KHALIQ SAID Versus Mst. MINA BAHA (Widow)

MOHAMMAD IBRAHIM KHAN, J.--- This Revision Petition is against the findings in the judgment/ decree passed by learned Additional District Judge/Izafi Zilla Qazi, Buner at Daggar dated 16.02.2005 whereby the Civil Appeal No.413 of the year 2004 was partially allowed, on amendment in the decree to the extent of 14 Marlas out of 01 Kanal 06 Marlas in favour of the respondents (herein before called as defendants/appellants). Prior to, Civil Suit No.175/1 for all the detailed findings given therein, the learned Civil Judge/ Illaqa Qazi Buner at Daggar had granted a decree as per averments taken in the plaint with the prayers for declaration/ permanent injunction restraining from all types of transposition and for prayer of possession in alternate.

2. Ahmad Said who is the predecessor of the petitioners introduced his suit for obtaining a decree on the basis of registered deed No.45 (later on the deed number was corrected to deed No.46) dated 19.04.1977. This claim was hotly resisted on various legal and factual grounds. The learned trial Court framed as many as 13 issues which are reproduced here:

3. Leading the evidence by the learned predecessor of the petitioners, examined his witnesses PW-1 Naimat Ullah Patwari Halqa, PW-2 Ghani-ur-Rehman Moharrir Tehsildar Daggar, PW-3 Khalid Said, PW-4 Fazal Rahim while the other part examined DW-1 Ashraf-ud-Din, DW-2 Afareen Khan, DW-3 is missing and DW-4 Niamat Ullah Patwari Halqa. If there be any other witness examined, his statement has not been appended with the Revision Petition.

4. Having heard learned counsel for the parties, record with their assistance gone through.

5. From the available evidence whether that of the petitioners or be of respondents, the registered deed No.46 dated 19.04.1977 is the basic instrument through which the declaration was sought by the deceased Ahmad Said who had become owner of land measuring 01 Kanal 06 Marla in Khasra No.3223 Khata Katoni 931/1483 for the year 1997-98. This document has been exhibited as EXPW2/2 while the original register was produced by PW-2 Ghani-ur-Rehman who is the Moharrir to the office of Tehsildar Daggar. The reference, correction of the registered deed Nos.45 to 46 has been recommended to have been corrected. This registered deed stands intact. Bakht Ferosh while appearing as DW-I has categorically admitted;

In view of this admission no room is left to further pry into the authenticity of the registered deed No. 46 dated 19.04.77 on the basis of which the predecessor of the petitioners has sought prayer of declaration.

6. The learned Appellate Court without appreciating the evidence, partially allowed the appeal to the extent of 14 Marlas awarded to the respondents mere that there is a Mutation No.2815 which is stated to have been attested on 06.05.2000 but infact this mutation has never been attested. To this extent also the statement of DW-1 Bakht Ferosh examination in chief is of much significance;

It is beyond the understanding as to why when a mutation has not been attested in favour of the respondents (herein before called as defendants) and when the written statement is silent that on its basis the respondents have been declared owners to the extent of 14 Marlas. Reliance is placed on 2014 SCMR 914 (Muhammad Nawaz alias Nawaza v. Member Judicial Board of Revenue), 2016 CLC 1042 (Musarrat Begum v. Iftikhar Hussain Gillani).

7. It is the basic principle that every fresh jamabandi would create fresh cause of action and under the Land Records Manual the Registrars and Sub-Registrars are duty bound to send monthly particulars of all registered deeds which purports to transfer agricultural land to the office of Tehsildar who are again duty bound to enter mutations and then give its effect in the revenue record for the purpose of change of ownership.

8. In the opinion of this Court, the learned Additional District Judge/lzafi Zilla Qazi Buner at Daggar has committed error in delivering his findings bestowing 14 Marlas, out of 01 Kanals 06 Marlas without any lawful acquisition. The mutation No.2815 dated 06.05.2000 EXDW-1/1 was never attested as has been candidly admitted by DW-1 Bakht Ferosh himself.

9. On acceptance of this Revision Petition, the findings in the judgment and decree dated 16.02.2005 of the learned Additional District Judge/Izafi Zilla Qazi Buner at Daggar is set aside. The judgment and decree of the learned trial Court dated 15.01.2003 shall remain intact.

ZC/117/P Revision allowed.