1994 PLP 2241 (MLD)

This revision petition arises out of order dated 11-11-1980 passed by the learned District Judge, Gujrat, whereby he dismissed the appeal against the judgment dated 19-1-1978 passed by the learned trial Court in a declaratory suit.

2. Briefly, the facts are that Mst. Bashiran, the predecessor-in-interest of respondents Nos.1 to 6 filed a suit for declaration on 23-12-1970 to the effect that she was owner of 24i Kanals and 5 Marlas of land situated in Village Dhuni Kalan, Tehsil Phalia, District Gujrat. The suit was contested by the petitioners/defendants. In view of pleadings of the parties, the following issues were framed:

(1) Whether suit is maintainable in its present form? OPP (2) Whether Mst. Aimna, Rabia and Shera are necessary parties to be impleaded in this suit? OPD and (3) Whether the suit is properly valued for the purposes of court-fee and jurisdiction? OPP

3. All the issues were decided in favour of the plaintiffs. Consequently, the suit was decreed on 19-1-1978 to the extent of 188 Kanals and 18 Marlas on the basis of decree of gift dated 28-6-1965 (Exh.P/1). On appeal, the learned District Judge after re-appreciating the oral and documentary evidence concurred with the fording of fact recorded by the learned trial Court and dismissed the appeal by order, dated 11-11-1980. Hence this revision petition.

4. Learned counsel for the petitioners argued that the document Exhs.P/2 and D/9 Jamabandi for the year 1968-69 and Khasra Girdawat7 (Exh.D/10) have been misread, inasmuch as, in these documents, name of Mst. Bashiran plaintiff was not mentioned. Likewise, in Khasra Girdawan (Exh.PD/10), the name of Mst. Bashiran has not been shown as owner 01 being in cultivating possession. This aspect of the matter was considered an rightly rejected by the learned District Judge in paras four and five of the judgment following the plea raised by the petitioners/defendants was dismissed in terms:

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4. Learned counsel for the appellant contends that according to the Khasra Girdawari Dl and D10 Bashiran was not in possession of the land and unless she was occupying the land the suit should have been for the possession of land and not for declaration. Reliance was placed on 1980 CLC 1483. It was further argued that the three ingredients of the gift are not completed because the possession was not delivered to the donee, as is clear from the Jamabandi which shows that Rabia, Aimna and Shera are occupying the land. He further pointed out that Ahmad was cultivating the land according to the statement of Ghulam Qadir P.W.2 and husband of Bashiran but copy of Khasra Girdawari Exh.D1 shows that the possession was of some person other than Mst. Bashiran and Jamabandi Exh.D2 shows that in 1972-73 Lala was occupying the land. He further stated that according to the decree-sheet Exh.D3 Mst. Aimna was keeping the land and she had brought a suit that Shera should not interfere with the possession of land. It is further contended that according to Khasra Girdawari Exh.D10 the plaintiff was not in possession of the land in Rabi 1966 to Rabi, 1971. It was further argued that Mst. Rabia and Mst. Aimna were the persons in whose favour the decree Exh.P3 was passed. Similarly Shera was necessary party and no suit could proceed in their absence.

5. According to Khasra Girdawari Exh.P6 the plaintiff was in possession of certain Khasra numbers. The land in dispute was a joint property. The Jamabandi for the year 1968-69 shows that Mst. Bashiran was occupying the land at various Khasra numbers, for instance she was occupying the land in Khasra Nos.3/9, 10, 11, 12, 19 and 20 of Khewat No.35, Khatuni No.34. She was also occupying the land in Khasra Nos. 14,17/1, 23 etc. This was also clear from the copy of Jamabandi 1968 to 1969 Khata No.9, Khatuni No.4, it was in respect of Khasra Nos. 42/13, 14, 17/1, 18, 23, 48/3, 8, 13, 18, 23, 62/3. She was also occupying the land comprising Khasra No.31 and Khata No.9, Khatuni Nos.32, 33 of the said Khata. Khata No.35, Khatuni No.34. The same entries are incorporated in the Khasra Girdawari of the relevant period. It would thus clear that at the time when the suit was brought in December, 1970, the plaintiff Mst. Bashiran was occupying the land. Her possession continued subsequently during the pendency of the suit as is clear from the copy of Khasra Girdawari Exh.D1 and subsequent Jamabandi. Karim Bukhsh D.W.1 stated that he did not know who was in actual possession of the land. Lala had no knowledge who was cultivating the land. Same is the position of Mst. Rabia who admitted that Mirza gifted away the land in favour of his daughter."

5. It is next contended that the part of the disputed land was inherited by Mirza, father of the plaintiff, after the decree of gift dated 28-6-1965 therefore, that land could not be included in the present suit. This age a matter which relates to appreciation of evidence, which cannot be undertaken in these proceedings. The controversy raised herein is concluded by concurrent findings of fact, which is not open to scrutiny in these proceedings. Resultantly the revision petition fails and is hereby dismissed with no order as to costs. H.B.T./L-77/L Revision dismissed.