ALLAH DAD Versus LAL KHAN
Civil Revision Petitions Nos.392 of 1997 and 393 of 1997; both are being disposed of through this consolidated judgment as the same have arisen from the consolidated judgment and decree dated 7‑1‑1997 passed by the District Judge, Mandi Bahauddin, dismissing the two appeals filed by Allah‑Dad, petitioner herein, against the judgment and decree dated 22‑12‑1992 whereby suit of the petitioner for declaration and permanent injunction was dismissed by the, Civil Judge, Mandi Bahauddin whereas the suit for possession on the basis of title under section 8 of the Specific Relief Act filed by Lal Khan respondent was decreed.
2. The facts in brief are that one Fazal Dad son of Abbas was owner in possession of land measuring 12 Kanals, 17 Marlas in Khasra No.237 situated in the Revenue Estate of Malikwal, Tehsil Phalia. Out of this land he sold 10 Marlas to the respondent by way of registered sale deed dated 3‑4‑1965, and Mutation No.4431 was sanctioned in their favour on 24‑4‑1995. Said Fazal Dad also sold land measuring 8 Kanals to the petitioner out of the said Khasra vide Mutation No.4433 dated 15‑6‑1965 and 2 Kanals vide sale‑deed dated 24‑11‑1966. It is the case, which is not denied by the respondents, that the parties tool possession under sale of their respective pieces of land. The petitioner raised construction on a portion of land. In the year 1988, with a view to, occupy the frontal portion of the land/house of the petitioner the respondents applied. for demarcation before the Revenue Authorities and on the basis of their report, the respondents tried to dispossess the petitioner. A suit for declaration and permanent injunction was filed by the petitioner on 27-10‑1988, praying that he is the owner in possession of his land and the respondents have no concern with that nor they can dispossess him. The respondents contested the said suit by filing a written statement. They later on filed a suit for declaration and possession of 10 Marlas on 19‑12‑1990. The suit filed by the respondents was contested by the petitioner by way of filing the written statement.
3. Both the suits were consolidated. From the divergent pleadings of the parties the learned trial Court framed the following issues:‑‑
(1) Whether the plaintiff .is owner in possession of the property? OPP
(2) If Issue No.1 is proved, whether the plaintiff is entitled to the declaration and injunction claimed for? OPP
(3) Whether the plaintiff has got no cause of action to sue? OPD
(4) Whether the plaintiff is estopped to file the present suit by his words and conduct?
(5) Whether the suit is false, frivolous and mala fide and the defendants are entitled to special costs? OPD
(6) Whether the Civil Court has got no jurisdiction to try the present suit? OPD
(7) Whether the suit is not maintainable in its present form? OPD
(8) Whether the suit is hit by section 10 of C.P.C.? OPD
(9) Whether defendants are owners of the suit‑land by registered sale‑deed dated 3‑4‑1965?
(10) Whether plaintiff was temporarily given the suit‑land by defendants? OPD
(11) Whether sale in favour of the plaintiff is void as sale in his favour was in excess of share of the vendor? OPP
(12) Whether Mutation No.4433 dated 15‑6‑1965 and registered sale deed dated 24‑11‑1966 are void being against law and facts and without title? OPP
(12‑A) Whether report of Local Commissioner is reliable? OPP
(13) Whether the defendants are entitled to the decree for declaration and possession as prayed for? OPD
(14) Relief.
4. Both the parties produced their evidence in support of their respective claims. The petitioner produced Muhammad Nawai Patwari as P.W.1, Zafar P.W.2, Syed Nazir Hussain Shah as P.W.3, Zafar Iqbal, Tehsildar, as P.W.4 and Raja Muhammad Akram as P.W.6. Petitioner's evidence ;was recorded as P.Ws.5 and 6. The respondents‑defendants produced in evidence Muhammad Nawaz Patwari as D. W.1, Syed Abid Abbas, Girdawar as D.W.2, Nazar Hayat D.W.3, Muhammad Hayat as D.W.4 and Lal Khan respondent himself appeared as D.W.5. Jamabandi EXh.P.l, registered sale‑deed Exh.P.2 and Mutation No.4433 Exh.P.3 were also produced in evidence by the petitioner. Encroachment plan, report of the Commission and Jamabandi were produced as EXh.D.l in evidence on behalf of the respondent. The learned trial Court found Issue No.l in favour of the petitioner, whereas Issues Nos.2 to 13 were found against him. In result, the suit of the petitioner was dismissed and the suit of the respondents was decreed on 22‑12‑1992 by the learned Civil Judge, Mandi Bahauddin.
5. Aggrieved from the above stated judgment and decree dated 22‑12‑1992 of the learned Civil Judge, the petitioner filed two appeals (Civil Appeals Nos.308 and 309 of 1994) before the learned District Judge. The learned District Judge, Mandi Bahauddin by a consolidated judgment dismissed both the appeals on 7‑1‑1997.
6. It is contended by the learned counsel for the petitioner that the findings of both the learned Courts below on Issues Nos.3, 4, 5, 9, 10, 11, 12, 12‑A and 13 are not sustainable and are liable to be set aside on account of misreading of evidence and incorrect application of law. It is further contended that partial findings on Issues Nos.2 to 6 suffer from misreading of material evidence. It is added that according to Exh.P.1 Jamabandi for the years 1984‑85 the respondents were co‑sharers in Khasra No.237 and therefore, their suit for declaration and possession against the petitioner was not competent. Further contends that the demarcation carried out by the Revenue Authorities and the Local Commissioner cannot be accepted because the Revenue Officer himself did not visit the spot and simply endorsed and signed the report of his subordinate without carrying the proceedings in accordance with law. The preliminary points for demarcation were not ascertained without which the location of 10 Marlas of land could not be found out. The precise submission of the learned counsel for the petitioner is that the demarcation report has wrongly been relied upon and the findings of the Courts cannot be sustained. Finally it has been contended that alt any rate the respondents could be treated as in constructive possession of undivided land and were entitled only to separate their share by way of a suit for partition and not otherwise.
7. Conversely, the learned counsel for the respondents contends that Fazal Dad, the original owner has transferred the land measuring 10 Marlas to the respondents which was a specific piece of land, which was mentioned in the sale‑deed of the respondents and subsequently the same was demarcated. It is further contended that the original owner Fazal Dad was the sole owner of 10 Kanals, 17 Marlas comprised in Khasra No.237 and he had sold a specific piece of land to the respondents before the sale of land to the petitioner. In this view of the matter the petitioner could get only, what Fazal Dad, the original owner owned and had the possession of at the relevant time. According to the learned counsel, the sale‑deed in favour of the respondents was attested much prior to the execution of sale‑deed in favour of the petitioner which has not been disputed by the petitioner. In these circumstances, the respondent was entitled for the decree for possession on the basis of title, which has been rightly granted by the two Courts below in their favour. It is further contended that the suit of the petitioner was for seeking declaration that he is owner of 10 Kanals of land in Khasra No.237 and the petitioner also prayed for a decree for permanent injunction restraining the respondents from getting the demarcation carried out from the Revenue Department, which, according to the learned counsel, was carried out much before tae filing of the suit by the petitioner. According to the learned counsel Naib‑Tehsildar was appointed a Local Commissioner, who demarcated the land and appeared as P.W.4. The demarcation was in accordance with the High Court Rules and Orders. No objection whatsoever was filed by the petitioner on the report of the Revenue Officer/Naib‑Tehsildar therefore, the two Courts below have rightly read the report of the Naib‑Tehsildar in evidence as he found the petitioner as encroacher upon the land of the respondents.
8. There is no dispute about the fact that Fazal Dad was the owner of the land measuring 12 Kanals and 17 Marlas comprised in Khewat No.535, Khatooni No. 1170, Khasra No.237, situated in Village Malikwal according to the Jamabandi for the years 1984‑85. Ten Marlas of land in Khasra No.237 out of the above stated land measuring 12 Kanals, 17 Marias owned by the vendor Fazal Dad was transferred vide registered sale‑deed dated 3‑4‑1965 in favour of the respondents through Mutation No.4431. Allah Dad petitioner through registered sale‑deed dated 24‑11‑1966 purchased land measuring 10 Kanals out of the remaining land measuring 12 Kanals, 7 Marlas from the said Khasra No.237 vide Mutation No.4433 attested on 15‑6‑1961". Respondent Lal Khan purchased 10 Marlas of land through registered sale‑deed dated 3‑4‑1965 (Exh.D.7). Specific boundaries have been given in the registered sale‑deed and the statement to this effect was made as under:‑‑
On the contrary, the Mutation No.4433, which was attested on 15‑6‑1965, shows that the petitioner has purchased 8 Kanals of land through verbal, sale without any specific boundary. The sale‑deed dated 24‑11‑1966 Exh.P.2, through which the petitioner purchased 2 Kanals of land, contains the boundaries as under:‑‑
North Plot of Raja Allah Dad. .
South Plot of Bashir Ahmed.
East Public way.
West Public way.
Petitioner Allah Dad filed the suit for declaration showing the boundaries of the plot measuring 10 Kanals as under:‑‑
North Residential house of Malik Muhammad Khan etc.
South Residential house of Aftab Hussain Shah.
East Public street.
West Remaining land of Khasra No.237.
9. From the combined reading of the registered sale‑deed dated 24‑11‑1966 Exh.P.2 regarding land measuring 2 Kanals and the plaint it will become clear that the boundaries given in the plaint do not tally with the boundaries given in the registered sale‑deed, It is not understandable how the petitioner has claimed the land measuring 10 Kanals with the specific boundary in Khasra No.237 as his ownership. .
10. Petitioner Allah Dad has purchased the land measuring 10 Kanals through separate transactions subsequent to the purchase of the respondents. In this view of the matter, he had no right to encroach upon the land which was purchased by the respondents through the sale‑deed with specific boundary.
11. The land of the respondents was demarcated by the Revenue Officer under the High Court Rules and Orders. The Local Commissioner/Tehsildar appeared as P.W.4, who proved his report and also the site plan (on the file as Annexure A) which shows that the land of the respondent Lal Khan was encroached upon by the petitioner.
12. There is no force in the contention of the learned counsel for the petitioner that the suit for possession filed by the respondent on the basis of title under section 8 of the Specific Relief Act was not maintainable because according to Exh.P.1 Jamabandi for the years 1984‑85 the petitioner and the respondents were co‑sharers in Khasra No.237. I have perused the Jamabandi Exh.P.1 with the assistance of the learned counsel A for the parties. This Jamabandi is latter to the purchase, which shows the' entitlement of the parties. It cannot be said on the basis of Exh.P.1 that the land purchased by the respective parties was joint at the time when) respondent Lal Khan filed the suit for possession. The Revenue Authorities had the jurisdiction to demarcate the property. The petitioner had not filed any objection to the report of the Local Commissioner/Tehsildar. The petitioner had not complained about the reduction of his land measuring 10 Kanals in accordance with his entitlement which he has purchased, there should not have been any objection on the grant of decree in favour of the respondent.
The learned Civil Judge has rightly held that there was no merits in the suit filed by the petitioner and found that the land of the respondent Lal Khan was encroached upon by the petitioner, which was found so by the Revenue Officer which he demarcated the property. Therefore, the learned Civil Judge rightly proceeded to dismiss the suit of the petitioner and decreed the suit of the respondents. Appeal of the petitioner was also rightly dismissed by the learned District Judge as there was no error of law and facts in the judgment of the learned Civil Judge. There is concurrent finding of fact against the petitioner on the basis of evidence, which cannot be interfered with by this Court in exercise of its Revisional Jurisdiction under section 115, C.P.C. as held in case reported as Azizullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647.
Resultantly, this revision petition fails and the same is dismissed Parties to bear their own costs.
H.B.T./A‑680/L Revision dismissed