KARIM BAKHSH Versus SALARA
This judgment will dispose of two Civil Revision Petitions (C.R. No. 1018‑D of 1981 Karim Bakhsh and others v. Salara and others and Civil Revision No. 1118‑D of 1981 Karim Bakhsh and others v. Salara and others) as the same parties are disputing rights respecting one and the same property in both these petitions.
2. The facts necessary for appreciating the questions raised in these petitions briefly stated are that the petitioners filed a suit for declaration to the effect that they are owners in possession of 68 Kanals of land out of 205 Kanals 11. Marlas of Khata No.618/697, fully described in the plaint and the defendants‑respondents have no right to or concern with the said land. They also prayed for permanent injunction restraining the respondents‑defendants from interfering in their possession and cultivation of the land in question. The aforesaid reliefs were claimed on the averments that originally the Khata belonging to the parties comprised land measuring 411 Kanals and 1 Marla. Bahara son of Khawaja was owner of half share whereas Ahmad and Salara sons of Noor Ahmad were owners of the other half and as such the plaintiffs have been in possession of land measuring 137 Kanals but about a year ago they came to know that an area measuring 68 Kanals has not been recorded as owned by them in the Revenue record due to entries of Mutation No.1597 dated 27‑12‑1924.
3. The assertions made in the plaint were controverted by the respondents‑defendants in the written statement dated.21‑5‑1980 filed by them.
The learned trial Court framed the necessary issues arising out of the pleadings of the parties and after recording the evidence dismissed the suit with special cost of Rs.3,000 vide judgment and decree dated 10‑6‑1980.
4. During the pendency of the aforesaid suit Salara and Muhammad Yar aforesaid also filed a suit for permanent injunction restraining the respondents‑defendants‑‑the present petitioners from interfering in the ownership and possession of land measuring 172 Kanals and 17 Marlas. It is pertinent to note that the land subject‑matter of this suit includes the land measuring 68 Kanals respecting which declaratory suit was earlier filed by the petitioners. This suit was resisted by the petitioners to the extent of the land claimed by them in their own suit by pleading that they are also owners in possession as co‑sharers of the land in question and that the respondents had through fraud got the land to the extent of 68 Kanals mutated in their names illegally on the basis of mutation of 1924. It was also asserted that this suit could not be proceeded with till the decision of the suit earlier filed by them respecting the same very land. The learned trial Court framed the necessary issues including the issue:
Whether the suit is liable to be stayed under section 10, C.P.C.?
The respondents produced documentary evidence consisting of partition Mutation No.2041 Exh.P1 and Mutation No. 2042 Exh.P.2, Khasra Girdawari Exh.P3 and Parcha Khatoni Exh.P4 and Exh.P5, but the petitioners‑defendants did not produce evidence and the suit was decreed on 22‑2‑1979. On appeal filed by the petitioners‑defendants the suit was remanded vide judgment and decree dated 12‑2‑1980 of the learned Additional District Judge‑I, Miarwali, with the direction that the petitioners‑defendants shall be given one last opportunity for producing evidence at their own responsibility on payment of Rs.100 as cost. The parties were directed to appear before the trial Court on 2‑3‑1980.
On 2‑3‑1980 the parties entered appearance, the petitioners defendants paid the cost and the suit was adjourned to 6th of July, 1980 for producing evidence by the Reader of the Court. On 6‑7‑1980 finding that the evidence of the petitioners‑defendants was not present, the learned trial Court closed the evidence of the petitioners‑defendants under Order XVII, Rule 3, C.P.C. and resultantly decreed the suit vide judgment and decree dated 6‑7‑1980. It may be noted that this suit for permanent injunction was tried by Civil Judge IIIrd Class, Bhakkar, whereas the suit for declaration and permanent injunction filed by the petitioners‑defendants was tried by Civil Judge 1st Class, Bhakkar.
5. The petitioners‑defendants filed appeal .challenging the judgment dated 10‑6‑1980 whereby the declaratory suit filed by them was dismissed .by the learned trial Court. They also filed another appeal assailing the judgment and decree dated 6‑7‑1980 whereby the suit for permanent injunction of the respondents was decreed. Both these appeals were dismissed by the learned District Judge, Mianwali under two separate judgments dated 29‑3‑1981. The findings of the learned trial Court in the declaratory suit were affirmed observing that it was clear from Mutation No.1597 of 1924 that Bahara himself was present when this mutation was attested but no fraud or fictitiousness was alleged or proved and that Karim Bakhsh plaintiff corroborated by his P. Ws. stated that Bahara was owner of half of the land while the other half belonged to Ahmad and Salara and that the parties remained in possession of their respective shares. The appeal against the judgment decreeing the suit of the respondents was dismissed observing that the petitioners‑defendants could not produce evidence and so it was rightly closed and that in view of the judgment in the connected appeal according to which the title of the parties stood settled, the suit of the respondents‑plaintiffs must be decreed. This led to the filing of the present two revision petitions.
6. In order to appreciate the respective submissions of the parties it will be appropriate to give pedigreetable of the parties hereunder:
Ahmad
_______________|_________________
| | |
Bakhsha Noor Ahmad Khawaja
__________________|_____ |
| | Bahara
Ahmad Salara |
Defendant |
| |
Muhammad Yar |
Defendant |
_____________________________________________ |_______________ | | | | |
Wasai Phaphan Sabhai Beeban Karim
______|_______ | Bakhsh
| | Kaniz Fatima
Bakhtan Raza
Muhammad (Plaintiffs)
The aforenoted successors‑in‑interest of Bahara are the plaintiffs in the declaratory suit and are the defendants in the suit for permanent injunction filed by Salara and his son Muhammad Yar. These two were defendants in the declaratory suit. The original owner of land comprised in Killa No.134 was Ahmad who was succeeded by his three sons, namely, Bakhsha, Noor Ahmad and Khawaja. Bakhsha got his share separated. The remaining land was owned in equal shares by Noor Ahmad and Khawaja. Noor Ahmad had two sons namely Ahmad and Salara and on death of Ahmad, his share also came to vest in Salara. Salara transferred his share in the name of his son Muhammad Yar and as such firstly he was impleaded as plaintiff in one suit and defendant in the other. He died and thereafter his legal representatives were brought on record.
7. Bahara father of the petitioners made a statement before the Patwari to the effect that in Khata No.134 his share is not one‑third and that Ahmad and Salara (his first cousins) and he all the three have equal shares. This statement was confirmed by him. before the Revenue Officer and as such Mutation No.1597 was sanctioned on 27‑12‑1924 accordingly respecting Khata No.134. This Khata comprised 25 Kanals and 3 Marlas of land. After excluding one‑third share of Bakhsh the third brother, land left and falling to the share of Noor Ahmad and Khawaja comes to 16 Kanals and 15 Marlas. Bahara inherited one‑half of this land and the other half was inherited by his first cousins Salara and Ahmad sons of Noor Ahmad, but he made the statement whereby he agreed to receive equal share with Salara and Ahmad. Thus as against 8 Kanals 8 Marlas, he agreed to receive 5 Kanals and 12 Marlas. This was the effect of Mutation No.1597 sanctioned on the basis of his statement on 27‑12‑1924.
8. Ahmad the predecessor‑in‑interest of parties was also share‑holder in the land of Shamilat Deh comprising 8,006 Marlas of land. In 1967‑68 Killabandi of the land in the village was effected and Shamilat land as per ownership was partitioned amongst the land owners. The Mutations respecting partition of land as per share in ownership were attested. on 15th March, 1975. These are Mutation No.2041 Exh.D.4 and Mtation No.2042 Exh.D.5. In these mutations the Shamilat land has also been partitioned on the basis of share agreed and accepted by Bahara in Mutation No.1597 dated 27‑12‑1924. The main grievance of Karim Bakhsh and others is that in Killabandi, their share in Shamilat land has also been reduced to the extent of 68 Kanals and has been recorded in the names of the respondents illegally by misinterpreting Mutation No.1597, dated 27‑12‑1924. Learned counsel argued that the statement made by Bahara reducing his share in Khata No.134 cannot be applied to his share in Shamilat Deh as there is no mention in the said statement respecting ownership rights in Shamilat land. He also referred to Act IV of 1952, Punjab Land Dispositions (Saving of Shamilat) Act, 1951 to contend that petitioners cannot be deprived of their due share in the Shamilat land. Reliance was also placed on Fazal Rahim and others v. Faqir Muhammad and others 1987 S C M R 1667 and Hakaman and 6 others v . Gulsher and 2 others Law Notes 1966 Lah. 49.
9. Learned counsel for the respondents in defence of the judgment, dated 29‑3‑1981 impugned in Civil Revision No. 1018‑D of 1981 submitted that the suit for permanent injunction was decreed as despite grant of opportunity evidence was not produced by the petitioners‑defendants and as such learned trial Court acted rightly in closing their evidence. So the evidence produced by the respondents=plaintiffs remained unrebutted. He added that the decree of permanent injunction granted by the trial Court was rightly upheld and affirmed by the learned appellate Court. It was argued that in these circumstances the discretionary order closing the evidence of the petitioners‑defendants cannot be interfered with in revisional jurisdiction. According to the learned counsel the decree of permanent injunction so obtained by the respondents‑plaintiffs is to hold the field and in the presence of the said decree the petitioners‑defendants cannot be granted the declaration prayed for in their suit.
10. I have considered the respective submissions of the parties. It is true that the learned District Judge in his judgment, dated 29‑3‑1981 (assailed in Civil Revision No. 1018‑D of 1981) held that the evidence of the petitioners‑defendants was rightly closed as they had failed to produce the same and that the material documents have been correctly appreciated to conclude the main issue against them. Learned District Judge further observed that in view of his judgment in the connected appeal (which is the subject‑matter of challenge in the connected Civil Revision No. 1118‑D of 1981) the title of the parties stands settled and as such the suit for permanent injunction must be decreed. It is, therefore, apparent that had the learned District Judge in the connected matter come to a contrary conclusion that would have naturally affected the result of the appeal in the suit for permanent injunction. Be that as it may, finality cannot be claimed in respect of the decree granted in the suit for permanent injunction as the judgment passed by the trial Court as well as the judgment in appeal passed by the District Judge have been assailed A in revision jurisdiction. It is also pertinent to note that 6th July, 1980 was the date fixed by the Reader and not by the Court as on 2nd March, 1980 the previous date when the parties appeared the Presiding Officer was on leave. 6th July, 1980 was fixed for producing the evidence by the petitioners‑defendants in the suit for permanent injunction. A few days earlier i.e. on 10‑6‑1980 their own declaratory suit was dismissed by the learned Civil Judge. The important feature to be noted in the suit for permanent injunction was that on an objection raised the issue whether the suit was liable to be stayed under section 10, C.P.C. was framed alongwith the issues on merits. This issue should have been decided first of all but for the reasons best known to the learned Civil Judge the issue was tried alongwith the issues on merits and it was decided against the petitioners‑defendants on the plea that no evidence was led to substantiate the objection raised. The. learned trial Court was oblivious of the fact that filing of the declaratory suit earlier to the second suit was not controverted in the written statement though the objection raised was repudiated saying that the objection was incorrect. Ordinarily the suit should have been stayed and had it been stayed the situation in which the parties ultimately find themselves could be avoided. In any case the judgment and decree obtained in the suit B had not attained finality as the same is subject‑matter of challenge in the other civil revision. The injunctive relief being equitable relief has to yield to the declaration respecting title qua the property made finally by the competent Court.
11. As regards the question of title and rights in the land in dispute claimed by the petitioners nothing could be urged by the learned counsel for the respondents as the legislature has intervened in the matter and has secured the rights of the petitioners beyond controversy. Moreover Mutation No.1495 dated 27‑12‑1924 being silent in respect of share in the Shamilat and being limited to the share in the Khata Malkiyat could not be made a basis at the time of partition of Khata Shamilat for reducing their share in Shamilat land. It was held in Fazal Rahim and others v. Faqir Muhammad and others (supra) by the Supreme Court that where Malkiyat land has been sold without specifying the share in the Shamilat, transfer is to be restricted to land only. In the instant case in the statement made before the Patwari and confirmed before the Revenue Officer no mention whatsoever was made of the Shamilat land. The said statement, therefore, applies only to Malkiyat land and not to Shamilat land. Mutation No. 1597, dated 27‑12‑1924 as such did not furnish basis for depriving the petitioners of their due share in the Shamilat land. The petitioners are bound by the statement of Bahara as far as the Malkiyat land is concerned. They could, however, not be deprived of their due share in the Shamilat land.
12. The net result of the above discussion is that both the revision petitions are accepted in the manner that the suit for declaration with consequential relief of the petitioners shall stand decreed to the extent of 65 Kanals 4 Marlas of land out of the land described and detailed in the plaint. The suit of the respondents‑plaintiffs to the extent of the land respecting which the suit of the petitioners has been decreed shall stand dismissed. The parties are left to bear their own costs.
M.Y.H./K‑67/L Petitions allowed.