2005 PLP 1273 (MLD)

CHAUDHARY MUHAMMAD TAJ, J.

This appeal, by leave, is directed against the judgment passed by the High Court on 1-4-2004 whereby the writ petition was accepted.

2. The facts are that the land measuring 10 Kanals, 11 Marlas, comprising Survey No.90(old) 340 (new), situate in village Saroh, Tehsil Sehnsa, District Kotli was in the ownership of respondents Nos.1, 2, 5 and 11 as co-sharers. Respondent No.11 executed a gift-deed in favour of one Shukar Din, husband of respondent No.10, on 7-4-1971. Respondents Nos.1 and 2 challenged the execution of said gift-deed in the Court of Sub-Judge, Sehnsa and finally on account of compromise between the parties, a compromise decree was passed in the High Court on 15-3-1980.

3. The land in dispute was alienated by respondents Nos.1, 2 and 5 in favour of appellant No.1 through a sale-deed executed on 27-6-1971. The possession was also transferred to appellant No.

1. Mutation No.4 of the land in dispute was also attested in favour of appellant No.1 on 9-5-1974.

4. On the basis of compromise decree passed in the High Court on 15-3-1980 mentioned above, respondents Nos.1 and 2 moved the Assistant Collector Sehnsa, respondent No.12, for attestation of mutation in their favour. Since the land had already been alienated to the appellant and its mutation was also sanctioned in his favour, the Assistant Collector refused to attest the mutation. This order was unsuccessfully challenged before the Collector and was also upheld by the Commissioner, respondent No.14 and the Board of Revenue, respondent No.15. The respondents thereafter filed a writ petition before the High Court which as accepted through impugned order.

5. Mr. Abdul Majeed Mallick, the, learned counsel for the appellants, raised following points in support of the appeal: (i) That the suit-land stood transferred in the name of appellant No.1 which was subsequently transferred in the name of appellant No.2 through a gift-deed. Its possession was also transferred to appellant No.1 and a mutation was also sanctioned on the basis of sale-deed, therefore, attestation of another mutation could not legally be made; (ii) that the compromise decree in favour of respondents Nos. 1 and 2 against respondent No.11 and husband of respondent No.10, was not effective and operative against the title of ownership and possession of appellant No.1; (iii) that on the basis of compromise decree mentioned above, respondents Nos.1 and 2 instituted a civil suit for possession against the appellant in the Court of Sub-Judge Sehnsa which was dismissed and an appeal filed against the aforesaid judgment was also rejected by the District Judge Kotli; (iv) that respondents Nos.12 to 15 correctly refused to sanction the mutation in favour of respondents Nos.1 and

2. The point was not correctly appreciated by the High Court; (v) that appellants, who were owners of the suit land, were not party in the subsequent proceedings where compromise was effected; and (vi) that there was no occasion to grant a relief through a Constitutional petition which was otherwise hit by the doctrine of laches.

6. Raja Saadat Ali Kayani, who appeared on behalf of the respondents, argued that the ownership claimed by the appellants on the basis of sale-deed was against law as the same was executed after the gift-deed which was challenged by respondents Nos. 1 and 2 herein and was set aside and the ownership of respondents Nos.1 and 2 stood restored. It was also argued that appellants Nos.1 and 2 were party in the proceedings before the High Court and they contested their case. The High Court after due consideration of the facts and law proceeded to accept the writ petition. The learned counsel also argued that in the earlier proceedings the appellants were aware of the compromise and they did not challenge the aforesaid compromise before the appellate forum in case they were not satisfied with the aforesaid compromise in favour of respondent Nos. 1 and

2. The appeal, therefore, is without any substance.

7. We have heard the learned counsel for the parties and also gone through the record. It is not disputed between the parties that the suit-land was transferred in favour of appellant No.1 through a sale-deed executed on 27-6-1971 by respondents Nos.1, 2 and

5. Mutation No.4 was also attested in his favour on 9-5-1974. The possession of the land in dispute was also transferred to appellant No.1. The parties are not in variance on the point that the suit-land was gifted away by respondent No.11 in favour of one Shukar Din, husband of respondent No.10, on 7-4-1971 which was challenged and finally a compromise was effected between the parties and respondents Nos.1 and 2 were held owners of the suit-land but appellants Nos. 1 and 2 were not party in the aforesaid proceedings, therefore, it can safely be held that the aforesaid compromise was ineffective and inoperative against the rights of appellant No.1 who subsequently transferred the land through a gift-deed in favour of his son, appellant No.2, as the sale-deed executed in favour of appellant No.1 was never challenged. It is also added that through this compromise referred above, respondents Nos.1 and 2 also filed a suit for possession against the appellants which was dismissed by the trial Court as well as the District Judge. The order passed by the Assistant Collector which was upheld by the Collector, Commissioner and Board of Revenue keeping in view the facts and law was correctly declined as the suit-land stood transferred in the name of firstly, appellant No.1 and subsequently in the name of appellant No.2 and a mutation was also attested in this regard and mereso, a suit for possession was also dismissed, therefore, it does not require any discussion that in such circumstances the order passed by the High Court in Constitutional jurisdiction for attestation of the mutation in favour of respondents Nos.1 and 2 was against law as such the same could not be maintained.

8. In view of above, the appeal is accepted and the order passed by the High Court is set aside. H.B.T./162/SC(AJK) Appeal accepted.