MUHAMMAD NAZIR through L.Rs. vs AMEER JAN and others

' MUHAMMAD YOUNIS THAHEEM, J.---Through instant revision petition, the LRs of petitioner Muhammad Nazir, have called in question the judgment and decree dated 09.02.2008 passed by learned Additional District Judge-I, Lakki Marwat, whereby upholding the judgment and decree dated 19.12.2006 of learned Trial Court/Civil Judge-IV, Lakki Marwat, the appeal of petitioner was dismissed.

2. Concise facts of the case are that predecessor in interest of respondents Nos.1 to 10 Baidullah Jan instituted a suit for declaration to the effect that suit property comprising Khata No.262 bearing Khasra Nos. 1974, 1975, 1976, 1833, 1934, 1935, 1936, 1937 and 1972 measuring 1442 Kanals situated at village Marmandi, Lakki Marwat is "Shamelat-e-Deh" and was used for the purpose of grazing fields of the village since 1904-05 and petitioners/defendants are neither the sole owners in possession nor entitled to deprive other co-owners of village from its utility being common property i.e. Shamilat, as such any mutations or gift mutations in favour of others in column of cultivation in violation of Shart Wajibul Arz, is illegal, unlawful, void, hence, the suit.

3. Petitioners/defendants were summoned, on appearance they contested the suit by submitting written statement. On divergent pleadings of the parties the learned trial court framed as many as seven issues including relief. The parties produced pro and contra evidence in support of their respective stance. On conclusion of trial, the learned trial court after hearing arguments of learned counsel for the parties decreed the suit vide judgment and decree dated 19.12.2006.

4. The petitioners/defendants being feeling aggrieved from the judgment and decree of learned trial court preferred appeal before the Court of learned Additional District Judge-I, Lakki Marwat.

The learned appellate Court after hearing arguments of learned counsel for the parties dismissed the appeal vide impugned judgment and decree dated 09.02.2008, hence, the instant revision petition.

5: Arguments heard and record perused.

6. In this case statement of Patwari Halqa is very important, who was examined as PW-1 and produced Fard Jama Bandi for the year 1995-96 (Exh. PW1/1) according to which total Shamilat land is 1442 Kanal, Shajra Nasab Khandan No. 170, (Ex.PW1/4) according to which petitioners belongs to same Khandan and Wajib-ul-Arz of Moza Marmandi (Ex:PW1/5) consist of six pages.

Perusal of the same reveals that the disputed land is Shamelat-e-Deh used for the purpose of pasture (Charagah) for the Aqwam Baist Khel and Ghazni Khel whereas people of other mozajat/village can graze their cattle with their permission. Moreover, it is also admitted by DW-4, Qasim Khan in his cross-examination that disputed property is entitlement of Baist Khel and Ghazni Khel Aqwam. In view of such a situation, when it is abundantly clear that suit property is Shamlat- e-Deh and ownership of two Aqwam Baist Khel and Ghazni Khel, no person from any one of the said caste is authorized to transfer the disputed land, hence, any kind of transactions including gift in column of cultivation without the consultation of other owners of common property carried out by the petitioners in violation to the condition laid down in the Wajib-ul-Arz (Ex:PW1/5), are illegal against the law, void ab initio. In this regard wisdom is derived from the Judgment in case titled "Sher Afghan v. Muhammad Rafiq and another (2012 CLC 1803) Board of revenue Punjab, wherein it has been held:- "As a matter of fact, the land in Shamilat Deh is not only the ownership of the villagers living in that village but also the ownership of the coming generations following in succession. The misuse, sale and illegal occupancy will deprive the future generations of their due inheritance and societal rights. Section 136 of The Land Revenue Act, 1967 clearly imposes restriction and limitation on the partition of Shamilat land. In the instant case, while attesting the Mutation of Shamilat Deh, all co-sharers have not been consulted, which is mandatory. It was incumbent upon the Revenue Officer to summon all interested parties and stakeholders for consultation, before attestation of such Mutation. It has been held in 1985 CLC 796 that partition sanctioned without consulting a large number of co-sharers is not justified. It has also been held in 2003 SCMR 1857 that partition of Shamilat Land should be made on the basis of Shart Wajib-ul-Arz and not on the basis of Misl-e-haqiat."

7. The other point for determination is, as to whether any wrong entry in column of cultivation or mutation can be challenged through any member/owner of proprietary body or suit land is to be challenged through representative suit in view of Order I, Rule 8 of the Civil Procedure Code. To this legal aspect I hold that any such entry in shape of mutation in column of cultivation without consultation of other co-owners or in violation of Wajibul Arz can be challenged by any member of proprietary body and it would not be necessary to be challenged by all the members of proprietary body or through a representative suit in view of Order I, Rule 8 of C.P.C. Reliance is placed on case titled, "Major Muhammad Ayub Khan v.-Capt. Jamroz Khan and 3 others" (1979 CLC 788)(SC (AJ&K) wherein it is held that:- "A co-sharer or a co-owner in the common village property can challenge such a sale even if the Shamilat Deh land sold is beyond' his share, provided it affects the interest of the other proprietary body and the challenger does not set up an adverse title of his own against the rest of the proprietary body. Of course if such a shareholder wishes to get the possession of his own share in the Shamilat Deh, he can do so through partition proceedings and can get possession to the extent of his own share only."

7(sic) The scope of revisional jurisdiction is very limited in which the court cannot set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor it can upset the same, unless these findings are shown patently illegal, without jurisdiction, based on conjectural C presumptions or erroneous assumption. No such infirmity has been pointed out by the learned counsel for the petitioner in the impugned judgments, hence, not warranted any interference by this Court.

8. In view of the above discussion and the dictum laid down by the august Supreme Court, it is held that both the courts below have rightly appreciated the evidence as well as revenue record and reached on a right conclusion, which need no interference under revisional jurisdiction of this Court, therefore, this revision petition being devoid of merits is dismissed. No order as to costs.