SADIQ HUSSAIN SHAH Versus ZAMIN SHAH
1. SAEEDUZZAMAN SIDDIQUI, J.‑ ‑‑The petitioner is seeking leave to appeal against the judgment of a learned Single Judge of the Peshawar High Court dated 22‑9‑1993 whereby the learned Judge dismissed in limine the Civil Revision Application No. 197 of 1993 filed by the petitioner.
2. The dispute relates to land bearing Khasra Nos. 357, 387, 452, 513, 519, 550, 562 and 595 measuring 92 Kanals and 2 Marlas situated within the revenue estate of Village Pohar, District Abbottabad (hereinafter to be called `the suit land'). The petitioner filed Suit No. 171/1 before EA.C. Collector Ist Grade, Abbottabad, claiming occupancy right in respect of the suit land. The suit was decreed ex parte on 30‑9‑1954 and on the basis of the ex parte decree Mutation No. 282 was attested in favour of the petitioner on 16‑4‑1955. The ex parte decree was later set aside on 6‑2‑1958 and thereafter a consent decree was passed in the suit, which was in the following terms:
3. In spite of the above consent decree, the Revenue Record was not corrected and accordingly, the Revenue authorities attested Mutation No. 1182 on 28‑7‑1970 showing the entire land in the occupancy of the petitioner. This led to the filing of Suit No., 565/1 before the Civil Judge, Abbottabad, by the respondents against the petitioner with the prayer that the Mutation No.1182 dated 28‑7‑1970 in favour of the petitioner is ineffective on the right of respondents who ‑are owners to the extent of 1/2 share in the land on the basis of consent decree in Suit No. 171/53. The trial Court decreed the suit of respondents as prayed and on appeal the judgment and decree of the trial Court was upheld by the first appellate Court. The Civil Revision application filed by the petitioner before the High Court against the two concurrent Judgments of the Courts below also failed.
4. The learned counsel for the petitioner contended before us that in spite of the consent‑decree which conferred 1/2 share in the suit land on the respondents, the petitioner who is the occupancy tenant of the land contained to hold the occupancy right in respect of the entire 92 Kanals and 2 Marlas of land. The contention of the learned counsel has no merit. The petitioner has claimed the occupancy right in respect of the entire land measuring 92 Kaaals and 2 Marlas in Suit No: 171/1 which was decreed ex parte. However, the ex parte decree was later set aside and through the consent decree passed in the suit the petitioner was held entitled to only 1/2 share in the suit land and the claim in respect of other half which went to respondents under the consent decree was dismissed. In these circumstances, no exception could be taken to the judgment and decree passed in the suit instituted by the respondents which was confirmed, by the High Court by the impugned judgment.
5. The petition has no merit, which is accordingly, dismissed. Leave is refused.
6. A.A:/S‑864/S Leave refused.