WAHID ZAMAN Versus MISAL KHAN

MALIK MANZOOR HUSSAIN, J. ---This Revision Petition is directed against the judgment and decree dated 4-6-2012 of learned Additional District Judge-VI, Mardan whereby appeal of the respondents No. 1 to 6 was accepted and the judgment and decree dated 28-3-2011 of learned Civil Judge-VIII, Mardan was modified to the extent that the present petitioners be compensated at the time of partition proceedings.

2. Brief facts of the case are that the petitioners filed a declaratory suit to the effect that they had purchased property measuring 69 kanals, 7 marlas from the respondents through different mutations and were wrongly incorporated in the column of cultivation instead of column of ownership. The suit was contested by the respondents by filing written statement. Issues were framed and accordingly parties were directed to adduce their respective evidence. The learned trial Court, after hearing the learned counsel for the parties, vide judgment and decree dated 28-3-2011, partially decreed the suit in respect of Mutations Nos. 4646, 4647 attested on 11-3-1984 and Mutation No. 5398 attested on 24-9-1984 and thereby directed the Revenue authorities to incorporate the names of petitioners in the column of ownership whereas the suit with regard to Mutation No. 5193 attested on 16-10-1988 and Mutation No. 165 attested on 24-8-1993 was dismissed. Feeling dissatisfied with the same, the respondents preferred Civil Appeal No. 26 of 2013 of 2011 in the Court of District Judge, Mardan, which was entrusted to learned Additional District Judge-VI, Mardan, who vide judgment and decree dated 4-6-2012, accepted the same, hence the revision petition in hand.

3. Arguments heard and record perused.

4. Perusal of the record would reveal that the petitioners have instituted a suit by claiming ownership on the basis of Mutations Nos. 4646, 4647, 5398, 5193 and 165. The record transpires that all these mutations were attested in favour of petitioners but in the column of cultivation, these entries remained uninterrupted till filing of the suit. As far as the claim of petitioners that they be incorporated in the column of ownership, there exists no provision under the Land Revenue Act in this regard. It is noticed that Mutations Nos. 5193 and 165 are with respect to 'Shamilat Deh'.

5. The petitioners are recorded owners in possession of specific khasra number in joint khata and it is well-settled law that the owners in possession in column of cultivation retains the property till partition is effected through metes and bounds. Similarly, the vendee of the property step into the shoes of vendor and will have all the rights in the property, which his vendor had at the time of sale. The rights, under the law, of such vendee of specific khasra numbers in the joint khata are protected till partition, however, if there is title dispute, then in that case, the Revenue Officer or as the case may be, the civil court shall determine the same between co-owners. The law is very much clear on this point and reference can be made to the basic judgment passed by the Hon'ble Apex Court in the case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 Supreme Court 9), wherein, it has been held that if the vendee was in exclusive possession of portion of a joint land and transfers its possession to his vendee, so long, as there is no partition between the co-owners, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. This view has been followed by this Court in the case of Mst. Zakia Begum v. Nadir Khan and 40 others (2011 YLR 1397).

6. The learned Appellate Court has duly protected the rights of petitioners and rightly held that at the time of partition, they have got every right to protect possession of their specific khasra number, which was given to them at the time of sale, subject to the entitlement of their vendors. Na o misreading and non-reading of evidence or jurisdictional defect has been noticed by this Court, warranting interference in its revisional jurisdiction.

7. In view of what has been discussed above, this revision petition being meritless is hereby dismissed with no order as to costs.

AG/400/P Petition dismissed.