MEHAR MUHAMMAD Versus MUHAMMAD YOUNAS
AMIN-UD-DIN KHAN, J.--- Through this civil revision, the petitioners have challenged the judgment and decree dated 10.04.2002 passed by learned Additional District Judge, Sargodha, whereby the appeal filed by the petitioners was dismissed, and the judgment and decree dated 15.02.1993 passed by learned Civil Judge, Sargodha, whereby the suit filed by the respondents-plaintiffs was decreed.
2. Briefly, the facts of this case are that on 19.03.1984 the respondents-plaintiffs filed a suit for declaration alleging therein that they are owner in possession of suit property after allotment mentioned with share and specification of Killa numbers, total measuring 56-1/2-Kanals in the head note of plaint and the entries in the revenue record against the position mentioned in the head note of plaint are wrong and are liable to be corrected. As a consequential relief the permanent injunction was prayed against defendants Nos.2 to 10 that they be restrained from claiming any right in the property owned by the plaintiffs. There were three sets of defendants in the suit. The defendant No.1 was Province of Punjab, defendants Nos.2 to 8 are the Muslim owners of Khata, whereas the original defendants Nos.9 and 10 were also claimants as allottees, of the evacuee land. They filed their respective written statements and contested the suit. There was another suit filed on 17.08.1983 by Fattu etc. for declaration, which was earlier to this suit, therefore both the suits were consolidated and the proceedings were ordered in the suit of Fattu etc. The consolidated issues were framed and the parties were invited to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the closing of trial, vide judgment and decree dated 15.02.1993 suit of plaintiffs, legal heirs of Fattu was dismissed, whereas the suit filed by Shan Muhammad was decreed. Three appeals were filed, two by Muhammad Yameen etc. (one against the dismissal of their suit and the other against the decree of suit of Shan Muhammad) and the 3rd appeal was filed by Haji Ahmad, the predecessor of present petitioners. All the three appeals were dismissed. Haji Ahmad etc filed the civil revision in hand against the dismissal of their appeal and decree of suit of Shan Muhammad, whereas against the dismissal of appeals of Muhammad Yameen etc., C.Rs. Nos.1801-2002 and 1802-2002 were filed, which also remained pending along with this civil revision and the same have been dismissed today for non-prosecution. Through this judgment the instant civil revision i.e. C.R. No.1175 of 2002 is being decided.
3. Learned counsel for the petitioners-defendants argues that Fattu as well as Shan Muhammad both claim the allotment of land in the Khata left by the non-Muslim evacuee; that in accordance with copy of Jamabandi (Ex.D-8) petitioners being Muslim owners were owner of 3/4 share of Khata and Balwant Shah, the non-Muslim evacuee was owner of 1/4 share in the Khata and predecessor of petitioners purchased his share through mutation No.4233 attested on 25.05.1947, which has been produced as Ex.D-5 but states that as this sale was hit by section 3(b) of the Pakistan Administration of Evacuee Property Act (XII of 1957), therefore the sale was not confirmed by the Custodian, as such under the law same was presumed to be evacuee property; that the first allottee was Fattu wherefrom most of the property was exchanged by Fattu in favour of petitioners and the property was not available for allotment in favour of Shan Muhammad etc, therefore same could not have been allotted. Learned counsel further argues that non-Muslim evacuee was owner of 1/4 share in the Khata, therefore the claim of Shan Muhammad etc as 3/4 share in various Khasra Numbers is not proper. While referring mutation No.4233 learned counsel states that in Khata. No.1027 Balwant Shah was having one share, whereas three shares were owned by the Muslim owners i.e. the predecessor of petitioners. Further states that the petitioners have filed application under Order XLI, Rule 27 of the C.P.C. (C.M. No.2 of 2002) for permission to place on record the copies of Jamabandi. While relying upon "PLD 1974 Supreme Court 193 ( Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another )" learned counsel argues that without partition of Khata of Muslim and non-Muslim owners, no allotment could have been made. Learned counsel prays for acceptance of this civil revision and setting aside the impugned judgments and decrees.
4. On the other hand, learned counsel for the respondents-plaintiffs argues that in this case main claim of petitioners is on the basis of allotment of Fattu wherefrom they claim exchange with him; that when in his suit the specific Killa Numbers have been mentioned, therefore the petitioners cannot deny the rights of Shan Muhammad, the predecessor of respondents and this fact has been admitted by the present petitioners in the written statement filed in the suit of Fattu, therefore now they cannot challenge the same. Further states that case of respondents-plaintiffs is that when the mutation of sale by Balwant Shah in favour of Haji Ahmad etc was not confirmed by the Custodian, then only the property was available for the allotment, which was allotted to the predecessor of respondents. While relying upon "2007 SCMR 1602 ( Muhammad Shafi etc. v. Sultan )" learned counsel states that the facts not pleaded, cannot be argued. Further while referring the statement of DW-4. (Muhammad Bakhsh) one of the petitioners, states that he has admitted that the land exchanged from the name of purchasers of Balwant Shah, was allotted to various persons, they have also purchased the same land from the allottees and further that Shan Muhammad is owner of 4-1/4-Kanals of land and they have claimed that they are tenants. Argues that approbate and reprobate cannot be allowed to the defendant to state in one breath and further a tenant cannot deny the title of landlord; that the case which has not been pleaded, cannot be argued. Learned counsel specifically stated that their claim is with regard to the land owned by Balwant Shah, the evacuee and no land excess to the ownership of Balwant Shah was ever allotted to them or they can claim the same; that when the petitioners accept the allotment of Fattu, how they can challenge the allotment of Shan Muhammad, therefore rule of estoppel by conduct is in the way of petitioners. Further states that learned first appellate court requisitioned the original record of RL-II and while perusing the same came to the conclusion that the impugned land was never allotted to Fattu; that there are concurrent findings of facts on the record that there are no rights of petitioners involved in this lis; that as in accordance with section 119 of the Transfer of Property Act they have claimed exchange of impugned land from Fattu, if he has transferred defective land in their favour, therefore the same will be reversed and their owned land will be returned to them. With regard to additional evidence learned counsel for the respondents, while relying upon "2013 SCMR 397 ( Niaz Rasool through Muhammad Bilal v. Mst. Parveen Ikram and others ) and 2009 SCMR 221 ( Mustafa Kamal and others v. Daud Khan and others )" states that there is no need to allow the additional evidence at this stage. It has been further argued that the petitioners purchased 64-kanals, 5-marlas from Balwant Shah through mutation No.4233 which was subsequently not validated by the Custodian, therefore Balwant Shah was owner of said land and claim of petitioners is with regard to 56-1/2-Kanals. Further states that when the revision petition filed by the legal heirs of Fattu against the dismissal of their own suit has been dismissed today and also the other civil revision against the suit filed by the predecessor of respondents has been dismissed today, therefore the petitioners have absolutely no right to challenge the judgment and decree passed in favour of respondents and they have no locus standi to file this civil revision.
5. I have heard the learned counsel for the parties at full length and also gone through the record as well as case law referred to by learned counsel for the parties with their able assistance.
6. Learned counsel for the respondents frankly admitted that they claim allotment from the property left by the evacuee Balwant Shah. Their claim is with regard to 56-1/2-kanals. While referring mutation No.4233 attested on 25.05.1947 (Ex.D-5) by Balwant Shah in favour of predecessor of present petitioners, learned counsel for the respondents states that through this mutation the petitioners purchased share of Balwant Shah, which is admittedly 64-kanals. As admittedly this mutation was not validated by the Custodian, therefore the same land was allotted to the respondents and other evacuees. In this eventuality, now the controversy is whether 1/4 or 3/4 share from specific Khasra Numbers can be claimed by the respondents-plaintiffs. As it is the case of plaintiffs-respondents that they claim from the land left by Balwant Shah and claim of petitioners is that they purchased share of Balwant Shah, land measuring 64-kanals and further when the petitioners filed written statement in the case of Fattu from whom they claim to be the transferees of his allotted land which is the suit property, in the said suit Fattu has claimed specific Khasra Numbers and the petitioners who were defendants in that suit have admitted the claim of Fattu by filing consenting written statement, in this view of the matter, all the objections raised by learned counsel for the petitioners that without bifurcation of Khatas of Muslim and non-Muslim evacuees the allotment cannot be made, is not available to the petitioners, as they cannot be allowed to approbate and reprobate in one breath because they have admitted the allotment of Fattu from whom they claim some allotted land received in exchange. Furthermore, the legal heirs of Fattu have opted not to appear even in this revision as well as revisions filed by them bearing Nos.1801 and 1802 of 2002 which have been dismissed today.
7. So far as the allotment of land of Balwant Shah (evacuee) is concerned, as the case of petitioners is that they purchased the said land through mutation No.4233 attested on 25.05.1947 (Ex.D-5) but the same was hit by section 3(b) of the Pakistan Administration of Evacuee Property Act (XII of 1957), therefore till the time the fate of this mutation was not decided by the Custodian, the property remained in the name of petitioners. After the same could have been allotted to any one, the claim of Fattu that it was allotted even prior to the decision of fate of above said mutation by the Custodian, prima facie shows that this claim of Fattu is wrong. Furthermore, when the learned first appellate court requisitioned the original record of RL-II and came to the conclusion that the suit property was never allotted to Fattu and against this finding of fact when the same was recorded after perusal of original record, I have no reason to disbelieve the same. Even otherwise logically this finding of fact is correct. In this view of the matter, this objection of petitioners that as the allotment of Fattu was prior in time and it will be given weight, is not in accordance with law. The petitioners have no right to argue this point, as Fattu himself opted not to challenge the concurrent findings of two courts below against him and the petitioners are only the transferees from Fattu and when the findings of two courts below have been confirmed against Fattu, the transferees are bound by the findings.
8. CM No.2 of 2002 has also been filed for permission to produce additional evidence, the copy of Jamabandi showing the Muslim and non-Muslim owners to substantiate the point that land could not have been allotted before bifurcation of land of Muslim and non-Muslim owners. As I have discussed supra, both the predecessor-in-interest Fattu and respondents Shan Muhammad claim the allotment of property left by Balwant Shah and petitioners when accepted the allotment of Fattu and on the same breath raised objection on the allotment of Shan Muhammad on the basis that before partition of Khata no allotment could have been made, does not lie in the mouth of petitioners. As this evidence is not required for the determination of point in issue by this Court, therefore there is no need to allow this application. The same is dismissed.
9. The point raised by learned counsel for the respondents that when petitioners' claim with regard to land in exchange from Fattu, the claim of Fattu has been rejected by both the courts below, therefore there is no right available to the petitioners to challenge the same, as under section 119 of the Transfer of Property Act they have right to receive back the land given by them in exchange. The statement of DW-4 (Muhammad Bakhsh) one of the petitioners that they purchased the land from various allottees to whom the land was allotted left by Balwant Shah, is clearly an admission on the part of petitioners against their version now presenting before this Court. In this view of the matter, the case law referred to by learned counsel for the petitioners is not applicable to the facts of this case, when there are clear cut admissions on their behalf and further that the case of petitioners on the basis of claim of Fattu whose claim has concurrently been found to be incorrect.
10. In the light of what has been discussed above, I see no force in this civil revision which is hereby dismissed.
SAK/M-196/L Revision dismissed.