2010 PLP 1629 (CLC)

SHER MUHAMMAD KHAN, J.

Brief facts of the instant petition are that respondents filed a suit for declaration and perpetual injunction to the effect that they are owners in possession of land measuring 9 Kanals 12 Marlas out of 181 Kanals 8 Marlas in Khata No.43 consisting of 36 Khasra numbers situated in Mauza D.I. Khan and are having possession to the extent of their shares in Khasra No.5045 and the defendant/petitioners are not entitled to interfere in their possession and they be perpetually restrained from interfering into the lawful possession of plaintiffs in khasra No.5045.

2. The petitioner then defendants contested the suit by filing their written statement and denied the claim of the plaintiffs. They raised many preliminary objections including the protection under section 41 of the Transfer of Property Act and denied exclusive possession of the plaintiffs in Khasra No.5045 of the plaintiffs, as per revenue record it is joint property and hundreds of people are co-sharers in it. The learned trial Court framed as many as five issues including the relief from the divergent stances taken by the parties and provided full opportunities to the parties for recording their respective evidence. After hearing arguments of the learned counsel of parties suit of the plaintiffs/respondents was decreed as per prayer in the plaint on 23-6-2003.

3. The petitioners were aggrieved from the said judgment/decree passed by the trial Court, therefore, impugned the same by preferring appeal against it in the District Appellate Court of D.I.Khan and the learned District Appellate Court after providing full opportunity of hearing to the learned counsel of the parties, dismissed the appeal of the petitioners on 11-10-2004 and maintained the judgment/decree of the trial Court.

4. The petitioners are again aggrieved with the judgments/decrees of the two Courts below, therefore, have filed the instant revision petition for setting aside the same.

5. Learned counsel for the petitioners at the very outset referred to statement of APW- 1 Bashir Hussain Patwari Halqa Mauza Dera Ismail Khan and the revenue record placed on file. In his cross-examination APW-1 stated that at the, time of spot inspection he noticed that Khata No.78 consists of 36 khasra numbers, total area of which is 181 Kanals 8 Marlas. Some of the land is adjacent to the main road and some is situated at some distance from the road. He admitted that there is vast difference of price in the lands situated contiguous to the main road and the lands far away at certain distance. He also admitted that at the moment residential colony has been constructed over Khata No.78 and it has changed its nature from agriculture to residential. He further admitted that the plaintiffs have not been entered as exclusive owners in any of Khasra numbers but they are co-sharers in the entire Khata and similarly in the inheritance mutation no specific plot has been entered in their name.

6. Learned counsel for the petitioners, while arguing the case took advantage from the above passages referred to, admitted by APW-1, was critical of the judgments/decrees of the lower Courts on the ground that how the decree could be passed in favour of respondents in respect of specific Khasra No.5045 to the extent of 9 Kanals 12 Marlas when in the revenue record they are entered as joint owners in the entire Khata. He argued that judgments/decrees of the lower Courts have not only deprived the petitioners of their valuable rights but also other co-sharers who are hundreds in number and were not party before the lower Courts and by this way they were condemned unheard.

7. Learned counsel for the respondents on the other hand referred to the Jamabandi prepared in the revenue record in the year 1966-67 in which Ellahi Baldish father of Shahzadi Begum, from whom the petitioners derive title was entered as joint owner in column of ownership and in possession of Khasra Nos. 4933, 4935, 4936, 5035, 5038, 5041, 5042, 5043 and 5048 total measuring 67 Kanals 15 Marlas. Similarly Haq Nawaz predecessor of the plaintiffs is also mentioned as co-owner in the entire Khata but his possession has been entered over Khasra No.5045 which entry was repeated in the next jamabandies and is still intact.

8. Learned counsel for respondents argued that the suit of respondents is only to protect their possession of khasra No.5045 till proper partition by the co-owners inter se or through process of the Revenue Court. He contended that the petitioners do not claim exclusive ownership of Khasra No.5045. He conceded that on the strength of the decree respondents did not claim exclusive ownership of Khasra No.5045. He has only obtained decree from the Court to protect his possession till proper partition by metes and bounds. He further stated at the bar that the decree of Civil Court will never be used as hurdle in partition proceedings before the Revenue Court.

9. When learned counsel of the petitioner was asked that in the light of commitment of the counsel for respondents, still he will insist upon the setting aside of the impugned judgments/decrees, he replied that if the commitment made by counsel of respondents' is brought on the record, he will not stress on the acceptance of his revision petition.

10. In the light of above the instant revision petition is disposed of in the light of the commitment made at the bar by counsel of respondents that the judgments/decrees will never be used as hurdle before the Revenue Officers for proper partition in accordance with law.

11. At the end I take advantage of this opportunity and want to issue certain directions to the Revenue Authorities in the light of my observations during hearing civil cases of Bannu and D.I.Khan Division.

12. It has been noticed during hearing of the cases that mutations duly attested by the Revenue Officers are not being implemented in periodical jamabandies for decades. This negligent act on the part of subordinate revenue staff has adversely affected the valuable rights of ordinary illiterate people. An entry of mutations which is not incorporated in Jamabandi does not carry presumption of truth. The Revenue Officers are under statutory obligation to incorporate the entry of mutations in the next Jamabandi to secure the interest of the person who have acquired rights in an estate by inheritance, sale, gift or otherwise. Such practice should be followed with waiting for asking by any interested person or directions from the Courts or Higher Officials of the Revenue Department.

13. Therefore, the office is directed to issue special instructions to the Board of Revenue to circulate special order to all the Revenue Officers performing their functions in the Province to keep update the revenue 'record by incorporating all the changes positively in every next Jamabandi and if any member of the subordinate revenue staff violates the mandatory provisions of the West Pakistan Land Revenue Act, 1967 by concealing material changes for any reason not permissible under the law, may be taken into task and strict disciplinary action should be taken against him in accordance with law.

14. The compliance report of the Judgment may be intimated to this Court through Additional Registrar of this Court. H.B.T./239/P Order accordingly.