2001 PLP 1211 (CLC)

Date of hearing: 28th November, 2000 As per Revenue Record for the year 1968‑69, suit‑land measuring 125 Kanals, 16 Marlas was comprised in a single Khata and the petitioners being owners in the Khata were continuing in possession of a portion of the same as co‑sharers. One Sikandar Khan was owner of 247/5680 share (5 Kanals and 9 Marlas) in the said Khata. He sold the same to his wife Mst. Zeenat vide Mutation No.1000, dated 30‑6‑1971 and Mst. Zeenat proceeded to sell the said land to respondent No. l by means of a registered deed, dated 8‑4‑1978 whereupon Mutation No. 1156 was attsted on 22‑1‑1979. In the record for 1979‑80, the Khata remained the same but Khatooni was bifurcated, Khatooni No.262 measuring 5 Kanals and 13 Marlas. was given Khatuni No.260 and respondent No. l was entered in possession of the same. While the balance Khata measuring 120 Kanals, ,3 Marlas was given Khatooni No.261. On the basis of the said entries respondent No.1 filed proceedings for ejectment of the petitioners on the ground that they have encroached upon the said land measuring 5 Kanals, 13 Marlas. The Collector passed an ejectment order on 30‑11‑1981. The Additional Commissioner on appeal remanded the case on 19‑4‑1982. The. Collector again passed the ejectment order on 23‑10‑1982, an appeal filed by the petitioners was dismissed by the Additional Commissioner and a revision was also dismissed. The petitioners filed the present suit on 8‑3‑1983 stating the said facts in the plaint and alleging that neither Mst. Zeenat sold the said land in favour of her husband nor could she sell the same in favour of respondent No. l for the reasons that she was never in possession and so was the case with the respondent No.1, and all the said orders passed by the Revenue Officers were sought to be declared null and void alongwith the entries in the record of 1979‑

80. The suit was resisted. The following issues were framed: (1) Whether the plaintiffs are owners in possession of the suit‑land and the sale‑deed, dated 4‑5‑1971 and 8‑4‑1978, mutation Nos. 1000 and 1156 in favour of firstly Mst. Zeenat Bibi and second in favour of defendant No. l is illegal, void, ineffective and inoperative to the rights of the plaintiffs? OPP. (2) Whether Khasra Nos.261 and 262 were split‑up by defendant No.2 in collusion of defendant No. 1, if so, what is correct value upon the rights of the plaintiffs? (3) Whether the proceedings carried out by the Revenue officials about the transfer of possession are collusive, ultra vires, void and inoperative on the rights of the plaintiffs? (4) Whether the other co‑sharers are necessary parties in the suit? OPD. (5) Whether the defendants are entitled to special costs under section 35‑A, C.P.C.? If so, to what extent? OPP. (6) Relief. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 6‑10‑1987. An appeal filed by the petitioners was heard by a learned Additional District Judge, Mianwali, who dismissed the same on 1‑2‑1988.

2. Mr. Noor Muhammad Awan, learned counsel for the petitioners contends that regarding the joint land it is settled that a co‑owner in a possession cannot be dispossessed by any co‑owners otherwise than by means of a suit for partition. Further, contends that the entries in the record for the year 1979‑80 are prima facie illegal being against the facts. Mr. Muhammad Sarwar Rana, Advocate, on the other hand has tried to support the impugned judgment and decrees.

3. I have gone through the certified copies of the record appended with this Civil Revision. Copy of Register Haqdaran Zamin for the year 1969‑70 is Exh.P.l, it clearly shows that the petitioners and others are .in actual possession of the land measuring 125 Kanals, 16 Marlas comprising Khewat No.38 Khatooni No.62. In the entire column of possession Sikandar or Mst. Zeenat or respondent No. l do not figure anywhere. Mutation by Sikandar Khan in favour of, Mst. Zeenat available on record as Exh.P.5 clearly narrates that the mutation was effected in column of ownership to the extent of 247/5680 share. Exh.P.6. is the copy of sale‑deed in favour of respondent No.1 and it also narrates the transfer of the said land as unspecific share in his favour by Mst. Zeenat. The matter is further clarified by the copy of mutation 1156 Exh.P.7 where the sale in favour of respondent No. l was also effected in the column of ownership.

4. It is in the said background that one has to examine, Register Haqdaran Zamin for the year 1979‑

80. In this document Khata remained the same i.e. single. However, the Patwari proceeded .to add two Khatunis Nos.60 and

61. Against Khatuni No.60 he entered respondent No.1 as a tenant and in balance land against Khatuni No.61, petitioners and others are in possession. The jugglery performed by the Patwari becomes very apparent when one examines the Khasra Girdawari Exh.P.3. For Rabi 1980 the Patwari managed to insert respondent No. l with reference to said Mutation No. 1156 in respect of land measuring 5 Kanals, 9 Marlas which in fact is in possession of the petitioners as co‑owners.

5. Thus, a plain reading of the documents on record discloses a very crude attempt on the part of the respondent to take over possession of the suit‑land from the petitioner with the help of the Patwari. The learned Courts below did not make any efforts at all to read the said evidence while passing the impugned judgments and decrees.

6. It is by now well‑settled that a co‑owner in possession cannot be dispossessed by the other co‑owner otherwise than by filing a suit for partition or for possession under section 9 of the Specific Relief Act, 1877. Learned counsel for the petitioners relies upon the case of Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325 in support of this proposition. Since the impugned judgments and decrees are suffering from material irregularity, this civil revision is allowed. The judgments and decrees of both the Courts below are set aside and the suit of the petitioners is decreed. with costs, throughout. H.B.T./M‑499/L Revision allowed.