2005 PLP 1445 (MLD)

The dispute in this case relates to land in the Shamlat Deh. According to the petitioner/plaintiffs, the suit-land was gifted to them by Khizar Hayat (respondent/defendant). As per averments of the plaint, the gift was made orally twd months prior to the filing of the suit. Khizar Hayat (respondent/defendant) filed a conceding written statement acknowledging the gift made in favour of the petitioners.

2. The remaining respondents (respondents Nos.2 to 16), however, resisted the suit filed by the petitioners. It was their case, firstly, that Khizar Hayat was not an owner of the estate land, therefore, he had no proprietary interest in the Shamlat and, therefore, he could not have made a gift of the said land. Secondly, the respondents Nos.2 to 16 asserted that they were in .possession of the suit-land and not Khizar Hayat or the present petitioners.

3. Learned counsel for the petitioners argued that according to para. 7.19 of the Land Records Manual and Appendix-A thereto, which is a sample mutation, it is clear that a person, who is owner of the estate and owner in the Shamlat, has the right to retain his joint interest in the Shamlat, even when he disposes of his proprietary interest in the estate. On this basis, it was argued that the learned Courts below had committed error in law by holding that on account of the fact that Khizar Hayat had divested himself of proprietary interest in the village, he automatically stood divested of his common interest in the Shamlat.

4. As a legal proposition, this may be so. However, learned counsel for the petitioners acknowledged that the conveyance, whereby Khizar Hayat had transferred his proprietary interest while retaining his common interest in the Shamlat, was not adduced in evidence. The conveyance whether in the form of a registered deed or through some oral mutation, would have been a material piece of evidence to prove the contention of the petitioners that Khizar Hayat had retained his interest in the Shamlat. The petitioners being plaintiffs, had to produce this document to discharge the onus of proving their case, particularly in view of the denial of the petitioners' rights asserted in the written statement filed by respondents Nos.2 to

16. Learned counsel for the petitioners referred to Exh.P.1, which is an order passed by the Collector, Khushab dated 28-8-1984, to contend that the exclusive title of the petitioners in disputed Khasra numbers in the Shamlat stood established. This submission is misconceived, firstly, because the contesting respondents were not parties in the proceedings before the Collector. Secondly, the order itself proceeds on the erroneous premise that Shamlat land, which is collectively owned and possessed by the residents of a village, could have been given into the exclusive possession of Khizar Hayat. At this point, it will be relevant to refer to the Wajib-ul-arz of the Mauza recorded in 1976-77, which is Exh.D-2 on the record. From this document, it is evident that the Shamlat lands have not been partitioned. This fact was confirmed by learned counsel for both sides. It, therefore, follows that the suit filed by the petitioners, which claimed exclusive title and possession in respect of 8O Kanals 14 Marlas comprised in Khasra Nos.154 and 172 respectively, could not have been decreed. The impugned decrees, as such, whereby the said suit was dismissed, are unexceptionable. Furthermore, learned counsel for the petitioners was unable to advert to any such jurisdictional error or other legal infirmity in the impugned judgments which would justify interference therein while exercising revisional jurisdiction. In these circumstances, I find no merit in this petition, which is, therefore, dismissed. S.A.K./M-1106/L Revision dismissed.