JUDGMENT SHEET - Lahore High Court

JUDGMENT SHEET
IN THE LAHORE HIGH COURT AT LAHORE.
(JUDICIAL DEPARTMENT)
C.R.No.2299 of 2005.
Muhammad Jaffar Khan, etc
Vs.
Muhammad Ali, etc
DATE OF HEARING:
PETITIONERS BY:
RESPONDENTS BY:
JUDGMENT
16-04-2014.
Malik Noor Muhammad Awan,
Advocate.
Ch. Muhammad Zafar Iqbal,
Advocate.
AMIN-UD-DIN KHAN, J.
Through
this
civil
revision,
petitioners-defendants have challenged the judgment & decree
dated 15.06.2005 passed by the learned Addl: District Judge,
Khushab, whereby the appeal filed by them has been dismissed,
and the judgment & decree dated 05.03.2005 passed by the
learned Civil Judge, Noor Pur, whereby the suit for declaration
filed by the respondents-plaintiffs was decreed.
2.
The facts of this case are that on 21.04.1992
respondents-plaintiffs filed a suit for declaration alleging therein
that the land fully described in the head note of plaint consisting
upon Khasra No.1614, 1615 measuring 23-kanals 10-marlas is
Shamlaat Deh and the entries in revenue record in column of
ownership regarding Fateh Bibi etc are against law and without
authority. The mutation No.2637 Mouza Khushab attested on
15.09.1981 has no value against the rights of plaintiffs. It was
C.R.No.2299 of 2005.
2
also prayed that a declaration be granted that the plaintiffs are
using the property and they are Abad Kar. A permanent
injunction was also sought against the defendants from
interfering into the possession and use of suit property of
plaintiffs. It is pleaded that in accordance with entries of Missal
Haqiyyat for 1913-14 it was Shamlaat Deh
1891-92 to owners of Deh and predecessors of plaintiffs were
recorded as Abad Kar and previous to that their predecessor
Chanan Din alias Hassan Din was recorded Abad Kar. It is
pleaded that in accordance with the scheme of partition prepared
by the Sub Divisional Officer/Assistant Collector-I, Khushab on
12.08.1929, the suit property was kept out of operation of
partition on the ground that on the basis of Abad Kari the
plaintiffs/their predecessors will remain in possession. It is
further pleaded that suit property is residential in nature for a
long time and in the year 1968-69 after sanction of plan for
construction of houses from Municipal Committee, Khushab, the
houses were constructed by the plaintiffs. It is also pleaded that
while preparing Jamabandi for the year 1988-89 previous entry
with regard to the nature of property was changed without any
justification by the Revenue Officers and it was mentioned as
Fateh Bibi etc owners, therefore, all the entries made in the
revenue record without any bases have no value against the
rights of plaintiffs.
C.R.No.2299 of 2005.
3.
3
The written statements were filed by various
defendants and suit was contested. Out of the divergent pleadings
of the parties learned trial court framed the issues and invited the
parties to produce their respective evidence. Both the parties
produced oral as well as documentary evidence in support of
their versions. After the completion of trial, vide judgment &
decree dated 05.03.2005 suit was decreed by the learned trial
court. Feeling aggrieved thereby, the defendants preferred an
appeal before the learned first appellate court, which was
dismissed vide judgment & decree dated 15.06.2005. Hence, this
civil revision by the petitioners-defendants.
4.
Learned counsel for the petitioners argues that suit
was time barred; that a previous suit was filed which was
subsequently dismissed; that the civil court was having no
jurisdiction to entertain and try the suit and it was the prerogative
of revenue courts to declare the rights of plaintiffs if any in
accordance with Section 77 of the Punjab Tenancy Act, 1887 and
further in accordance with Section 114 of the Act ibid,
occupancy tenancy rights have been extinguished under the
Punjab Tenancy (Amendment) Act, 1952, therefore, no rights
could have been claimed by the respondents-plaintiffs; that in
accordance with Ex.D-9 mutation of partition bearing No.2637
dated 12.04.1948 Shamlaat Deh was also partitioned; that the
plaintiffs have only challenged the amendment in mutation made
on 15.09.1981 and not the original mutation; that the rights of
C.R.No.2299 of 2005.
4
occupancy tenancy and Abad Kari are two different rights and
self contradictory. Learned counsel has lastly argued that when
the property become residential, therefore, status of Abad Kari
otherwise vanishes. Prays for acceptance of this civil revision
and setting aside the judgments & decrees passed by both the
courts below and dismissal of suit.
5.
On the other hand, learned counsel for the
respondents-plaintiffs argues that there are concurrent findings of
fact recorded by two courts below; that learned counsel for the
petitioners could not show any misreading or non reading of
evidence available on the file; that the judgments & decrees
passed by two courts below are in accordance with law and there
is no defect in the findings and as such revision petition is not
maintainable. Further argues that it is residential property from a
long time, therefore, revenue authorities were not entitled to
change the existing entries without any substance or an order
from the court of competent jurisdiction, therefore, the change
made by the revenue authorities were rightly challenged in the
suit; that the plaintiffs are in possession of suit property and they
have constructed their houses and they have challenged the
change made in the revenue record in the year 1988-89 and the
suit was filed on 21.04.1992, which was within limitation and by
no stretch of imagination it can be said that the suit was filed
after the prescribed period of limitation. Learned counsel for the
respondents has with detailed arguments connected the original
C.R.No.2299 of 2005.
5
Khasra number shown in Ex.D-1 as 994 in the Jamabandi for the
year 1862 with the suit property. States that at that time there
was no settlement record and after that in Ex.D-3 Khasra No.994
has been renumbered as 1097; that as the nature of property was
changed into residential, therefore, in accordance with Section 3
of the Land Revenue Act, 1967 the revenue authorities have no
concern with this property, therefore, civil suit has rightly been
filed and civil court was having jurisdiction to entertain and try
the suit. Learned counsel refers Ex.P-23 mode of partition
prepared by the Sub Divisional Officer/Assistant Collector-I,
Khushab dated 12.08.1929 to argue that the suit land was kept
out of partition and refers Ex.P-19 to show that Abad Kar will
not be disturbed, therefore, the suit has rightly been decreed by
the learned trial court as well as the appeal has rightly been
dismissed. Further states that by operation of law on the basis of
Abdi Deh the plaintiffs become owner of suit land and now it is
residential property and the change of entries by the revenue
officials without any backing of law have no value; that the
previous suit was filed on the basis of adverse possession, the
plaint of said suit was rejected, therefore, there was no bar for
filing of present suit. States that actually it is a suit for correction
of wrong entries and the same is competent.
6.
I have heard the learned counsel for the parties at
full length and also gone through the record minutely with their
C.R.No.2299 of 2005.
6
able assistance as well as the findings recorded by both the
courts below.
7.
I have noticed that at the time of admission of this
civil revision for regular hearing on 24.10.2005, following points
were framed:i)
The determination of status of occupancy
tenant was in the exclusive jurisdiction of
the revenue authorities and the learned civil
court could not have entertained and tried
the suit;
ii)
Although no issue was framed on the
question of jurisdiction yet the same being a
pure question of law touching the roots of
the case can be entertained by this Court at
the revisional stage; and
iii)
The respondents had filed their earlier suit
to claim maturity of title on the basis of
adverse possession and the plaint thereof
was
rejected.
The
respondents
were
debarred under the provisions of Rule 2 of
Order II CPC to plead a ground, a claim or a
relief which had been abandoned by them in
the earlier suit.
8.
First of all, I would like to take up points (i) and (ii).
The contention of learned counsel for the petitioners is
misconceived. It is not a case of declaration of rights of
occupancy tenancy. It was not the revenue authorities to entertain
and decide the question and civil court was having jurisdiction.
In accordance with the document produced by the petitioners-
C.R.No.2299 of 2005.
7
defendants Ex.D-1 Missal Haqiyyat for the year 1865, in column
of ownership the name of queen as owner has been mentioned.
Ex.D-2 Missal Haqiyyat for the year 1891-92 shows that it is
Missal Haqiyyat of Shamlaat Deh in accordance with Khewat
No.191 Khatoni No.705, Mst. Bano has been mentioned as Abad
Kar under the Government since the year 1862 to 1893. It also
shows that previous Khasra number was 994-min, which was
renumbered as 1097 in column of Kaifiyyat. It is noted that the
endorsement is in accordance with Khatoni No.705, whereas
Khatoni No.705 shows that in accordance with the order dated
12.04.1862 of Captain Davis and order dated 19.05.1892 of
Collector District Shah Pur, the property has been excluded from
the ownership of Government and included in Shamlaat Deh in
accordance with the share of Khewat Daran and further in
accordance with the order dated 01.05.1893 the persons who are
in possession as Abad Kar since 1862 to 1893 shall remain
recorded under the Government. The most important and
relevant document is Ex.P-22, which is mode of proposed
partition by Lala Jodha Ram, Naib Tehsildar, Khushab dated
27.05.1929 consisting upon 11 sheets. Para 7 whereof shows that
the persons who are Abad Kar and not share holders in Shamlaat,
they will remain in possession as Abad Kar and their land will be
excluded from the process of partition. Admittedly, the
respondents-plaintiffs or their predecessors were Abad Kar and
not share holders in Shamlaat, therefore, suit land was excluded
C.R.No.2299 of 2005.
8
from distribution of Shamlaat Deh in share holders. Now it is
clear that status and rights of plaintiffs as Abad Kar were
recorded in the revenue record and the land in their possession
i.e. suit land was excluded from distribution of Shamlaat to the
share holders, as the plaintiffs who were Abad Kar on the land
became the owner by operation of law, therefore, suit for
declaration of their title was competent. In this view of the
matter, objections of learned counsel for the petitioners noted in
admission order dated 24.10.2005 i.e. (i) and (ii) are not
sustainable.
9.
So far as the third point that previous suit filed on
the basis of adverse possession failed and as such the present suit
was not competent is concerned, I am clear in my mind that if an
incompetent suit is filed, that does not bar the filing of a proper
and competent suit. Therefore, neither Order XXIII nor Order II
Rule 2 or any other provision of the CPC is a bar for filing a
proper suit. The condition is that the previous suit has been filed
competently, then all the objections about Order XXIII Rule I, if
the earlier suit is withdrawn, or Order II Rule 2 of the CPC are
applicable. In this case, as alleged by the petitioners-defendants
that the suit was filed on the basis of adverse possession and
admittedly at the time of filing of said suit, right of adverse
possession was not available with the plaintiffs of that suit which
was incompetent, therefore, the present suit cannot be said to be
barred by any law as the other suit was incompetent. The
C.R.No.2299 of 2005.
9
respondents-plaintiffs are in possession of suit property and
when an adverse entry was made against their rights, they have
rightly filed the suit which was within the prescribed period of
limitation and by no stretch of imagination it can be said that the
suit has been filed after the prescribed period of limitation.
10.
It is also a settled position of law that when any
entry in the revenue record is changed by other entry without any
backing of law or order from the competent forum, the said entry
does not create or confer any right in favour of person in whose
favour the said entry has been made. In this case the respondentsplaintiffs or their predecessors were continuously being recorded
as Abad Karan from Ex.D-2 Jamabandi for the year 1891-92 to
Ex.D-8 Jamabandi for the year 1905-06. Same is the position in
Ex.P-5 Jamabandi for the year 1918-19 to Ex.P-12 Jamabandi for
the year 1945-46. The other important document Ex.P-19 copy
of order dated 12.08.1929 is necessary to be appreciated. Para 6
of this document confirms that the land under cultivation of
Abad Kar, if they are not share holders in the Shamlaat, will
remain in their possession and will not be included in the
partition. Another factor which I have noticed while going
through the record is that in Jamabandies Ex.P-5, Ex.P-6 and
Ex.P-7 in column No.8 of said documents there is visible
manipulation, originally the entry is
but by
manipulation it seems that same has been tried to be made
as
when the entry of Khasra No.1614 shows that it
C.R.No.2299 of 2005.
is
10
and Khasra No.1615 shows that it is
entries in column No.9 show that:
and
Therefore,
the entry manipulated is mismatching by other entries. When the
position is that since the year 1917-18 it was recorded as Ahata
and thereafter the area become the residential constructed area,
therefore, changing status of plaintiffs continuously recorded in
the revenue record for more than 100 years without any
appropriate order by the revenue authorities was not sustainable
under the law. As such rightly challenged by the respondentsplaintiffs as well as the suit has rightly been decreed. Even
otherwise there are concurrent findings of fact recorded by two
courts below in favour of respondents-plaintiffs. Learned counsel
for the petitioners remained unable to show any misreading or
non reading of evidence or any defect in the findings of two
courts below. Therefore, no case for interference by this Court
while exercising jurisdiction under section 115 of the CPC has
been made out. Resultantly, this civil revision having no force
stands dismissed.
(AMIN-UD-DIN KHAN)
JUDGE
Qurban*
Approved for Reporting
JUDGE

Download Report