2007 YLR 2860 (PLP)

MAULVI ANWARUL HAQ, J.--This case has a chequered and rather a peculiar history. On 10-9-1974 Salabat, father of the petitioners, tiled a suit against the respondents or their predecessor. In the plaint, it was stated that in the year 1968-69, he occupied land measuring 46 Kanals 11 Marlas, fully described in para-1 of the plaint, as a non-occupancy tenant. Total Khawat measured 87 Kanals 6 Marlas and the remaining 41 Kanals 2 Marlas were occupied by Aslant and Hayat sons of Sardar (defendants Nos.4 and 5 in the said suit) as such tenants. The post consolidation numbers of the entire land were stated in para-2 of the plaint. It was complained that entries of their non-occupancy tenancy has been omitted in collusion with the defendants Nos.1 to 3 in the suit. Then there was a reference to a transaction of sale and exchange made by the said defendants Nos.1 to

3. Ultimately, the land stands owned by Mirza, predecessor in interest of respondents Nos.7 to 12 and Mst. Jallan, respondent No.13. He sought a declaration that he is in possession of 46 Kanals 4 Marlas out of 85 Kanals 1 Marla, mentioned in para-2 of the plaint, as non-occupancy tenant and the respondent be restrained from ejecting him otherwise than in due course of law. This suit was contested and decreed on 6-10-1976. The decree granted was that Salabat should not be dispossessed otherwise than in due process of law. First appeal filed by respondents Nos.7 to 13 was dismissed by learned ADJ., Gujrat on 2-2-1978 C.R.No.174-78 filed by the said respondents was dismissed by this court on 8-7-1990. I may note here that this court with reference to entries in "Lagan" column as "Basharah Malkan" categorically held that Salabat was a non-occupancy tenant under the said respondents who had ultimately acquired the suit land.

2. While the suit was pending, said Salabat filed an application complaining that said Mirza and Mst. Jallan, present respondent No.13 have violated temporary 1 injunction and have taken over the possession. Learned trial Court vide order dated 6-10-1976 held that the said lady had not disobeyed the injunction and only Mirza had disobeyed it. He accordingly issued orders for, attachment of his property and detention in prison for six months. Mirza filed an appeal which was allowed on 2-2-1978 and the case was remanded back for fresh decision after recording evidence on the issues already framed. Against this order of remand, Mirza filed C.R.No.422/78 in this court. Notice was issued on 9-4-1978 and the proceedings were stayed.. On 13-3-1991 it was reported that Mirza as well as Salabat have died and since. in the original order he was sentenced, to undergo six months imprisonment in civil prison, proceedings abated and the revision was accordingly disposed of.

3. On 25-7-1990 present petitioners filed an application purporting to be under Section 144 read with section 151, Order XXXIX, Rule 2(3) and Order XXI, Rule 32 CPC praying that since they were dispossessed during the pendency of the temporary injunction, possession be restored. According to the facts stated ( by learned Civil Judge in order dated 13-3-1997 issues were framed in this application but the matter was taken in appeal and the learned appellate court on 4-5-1993 directed that the possession be restored straight away without any further inquiry. Vide Report No.469 dated 27-5-1993 of the "Roznamcha Waqiati" of the revenue estate in question, possession of some specific Khasra numbers totalling 46 Kanals 12 Marlas was delivered to the petitioner; not only this they were also recorded as in possession "Basharah Malkan Bawajah Rishatadari". The respondents Nos.7 to 13 filed an objection stating that the petitioners could not have been delivered possession of specific Khasra numbers as Salabat never claimed to be a non-occupancy tenant in any such specific Khasra number. They also objected to the entry made in "lagan" column. They complained that the revenue officers have of their own selected specific numbers and delivered them to the petitioners. The plea taken by the petitioners in the reply was that Salabat was dispossessed from specific Khasra numbers and the same have been delivered back to them. Learned Executing Court/trial Court allowed the said objection on 13-3-1997 directing the petitioners to deliver back the possession of the specific numbers and further that the petitioners be entered in the said Khata as non-occupancy tenant and the "Lagan" entry "Basharah Malkan" to be removed.. First appeal filed by the petitioner has been dismissed by learned ADJ., Mandl Bahauddin on 14-4-1998.

4. Learned counsel for the petitioner contends with reference to copy of "Misal Haqiat Ishtamal" for the year 1974-75 (Annex. G/ l at page 67 of the paper book) that Salabt was occupying specific numbers and the possession of the same was restored to him. He is, however, not in a position to support the entry in the "lagan" column. Learned counsel for the contesting respondents Nos.7 to 13, on the other hand, contends that the decree was prayed for and granted in accordance with the contents of the plaint and since it was not mentioned that Salabat was occupying specific numbers, learned courts below havecorrectly held that only symbolic possession could be delivered.

5. I have gone through the copies of the records. I have already noted above the contents of the plaint and referred to the various judgments passed in favour of Salabat, deceased. There was no denial that Salabat was never occupying the land as stated by him. The plea taken by the petitioners was that since he has got recorded in the "Lagan" column "Basharah Malkan", it constitutes denial of title and consequently forfeiture of tenancy. This court in its earlier judgment dated 15-7-1990 in C.R.No.174-78 sufficiently clarified the said point. The order for restitution or restoration of possession passed as such after decision of this court was never challenged. What is being challenged are the proceedings taken during the execution of the said order. Now according,to the possession report recorded in Roznamcha Waqiati(Annex. P.7 at pages 54 to 56 of the paper book), the ,proceedings have been undertaken with reference to - the said "Misal Haqiat Ishtamal" for the year 1974-75. In para-2 of the plaint, filed by Salabat, the post consolidation numbers of the land have been stated. These are Killas Nos.6, 14 to 18, 21/2 and 22 to 25 in Sq. No.240. According to the said "Misal Haqiat Ishtamal" (Annex. G/1), Salabat is recorded to be in possession of Killas Nos.14, 17, 18, 22, 23 and 24 total measuring 45 Kanals 5 Marlas of Sq.No.240 while Hayat is recorded as non-occupancy tenant in land measuring 1 Kanals seven Marlas comprising Killa No.21/2 of Sq. No.240. Reverting back to the said possession report the petitioners were delivered possession of Killa Nos. 14, 17, 18, 22, 23 and 24, total land measuring 45 Kanals 5 Marlas. The possession, therefore, has been delivered in prefect accord with the contends of the plaint and consequently the decree passed in favour of Salabat.

6. Learned courts below have mis?read the said documents including the plaint. However, their observation that entry in the "Lagan" column is incorrect, is fully supported by the judgment passed by the courts, particularly, the judgment passed by this court in C.R.No.174-78 on 15-7-1990.

7. C.R. accordingly is partly allowed. The impugned orders are set aside and the petitioners are now to be delivered possession of Khasra numbers as noted in said possession report No. 469 dated 27-5-1993. However, in "Lagan" column, the words "Basharah Malkan bawajah Rishtadari" shall be omitted and they will be recorded as in possession as non-occupancy tenant at will. A copy of this judgment be immediately remitted to the learned District Judge, Mandi Bahauddin. No. orders as to costs. H.B.T./M-383/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.