2008 PLP 822 (MLD)

ALI SAIN DINO METLO, J.

In this revision, filed against concurrent findings of two Courts below, the dispute is over one acre and 15 ghantas of agricultural land from Survey No.383, which is equal to its one fourth, situated in Deh Khamiso Chachar, Taluka Ubauro. The applicants, who claim to have purchased it from one Darshan Lal (respondent No.5) by way of statement before the Mukhtiarkar, Taluka Ubauro on 9-7-1991, seeking assistance of the Mukhtiarkar, tried to take its possession from respondents Nos.1 to 4.

2. The respondents filed suit, bearing No.55 of 1991, in the Court of Civil Judge, Ubauro, and sought declaration that they were the lawful owners of the land and also prayed for injunction to restrain the applicants from interfering with their possession, contending that they had purchased the land from its previous owners, Budhal Mal and Tehkan Mal, by way of registered sale deed on 13-4-1938 and were in its peaceful possession since then.

3. The applicants also filed civil suit, bearing No.25 of 1992, for possession and mesne profits in the same Court. The learned Civil Judge, on the basis of evidence produced by both the parties, found that the respondents, having purchased the land from the previous owners by way of registered sale deed in the year, 1938 were in its possession as lawful owners and the applicants had no right over it. He, therefore, decreed the suit of the respondents and dismissed that of the applicants on 30-4-1997. On appeal, bearing Civil Appeal No.35 of 1997, filed by the applicants, the Appellate Court (1st Additional District Judge Ghotki) confirmed the findings of the Civil Judge and dismissed the appeal on 31-1-2006.

4. The respondents, by producing certified copies of the record of rights pertaining to the year, 1953 showing that they had purchased the land from its previous owners by way of registered sale deed in 1938, successfully proved that they were. its lawful owners and were admittedly in its possession also.

5. The applicants, who have admittedly never remained in possession of the land, simply based their claim on the mutation in the revenue record made in their favour on the basis of statement of Darshan Lal in the year, 1991. The applicants did not explain, either in pleadings or in their evidence, how Darshan Lal (respondent No.5) came into the picture. However, the Tapedar, who was the custodian of the record, explained that on 24-8-1954, a Special Mukhtiarkar/Magistrate had wrongfully and illegally cancelled the entry in favour of the respondents, notwithstanding the fact that it was an old entry made on the basis of a registered sale deed. Thereafter, the land was granted to one Muhammad Ali in the year, 1980 from whom Darshan Lal (respondent No.5) claimed to have purchased on the basis of statement before the Mukhtiarkar in 1981.

6. The claim of the respondents that they purchased the land from its previous owners by way of registered sale deed in 1938, on the basis of which record of rights was also mutated in their favour, was not disputed at any time. The sale deed was never challenged either by the applicants or by anybody else.

7. There is no force in the contention of the learned counsel for the applicants that due to the cancellation of the entry by the Special Mukhtiarkar/Magistrate, the respondents ceased to be owners. Indeed, he had no authority to cancel the entry made on the basis of the undisputed registered sale deed. Moreover, he did it without notice to the respondents and without assigning any reason. The Tapedar has deposed, and rightly so, that the Special Mukhtiarkar/Magistrate had cancelled the entry illegally. A revenue officer cannot cancel an entry in the revenue record made on the basis of an undisputed registered sale deed. Any number of subsequent entries illegally made in the revenue record cannot have the effect of extinguishing the rights of the rightful owner.

8. It has been consistently held that entries in the revenue record do not create or extinguish title over the property. In this regard reference may be made to the precedents of the apex Court reported in 1968 SCMR 573, 1968 SCMR 842(2) and NLR 2001 Civil 65 (S.C.).

9. There is also no force in the contention of the applicants' counsel that in view of the cancellation of entry in favour of the respondents by the Special Mukhtiarkar/Magistrate, the Government was necessary to be joined as party and the suits ought to have been filed before and decided by a Senior Civil Judge and not by the Civil Judge. First, in both the suits the Government was not a party and, therefore, their adjudication 'by the Civil Judge cannot be challenged on the assumption of the Government as a party. Secondly, the objection was not taken before the two Courts below. Thirdly, the decree of the Civil Judge merged into the decree of the Appellate Authority i.e. the Additional District Judge, whose jurisdiction to adjudicate the matter is not in dispute. Fourthly, the act/order of the Special Mukhtiarkar/Magistrate, being void and without jurisdiction, did not require to be formally set aside. Reference may be made to the case of Muhammad Shafi v. Mushtaq Ahmed (1996 SCMR 856).

10. In view of the above mentioned facts and circumstances, it is clear that the two Courts below were right in dismissing applicants' suit and decreeing respondents' suit and no exception can be taken to their concurrent findings. It was for these reasons that the revision, being meritless, was dismissed summarily by short order passed on 25-1-2008. S.A.K/A-13/K Revision dismissed.