2014 PLP 1218 (YLR)

MALIK MANZOOR HUSSAIN, J.

This revision petition has been directed against the judgment and decree dated 28-9-2006, passed by learned Addl: District Judge-I, Mardan, whereby the appeal filed by the petitioners had been dismissed and the judgment and decree passed by learned trial Court dated 2-12-2004 was maintained.

2. Briefly, facts of the case are that predecessor in interest of the petitioners namely Major Muhammad Akbar Khan(late) filed a Suit No.187/1 on 11-6-1958, against his brothers Najaf Khan, Shamroz Khan and his nephew Wisal Muhammad Khan for declaration to the effect that being exclusive owner of the suit-land, the entries in the names of said brothers and nephew be declared as illegal, void and ineffective upon the rights of the plaintiffs. His brother Shamroz Khan predecessor-in-interest of the respondents, died during pendency of the suit. Therefore, his widow Mst. Johar Sultana and minor issues namely Saeed Ullah, Ubaid Ullah, Muhammad Zaman and daughters Mst. Zahida and Mst. Abida (respondents Nos.1 to 5) were impleaded as his legal heirs. With the Leave of Court Mst. Johar Sultana was made guardian atlitem of all the minors. All the defendants including Mst. Johar Sultana who was appointed as guardian of the minors by the concerned court of law, submitted a cognovits and admitted the claim of Muhammad Akbar Khan, the plaintiff in the case. The decree was passed in favour of the plaintiff as prayed for and on the basis of same, Mutation No.5731 was attested in favour of late Akbar Khan. Thereafter the property remained in his peaceful possession and was duly recorded as sole owner in possession of the suit-land. It was in the year 1993, when an application was made by one Muhammad Zaman son of Shamroz Khan respondent No.3, for correction of entries in the Jamabandi, whereupon through 'Fard Badar' No.100 dated 18-9-1993, some alteration was made and instead of ownership of Major Muhammad Akbar Khan, the names of respondents Nos.1 to 5 were inserted being LRs of Shamroz Khan as co-sharer. Feeling aggrieved the petitioners preferred appeal before Collector, which was dismissed and the petitioners challenged the order of change of entry and that of appellate Court through Civil Suit bearing No.9/1 of 2000, before the Civil Court, which was dismissed through judgment and decree dated 2-12-2004. The appeal preferred by the petitioners was also dismissed through judgment dated 28-9-2006.

3. Learned counsel for petitioners contended that after passing of the decree dated 23-9-1958, Mutation No.5731 was attested. He further contended that from the year 1958 upto 1993, no one from the defendants of original Suit No.187/1 of 1958 challenged the same before any Court of law during their life time or in the life time of Major Muhammad Akbar Khan. He further contended that though respondents Nos.1 to 5 were shown minors in the suit but they were duly represented by a guardian i.e. their mother appointed by the court. He further contended that respondents Nos.1 to 5, attained majority much earlier to the year 1970, as they executed a registered deed Ex.P.W.9/4 on 11-2-1970, wherein they were shown major and the same was not challenged by them so far. Thus, they could file any suit or application within three years of their majority as per section 6 of Limitation Act, 1908. He further contended that the father of respondents Nos.1 to 4 and their uncle Muhammad Najaf Khan along with Wisal Muhammad Khan, were 'Benamidar' and they admitted the same through a cognovits submitted in suit on 23-9-1958, therefore, this by itself supports the contention of the petitioners that Major Muhammad Akbar Khan was the real owner of the property.

4. Conversely, the learned counsel for respondents contended that there is a concurrent findings of facts of both the Courts below and the respondents Nos.1 to 5 being minors, have rightly decided to apply to the Revenue authorities for correction of entries in 'jamabandi' and it was the domain of Revenue Court to correct the same. Arguments heard, record perused.

5. Perusal of the record reveals that the predecessor in interest of petitioners namely Major Muhammad Akbar Khan was employed in Paksitan Army in the rank of Major and was posted at Dehli. A substantial amount was given by him to his brothers and the nephew for the purchase of land, however, his brothers Najaf Khan and Shamroz Khan and his nephew Wisal Muhammad got their names entered along with Major Muhammad Akbar Khan in the sale mutation as vendees. In the year 1958, Major Muhammad Akbar Khan got retired from service and when he settled in the native village, the wrong entries were brought into his knowledge, whereupon he filed a Suit bearing No.187/1. During the pendency of the suit the brother of Major Muhammad Akbar Khan, namely Shamroz Khan died, therefore, his widow Mst. Johar Sultana, his minor sons namely Saeed Ullah, Ubaid Ullah, Muhammad Zaman and his minor daughters Mst. Zahida and Mst. Abida (respondents Nos.1 to 5) were impleaded as his L.Rs. and with the Leave of the Court, Mst. Johar Sultana, the mother of the minors, was appointed as Guardian. On 23-9-1958, all the defendants of the suit, submitted a cognovits and admitted the claim of Major Muhammad Akbar Khan, the plaintiff of the case and on the basis of same, a decree as prayed for, was granted through judgment dated 23-9-1958. On the basis of this decree, Mutation No.5731 was got attested. It is an admitted fact that Major Muhammad Akbar Khan remained in continuous possession of the suit-land during his life time and after his death the property remained in possession of his L.Rs. i.e., the petitioners.

6. The record further reveals that right from attestation of mutation in favour of Major Muhammad Akbar Khan, the entries in `Jamabandi' exclusively remained in favour of the predecessor in interest of the petitioners and for the first time in the year, 1993, on the application of respondent No.3, these entries were changed and the respondents Nos.1 to 5 were incorporated as co-owners of the property. The fact of possession of the property has even been admitted by the respondents when they appeared as DWs in the trial Court and recorded statements on 16-4-2004. Reference is made to the statement of DW.5 Muhammad Zaman son of Shamroz Khan.

7. There is no denial of the fact that the property was originally purchased by the Income of Major Muhammad Akbar Khan. This fact was not denied by the persons in whose names it was wrongly got mutated. The mother of respondents Nos.1 to 5 also affirmed this fact by submitting a cognovits and she never challenged the decree or admission during her life time. For the first time in the year, 1993, the long-standing entries were challenged through a simple application and in a mechanical manner, the learned Revenue Officer, made alteration in the entries.

8. It is by now well-settled that long standing entries in the Revenue Record involving determination of rights, could be challenged only through a civil suit and cannot be changed by a Revenue Officer and that too without affording an opportunity to the affectees of the same. The entries in question were appearing for the last more than 40 years in the Revenue Record and were supported by the possession. Thus, the so called correction of entries in the Revenue Record suffered from a serious jurisdictional defect and as such, was not sustainable. Long-standing entries could not be rectified on the basis of miscellaneous application even if provision of West Pakistan Land Revenue Act, 1967, were to be applied to the case in question. Reliance is placed on cases reported in "Jan Muhammad and others v. Nazir Ahmad and others" (2004 SCMR 1612), "Muhammad Aslam v. Abdul Jabbar and others" (1992 CLC 1360), "Muhammad Ishaq v. Member of Board of Revenue, Punjab and 18 others" (1994 MLD 2254), "Nawab Ali and others v. Bajwan Singh" (1995 CLC 1823), "Mst. Surayya Bano v. Mst. Nazia Bano" (1996 CLC 1690), "Muhammad Usman v. Province of Punjab" (2002 CLC 1980) and "Muhammad Nawaz and 19 others v. Provincial Government and 4 others" PLD 1997 (Pesh) 1.

9. The second question with regard to minority of the respondents Nos.1 to 5, agitated by the learned counsel for respondents, is not of any help to him as, firstly the minors were duly represented by their own real mother in the original suit. Moreso, their mother was appointed by the Court as guardian of the minors. Once it is established that minors were represented through their guardian, the decree passed against minors on the basis of compromise arrived at between the parties with the leave of Court, was a valid decree. There is nothing on record which would suggest that the decree was the result of mother's gross negligence, dishonesty and undue influence, exerted on her. Similarly, if the decree was passed without leave of the Court, then it was voidable but in the case in hand decree against minor respondents admittedly passed with the leave of Court, thus the same was valid decree and could not be challenged lateron, on the ground of minority. The decree was passed in the year, 1958 and even all the minors were presumed to be of one year of age, then their maturity would fall in the year, 1976 thus, under section 6 of Limitation Act, 1908, the respondents Nos.1 to 3 can challenge the wrong entries or even the decree within three years of attaining of majority. The application for correction was made in the year 1993, i.e. after long 17 years of attaining the majority, which was hopelessly time-barred. Reliance is placed on "Muhammad Ali and 25 others v. Hassan Muhammad and 6 others" (PLD 1994 SC 245 (e)), "Muhammad Mehmood Khan v. Muhammad Hassan and 7 others" (1991 SCMR 1566), and "Mst.Maqsood Bibi v. Ghulam Bahoo" (1989 MLD 1990).

10. The petitioners were non-suited by the learned Courts on the wrong assumptions and both the learned Courts below failed to follow the law correctly on the issues, which resulted into grave miscarriage of justice. For aforementioned reasons, this revision petition is accepted, the impugned judgments and decrees are set aside and the suit of the plaintiffs/petitioners is decreed with costs. AG/128/P Revision accepted.