2006 PLP 1008 (MLD)

SYED JAMSHED ALI, J.

The concurrent judgments of the learned two Courts decreeing the declaratory suit of respondent No.1, have been assailed in this revision petition. The facts of the case are noted hereunder.

2. Suit for declaration and injunction was filed by Muhammad Sadiq, respondent No.1., against the petitioner and 12 others wherein he claimed exclusive title to land measuring 1 Kanal and 14 Marlas comprising Khasra No.213. His case was that Hayat Muhammad, his father and father of respondents Nos.2 to 4 and grandfather of respondents Nos.5 to 12 had purchased the suit-land and as a result of "Khangi Tagseem", it had fallen to his share. It was averred that in collusion with the revenue authorities the petitioner got this land entered in the record of rights in his favour on the basis of an alleged allotment and on that basis was interfering in the possession of the plaintiff-respondent No.1.

3. Respondents Nos.2 to 12, confessed judgment while it was contested by the petitioner. He claimed to be the owner in possession of disputed land on the basis of allotment in his favour. It was averred that the predecessor of respondents Nos. 1 to 12 had purchased 1/4th share of 12 Kanals 1 Marla from one Daleep Singh while an area measuring 3 Kanals 5 Marlas was mutated in favour of Hayat Muhammad and has been in his possession.

4. Necessary issues were framed and the suit was tried. It was dismissed vide judgment and decree dated 15-9-1991 with the finding that predecessor respondent No.1 had purchased 1/4th share of Daleep Singh in the joint, Khata measuring 12 Kanals. On the appeal of respondent No.1, the case was remanded vide judgment dated 5-12-1993 by allowing respondent No.1, an opportunity to produce evidence in rebuttal.

5. On remand the suit of respondent No.1 was decreed vide judgment dated 12-12-1994, with the finding that the disputed parcel of land was in specific possession of Daleep Singh who could sell it, there has not been any allotment in favour of respondent No.1 and even if there was one, it was illegal.

6. The appeal of the petitioner was dismissed vide judgment and decree dated 20-3-1997. The learned first appellate Court observed that Daleep Singh had sold 1/4th, share besides sale of specific area measuring 1 Kanal and 14 Marlas. It was further observed that the petitioner was not able to prove his possession over the suit-land.

7. The learned counsel for the petitioner contends that the effect of Mutation No.374 attested on 7-12-1939 (Exh.P.2), whereby Daleep Singh had sold his share in the joint Khata was misconstrued. He maintains that even if a co-sharer transfers possession of specific Khasra numbers, to a vendee, the transfer operates only to the extent of the share of the vendor-co-sharer in the joint Khata. He further contends that the 1/4th share of Daleep Singh in the joint Khata was 3 Kanals and 56 Sq.ft while the Revenue Record shows that on the basis of sale by Daleep Singh an area measuring 3 Kanals and 5 Marlas was mutated in favour of predecessor of the respondents. He maintains that the Revenue Record was misread by the learned two Courts and the law as to the rights of a vendee from co-owner in a joint Khata was misapplied. Reliance was placed on Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC 9).

8. On the other hand, the learned counsel for respondent No.1, submits that the specific Khasra numbers were sold by Daleep Singh in favour of Hayat Muhammad and the same have been in specific possession of the predecessor of the respondents. He relied on Exh.P.2, Exh.P.5 to Exh.P.8, Exh.P.13, 'Exh.P.15 and Exh.P.16. He further contended that the petitioner had claimed allotment of the disputed land but no order of allotment was produced and therefore, no presumption of correctness was attached to the entries of the Jamabandies being relied upon by the petitioner.

9. The foundation of the claim of the petitioner was Mutation No.374 attested on 7-12-1939 (Exh.P.2). It will be appropriate to reproduce the order passed by the Revenue Officer on this mutation:--

10. Before the respective contentions of the learned counsel for the parties are adverted to it will be appropriate to note the evidence produced in the case.

11. Muhammad Hussain P. W.1 and Nazir Ahmad, P. W.2, stated that the land in dispute is in possession of respondent No.1. Respondent No.1, appeared as P.W.3 and supported his case. On behalf of the petitioner, D. W.1, stated that father of respondent No.1 had purchased 3 Kanals from Daleep Singh and the petitioner was in possession of the disputed land. D.W.2, also stated that the land in dispute was in possession of the petitioner. Petitioner appeared as D.W.3, in support of his case. The oral evidence produced by the parties is not material in view of the documentary evidence being noted hereunder. (i) Exh.P.1. It is Jamabandi for the year 1987-1988 in respect of Khata No.49, in which the petitioner is recorded as owner of land measuring 14 Kanals 9 Marlas which includes Khasra No.213, measuring 1 Kanal, 14 Marlas. The dispute in this case is about this Khasra number. This Jamabandi, is of one Khata and the petitioner is shown as the sole owner. (ii) Exh.P.2. It is Mutation No.374, attested on 7-12-1939. (iii) Exh.P.3. It is Jamabandi for 1940-41, in respect of Khata No.54 in which Preetam Singh, Jagir Singh, Ratan Singh and Hayat Muhammad are recorded as owners of 3/4th and 1/4th share respectively while on three Khasra numbers, Hayat Muhammad is recorded as in possession as co-sharer. This includes the area measuring 1 Kanal and 14 Marlas. (iv) Exh. P.4. Jamabandi for the year 1944-45. (v) Exh.P.5. Jamabandi for the year 1951-52. (vi) Exh. P.6. Jamabandi for the year 1955-56, show possession of Hayat Muhammad as co-sharer on the land measuring 1 Kanal, 14 Marlas. (vii) Exh. P.7. It is Jamabandi for the year 1959-60, in respect of Khata No.37, in which Rattan Singh, Jagir Singh, and Preetam Singh are recorded as owners of 3/4 share and Hayat Muhammad as owner of 1/4 share. (viii) Exh.P.8. It is Jamabandi for the year 1963-1964, it gives out the Khasra numbers of the total area measuring 12 Kanals, 1 Marla. In the column of ownership the three brothers of Daleep Singh are recorded as owners to the extent of 3/4th share while Hayat Muhammad is recorded as owner of 1/4th share. The Rehabilitation Commissioner is recorded as in possession of 5 Kanals, 4 Marlas and in the other two Khasra numbers the Rehabilitation Commissioner is recorded to the extent of 2/3rd while the disputed Khasra number is shown to be in possession of the petitioner under the Rehabilitation Commissioner. The significance to note from this Jamabandi is that area of Khasra No.315 as given in this Jamabandi is 5 Kanals and 3 Marlas. (ix) Exh. P.

9. It is Misal-a-Haqiat for the year 1977-1978, prepared as a result of the settlement operations. In this document area of 1 Kanal and 14 Marlas, the previous numbers of which was 1363/1114/215, 1116/212, was assigned new Khasra No.213, measuring 1 Kanal, 14 Marlas and was shown to be in possession of the petitioner. (x) Exh.P.10. It is Jamabandi for the year 1955-56 which shows that the disputed land as well as land measuring 5 Kanals, 3 Marlas in cultivating possession of Hayat Muhammad as a co-sharer. (xi) Exh. P.11. It is Mutation No.848, attested on 25-7-1964, according to which the 3/4th share of the evacuees in the land measuring 12 Kanals, 1 Marla was mutated in favour of the Central Government. (xii) Exh.P.12. It is Jamabandi for the year 1977-78. The sons of Hayat Muhammad are shown to be owners in possession of area measuring 3 Kanals 5 Marlas of Khasra No.315. This Jamabandi pertains to one Khata. (xiii) Exh.P.13. It is Mutation No.85, attested on 23-1-1990, according to which the entries in cultivation column of Khasra Girdawari in respect of Khasra No.213, (disputed land) were ordered to be corrected in favour of Muhammad Sadiq, respondent No.1, son of Hayat Muhammad. (xiv) Exh.P.14. It is Khasra Girdawari for Kharif 1988 to Kharif 1990, in respect of Khasra No.213 which shows possession of the petitioner. (xv) Exh.P.15. It is Mutation No.333 of 1937, according to which Daleep Singh had mortgaged his share in the joint Khata. (xvi) Exh. P.16. It is Mutation No.378, dated 23-2-1940 and evinces sale of the mortgagee rights.

12. On behalf of the petitioner-defendant, Khasra Gardawaries, Exh.D.1 and Exh.D.2, for the period from Kharif 1984 to Kharif 1985 and Kharif 1974 to Kharif 1977 were produced. These show the petitioner in possession. Exh.D.3 is the copy of Misal-e-Haqiat for the year 1977-78, (already produced as Exh.P.12).

13. From the documentary evidence noted above, it is clear that Daleep Singh owned 1/3rd share in the joint Khata along with his three brothers and the total areas of the Khata was 12 Kanals, and 1 Marla. Entitlement of Daleep Singh was, therefore, a little over 3 Kanals. The joint holding included Khasra No.315, with an area measuring 5 Kanals, 3 Marlas. Thus, notwithstanding transfer of specific field numbers as well as to the extent of 1 Kanal and 14 Marlas, the mutation being relied upon by the plaintiff/respondent will only operate to the extent of the share of Daleep Singh in the said joint Khata. Perusal of Misal-e-Haqiat, Exh.P.12, shows that out of Khasra No.315, measuring 5 Kanals, 3 Marlas entitlement of Hayat Muhammad, in the joint Khata was satisfied to the extent of 3 Kanals and 5 Marlas and he was not entitled to any thing beyond the said area from the joint khata to which Daleep Singh was entitled to because Daleep Singh, could only pass title to Hayat Muhammad which he had in the joint khata. In the settlement operations the area in possession of the petitioner was assigned Khasra No.213 measuring 1 Kanal, 14 Marlas. By laying claim on the said area the plaintiffs/respondents desired accretion to their holding so as to make it 4 Kanals and 19 Marlas (3 Kanals, 5 Marlas and 1 Kanal, 14 Marlas) which Daleep Singh never owned and thus the claim of the plaintiffs/respondents was not unsustainable. It may also be observed that perusal of Exh.P.1 and Exh.P.12 shows that the petitioner and the respondents owned land in separate Khatas.

14. The emphasis of the learned counsel for the respondent No.1 was that according to the Revenue Record Hayat Muhammad, has been in specific possession of the disputed land and, therefore, he was entitled to it. The stance is utterly misconceived in view of the observations recorded in para. 13 above.

15. The contention of the learned counsel for the respondents that no order of allotment was produced by the petitioner, has no merit either, because presumption of correctness is attached to the record of rights particularly in view of the established factual position that Daleep Singh owned little over 3 Kanals in the joint khata while Hayat Muhammad was allowed an area measuring 3 Kanals, 5 Marlas from the joint Khata in which Daleep Singh owned 1/4th share.

16. It is a case in which not only the Revenue Record produced even by the plaintiffs/respondents was misread, the law applicable to the proved facts i.e., as to the entitlement of Hayat Muhammad as vendee from Daleep Singh, a co-owner in joint Khata was misapplied. They have, thus, acted illegally in exercise of their jurisdiction.

17. Accordingly, this revision petition is allowed, the impugned judgments and decrees of the learned two Courts are set aside and the suit filed by the respondent No.1, is dismissed with costs throughout. S.A.K./A-559/L Revision accepted.