TAIMAR KHAN Versus FAZAL RABI
ORDER
FAZAL ILAHI KHAN, J. ‑‑Leave to appeal in both the petitions is sought for against the judgment dated 8‑5‑94 of the learned Peshawar High Court, Peshawar, passed in Civil Revision No. 132/1988 alongwith connected C. Rs. Nos. 133 of 1988 and 572 of 1987.
2. Facts of the case, briefly stated, are that Sher Hassan and others filed Civil Suit No. 125/1 against the petitioners in the Court of Civil Judge, Nowshera for possession, through `Had Barari', of land measuring 54 Kanals 12 Marlas detailed in the plaint situated in Mauza Aza Khel Payan, Tehsil Nowshera. The plaintiffs' suit was decreed subject to the rights and title of Asad Khan and Tooti Gul petitioners herein, who were shown in possession of the suit land in the relevant revenue record as `Ghair Dakhilkaran Bila Lagan Bawaja Bai and Hissadari". This judgment was affirmed "in appeal. The learned High Court, however, on 5‑2‑1993, after setting aside the judgments and decrees of both the Courts below remanded the case to the Trial Court with the direction to carry out the demarcation first. After the remand an amended plaint was filed to which defendants 12 to 15 were also impleaded as parties to the suit. The heirs of Asad Khan, petitioners herein, Tood Gul, Muhammac and Khalo Khan contested the suit. In compliance with the order of remand Mr. Behram Khan EA.C., Nowshera was appointed a local commissioner who was ordered to carry out the demarcation and submit his report. Accordingly the Commissioner carried out demarcation and submitted his report Exh. C.W.1/1. The objections raised to the report were rejected and consequently the respondents‑plaintiffs' suit was decreed on 12‑1‑1987 as prayed for. The appeal preferred by the petitioners against the judgment and decree was heard by the learned District Judge, Peshawar who was pleased to accept the same on 25‑11‑1987, set aside the judgment and decree of the Trial Court to the extent excluding the land bearing Khasra No. 2005, as it was recorded in possession of Asad Khan, the predecessor‑in‑interest of the petitioners, and Tood Gul. Regarding rest of the suit land the judgment and decree of the Trial Court was maintained and the appeal of Muhammad and Khalo filed against the judgment and decree of the trial Court was dismissed. Three revision petitions were filed against the Appellate Court judgment, C.R. No. 572 of 1987 was filed by Taimar Khan and others, the. heirs of Asad Khan deceased, C.R. No. 132 of 1988 was filed lay faz;d Rabi and others while respondents plaintiffs filed C.R. No. 133 of 1988 in the Peshawar High Court, Peshawar. All the three revision petitions were heard together and disposed of by a common judgment dated 8‑5‑1994. The learned High Court accepted the respondents plaintiffs' revision petition, set aside the finding of the learned Appellate Court `relating to suit Khasra No. 2005 and decreed the suit in toto and in consequence dismissed the ‑revision petitions riled by the petitioners defendants.
3. Civil Petition No. 218‑P of 1994 is by Taimar Khan and 7 others petitioners‑defendants and Civil Petition No. 236‑P of 1994 is by the heirs of Tooti Gul respondents‑defendants for leave to appeal against the judgment of the learned High Court as stated above.
4. Mr. Mir Adam Khan, the learned counsel appearing for the petitioners, contended before us that land bearing Khasra Nos. 1992 measuring 43 Kanals one Marla, Khasra No. 2005 measuring 24 Kanals 9 Marlas was initially part of `Shamilat‑e‑Deh', which was owned and possessed by the proprietary body of Mauza Aza Khel Payan, as is evident from the relevant record of the year 1928‑29 up to 1941‑42 available on file. That the subsequent record was tampered with and the predecessors‑in‑interest of the respondents were shown to be the exclusive owners of the land in suit in the subsequent register `Haqdaran Zamm' of the year 1947‑48 and onwards. Reference was made to the statement of Patwari Halqa, which according to the learned counsel was not challenged, in which he has stated that petitioners are owners in Shamilat‑e‑Deh as per settlement record of the year 1928‑29, but the Courts below ignored such evidence and misread the same in declaring respondents‑plaintiffs the exclusive owners of the suit land and in decreeing their suit against the petitioners. That the demarcation proceedings were resorted to by the respondents‑plaintiffs unilaterally in order to create a cause of action for filing the present suit to dispossess the petitioners of the Shamilat land. That there was no legal justification for the change brought about in the record of rights subsequent to 1941‑42 in respect of the suit land which they were holding in their own rights. That the entries in the column of cultivation showing the petitioners `Ghair Dakhilkaran' and the entry in the corresponding column of Lagan `Bila Lagan Bawaja Qabza' and `Bila Lagan Batasawar Hissadari' are decreeing and ineffective on the petitioners' rights.
5. After hearing the learned .counsel for the petitioners and perusal of the record we find no substance in the contentions. No doubt, in the settlement record of the year 19'x.8‑29 the suit lard is shown part and parcel of `Shamilat e‑Deh' and such entries continued till the record of rights of the year 1941‑42. It is not disputed that petitioners are shareholders in the Shamilat but it is A evident from the record that partition of the Shamilat took place in 1941‑42 and it was given effect in the record of rights through Mutation No. 1339. this mutation is mentioned in column `Kafiyat' of the subsequent Jamabandi of 1947‑48. Through the partition mutation the suit land has been allotted to the respondents‑plaintiffs to the exclusion of the petitioners and other share holders in the `Shamilat'. The nature. of the suit land was 'Ghair Mtmkin Dheri' and such was the nature of the. other adjoining Khasra Numbers, therefore, boundary marks were not visible and erected. When the respondents‑plaintiffs, after such partition, wanted to bring the land under cultivation the necessity was felt to get the boundary marks erected, therefore, an application for demarcation of the suit Khasra numbers was moved before the revenue authority and after such demarcation, the present suit was filed for possession of the area of the suit Khasra numbers found encroached upon by the petitioners. It may be pointed out that at the time of filing of the suit only land measuring 4 Kanals out of suit Khasra No. 2005 was found in possession of Azad Khan since 1941‑4,2 and the rest of it being unculturable was shown `Maqbooza Malikan'. It may also be pointed out that in pursuance of the partition proceeding possession was not delivered to respondents‑plaintiffs of the land allotted to them as required under section 146 of the West Pakistan Land Revenue Act, 1967, therefore, after the partition Asad Khan continued in its possession though he was no more its owner. Accordingly, the change in nature of his possession, and he was shown `Ghair Dakhilkar' in the cultivation column in subsequent Jamabandi after the partition and in the corresponding column of Lagan' the entry `Bila Lagan Bawaja Qabza' was made. Subsequently some more area out of Khasra No. 2005 was added to it when brought under plough, and only 9 Kanals out of 24 Kanals 9 Marlas was shown `Maqbooza Malikan' while Asad Khan was shown in possession of 12 Kanals 9 Marlas and Tooti Gul of an area of 4 Kanals as `Ghair Dakhilkaran', Asad Khan was entered `Muzare Bila Lagan Bawaja Qabza', Tooti Gul `Muzare Bila Lagan Batasawar Hissadari'. These entries are quite in accord with the provision of the Land Record Manual and the relevant Circular for giving effect to partition proceedings in the subsequent record of rights. Rather the proper entry should have been
6. The nature of possession of a person who continues in possession of the land, which formerly formed part of the joint holding and of which hew as in possession as Hissadar and the land as a result of the partition is allotted to other shareholder or shareholders, is initially permissive and it remains as such till possession of such land is delivered to the rightful owner (allottee). Delivery of possession can either be voluntary or in execution of the: instrument of partition, prepared under section 145 of the West Pakistan Land Revenue Act which had the force of a decree, under section 1403 of the Act, or an order of a competent authority or Court of law. No question of adverse possession can be raised on facts and circumstances of the case as such in absence of proof of such delivery of possession.
For the reasons stated above, we find no infirmity in the judgment of the learned High Court and refuse to grant leave.
Petitions dismissed.
AA./T‑120/S Leave refused.