1970 PLP 594 (SCMR)

WAHIDUDDIN AHMAD, J.‑Petitioners were owners of Khasra Nos. 4902, 4905, 4906, 4909 and 4674, situated in village Hazar Khani, Tehsil Peshawar. By sale deed dated the 23rd November 1942, registered on the 18th June 1943, the respondent‑firm purchased half share in the said land measuring 20 kanals, 4 marlas for a sum of Rs. 3,

000. On the 24th April 1944, mutation was sanctioned but on the 22nd November 1944 the above mutation was cancelled on the ground that the vendees were not the members of the agricultural tribe. Two pre‑emption suits were instituted ; one by Mst. Bibi Gula and the other by Mst. Tajwar Sultan against the said sale. On the 9th September 1948, both the suits were dismissed in revision by the Court of learned Judicial Commissioner on the ground that the vendees were non‑agriculturalist. The suit of Mst. Bibi Gula was dismissed under sections 14 and 24 of the Punjab Pre‑emption Act, while the suit of the other party was dismissed under section 24 of the said Act. After the amendment of section 4 of the Punjab Alienation of Land Act, the respondents again submitted an application for the fresh entry of mutation in their favour. This mutation was entered by the village Patwari as mutation No. 2845 on the 15th December 1950, but it was rejected by the Revenue Officer on the 14th May 1955 on the ground that the amendment did riot have retrospective effect. Appeal against this order to the Collector, Peshawar, was dismissed on the 14th July 1956. On the 15th February 1957, the Additional Commissioner (Revenue), dismissed the revision against the above mentioned order of the Collector. On the 4th February 1959, further revision was lodged before the Board of Revenue, West Pakistan, Lahore. The Board held that the transaction shall be treated as usufructuary mortgage on such conditions as the Deputy Commissioner considers it reasonable unless the Deputy Commissioner gives the necessary sanction under section 3 of the Punjab Alienation of Land Act. On the 21st December 1957, respondents filed two suits for declaration of their title and also for possession on the ground that they were members of agricultural tribes and the sale did not offend the provisions against the Punjab Alienation of Land Act. The suit was filed against the Government of West Pakistan. The petitioners were also impleaded as parties. The petitioners also filed a suit for declaration that they have become owners of the property in dispute on account of adverse possession. The suit of the petitioners was dismissed by the High Court of West Pakistan, in R. S. A. No. 169 of 1963 by judgment dated the 29th April 1969, and the suit of the respondents was decreed by the High Court in R. S. A. No. 167 and R. S. A. No. 168 of 1963, by judgment dated the 29th April 1969. All the appeals which were filed by the petitioners were dismissed by a Division Bench of the West Pakistan High Court, Peshawar Bench. The High Court held that the respondents are members of agricultural tribes and, therefore, the property in dispute was validly transferred to them. It further held that the possession of the petitioners had not become adverse and they have not acquired any adverse title against the respondents. The petitioners seek permission to file an appeal against the said order. In support of the petitions, Sh. Bashir Ahmad, learned counsel for the petitioners, has urged that the respondents are not members of agricultural tribes. That this question was in issue in the pre‑emption suit and the Judicial Commissioner has decided between the parties, that the respondents were not members of the agricultural tribes. According to the learned counsel this finding is res judicata between the parties and no fresh decision can be given on it by the Courts below. He further contended that the petitioners have acquired title by adverse possession and, therefore, the respondents' suit should have been dismissed. After hearing the learned counsel for the petitioners, we are satisfied that points raised by the petitioners in Civil Petitions Nos. 28‑P and 29‑P of 1969, require consideration. We, therefore, grant leave to them in these two petitions. Security in the sum of Rs. 1,

000. So far as Petition No. 30‑P of 1969 is concerned, petitioners were unable to satisfy us that they have acquired title in the property in dispute by adverse possession. In the first place, the Revenue authorities have held that the respondents are entitled to have usufructuary mortgage for 20 years in the property in dispute. Secondly, the, petitioners are also co‑sharers in the property in suit. In these circumstances, it cannot be held that the petitioners have acquired any title by adverse possession. We would, therefore, refuse to grant leave to the petitioners in this petition which is dismissed. Order accordingly.