2003 PLP 1958 (SCMR)

Muhammad Nawaz Bhatti, Advocate Supreme Court for Petitioner (in Civil Petition Np.2870‑L of 2000). A.R. Shaukat, Senior Advocate Supreme Court for Respondents (in both Petitions). Date of hearing: 18th February, 2003 TANVIR AHMED KHAN, J.‑‑‑Leave to appeal is sought against the judgment dated 27‑9‑2000 of a learned Single Judge of the Lahore High Court, Lahore, whereby Writ Petitions Nos. 11962 and 10979 of 1997 filed respectively by the petitioners were dismissed maintaining the order dated 25‑2‑1997 of the learned Member, Board of Revenue, Punjab, Lahore.

2. The facts briefly narrated are that the parties in these petitions are joint holders in village Raniwal, Tehsil and District Gujrat. Umer Shah, predecessor‑in‑interest of the respondent Bootay Shah, was recorded as owner of 3/4th share of the land in dispute while the predecessor‑in‑interest of the petitioners Hasham Shah was recorded as owner of 1/4th share thereof. Said Umar Shah relying on this entry applied for partition of the land and an agreement was entered between the parties to the effect that both the shareholders would be entitled to share of the land and the above partition proceedings were dropped. However, being dissatisfied with this outcome, Umar Shah again moved another application for the partition, which too was dismissed.

3. Being dissatisfied with these proceedings, Umar Shah filed a declaratory suit\claiming 3/4th share in the disputed land. The trial Court decreed the suit and an appeal against the same was also dismissed by the learned Additional District Judge. However, Civil Appeal No.2085 of 1934 filed by the opposite side was accepted through judgment dated 11‑3‑1935 and the suit filed by Umar Shah, predecessor‑in‑interest of the respondent Bootay Shah, was dismissed. No step whatsoever was taken by either side during all this period subsequent to the aforesaid judgment. However, during the course of consolidation proceedings, the petitioner's side succeeded in getting Mutation No.4124 sanctioned on 4‑1‑1993 on the basis of the aforesaid judgment whereby the right of Umar Shah, predecessor‑in‑interest of respondent Bootay Shah, to claim 3/4th share of the disputed property was rejected on the basis of an earlier agreement stated to have taken place between the parties in the year 1911 whereby both the sides agreed to 1/2 share of the land in dispute.

4. The respondents took exception sp the aforesaid sanctioning of the mutation and the Additional Deputy Commissioner (Consolidation), Gujrat/Mandi Bahauddin, through his order dated 23‑10‑1993 accepted the same and reviewed the mutation. The petitioners challenged this order of the Collector and the Additional Commissioner (Consolidation) through his order dated 23‑1‑1994 accepted the appeal and set aside the order of the Collector. The respondents filed a revision petition assailing the aforementioned order, which was accepted on 25‑2‑1997 and the learned Member (Judicial‑I), Board of Revenue, Punjab, set aside the order of the Additional Commissioner resulting into setting aside aforesaid Mutation No.4124. The petitioner challenged the above order before the Lahore High Court, Lahore, through the aforesaid writ petitions, which have been dismissed through the impugned judgment. Hence, these petitions for leave to appeal.

5. We have considered the contentions raised by the learned counsel for the parties and have gone through the entire documents placed on record with their assistance. Admittedly, the respondents are legally entitled to 3/4th share of the land and the learned counsel appearing for the petitioners have failed to advance any reason to controvert the same. He simply based petitioner's claim on an agreement executed between the parties as far back as in the year 1911. It is also reflected from the record that simply on the basis of the judgment of the High Court passed in the year 1935 dismissing the suit of Umar Shah, predecessor‑in‑interest of respondent Bootay Shah, Mutation No.4124 was sanctioned by the Consolidation Staff in the year 1993. It is pertinent to mention over here that the said decree which was made the basis for sanctioning the above mutation by the Consolidation Officer was in no respect favoured the petitioners. It simply dismissed the suit filed by Umar Shah, predecessor‑in‑interest of respondent Bootay Shah, on the basis of an agreement entered into between the parties in 1911. Apart from this we have also noticed that the impugned mutation was sanctioned without providing any opportunity to the respondent's side. It is interesting to note that the High Court judgment, on the basis or which the above mutation was sanctioned was rendered 60 years earlier in the year 1935 and the petitioners never bothered to get the same implemented throughout all this period.

6. We have asked again and again from the learned counsel for the petitioners whether any forum has decreed the claim of the petitioners to the extent of 1/2 share, he failed to quote any except relying on the judgment of the High Court, given in the year 1935. At the cost of repetition this judgment only rejected the suit filed by the predecessor in‑interest of respondent Bootay Shah and cannot in any manner be made the basis for sanctioning the disputed mutation after a period of 60 years. If the petitioners claim entitlement to 1/2 share of the disputed lands, they may file a separate suit if the law permits them to do so at this juncture. Further, the Consolidation Authorities in sanctioning the above mutation have traveled beyond their jurisdiction as during the process of consolidation, they are to follow the existing Revenue Record. Resultantly, in view of the foregoing discussion, the present petitions being devoid of any merit are dismissed and leave refused. M.H./Q‑16/S Petitions dismissed.