Is the suit not maintainable in its present form? (3) Are the plaintiffs owners of the suit land and are entitled to rectification of the revenue record. (4) Are the plaintiffs entitled to the issuance of injunction prayed for? (5) Relief. The learned Administrative Civil Judge, Faisalabad dismissed the suit of the respondents vide judgment, dated 31‑7‑1972. The appeal filed by the respondents was accepted by the learned District Judge, Faisalabad vide order, dated 18‑2‑1975. This revision petition has been filed against the said appellate judgment and decree. I have perused the record and have heard arguments.

2. Admittedly, the respondents are in possession of the land in dispute continuously since the time of auction. Therefore, there is nothing wrong in the form of the suit. Similarly, the suit requires the determination of the question of title of the respondents in respect of the said Killas Nos. 24 and

25. The question of title can be determined only by a civil Court. Therefore, the findings of the learned appellate Court on issues Nos. 1 and 2 are legally correct.

3. Issues Nos. 3 and 4 relate to the real matter in dispute. The land measuring 5 Acres, 5 Kanals and 19 Marlas was sold through open auction in favour of the respondents in 1956 and there is absolutely no dispute about it. The price for whole of the said land was admittedly duly paid by the respondents to the Government. Similarly, the respondents were in due course of law and as a result of the said open auction put into possession of whole of the land measuring 5 Acres, 5 Kanals and 19 Marlas and they are continuing in possession of the same till now. The possession of Killas Nos. 24 and 25 is included in the said whole land measuring 5 Acres, 5 Kanals and 19 Marlas. It may be added that Killas Nos. 24 and 25 measure 8 Kanals and 18 Marlas each, i.e. 17 Kanals and 16 Marlas in all. If this area is taken out the land with the respondents will be reduced by about 2 Acres. In other words instead of 5 Acres, 5 Kanals and 19 Marlas of land the respondents would then get land measuring about 3 Acres, 5 Kanals and 19 Marlas. As already pointed out above the land sold in favour of the petitioners was 5 Acres 5 Kanals and 19 Marlas and not less than that. The price also was recovered from the respondents by the Government for the said whole area of land.. Anwar Hussain, Colony Clerk has been produced by the petitioner as D.W.1. He could not hide the truth and stated that the land sold in favour of the respondents measured 5 Acres 5 Kanals and 19 Marlas. As stated earlier even the possession to the respondents was given of the said area of land which included Killas Nos. 24 and

25. No schedule of auction has been put forward by the petitioner in evidence. Fard Jamabandi for the year 1967‑68 also shows the respondents to be the purchasers of the said whole land including Killas Nos.24 and

25. Entry in Jamabandi of the said Killas Numbers in favour of the respondents was obviously made because in the Fard Nelam i.e. the schedule of auction the said Killas Nos. 24 and 25 were originally and in fact included. Therefore, it is clear that the land measuring 5 Acres,

5. Kanals and 19 Marlas was in fact sold in favour of the respondents through auction in 1956 and that the said land included Killas Nos. 24 and 25 of Square No. 53 in dispute. It was, therefore, some clerical mistake that in the sale‑deed Exh. P.1, the said Killa Numbers were omitted. This mistake was detected by the revenue officials after quite a long time and instead of rectifying the same they found it easier to order the resumption of land comprising of Killas Nos. 24 and

25. In fact they should have recitified the mistake by including the said Killas Numbers in the sale‑deed. Therefore, the finding of the learned appellate Court that the land comprised in Killas Nos. 2 4 and 25 was in fact sold in open auction to the respondents is quite correct.

4. It may be added t1hat the learned counsel for the petitioner. has argued that due to the mistake in the contract (sale‑deed Exh.P.l) the whole contract is voiod under section 20 of the Contract Act, 1872. This argument has no force because the parties were not at all under mistake of fact in regard to the area or identification of land. The land sold in favour of the respondents was known to both the, parties to be measuring 5 Acres, 5 Kanals and 19 Marlas and they; knew that the same included Killas Nos. 24 and

25. Therefore, this, is a mistake which needs rectification and this is not a mistake on the basis of which the whole contract can be avoided.

5. In these circumstances there are no grounds for interference with the decision of the learned appellate Court. The appeal is dismissed. No order as to cost.