1989 PLP 705 (CLC)

(1) Whether Khasra No.13 in suit is the joint property of the parties and they are in its joint possession and as such the revenue entries showing defendant No.l in exclusive possession as Hissadar of the entire Khasra number in suit ? OPP. (2) If issue No.l is proved whether the transfer of the suit Khasra number by defendant No. l to defendants 7 and 9 and by them to defendant No.9 vide mutations Nos.585 & 645 attested on 28‑10‑1970 and 18‑10‑1972 respectively is illegal and ineffective on the rights of the plaintiffs? OPPs. (3) Whether the suit is bad on account of non‑joinder of necessary parties.? OPD. (4) Whether this Court has got no jurisdiction to adjudicate upon the present matter.? OPDs (5) Whether the suit is within time. ? OPPs. (6) Whether defendants 7 to 9 are protected under section 41 T.P. Act.? OPDs 7 to 9. (7) Whether the suit is properly valued for the purpose of court‑fee and jurisdiction. ? OPDs. (8) Relief.

4. Subsequent to the framing of these issues, defendant No‑8 came to learn that out of field No.18 given to defendant No.l in exchange for the suit land the plaintiff, 2 had purchased some area from him with the result that same amounted to acknowledgement on his part of his right to transfer the land but the fact having not been incorporated in the written statement already submitted, he applied for amendment of the written statement. The amendment was allowed and as a result of fresh written statement filed the following additional issue was framed:‑ 9‑A What is the effect of the purchase by the plaintiff of Khasra No. 18?

5. On the evidence furnished in regard to the above issues, the trial Court held that defendant No.l stood recorded in the revenue papers as holding the land as 'Hissadar' which entitled him legally to transfer the same by any means. It also held that defendants Nos.7 and 8 in order to ascertain the true state of affairs could have had a look at the revenue papers where clear entries were appearing in his favour, their rights as transferees for consideration were protected under section 41 T.P. Act. On the basis of subsequent transfer through mutation No.634 attested on 18‑10‑1972 by virtue of which part of the land got by defendant No.l in exchange for the suit land was transferred by him to plaintiff No.l, the Court held that it amounted on his part to acknowledgement of the fact that defendant No. l had exclusive possession of the suit land as 'Hissadar'. Accordingly, as a result of these findings, the trial Court vide judgment dated 31‑3‑1979 refused to pass a decree as claimed and dismissed the suit. Against the same an appeal was preferred but it also met the same fate with the result that this revision petition was filed.

6. It is not disputed that the land in suit is 'Dhacca Chiragah'. "Dhacca" means mountain or hill, "Chiragah" means grazing ground. 'Dhacca Chiragah' thus is a hilly grazing ground. In view of this position of the suit land and the fact that it is 'Shamilat Deh' learned counsel fog the petitioners has contended that tangible possession over it will not be possible. Where a property does not admit of actual physical possession it has to be regarded as in possession of all rightful owners, notwithstanding the fact that any entry appears in favour of a co‑sharer showing his exclusive possession, he went on to say, and sought support for his contention from 98 Indian Case 849.

7. He has also contended that respondent No.l who made the disputed transfer having admitted by filing written statement to that effect that he was not holding the land as 'Hissadar' and was not justified to make its transfer, the suit at least should have been decreed against him, because admissions made in pleadings are binding on the parties. He relied for support of this view on PLD 1958 Dacca 356.

8. Learned counsel for the respondents has in reply contended that admission on the part of respondent No.l to the effect that the claim in suit was correct and it be accepted can have no impact against the transferee‑respondents, because it was he who led them to believe that he was in sole possession of the land as 'Hissadar' and had entries supporting him in the revenue papers. Continuing he has pointed out, what the respondents were required to do in order to be satisfied as to the fact if Anwar Shah with whom they were striking deal was actually shown in possession of the land as 'Hissadar' was to examine the revenue papers. They did the same and found therein clear entries recorded in his name showing him in possession of the land. Relying on these entries which could not have been in any way doubted, they entered into the deal and in return for the suit land that they got from him, gave him their own land. They were transferees for consideration and entitled to be extended the benefit of section 41 T.P. Act. He placed reliance on PLD 1972 SC 25 and PLD 1985 SC 254 for support.

9. A situation analogous to that of 98 Indian Case 849 seems to arise here and can be resolved in the same way. Like the said case the instant case as well involves the property of the same character as it too is incapable of tangible physical possession, unless, of course, there be positive acts of possession asserted as well as proved. This obviously is not the case here. Let aside proof, there is not an assertion even on the part of transferee‑respondents that any positive act of possession was done by respondent No.1 which could imply his exclusive possession. A simple entry to that effect in the revenue record, therefore, will have no meaning. Such an entry, contrary to the factual position, will obviously be collusive.

10. That the suit land is still being used as a grazing ground by the entire proprietary body of the village is un denied. The testimonial of Muhammad Ayub respondent as D.W.1 clearly shows that the cattle of all the owners of 'Shamilat' still graze in the field. How in such a ill situation can a single owner be regarded as having exclusive possession over the land. So it will go without saying that respondent No.l was not solely holding possession of the land as 'Hissada:'. And as such, he was not entitled to transfer it in the column of cultivation.

11. Now the question is if on the basis of entries in the revenue papers showing respondent No.l as having exclusive possession over the land, the transferees from him can be given protection under section 41 T.P. Act. It can be seen that respondent No.l was first entered in possession of the land in Jamabandi for the year 1965‑

66. This entry had persisted in subsequent Jamabandis until 1969‑

70. It is well‑settled that entries in Jamabandis do carry the presumption of correctness, but can such entries in a case of the kind in hand be taken to completely absolute the purchaser of responsibility to make due enquiry with regard to the title of the seller, especially in view of the peculiar character of the land which is not capable of tangible physical possession. Of course not, is the plain answer. An enquiry will require to be made to ascertain the true position. The C respondent‑transferees do not appear to have made any such enquiry. any co‑sharer in the land could have told them the true position, if they had made such an effort. They had not done anything of the sort. Accordingly, to me the transferees do not appear entitled to be extended the protection of section 41 T.P. Act, except to the extent of own share of respondent No.l in the land. The precedent cases cited by the learned counsel for the respondents do not apply here, dealing with different situations. In the first case viz. PLD 1972 SC 25 the vendor was entitled to make transfer, but was found to have agreed to sell the property to two persons separately and the question that arose was as to which one of the transferees was entitled to preference and it was held that the prior transferee could be given preference as he was a transferee in good faith, without notice and for valuable consideration. The second case viz. PLD 1985 SC 254 endorses the general rule that a co‑sharer in possession can transfer the time of partition.

12. The admission on the part of respondent No.l to the effect that he was not in possession of the land and the suit be decreed does not, in my view, appear to have any impact qua the rights of the transferees, because it will not be permissible for him to change l; his position so as to work it to the detriment of the transferees, who accepting the position as represented had acted in a definite way. Also nothing seems to turn in favour of the respondents as a result of purchase by petitioner Yaqoob Shah of a portion of field No.18 got in exchange of the suit land by respondent No.l. For the foregoing reasons, I accept the revision petition, set aside the judgments and decrees of the two Courts below and pass a decree in favour of the petitioners to the effect that field No.13 in dispute is 'Shamilat Deh' and in possession of the owners as such E and the mutations impugned in the suit are of no legal impact against their rights except to the extent of the share owned therein by l' respondent No.1, Anwar Shah. No order as to costs. A. A . /696/P Revision accepted.