2007 PLP 632 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioners-plaintiffs impugn the concurrent decrees of the learned trial Court, dated 23-4-1998 and of the learned appellate Court, dated 24-2-2001 whereby a suit filed by the petitioners seeking declaration of their proprietary interest in the suit property and permanent injunction by way of consequential relief, has been dismissed.

2. The petitioners are the legal heirs of one. Fateh Khan. It is not in dispute that Fateh Khan was the owner of one half of khata measuring 44 kanals, 6 marlas, equivalent to 22 kanals, 3 marlas. It is admitted by the petitioners that 1/12th of the total khata equivalent to 3 kanals, 14 marlas was mortgaged by Fateh Khan in favour of mortgagees, who subsequently became evacuees. The jamabandi for the year, 1942-43 has been brought on record as Exh.P.1. The khata is shown as bearing No.288. Fateh Khan is shown as owner of one half of the khata. Out of his one half, he is shown as full owner of five shares and mortgagor in respect of one share. The other one half of Khata No.288 is shown to be owned by Fateh Chand and Nehal Chand sons of Dola Ram. From this division of the khata. It is apparent that the mortgage created by Fateh Khan was in respect of 1/6th of his half share in the khata, which equals 1/12th of the total khata. This comes 3 kanals, 14 marlas.

3. The jamabandi for the year 1946-47 is also on record. The old Khata No.288 has been given new Khata No.292 in this jamabandi. In this jamabandi the area shown as mortgaged in favour of non-Muslim mortgagees is shown as 22 kanals, 2 marlas equivalent to one half of the khata.

4. At this juncture it is to be noted that the mortgagee rights of the evacuee mortgagees came to vest in the Central Government by operation of law. A mutation (Exh.P.8), dated 27-5-1977 reflects this fact. The mortgagee rights were allotted to Mst. Fazilat (respondent No.5) on 16-8-1975. She transferred the same in favour of respondent No.4, namely, Shah Jehan Khan through Mutation No.22, dated 19-6-1979, and respondent No.4 in turn transferred the mortgagee rights in favour of respondents Nos. 1, 2 and 3 vide Mutation No.37 sanctioned on 20-5-1981.

5. The case of the petitioners is that the jamabandi for the year, 1946-47 erroneously showed one half of the khata as having been mortgaged in favour of non-Muslim mortgagees instead of 1/12th of the total khata as shown in the jamabandi for the year, 1942-43. It was with the object of having this entry rectified that the petitioners filed their suit. In support of their case, they produced extensive documentary evidence including that noted above. They also examined the patwari as P.W.1. He confirmed that the property mortgaged was 1/12th of the khata but through a mistake the jambandi for the year, 1946-47 showed a mortgage of one half of the khata equivalent to 22 kanals, 3 marlas. He also deposed that the same mistake was repeated in the jamabandi for the year 1951-52 and in subsequent jamabandies till the date of his testimony.

6. Learned counsel for the petitioners argued that in the light of the jamabandi (Exh.P.1) for the year 1942-43 and in view of the testimony of the Patwari (P.W.1), the petitioners had established their case that the total area mortgaged was 1/12th share of the total khata equivalent to 3 kanals, 14 marlas. It was thereafter for the respondents-defendants to bring on record proof of their claim to show that after 1942-43 Fateh Khan had further mortgaged his unencumbered 5/12th share in the khata in favour of the non-Muslim mortgagees. This, however, has not been done by the respondents.

7. The contentions of the learned counsel for the petitioners are well founded and are based on the record. I have, therefore, with his assistance gone through the impugned judgments. I note that the learned Courts below have not discussed the testimony of P.W. who confirmed the error in the jamabandi for the year, 1946-47 based on his examination of the Revenue Record. They have also failed to note that by way of rebuttal the respondents have failed to produce any mutation or other document to show that a further mortgage was created by Fateh Khan-during the four years period before the Jamabandi for 1946-47.

8. The learned Courts below have held that the petitioners were not able to show that their predecessor-in-interest had mortgaged only 3 kanals. 14 marlas in favour of the non-Muslim mortgagees and not his entire share in the khata equivalent to 22 kanals, 3 marlas. This finding is a result of non-reading of the testimony of P.W. and the jambandies brought on record, in particular the two jamabandies for the years, 1942-43 and 1946-47.

9. The learned Courts below have relied on Exh.D.1. which is a plaint in a pre-emption suit filed by petitioners Nos. 1, 2 and 3 along with a fourth person, namely, Abdullah Khan son of Mukarab Khan, and Exh.D.3, which is the judgment of the Court in the said case. It has been 'held that Exh.D.1 and Exh.D.3 are sufficient to show that the petitioners had acknowledged the title which came to vest in Mst. Fazilat (respondent No.5) because they had attempted to pre-empt the sale made by Mst. Fazilat in favour of Shah Jehan (respondent No.4). I have considered the plaint (Exh.D.1) and the judgment (Exh.D.3) and find that the conclusion of the learned Courts below is not well founded. The plaint (Exh.D.1.) shows that the pre-emption suit was in respect of 297-kanals, 10 marlas of land comprised in 23 different khatas. The three petitioners withdrew from the suit and only the fourth pre-emptor, namely, Abdullah Khan son of Mukarab Khan, prosecuted the same. It was noted in the judgment that the pre-emptors were co-owners in only four of the 23 khatas mentioned in the plaint. There is nothing in evidence which would connect the 'suit property in the present lis with the suit property which was sought to be pre-empted in the above mentioned suit. Learned counsel for the petitioners argued that the land, which was subject-matter of the pre-emption suit, was different from the land in dispute in the present case. In the event if the respondents were placing reliance on Exh.D.1. and Exh.D.3, it was for them to show that the land in the present suit was included in the land which was subject-matter of the pre-emption suit. This has not been done and nor have the learned Courts below made a determination to this effect.

10. In addition to the above, the learned appellate Court has also misread the evidence of Muhammad Khan, Patwari, (P .W.2), who was from the office of Saddar Qanoongo, Mianwali. This witness merely stated that in the Office of the Saddar Qanoongo there was no record relating to the mortgage of 3 kanals, 14 marlas of land. As to the disputed land he mentioned that it was part of Khata No.518 as per jamabandi for the year, 1977-78. According to him, the khata bore numbers 233/207 and 234/208 in the jamabandi for the year 1923-24 but acknowledged that he had not brought the said record with him. The learned appellate Court has, however, held that P.W.2 negated the case of the petitioners-plaintiffs by saying "that there is no proof of the mortgage of only 3 kanals, 14 marlas of land on the record." As a result of this misreading the learned appellate Court observed that "it was for the appellants to prove positively and independently that their ancestors had mortgaged only 3 kanals, 14, marlas of land instead of 22 kanals, 3 marlas." This observation of the learned appellate Court is misconceived because once the petitioners had proved through the jamabandi (Exh.P.1) and the testimony of the Patwari (P.W.1) that only 1/12th of the total khata equivalent to 3 kanals, 14 marlas had been mortgaged, the onus of proof shifted into the respondents to produce evidence to establish their claim that in fact one half share in the khata equivalent to 22 kanals, 2 marlas was mortgaged by the predecessor of the petitioners.

11. In view of the foregoing discussion, I find the impugned decrees to be a result of misreading and non - reading of the record. The same are, therefore, set aside. As a result, the entries made in the jamabandi for the year, 1946-47 are ordered to be rectified in line with this judgment. All subsequent jamabandies shall also be corrected accordingly. The consequential relief by way of permanent injunction, as-prayed for in the plaint, is also granted to the petitioners. S.A.K./M-I/L Revision accepted.