2007 PLP 1391 (CLC)

MAULVI ANWARUL HAQ, J.

Since common questions are involved, this judgment will be deciding Civil Revisions Nos.244 and 245 of 2000.

2. On 18-3-1984 and 25-1-1984 respectively, respondent No.1 in each of the cases filed suits against the petitioners and the other respondents. It was stated in the plaint that Nathu Khan, respondent No.1, is in cultivating possessing of Khasra No.2107-Min measuring 10 Kanals in the Shamlat, while Barkat Ali respondent No.1, in the other case; is in cultivating possession of Khasra No.2107-Min measuring 20 Kanals and Khasra No.2313-Min measuring 26 Kanals in the same Shamlat in Village Mohri Kathreel, Tehsil Gujjar Khan, as per entries in the Register Haqdaran Zameen for the year 1978-79. Both of them felt aggrieved of correction of the said entries with effect from Rabi, 1983, in favour of Maqbooza Malkan. The plea taken in defence was that the land is "Ghar Mumkin" and "Khandar" and as such is uncultivable and has been correctly recorded in possession of the properties. Following common issues were framed in both the suits:

(1) Whether this Court lacks jurisdiction to try the suit'? OPD (2) Whether the suit is barred by section 172 of the West Pakistan Land Revenue Act? OPD (3) Whether the suit is not maintainable in its present form? OPD (4) Whether the plaintiff is owner in possession of the suit-land as co-sharer'? OPP (5) Whether the entries of Khasra Girdawari from Rabi 1983 are illegal, against facts, void and ineffective against the rights of the plaintiff? OPP (6) Relief.

3. Evidence of the parties was recorded. The learned trial Court decreed both the suits on 7-1-1989. A learned Additional District Judge, Gujjar Khan, dismissed the first appeals filed by the petitioners on 24-1-2000.

4. Learned counsel for the petitioners contends that the land in both the cases was "Ghar Mumkin Patri" and was correctly recorded to be in possession of the owners through the settlement for the year 1956-57 and the entries were illegally changed while the classification remained the same. He relies on the case of Misri through legal heirs and others v. Muhammad Sharif and others 1997 SCMR

338. On the other hand, learned counsel for respondent No. 1 in each of these cases -has tried to support the impugned judgment and decree.

5. I have gone through the copies of the record. Copy of Misl-e-Haqiat prepared in the year 1956-57 in both these cases is Exh.D.2 wherein Khasra No.2107 measuring 203 Kanals, 19 Marlas is recorded to be owned by Shamlat Deh and in possession of Maqbooza Malkan. Out of this land, an area of 10 Kanals was shown in possession of Nathu Khan, respondent No.1, whereas 20 Kanals in possession of Barkat Ali, respondent No. 1, in the other case. In the record prepared for the years 1966-67 and 1978-79, the classification remained the same. As far as Khasra No.2313 is concerned, the same was recorded in Exh.D.2 as " Ghar Mumkin Patri " and Maqbooza Malkan and 26 Kanals out of this land was recorded in possession of Barkat Ali, respondent No.1, showing 20 Kanals as " Ghar Mumkin Patri " and 6 Kanals as Marla. The entries were accordingly corrected and restored to Maqbooza Malkan. It is well-settled law that uncultivable common land has to be recorded in possession of the owners. Reference may be made to the case of Gul Khan v. Said Nassau Shah and others PLD 1968 Pesh.

148. The entries have, therefore, been lawfully corrected. According to the said judgment of the Honourable Supreme Court being relied upon by the learned counsel for the petitioners. once it is found that the entries have been unlawfully changed, it shall be deemed that the old entries would continue. Learned lower Courts, on the face of the said evidence, have acted without lawful authority while passing the impugned judgments and decrees. Both the civil revisions are accordingly allowed and the impugned judgments and decrees are set aside and the suits filed by respondent No.1 in each of these cases is dismissed but without any order as to costs. M.H./K-8/L???????????????????????????????????????????????????????????????????????????????????????? Revisions allowed.