1970 PLP 611 (SCMR)

WAHIDUDDIN AHMAD, J.‑The property in dispute is 34 kanals and 12 marlas bearing Khasra Nos. 58, 80, 2069/59/60, 61, 62 and 63 in the limits of village Babi Jadid, Tehsil Nowshe: a, District Peshawar. Petitioner alleged that the above property, along with some other property, originally belonged to his father, Habib Shah. On his death, it was inherited by him and his brother Kabal Shah. He alleged that Kabal Shah had sold his entire share in the property. He also faced that he had also sold some of the areas of the property on the 10th April 1922 to Sardar Khan and Najab Khan and from its sale price redeemed some land which his father earlier had mortgaged and was in possession of that land since its redemption and as such has become the owner by that possession for more than 12 years. He, therefore, challenged the inheritance in favour of Mst. Bakhmala and others on the ground that his deceased brother Iqbal Shah had no interest in it and that the inheritance mutation No. 1630 of the said Iqbal Shah attested on the 13th February 1960, was not bind ing on him. In support of his claim, the petitioner alleged that Kabal Shah had sold Khasra No. 63 and he acquired the same by a pre‑emption decree and had become its exclusive owner. This contention was repelled by the High Court on the round that Khasra No. 63 was sold by Abdul Ghani and his three brothers, namely, Mahboob, Usman and Abdul Majid and the vendees were Sardar Khan, Najab Khan and Dilbar Khan and it was by mistake that column No. 8 of mutation No 2 (Exh. P. 24), shows Kabal Shah as the vendor. The High Court further held that although Khasra No. 63 was preempted by the petitioner this land in subsequent Revenue record was shown in possession of a tenant under both Kabal Shah and Mubarik Shah. So far as the land redeemed by the petitioner was concerned, it was held that by redemption of the land he had not become owner of the land. At best he stood in the shoes of the mortgagee and could claim the mortgage amount from the heirs of Kabal Shah. On these findings the High Court dismissed the Regular Second Appeal No. 375 of 1966 by judgment dated the 16th May, 1969. The petitioner seeks special leave to file an appeal against the said judgment. In support of the petition, Mr. Khan Bahadur Khan, learned counsel for the petitioner has contended that Khasra No. 63 was pre‑empted by the petitioner in Suit No. 738 instituted on the 8th December 1929 and decided on the 26th April 1930. He, therefore, contended that this land belongs to the petitioner and Kabal Shah had nothing to do with it. Unfortunately for the petitioner the subsequent entries do not support this contention. In the Jamabandi of 1941‑42, Mubarik Shah petitioner was not shown in exclusive possession of the property. In correction mutation No. 903 (Exh. P. 20), Khasra No. 63 was shown as owned and occupied by both the brothers in equal shares. This was attested on the 23rd March 1945, and was incorporated in Jamabandi of the year 1947‑28 (Exh. P. 3). Thereafter, the said khasra number was shown to be owned and possessed by both the brothers in equal shares. In the face of these entries, the learned Courts below were perfectly justified in holding that Khasra No. 63 was also owned by Kabal Shah. It may be that the petitioner filed the pre‑emption suit at the instance of his brother for his and his brother's benefit. It is for this reason that in the correc tion entry the name of Kabal Shah was also included as owner of Khasra No.

63. No exception, therefore, can be taken to the finding of the Courts below that Khasra No. 63 was owned by both the brothers and the heirs of Kabal Shah were entitled to inherit it. It was next contended by the learned counsel for the petitioner that the Courts below should have granted to the petitioner the relief that he was entitled to the payment of the mortgage amount paid by him to redeem the mortgaged property belonging to his father. The petitioner is not entitled to any such relief because the case set up by him in the plaint was that on account of this fact he has become the exclusive owner of the property in dispute. In this connec tion the High Court has rightly observed that if the plaintiff petitioner had redeemed the land with his own money and his brother had not contributed his share at best he stands in the shoes of the mortgagee. This is quite sufficient to safeguard the interest of the petitioner. It is open to him to recover the amount paid by him for redeeming the property in dispute by filing a separate suit, if so advised. In the present proceedings no such relief can be granted to him. There is no force in the petition which is dismissed. Leave refused.