2007 PLP 2829 (YLR)

JAWWAD S. KHAWAJA, J. This revision petition impugns the appellate judgment and decree dated 1-2-2003 passed by the learned Additional District Judge, Bhakkar. By means .of the impugned decree, the judgment and decree dated 5-i-1999 passed by the learned trial Court dismissing the declaratory suit of Haq Nawaz respondent-plaintiff, was set aside. As a consequence of the appellate judgment, the suit of Haq Nawaz respondent-plaintiff was decreed.

2. The facts of this case are straightforward. One Muhammad Sharif was the owner of the Khata No.62/63 measuring 16 kanals and 16 marlas of land in Chak No.45/TD, Bhakkar. Allah Dewaya (predecessor-in-interest of the present petitioners) purchased 8 Kanals, 7 Marlas out of the aforesaid khata, from Muhammad Sharif vide Mutation No.236 sanctioned on 4-2-1988 (Exh.D.5). This purchase is not in dispute. Muhammad Sharif also sold 8 kanals of land to one Ranjha son of Sawaya vide Mutation No.234. As such only 8 marlas of land remained with Muhammad Sharif in the aforesaid Khata.

3. Muhammad Sharif purportedly conveyed 1 kanal and 8 marlas to the respondent-plaintiff vide Mutation No.415 which was sanctioned on 29-11-1992. The petitioners, upon becoming aware of the fact that Muhammad Sharif had sold land in excess of his entitlement to the respondent Haq Nawaz, filed a petiton before the Revenue Authorities seeking review of Mutation No.415. The Collector, after due inquiry, ordered review of the aforesaid mutation vide order dated 16-8-1993. The decision of the Collector was based on the report of the Tehsildar (Exh.D.6). In the said report, it was pointed out that after Sharif had made the sale in favour of the petitioners vide Mutation No.236 (Exh.D.5) and the sale made in favour of Ranjha son of Sawaya, Muhammad Sharif was entitled to only 8/335 share in the khata. However, due to an error on the part of the Revenue functionaries, his entitlement was wrongly noted as 28/335. It was this error which crept into the register Haqdaran for the year 1990-91. As a result, Mutation No.415 was sanctioned in favour of Haq Nawaz (respondent-plaintiff).

4. The learned trial Court considered the above evidence and dismissed the suit of the respondent. The learned appellate Court however, has relied on a document (Exh.D.3) to support the appellate judgment and decree. The document (Exh.D.3) is a copy of the proceedings in an earlier suit, which had been filed by Allah Dewaya (predecessor-in-interest of the petitioners) against Muhammad Sharif, the original owner of the khata. The said suit, which was filed on 21-9-1992, was withdrawn on 14-11-1992 after statements made therein by Allah Dewaya and Muhammad Sharif. It is apparent from the said statements that the dispute related to 9 marlas of land only Allah Dewaya through his attorney stated that since the said 9 marlas was part of a mosque, he would not assert any right in respect thereof.

5. According to learned counsel, the above document (Exh.D.3) has no relevance to the present litigation even if it is in respect of 1 kanal and 8 marlas because the question in this case relates to the title of the respondent and not to the area occupied by the mosque.

6. Learned counsel appearing on behalf of Haq Nawaz (respondent-plaintiff) reiterated the reliance on the statement (Exh.D.3), which refers to the area of the mosque.

7. The land dedicated to the mosque has little relevance in the present case because the question herein is whether Muhammad Sharif was left with sufficient title in the khata to justify conveyance of 1 kanal and 8 marlas to the respondent. The answer to this is clear Muhammad Sharif, after having sold the land to Allah Dewaya (predecessor-in-interest of the petitioners) and to Ranjha son of Sawaya was only left with 8 marlas and, therefore, could not have conveyed more than 8 marlas. Even learned counsel for the respondent conceded that Sharif was not left with title to more than 8 marlas.

8. In the foregoing circumstances, the appellate judgment and decree dated 1-2-2003 are set aside. Consequently, the decree of the learned trial Court dated 5-1-1999 stands restored. F.B./A-99/L???????????????????????????????????????????????????????????????????????????????????????? Petition allowed.