MUHAMMAD RASOOL Versus AJAB KHAN

MUHAMMAD NASIR MAHFOOZ, J.--- Through this common judgment, I propose to decide instant civil revision petition and connected civil revision petition bearing No. 177-B/2014 (Muhammad Rasool v. Ajab Khan and others), as both these petitions have arisen out of one and the same judgment.

2. Petitioners/Muhammad Rasool has instituted a suit No. 197/1 of 2011 for declaration-cum-possession, permanent and mandatory injunction. It is averred in the plaint that suit property measuring 24 Kanals and 05 Marlas comprised in Khara Nos. 1797, 1798 and 1824, Mauza Sirat Khel, Karak was joint property of ancestor of plaintiff and defendants, which was leased out to ancestor of defendants Nos. 1 to 13 on "Bhitai" in the year 1978-79. A correction mutation was entered and attested in the year 2009 in favour of Mst. Kami Khel wife of Buland Khan. Thereafter, her legacy was wrongly devolved on defendants Nos. 14 to 16 vide Mutation No. 1196, who onward sold their share vide Mutation No. 1197 dated 10.11.2009, to defendants Nos. 17 to 23, which is still under process. The plaintiff questioned said mutation Nos. 1196 and 1197 in the court, but during proceedings, defendants Nos. 1 to 6 sought their impleadment in said suit by way of filing their application on the ground that the suit property has been purchased by their ancestor vide mutation No. 1790 attested on 28.01.1923. Thus, on disclosure of said fact, the plaintiff withdrew his suit with permission to file fresh one. Meanwhile defendants Nos. 1 to 6 instituted their separate suit for declaration, questioning therein mutation No. 1790 on the ground of wrong and against the law and prayed for its cancellation. Prayer for permanent injunction was also made to the effect that defendants Nos. 1 to 13 be restrained from taking benefit of the disputed property and mandatory injunction to the effect that defendant No.24 be directed to delete the entry of Mutation No. 1790 from the revenue record.

3. Respondents/Ajab Khan and others have also filed a Suit No. 194/1 of 2010 for declaration. It is averred in the plaint that ancestor of plaintiffs and defendants Nos. 12 to 18 namely-Faqir Gul purchased 1/3 share in Khasra Nos.1761 and 1767 (new Nos. 1797, 1798 and 1824) in Mauza Sirat Khel Karak measuring 24 Kanals and 05 Marlas from ancestor of defendants Nos.1 to 11 namely-Mansoor, Rasool Khan and Buland Khan in lieu of Rs.120/- vide Mutation No. 1790 dated 28.01.1923 and since then recorded in possession of the same. However, his name is not incorporated in revenue record, therefore, names of predecessors of defendants Nos. 1 to 11 still exists there, hence, the entries being inoperative upon their rights are subject to be replaced with their names. Plaintiffs on getting knowledge of said wrong entries, instituted suit against defendants Nos. 2 to 11 challenging therein inheritance mutations regarding the suit property and they have perused the record documents and came to know about the mistake in record, thus, the suit for declaration of title was filed against defendant No.19 along with prayer of mandatory injunction to the effect that he may be directed to make entries of the names of plaintiffs and defendants Nos.12 to 18 in the record.

4. On summoning of defendants of each case, defendants Nos.1 and 12 appeared, while only defendant No.1 contested the suit by way of filing written statement, however, defendant No.12 produced evidence. Plaintiffs also filed application relying therein on his plaint as rebuttal to claim of defendant No.1. On 07.6.2011 amended plaint was received, but contesting defendant relied on his earlier filed written statement. Divergent pleadings of the parties were reduced into nine consolidated issues including relief.

5. Both the parties adduced the evidence of their choice and after hearing pro and contra evidence, learned trial court dismissed Suit No. 194/1 of 2010 whereas decreed Suit Nos. 197/1 of 2011, aggrieved thereby, both the parties assailed the same by preferring separate appeals. The appeal filed by Ajab Khan bearing No. 09/13 of 2013 was accepted, suit No. 194/1 of 2010 was decreed as prayed for, however, Appeal No. 15/13 of 2013 filed by Muhammad Rasool was dismissed and resultantly decree in Suit No. 197/13 of 2013 was set aside. Hence, the present revision petitions.

6. I have heard arguments of learned counsel for the parties and perused the record.

7. It is no where denied that mutation No. 1790 was entered on 28.01.1923, but was left unattested for sufficient long time. It is alleged by the respondents that they are in possession of the suit property from considerable period of time, but the entries of revenue record remained the same as before, therefore, a cause of action accrued to them for filing civil suit on 12.11.2011.

8. It requires to be noted that petitioner had filed the suit on 21.11.2009 wherein respondent No.1 filed an application for impleadment on 16.9.2010, but in the meanwhile the suit was withdrawn with permission to file a fresh suit, which was instituted on 10.3.2010 by the present petitioner on the instant subject matter and were consolidated together with the suit of respondents.

9. Patwari halqa has appeared as PW-1 and ADK as PW-2 who have produced revenue record of the suit property. The impugned mutation is produced by ADK as Ex.PW-2/2 which is alleged to be a sale mutation on behalf of Mansoor, Rasul Khan and Buland Khan sons of Gohar in favour of Faqir son of Gul to the extent of 1/3rd share in suit Khasra numbers which new Khara Numbers of 1761 and 1767. He has divulged details that statements of the transferor were obtained out of whom Buland Khan is shown to be minor, but he is represented by the other two transferors. The entry of impugned mutation is recorded on record-of-rights from the year 1925-26 up to record-of-rights for the year 1965-66. No question has been asked from ADK relating to any ground of the impugned mutation being fraudulently entered, therefore, presumption of correctness is attached to it. As regard the fact that Buland Khan was minor, he has now died issueless and is survived by present respondents as his legal heirs. The present respondents and legal heirs of the said Faqir.

10. In support of his plaint respondent No.1 appeared as PW-3, who has all long his cross-examination supported the stance as raised in the plaint and has been cross-examined on the details as divulged by PW-2. Perusal of the impugned judgment and decree of the learned appellate court reveals detail discussion on the evidence adduced during trial and relied on section 53-A of Transfer of Property Act. It has been held that there existed fiduciary relationship between the predecessors of the parties on mutual trust basis and in part performance of the sale possession was delivered to the respondents during their life time which could not be allowed to resile from the transaction executed by their predecessors. Presumption of correctness under Article 100 of Qanun-e-Shahadat Order, 1984, has been beneficially referred towards the impugned transaction.

11. An objection has been raised in court and in grounds of revision to a single appeal filed by respondents against two judgments and decrees of learned trial court, but this objection is not maintainable because a single appeal is competent, after consolidation of suits, the independent status of the suit ends and they form only one suit and issues are framed in one suit. Similarly, appeal is continuation of suit to a single appeal lies. It is also in consonance with law laid-down in case Zahid Zaman Khan and others v. Khan Afsar and others (PLD 2016 SC 409), wherein it is held that:-

"7. With respect to question No.2; it is settled law that it is the inherent power of the court to consolidate suits and the purpose behind it is to avoid multiplicity of litigation and to prevent abuse of the process of law and court and to avoid conflicting judgments. No hard and fast rule forming the basis of consolidation can be definitive and it depends upon the facts and the points of law involved in each and every case, obviously where the court is persuaded that the interests of justice so demands, consolidation can be ordered, provided no prejudice is caused to any litigant and there is no bar in the way of the courts to consolidate the suits. Reverting to the proposition, there is no provision in the C.P.C. where the court is obliged to prepare a separate decree in the consolidated suits"

13. It is further held in the afore noted judgment that the court should proceed on the principle that every procedure which further administration of justice is permissible even if there is no express provision permitting the same.

14. Petitioners have failed to point-out any material irregularity or illegality in the impugned judgment and decree of the learned appellate court who has rightly granted decree to the respondents and dismissed the suit of petitioner.

15. In view of the above, petitioner is legally bound to prove that the learned courts below have committed any material illegality or irregularity or has failed to exercise jurisdiction as vested by law or has exercised jurisdiction not vested by law, but, none of the said essential pre-requisite required for interference in judgment of learned appellate Court exists. Therefore, the instant revision petition as well as the connected Revision Petition No. 177-B/2014 (Muhammad Rasool Khan v. Ajab Khan and others) are hereby dismissed with no order as to costs.

ZC/3/P Revisions dismissed.