2010 PLP 1465 (CLC)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Respondents Nos.1 to 3 Allah Baksh etc. filed a suit for declaration against petitioner Mst. Nusrat Bibi etc. claiming to be the owners in possession of suit land as Adna Malik being the successor in interest of one Hussaina son of Bahara and claimed the return of suit land in adjustment of land acquired by Thal Development Authority in the year 1951. The respondents also challenged the mutations Nos.54, 55 and 56 dated 24-12-1995 and mutation No.57 dated 11-1-1996 being illegal, without jurisdiction and a decree for permanent injunction was also sought for permanently restraining the petitioners to interfere in their physical possession.

2. Ranjha and others filed a suit against Alamsher and Allah Bakhsh and others The defendants of both the suits filed written statement except defendants Nos.9 and 10 in the suit filed by Allah Bakhsh etc. who filed consenting written statement. Both the suits were consolidated. The learned trial Court framed the following issues;- "Issues.

1. Whether the plaintiffs are entitled for allotment of suit land in adjustment being Adna Malikana? (OPP)

2. If issue No.1 is proved in negative, then what are the rights of plaintiffs over suit property being Adna Malik Bashara Malikana? (OPP)

3. Whether the plaintiffs have no cause of action and locus standi to file this suit? (OPP)

4. Whether this Court has no jurisdiction to try this suit? (OPD)

5. Whether this suit is not maintainable in its present form? (OPD)

6. Whether the suit is false, frivolous and vexatious and defendants are entitled for special costs? (OPD)

7. Whether plaintiffs have no right over suit property and Ranjha and others defendants (plaintiffs of connected suit) are entitled for decree of possession of suit property? (OPD).

8. Whether suit titled Ranjha etc. v. Alam Sher and others is time barred? (OPD)

9. Relief.

3. The learned trial Court recorded the evidence of both the parties both verbal as well as documentary and finally dismissed the suit filed by Allah Bakhsh and others and decreed the suit filed titled Ranjha v. Allah Bakhsh and others vide consolidated judgment dated 25-9-2003.

4. The respondents Nos.1 to 3 filed an appeal against the judgment and decree dated 25-9-2003 while respondents Nos.1 to 5 filed a separate appeal against the decreed passed in favour of Ranjha and others. The learned appellate court decided both the appeals vide consolidated judgment dated 12-12-2006 and consequently decreed the suit filed by respondents Nos. 1 to 3 and dismissed the suit filed by Ranjha and others and respondents Nos.1 to 5 and 7, hence, the present revision petition.

5. Learned counsel, for the petitioners submits that judgment of first appellate Court is based on non-reading and mis-reading of record. The learned appellate court has misconstrued the provision of Thal Development Act, 1949 with respect to return and adjustment of land. The respondents have failed to establish on record that they were in possession of land at the time of acquisition by the Thal Development Authority as Adna Malik, but it is established on record that they are tenant-at-will. The learned appellate Court has failed to give any reasons while setting aside the findings of learned trial Court which are based on cogent reasons. He further submits that the judgment of learned appellate Court is even otherwise not sustainable in the eye of law. He relied on Mandan Gopala and 4 others v. Maran Depari and 3 others (PLD 1969 SC 617), Allah Din v. Habib PLD 1982 SC 465 and Alloo v. Sher Khan and others (PLD 1985 SC 382). He submits that Bashara Malikan Bawaja Nautore along with entries of Ghair Dakhilkar Bahissa Batai is not an Adna Malik nor is of adverse possession. He adds that the primary point required for determination between the parties was whether the petitioners' predecessor in interest was owner of land in the village or not. The learned appellate court has wrongly held that the respondents have proved their case of Adna Malik.

6. Learned counsel for the respondents has supported the impugned judgment and submits that it has been proved beyond any shadow of doubt that the petitioners were Adna Malik and the petitioners being Aala Malik are not entitled to get re-adjustment in accordance with law. He submits that according to Para 22 of the Martial Law Regulation 64 the petitioners being Aala Malik as per their own claim are not entitled to any adjustment

7. Heard and record perused.

8. The dispute between the parties is about the entitlement of land in re-adjustment acquired by Thal Development Authority in the year 1951.

9. In the year 1951 the Thal Development Authority acquired huge portion of land and craved out different Chaks. The property subject matter of the present petition is situated in Chak No.8/TDA which is marked as Abadi Deh. The claim of respondents is that they are in possession of suit property being the successor in interest of one Hussaina who was Adna Malik of land acquired by TDA and as such they are entitled for re-adjustment under the Thal Development Act. The petitioners were wrongly given land in adjustment by the TDA and mutations Nos.54 and 57 were attested in their favour. The dispute about the Adna Malik and Aala Malik remained pending with the revenue hierarchy and as per observation of revenue court the respondents filed a suit before the Civil Court. Number of documents were placed on record by both the parties in support of their respective claim.

10. The main crucial point for resolution between the parties is that respondents are claiming to be the legal heirs of one Hussaina son of Bahara and as such it is necessary for them to first establish their ownership that too as Adna Malik and thither that their land was acquired by TDA. The respondents can claim only that right which Hussaina was enjoying in his life time in the land claimed, The question of Adna Malik and Alla Malik is secondary one as the respondents if succeeded to establish their predecessor -in-interest was the owner of land and his land was acquired by the TDA then it has to be seen, what was the status of deceased owner.

11. The claim of respondents is that they are owners in possession of laud measuring, 330 kanal 6 marlas but surprisingly no such document is available on record which establish their claim. A document Ex.P2 has been placed on record which is a copy of Register of record of rights for the year 1943-44 which shows that Hussaina son of Bahara was Adna Malik of land measuring 27 kanals 1 marla. But none of the witnesses has deposed nor any document is available on record showing that this land was ever acquired by the Thal Development Authority. Further Khasra numbers mentioned in the said documents differed from the Khasra numbers claimed by the respondents in their plaint. None of the document is available on record which show that Hussaina was Adna Malik of suit land measuring 330 kanals 6 marlas. The only document produced on record is Ex.P10 shows that Hussaina was in possession of land measuring 400 kanals on the basis of Nautore. The said document is belied by Ex. P11 which shows that column No.3 Ghulam Akbar and others Alla Malik and Adna Malik, Shamlat Deh Maqbooza Malkan Islam son of Jana Ghair Dakhilkar, in column No. 8 it is mentioned as Basharah Malkana, Nautore, this document negates the Ex.P10 and the learned trial Court rightly declared it manufactured document, the conclusion of learned trial Court find support from the fact that the respondents themselves are not claiming to be the owner of 400 kanals of land but they have produced the document in support of their claim showing that they were in possession of land measuring 400 kanal, this document is Khasra. Girdawari which can he generated with the collusion of Patwari. Ex.P7 Parcha Khatoni for the year 1954-55 shows that TDA is the owner of land and number of other persons are in cultivating possession of the said land but the name of Hussaina is not available in these persons. Ex.P 11 shows that total land as per this document is 415 kanals 7 marks out of which 400 kanals is Banjar Qadeem and 15 kanals and 7 marlas is Barani on the third page of the said document, Hussaina is shown as Ghair Dakhilkar. Likewise Ex.P12 shows the owner Thal Development Authority, Kashtkar Hussaina son of Bahara, Ghair Dakhilkar. D.W.1. when appeared in the witness box he deposed that suit land is measuring 276 kanals 10 marlas and not 330 kanals 6 marlas as claimed by the respondents in a suit. The said land was not acquired by the T.D.A and no question of any re-grant arose. D.W.1. deposed that T.DA acquired the land from Alamsher etc. and as such re-grant was allowed to them according to law and policy. The respondents have already obtained re-grant in Chak No.27/TDA. vide scheme No.148 and pendency of their claim is only 200 kanals which is under adjudication before DDO (R) Darya Khan. There is no rebuttal on record on behalf of respondents that they have not been allotted land in lieu of their land in Chak No. 27/T.D.A. The land in dispute was allotted to Ameer Sher Ali Khan, the predecessor-in-interest of and as such mutation No.54 was sanctioned in their favour. Mutations Nos.55 and 56 are the mutations of inheritance of Ameer Sher Ali Khan as is evident from Ex.D

1. The present petitioners are the purchaser of said land from the legal heirs of Ameer Sher Ali Khan.

12. From the perusal of documents and evidence produced on record, every document shows that Hussaina is Ghair Dakhilkar except a document i.e. Ex.P2 and it is an admitted fact that land as per this document is 27 kanal 1 Marla which was never acquired by the T.D.A.

13. It is an admitted fact that litigation between the parties is also pending before the revenue hierarchy for the resolution of their entitlement.

14. For availing the re-adjustment facility from the TDA it is necessary that a claimant should be owner of the land. The question of Aala Malik and Adna Malik is subsequent to that but in the first instance the claimant has to establish his claim about his ownership of the land. The respondents are claimed to be Adna Malik but they are unable to prove the ownership of Hussaina son of Bahara except to a land measuring 27 Kanal 1 Marla. The learned appellate Court while reversing the findings of learned Civil Court has concentrated on the dispute of Adna Malik and Aala Malik and examined the case with reference to para 22 of the West Pakistan. Land Reforms Regulation 1959 which provides that Aala Malkiyat stood abolished and Adna Malik were made full owner of land. The learned appeal Court has not given any findings that Hussaina was owner of land claimed by his legal heirs. The judgment of learned appellate Court is completely silent on this point. The learned Appellate Court ignored the fact that land measuring 27 Kanal 1 Marla was not acquired by TDA and held that this document shows that Hussaina son of Bahara was Adna Malik in the village, but the learned appellate Court has failed to appreciate that no such evidence is available on record which will show that this land was ever acquired by the Thal Development Authority. The judgments of both courts below revolved upon the fact of Adna Malik and Aala Malik but the real controversy is about the ownership of Hussaina son of Bahara. This aspect of the case has not been attended to by the learned appellate Court. It is an. admitted fact that property subject matter of the suit is a Shamlat of Estate Mauza Daggar Yar Shah and the entitlement of the respondents has to be ascertained with respect to their total holding in, the village. The legal heirs of Hussaina son of Bahara has different claims at different times. It is proved on record that respondents claim if any that has been adjusted in another Chak i.e. 27/TDA.

15. From the evidence and record the respondents have failed to establish their legal claim against the property in their possession being the Estate of deceased Hussaina son of Bahara. The above said facts will show that learned appellate Court has not considered the main issue between the parties. The question of Adna Malik and Aala Malik becomes secondary in the absence of actual ownership and as such in my humble view it was the duty of the learned trial Court to summon the original record including Wajbul Araz the charter of the village to establish the entitlement of both the parties in the village along with kind of ownership. Wajbul Araz is a charter of village which the village people used to prepare themselves. It is the local constitution of the village which provides each and every information about each and every inch of the village including the way of living as well as the caste and sub caste of the residents of the village. So in my view the most important evidence of the village has not been produced by the respondents nor the petitioners. The learned Civil Court should have called the said documents from the revenue officials and record the statement of revenue Officer as Court Witnesses to reach the true and correct entitlement of the parties to the suit qua the land.

16. In view of above, I set aside both the judgments of courts below and remand the case to the learned Civil Court who will re-examine and re-visit the available evidence and will also record the evidence of revenue officials concerned along with record and will examine the Wajbul Araz prepared and maintained by the local residents of the village at the relevant time. As it is an old case, the learned Civil Court will decide the same within four months on receipt of this order under intimation to the Deputy Registrar (Judicial) of this Court.

17. There is no order as to costs. A.R.K./N-64/L Case remanded.