GHULAM DASTAGIR Versus JUMMA
This civil revision is directed against the judgment and decree, dated 16‑10‑1989, by which a learned Additional District Judge at Gujranwala dismissed the appeal of the plaintiffs‑petitioners against the judgment and decree, dated 26‑11‑1987, whereby a Civil Judge at Gujranwala had dismissed their suit for a declaration to the effect that they were owners in possession of the disputed land measuring 9 Kanals 10 Marlas situated in the area of Village Purian, Tehsil and District Gujranwala, with a consequential relief of perpetual injunction seeking to restrain their opponents from interfering in their possession of the land.
2. The plaintiffs‑petitioners had claimed their title of the suit land on the ground that they were prior allottees thereof w.e.f 21‑8‑1962 and eversince its allotment they had been in its possession and its subsequent allotment made in favour of defendant‑respondent No.1on 27‑8‑1965 was against law and its further alienation by him in favour of defendant‑respondent No.2 by way of gift was also illegal.
3. The suit was resisted by both the defendants‑respondents. It was alleged that defendant‑respondent No.1had been allotted the suit land on 30‑11‑1955 and it had been in possession of Abdul Aziz, one of the plaintiff petitioners, as tenant who about two years prior to the institution of the suit refused to give the share of produce to him. It was further averred that defendant‑respondent No.1had gifted away the suit land to defendant-respondent No.2 for the construction of a road under Farm to Market Scheme and a metalled road had actually been constructed thereon.
4. On the pleadings of the parties the trial Court framed the following issues:‑‑
(1) Whether the suit is time‑barred? O.P.D‑I.
(2) Whether this Court lacks jurisdiction to try the present suit ? O.P.D.
(3) Whether the plaintiffs arc, estopped by their conduct and words to file the present suit ? O.P.D:
(4) Whether the suit is not maintainable in its present form ? O.P.D. .
(5) Whether the plaintiffs are owners of the disputed land and the allotment order dated 27‑8‑1965 in favour of defendant No.1 is illegal, void and inoperative upon the rights of the plaintiffs ? O.P.P.
(6) Whether defendant No.1 gifted a portion of the disputed land to defendant No.2 ? If so its effect ? O.P.D.
5. The learned trial Judge, after recording the evidence of the parties and hearing their counsel, vide his judgment dated 26‑11‑1987, dismissed the suit after deciding issues Nos.1, 5 and 6 against the plaintiffs‑petitioners and issues Nos.2, 3 and 4 against the defendants. The plaintiffs‑petitioners challenged these findings before the Appellate Court but remained unsuccessful as their appeal was dismissed by the learned Additional District Judge, vide his judgment dated 10‑10‑1989. Eventually they came up in revision to this Court.
6. Challenging the findings of the Courts below on issues Nos.1, 5 and 6, the learned counsel for the plaintiffs‑petitioners contends that his clients had been admittedly in possession of the disputed land eversince its allotment in their favour on 21‑8‑1962 in lieu of their claim and they had never been tenants under the landlordship of defendant‑respondent No.1 who had fraudulently obtained double allotment of the land on 27‑8‑1965, nor they had ever been paying any share of produce to him. With reference to the copies of the RL‑11 (Exh.P.1) and (Exh.P.2), besides Percha Taqseem Khatooni (Exh.D.2), the learned counsel submits that these documents clearly established that the plaintiffs‑petitioners had been allotted the disputed land much prior to the so called allotment of defendant‑respondent No.1 but both the Courts below resorted to misreading and non‑reading of this evidence as also the statement of Qasim Ali Naib Daftar Qanungo whose testimony was against the contents of the documents. In his opinion, the question of limitation did not arise because the plaintiffs‑petitioners were in possession of the suit land and they could ignore the wrong entries of Revenue Record secretly made against them. The transfer of land by defendant‑respondent No.1 in favour of defendant-respondent No.2 by way of gift for the construction of a public road did not take effect as the former had no authority to make such gift and the latter before accepting the gift and making investment must have made sure that the gift was valid, he adds. In support of his contentions the learned counsel has placed reliance on Lal Khan v. Deputy Settlement/Settlement Commissioner and others (1985 SCMR 1732).
7. On the other hand, it has been contended by the learned counsel for the defendants‑respondents that the entries of the Revenue Record brought or the file clearly indicated and the same were interpreted by Qasim Ali Naib Daftar Qanungo (D.W.4) that the defendants‑respondents had been allottee the disputed land in the year 1975 and it was the plaintiffs‑petitioners who were guilty of its double allotment in their favour in 1962. According to the learner counsel, there were concurrent findings of the Courts below on these facts which cannot be disturbed in revision. He asserts that persuant to the gift of disputed property made by defendant‑respondent No.1 in favour of defendant-respondent No.2, the latter had constructed a Pacca road for the use of public and the situation has virtually become irreversable by this radical change in the nature and use of the property.
8. I am inclined to agree with the contention of the learned counsel for the plaintiffs‑petitioners that both the Courts below have misread not only the contents of documents namely RL‑11 Parchi Taqseem (Exh.P.1), (Exh.P.2) and (Exh.D.2) but also the statement of Qasim Ali Naib Daftar Qanungo (D.W.4). In fact his statement by itself is a decisive factor. The disputed land bore Khasra No.69/2 and it measured 9 Kanals 10 Marlas. There is no dispute between the parties to this extent. Qasim Ali Naib Daftar Qanungo (D.W.4), with the help of Register RL‑11 of village Purian, deposed in the examination -in‑chief that Sonda son of Habib caste Rajput Chohan had been allotted Khasra No.75 of Khata No.50 measuring 10 Kanals 11 Marlas on 16‑8‑1952 and on Khatoni Taqseem the date was read as 24‑5‑1952. In the cross‑examination he stated that is the Register RL‑11, Khata No.50 had no Khasra No.69/2 and this Khasra Number measuring 9 Kanals 10 Marlas formed part of Khata No.1, which was allotted to Major Abdul Aziz etc. (the plaintiffs‑petitioners) on 21‑8‑1962 besides other land and suit land was never allotted to defendant -respondent No.1 or to any of his predecessors and it was rather allotted to the plaintiffs‑petitioners in the year 1962. If the same land was allotted to defendant‑respondent No.1 in the year 1965, it was a double allotment taking no affect. It is also an admitted position that eversince 1962 the plaintiff-petitioners have been in possession of the disputed land. Therefore, the question of limitation running against them also did not arise, moreso when they had been in possession of the disputed land as owners.
9. In view of the above, the findings‑of the Courts below on all the issues under challenge are reversed and the scene are decided in favour of the plaintiffs‑petitioners. As a result, the revision petition is accepted, the impugned judgments and decrees of the Courts below are set aside, and the suit of the plaintiffs‑petitioners is decreed with costs against the defendants respondents. As a necessary consequence thereof, the construction of road on the disputed land by defendant‑respondent No.2 shall have no effect and the plaintiffs‑petitioners shall have a right to use it in any way they like. The defendant‑respondent No.2 can at the most remove the material but while doing so he shall be bound to restore the land in the same position as it was prior to the construction of the road unless the plaintiffs‑petitioners, showing their magnanimity in public interest, do not insist on the removal of the road and become ready to accept its compensation or otherwise donate it for public purpose.
H.B.T./K‑20/L Revision accepted.