2019 PLP 706 (YLR)

AZHAR SALEEM BABAR, J.

The above titled appeal has been filed against the judgment and decree dated 15.09.2009 passed by learned Additional District Judge, Dhirkot.

2. The appellant/plaintiff filed a suit for declaration and specific possession regarding land under survey Nos. 205 measuring 44 kanal 18 marlas, 202 measuring 19 kanal 7 marlas, 348 measuring 19 kanal 19 marlas, 313 measuring 14 kanal 16 marlas, 291 measuring 6 kanal, 204 measuring 25 kanal 15 marlas, 308 measuring 8 kanal 15 marlas, 345 measuring 40 kanal 3 marlas, 291 min measuring 50 kanal 17 marlas, 293 measuring 11 kanal 1 marla, 348 measuring 20 kanal 1 marla, 270 measuring 29 kanal 13 marlas, 283 measuring 54 kanal 4 marlas, 274 measuring 59 kanal 3 marlas, 312 measuring 19 kanal 4 marlas, 280 measuring 11 kanal 14 marlas, 368 measuring 10 kanal 01 marla, 284 measuring 6 kanal 17 marlas, 282 measuring 6 kanal 3 marlas, situated at village Sangar Tehsil Dhirkot by contending that he purchased 44 kanals 18 marlas land from respondent No. 1 through registered sale-deed dated 18.07.1989 and mutation No. 54/580 was attested in his favour on 31.03.1992. It was further explained that appellant/ plaintiff obtained possession of suit-land through an agreement-to-sell on 07.08.1983. The appellant/plaintiff stated that respondent/ defendant No.1 delivered possession of survey number 205 measuring 44 kanal 18 marlas to him. The appellant/plaintiff got the land measured later on and came to know that survey No. 205 is only 30 kanals instead of 44 kanals 18 marlas. It is the grievance of the appellant/plaintiff that respondent No. 1 has not delivered possession of rest of land measuring 14 kanal 18 marlas despite efforts. It has further been explained in the plaint that respondent No.2 filed a pre-emption suit against sale-deed dated 18.07.1989 whereupon the matter was resolved through Jirga of elders of the locality and respondent No. 2 withdrew his pre-emption suit after receiving a sum of Rs. 50,000/- from the appellant/plaintiff. Respondent No.2 further executed an agreement in favour of appellant/plaintiff on 14.10.1998 whereby he promised to manage delivery of posses-sion of 14 kanal 8 mralas to the appellant.

3. The respondents/defendants filed written statement in the trial Court and contended that they are not in possession of any land owned by the appellant/ plaintiff. It has further been explained that appellant and respondent No. 1 agreed to trade survey No. 205 and the appellant obtained possession of land through agreement- to-sell dated 07.08.1983. He remained in possession of land for around 10 years and later on obtained sale-deed from respondent No. 1 on 18.07.1989. It has also been contended by the respondents that the appellant/plaintiff got the land measured at the time of registra-tion of sale-deed and did not complain of shortage of land for considerable length of time. The respondents further stated that if site plan of suit-land has been wrongly prepared, the Revenue Department had jurisdiction to rectify the same. The respondents contended that the Revenue Department has not been impleaded as defendant, so the appellant/plaintiff has no cause of action. As regards, agreement dated 14.10.1998, the respondents/ defendants have termed it as fake. The trial Court framed the following issues to resolve the controversy.

4. Learned trial Court after hearing the parties concluded that the plaintiff has no cause of action and that he could not prove averments of plaint. The suit was dismissed by the trial Court on 27.10.2008 whereupon an appeal was filed before learned Additional District Judge Dhirkot which also met the same fate vide judgment and decree dated 15.09.2009, hence, the instant second appeal.

5. The parties, have filed written arguments in support of their rival versions. Mumtaz Hussain, the appellant passed away during proceedings before the High Court and Iqbal Hussain and others have replaced him as appellants. Respondents Nos. 5 and 6 have also died and their legal representatives have been impleaded in the line of respondents.

6. The deceased appellant/plaintiff claimed that Muhammad Safeer, the defendant, executed an agreement in his favour whereby he promised to deliver possession of suit-land to him. Much emphasis has been laid down by the appellant/plaintiff on agreement dated 14.10.1998. The appellant/plaintiff produced all the marginal witnesses of agreement before the trial Court, however, a perusal of agreement shows that Muhammad Safeer, the defendant, did not take any responsibility of delivering possession of 14 kanal 18 marlas of land to the deceased appellant/ plaintiff. The respondent/defendant however promised that he would take all measures to deliver possession of land to the appellant/plaintiff. There is nothing on record to substantiate that respondent/ defendant No.2 did play any role in getting possession of land from respondent No.1 for the appellant/ plaintiff. It is also worth mentioning that agreement between the appellant/plaintiff and respondent No.2 was executed for the purpose of withdrawal of pre-emption suit filed by respondent No.2. It stands admitted that respondent No.2 withdrew his pre-emption suit after obtaining a sum of Rs.50,000/- as per the decision of arbitrators. So agreement dated 14.10.1998 does not help the case of appellant/plaintiff.

7. A perusal of record in the light of arguments transpires that Mumtaz Husain, the deceased/plaintiff, purchased 44 kanal and 18 marlas of land under survey No.

205. Although, many other survey numbers have been mentioned in the sale-deed, however, the deceased appellant was given possession of a specific survey No.

205. Sale-deed dated 18.07.1989 was registered in light of Jamabandi of the year 1971. A copy of Jamabandi of village Sangar for year 1971 has been attached with the record of instant appeal which shows acreage of survey No.205 as 44 kanal 13 marlas. After registration of sale-deed, settlement was conducted throughout the State and Misl-e-Haqiat for village Sangar was prepared in the year 1995- 96, wherein acreage of survey No. 205 has been mentioned as 30 kanal 1 marla. Copy of Misl-e-Haqiat for the year 1995-96 has also been provided by the appellant in the High Court. So, main grievance of appellant is that he purchased 44 kanal 18 marlas of land under survey No.205 which has now been discovered as 30 kanal and 1 marla in the recent settlement. The deceased appellant sought possession of 14 kanal 18 marlas of land from the respondents/defendants.

8. It is worth mentioning that the deceased appellant did not attach relevant record with the plaint, however, he has submitted revenue record before the High Court after obtaining leave. The deceased appellant/plaintiff has relied on a non-certified copy of report prepared by Tehsildar, Dhirkot dated 29.04.2004 which has been placed on record of the trial Court. The report mentions that the applicant (vendee) is in possession of excessive land of 10 kanal than his share. It has further been mentioned in the report that land measuring 30 kanal 1 marla has been found under possession of the applicant (Mumtaz Hussain). Report further states that rest of land is in possession of other co-shares in khata Nos. 335, 338 and 339.

9. A perusal of record of trial Court further reveals that deceased appellant felt aggrieved of site plan prepared during new settlement. It has been claimed that acreage of disputed survey No. 205 was 44 kanal in the old revenue record and in the old site plan (Aks Latha) which has now been decreased to 30 kanal 1 marla in the new site plan and Misl-e-Haqiat.

10. It has been objected by the respondents/defendants that a Civil Court is not empowered to resolve such like issues and correction of revenue record exclusively falls within the ambit of revenue authorities. Both the Courts below have consented to the argument that Civil Court is not vested with the powers to entertain disputes regarding correction of entries in revenue record. Learned counsel for the appellant is of the view that it is the Civi Court who is vested with the powers to adjudicate upon such matters. Learned counsel has relied on 2014 SCR 349, 1987 SCMR 744, 2007 SCMR 231, PLD 2002 SC 615, 2013 SCR 29, PLD 2002 SC (AJ&K) 13, PLD 1978 SC (AJ&K) 75, PLD 1993 SC (AJ&K) 4, PLD 1982 Pesh. 42, 2005 SCR 222 and PLD 1995 SC (AJ&K)

41. Some of the cited judgments relate to submission of revenue record at appellate stage and rest do have distinguished facts.

11. A similar proposition came up before the Apex Court of the State which has been resolved in Sardar Khan's case reported as 2003 SCR

77. In the cited case the appellant claimed that acreage of old survey No. 599 was 12 marlas but in the new settlement it has been given a new survey No. 976 and its acreage has been increased from 12 marlas to 15 marlas. In the same way the total measurement of the land belonging to the appellant and proforrna respondents was 68 kanal 3 marlas which in the new settlement has been decreased by 6 marlas and now the land has been entered in the revenue record as 67 kanal 17 marlas. The appellant in the cited judgment, sought possession of 3 marlas occupied by the respondent. The Supreme Court of Azad Jammu and Kashmir held that such like dispute falls within the exclusive competence of revenue department as per the provision of Section 172 of the Land Revenue Act 1967. For guidance concluding paragraph 7 of the judgment is reproduced as under:--

7. The appellant wants the correction of the revenue record which as rightly pointed out by learned counsel for the respondents is within the exclusive competence of the Revenue Department as has been laid down in Section 172 of the Land Revenue Act, 1967, adopted in this part of the State whereby the jurisdiction of Civil Court in cases where the correction of any entry in the record of rights or in the periodical record or register of mutations is concerned, has been excluded besides some other matters which are not relevant in the present appeal. These matters are within the exclusive competence of the Revenue Officer. The suit filed by the plaintiff-appellant seeking correction of any entry recorded in the record of rights, khasara girdawari in the light of the new settlement, therefore, can be competently entertained by a competent Revenue officer and not by a Civil Court. Even from this angle the suit of the plaintiff-appellant was not maintainable before a Civil Court. It has already been explained that in the instant case acreage of land under survey No. 205 was mentioned in old revenue record as 44 kanal 18 marlas which came out to 30 kanal 1 marla during recent settlement. The deceased appellant/ plaintiff sought specific possession of rest of 14 kanal 18 marlas of land from the respondents. The appellants, therefore, want correction in revenue record through civil suit which is barred by Section 172 of The West Pakistan Land Revenue Act 1967. Both the courts below have rightly held that a Civil Court has no jurisdiction to adjudicate upon such like matters, therefore, the deceased appellant/plaintiff had no cause of action to file the suit. Findings of both the Courts below are in accordance with law. So the instant appeal is dismissed with no order as to the costs. ZC/43/HC(AJ&K) Appeal dismissed.