P L D 1959 W (PLP)

Some of the fields in dispute when traced to the year, 1880 tend to show that the predecessors‑in‑interest of Mst. Nur Bhari petitioner were then shown as Mustaqil tenants in a part of the land, and similarly some such ancestors were then shown as Ghair Mustaqil tenants. On the former point some of the relevant details are given below:‑ Field No. 1772 in 1880 was 6 kanals 11 marlas in the posses sion of Pira Mustaqil. There is a mention of this field in the year 100 only at one place. A new field No. 3432 measuring 1 kanal 17 marlas. The number of that field previous to 1900 is described as 3414/1774 and 1772‑Min 1774 has been shown in the year 1880 as 19 marlas and in the possession of Hayat as Ghair‑Mustaqil. The said field No. 3432 became No. 3741 in 1940. No. 1687‑6 kanals 1 marla was shown in the possession of Pira Mustaqil in 1880. In 1900, the only reference to that field is in the new field No. 3419 measuring 13 marlas, its previous number being 3398 divided by 1692, 1691 and 1687, all parts. It was then in the possession of Jumma as Ghair Mustaqil. In 1940 this field bears the number 3728. Field No. 1765, measuring 4 kanals 8 marlas, was shown in 1880 in the possession of Hayat Mustaqil The reference to this number in the year 1900 is with reference to the new field No. 3562 measuring 4 kanals 4 marlas shown in the possession of Nawab and Gulab Mustaqil. The reference to this new field in the year 1940 is in fields Nos. 3885 and 3888 measuring 2 kanals 4 marlas and 4 kanals respectively, the previous numbers being 6256/3560 and 6257/3560. Field No. 1801 measuring 13 marlas in 1880 was shown in the possession of Hayat Mustaqil. The only reference to this field in the year 1900 is in field No. 6242/3444 measuring 4 marlas only. It was in the possession of Nawab and Gulab Mustaqil. The next reference to field No. 6242 cannot be traced in the record of 1940. If the predecessors‑in‑interest of Mst. Nur Bhari were shown as Ghair Mustaqil as early as 1880, it is worth considering whether they had brought the land under cultivation for the first time. Similarly, if they were then shown as Mustaqil tenants, it is worth while ascertaining why the entry got altered at some later date to Ghair Mustaqil. In making inquiries on both these points, it is necessary that the various fields should be traced back or otherwise in detail without omitting to look at the intervening jamabandis. I would have normally said that the present petitioners should fail in their claim to the land, because it was for them to prove their case in the first instance. I am, however, not cancelling their claim altogether, because the above details tend to show that their claim was acceptable to some extent even on the evidence available. In any case, it would have been desirable for the trial Court to record Court evidence in order to remove all doubts regarding the continuity of the possession of Mst. Nur Bhari and her predecessors-in‑interest. For the above reasons, I consider that the matter must be examined afresh and the parties may be given an opportunity to clear up the matter in the light of what I have stated above. I, therefore, accept this petition for revision and direct‑ (1) that the decree already passed in this case should be set aside and; (2) that the case should be remanded for a fresh decision in accordance with the law. I am not giving a date for the appearance of the parties in the Court of the Assistant Collector, because I do not know which Assistant Collector will be assigned this case by the Collector. K. M. A. Petition accepted.