2021 PLP 1230 (CLC)

SYED MUHAMMAD ATTIQUE SHAH, J.

Muhammad Riaz and others, the petitioners, by filing the instant Revision have challenged the judgment and decree dated 01.04.2014 passed by the learned Additional District Judge-VIII, Mardan, whereby appeal of the petitioners was dismissed and maintained the judgment and decree dated 30.01.2013 passed by the learned Civil Judge, Mardan.

2. The brief and essential facts of the present case as recorded by the learned Appellate Court are that; "plaintiffs filed a suit against the defendants for declaration to the effect that they are owner in possession of suit property measuring 19 kanals 16 marlas, falling in the suit khasra numbers which was purchased by their predecessor Kashmir Khan on the strength of registered deed dated 20.10.1921 which was then incorporated into mutation No.2013 dated 20.12.1923. That in the event of death of Kashmir Khan, his inheritance devolved on his son Shamas Khan, whereafter he was succeeded by his son Ilyas and the present plaintiffs are the legal heirs of the said Ilyas Khan. That some days prior to the institution of present suit the defendant No.1 has started the partition proceedings so on query the plaintiffs came to know that the entries in their names have been made in the column of cultivation instead of column of ownership and partial property measuring 07 kanals 14 marlas was partitioned in favour of defendant No.1, so the order and decree of the Revenue Court concerning partition mutation bearing No.2235 and the subsequent entries in the revenue record are ineffective on the rights of the plaintiffs. That the plaintiffs are owner of the suit property and they are entitled to secure entries in the column of ownership as they are in continuous possession and the partition proceedings where the plaintiffs have willfully been omitted to be arrayed as party and an ex-parte decree was obtained has no bearing on the rights of the plaintiffs. That the plaintiffs have the legal right to be protected from any sought of proceedings on the strength of partition decree where the defendant No.1 has no right to interfere in the property of the plaintiffs on the strength of decree so obtained. That defendants Nos.1 to 29 have entries in the column of ownership while defendants Nos.30 to 66 and defendants Nos.116 to 120 have entries in the column of cultivation, so to the extent of ownership and possession of the present plaintiffs the entire proceedings against the interest of the plaintiffs is nullity in the eyes of law and for that very reason mutation No.867 dated 06.12.1936 and rest of all the subsequent mutations affecting the rights of the plaintiffs to the extent of their ownership and possession are inoperative on the rights of the plaintiffs. Besides declaration prayer for perpetual / mandatory injunction and possession in alternative was also sought."

3. Respondents contested the suit by filing their written statement. From divergent pleadings of the parties, necessary issues were framed by the learned trial Court; pro and contra evidence of the parties was recorded; whereafter, learned trial Court vide its judgment and decree dated 30.01.2013 dismissed the said suit, after hearing the parties and; the same findings were maintained by the learned appeal Court by dismissing appeal of the petitioners. Hence, instant Revision Petition.

4. Learned counsel for the petitioners vehemently argued that petitioners are owners in possession of the property in question by virtue of registered deed No.401 dated 20.10.1921 to the extent of 19 kanals 16 marlas, which was subsequently incorporated in the revenue record through mutation No.2013 dated 20.12.1923; however, names of the predecessor-in-interest of petitioners were entered in column of cultivation instead of column of ownership; that subsequently Mutation No.867 dated 06.12.1936 was fraudulently attested on behalf of the predecessor of petitioners to the extent of 09 kanals 11 marlas in favour of one Amir Nawas; which is illegal and; thus, liable to be set aside. Further, respondent No.1 filed partition application without impleading petitioners, which was allowed; followed by attestation of partition mutation No.2235 on 27.07.2009, which are illegal; hence, liable to be set aside. Further, both the Courts below have wrongly held the suit of petitioners being barred by time and; prayed for acceptance of instant revision petition.

5. Conversely, learned counsel representing respondents, strongly opposed the contentions of petitioners and; argued that in fact Mir Dad Khan was original owner of property in question to the extent of 12 kanals 05 marlas; whereas, he alienated in excess of his share i.e 19 kanals 16 marlas in favour of Kashmir Khan, predecessor-in-interest of the present petitioners vide registered deed No. 401 dated 20.10.1921, which was subsequently entered into revenue record in Khana Kasht through mutation No.2013 attested on 20.12.1923; further, Kashmir Khan in his life time alienated 09 kanals 11 marlas through mutation No.867 attested on 06.12 1976 in favour of one Amir Nawas in column of cultivation. Further, that entries in column of cultivation could not get any preference over the entries in column of ownership; further, that the present petitioners were very much aware of the partition proceedings pending before the Revenue Authorities, which is evident from the statement of APW-2, wherein, he categorically admitted pendency of the partition proceedings; albeit, despite having knowledge, petitioners never approached the Revenue Officer to join the said proceedings and; prayed for dismissal of instant revision petition.

6. Arguments heard. Record gone through.

7. Record reveals that predecessor of petitioners Kashmir Khan purchased property measuring 19 kanals 16 marlas in khasra Nos. 678, 679, 680 vide registered deed No.401 dated 20.10.1921 (EX PW 2/1), which was incorporated in the revenue record through mutation No.2013 dated 20.12.1923 (EX PW 2/1); albeit, ibid entries were made in the column of cultivation. Record further transpires that vide mutation No.867 attested on 06.12.1976, predecessor of petitioners in his lifetime alienated 09 kanals 11 marlas out of 19 kanals 16 marlas in favour of one Amir Nawas. Later on, respondent No.1 approached Revenue Officer for partition of the property; however, petitioners had not been impleaded in the said application; which was allowed and partition mutation No.2235 was attested on 27.07.2009. Goshwara Malkiat of Mirdad son of Jamdad (vendor) for the year 1925-26 (EX APW 1/2) shown him recorded owner to the extent of 175 Kanals 05 marlas. Likewise, Goshwara Malkiat Bakhana Kasht for the year 1933-34 (EX-PW4/9) Kashmir Khan predecessor of the petitioners (vendee) had been shown owner to the extent of 19 kanals 16 marlas in the disputed khasra numbers in column of cultivation. Indeed, name of the predecessor of petitioners was entered in column of cultivation since day first, which is still intact. Therefore, precise question for determination before this Court is that whether owners in the column of cultivation in undivided khata could not be included in application for partition for the sole reason of their being in column of cultivation.

8. The ibid question, had long been resolved by the august apex Court in the case of Muhammad Muzzaffar Khan V. Muhammad Yusuf Khan reported in 1959 PLD SC

9. Wherein, it had explicitly been held that "The vendee of a co-sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to the vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. It was further held that alienation of specific plots transferred to the vendee would only entitle the later retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. The ibid view was further re-affirmed in the cases of Mustafa Khan v. Muhammad Khan reported in 1970 PLD SC (AJ&K)

75. Shah Hussain v. Abdul Qayum and others reported in 1984 SCMR 427 and in the case of Amir Shah v. Ziarat Gul reported in 1998 SCMR 593.

9. The above leads this Court to irresistible conclusion that at the time of partition proceedings every joint owner is a necessary party, irrespective of being placed in the column of ownership or cultivation and; his rights are to be protected and safeguarded accordingly. Admittedly, names of the petitioners are entered in the column of cultivation; albeit, mere entry in the said column would not debar them from impleadment in the application for partition. Therefore, contention of the learned counsel for respondents qua non-joining of petitioners in the partition proceedings is misconceived, as petitioners entered into the shoes of their vendors in the joint khata to the extent of their purchased shares therein and; thus, they were necessary party in the ibid proceedings.

10. Apart from above, worthy Revenue Officer also failed to duly comply with the provisions of Section 137 of the Land Revenue Act, 1967; which explicitly provide that after receipt of partition application, Revenue Officer has to issue notices to the recorded co-sharers, who have not been joined in the application. However, nothing is available on record, which could show due compliance of the ibid provision of law. It also clearly transpires from the ibid provision that there is no distinction between co-sharers mentioned in column of ownership and column of cultivation; rather, the term "Any joint owner of land" has been used in S. 135 of the ibid act, which clearly denotes towards a joint owner in a joint khata, irrespective of his status of ownership.

11. Now coming towards the objection of respondents qua exclusion of jurisdiction of Civil Court in view of the provisions of S. 172 of the Act. Indeed, ibid provision provide for exclusion of jurisdiction of Civil Courts; however, the same is restricted to the "matters which the Government, the Board of Revenue, or any Revenue Officer, is empowered by the act to dispose of or take cognizance of the manner in which Government, Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under the ibid act". However, where allegations of lack of jurisdiction or mala fide are attributed to authority passing the impugned order; then, Civil Courts could examine the same under the provisions of Section 9, C.P.C.; being the Courts of ultimate jurisdiction. Hamid Husain v. Government of West Pakistan and others 1974 SCMR 356.

12. So far as, allegation of fraud leveled by the petitioners qua sale Mutation No.867 attested on 6.12.1936, on behalf of their predecessor in his life time to the extent of alienation of 09 kanals 11 marlas out of 19 kanals 16 marlas in favour of one Amir Nawas is concerned; suffice it to say that petitioners challenged the validity of the ibid mutation after long seventy-four years of its attestation; moreover, attorney of the petitioners APW-2 admitted possession of the same with the vendees i.e LRs of the Amir Nawas in his cross-examination, coupled with the entries of Goshwara Malkiat Bakhana Kasht for the year 1933-34 (EX-PW4/9), which clearly shows Amir Nawas owner in possession to the extent of 9 kanal and 15-1/2 marlas. Therefore, petitioners' allegation qua ibid mutation is badly time barred and; findings of both the Courts below to that extent are maintained; being the result of proper appreciation of evidence available on record of the case to that extent.

13. In view of above, instant revision petition is partially allowed, the impugned findings of both the Courts below only to the extent of partition proceedings are set-aside and; the matter in question is remanded to the Revenue Officer for fresh partition proceedings, strictly in accordance with law. MH/53/P Case remanded.