REHMAT ALI And Others vs AHMAD DIN And Other

AJMAL MIAN, J.---Leave to appeal was granted against the judgment dated 28-4-1975 passed by a learned Single Judge of the Lahore High Court in R.SA. No. 155 of 1964 filed by the respondents, setting aside the judgments and decrees dated 29-5-1963 and 9-1-1964 passed by the learned Civil Judge, Sialkot, and the learned District Judge, Sialkot, in Suit No. 1123 of 1961 and Civil Appeal No. 352 of 1963, respectively, decreeing the respondents' suit.

2. The facts to be noted are that the appellants/plaintiffs and the respondents/defendants had common ancestor by the name of Juma. He had four sons, namely, Ilahia, Amira, Mulla and Phalla.

One of the above sons died issueless and consequently the land was mutated in the names of the remaining three brothers, Phalla, Amira and Ilahia. It appears that in 1865 the suit land was donated in the name of Khanqa Hazrat Imam Sahib Sialkot by the ancestors of the present parties with the condition that the suit-land would be cultivated by Ilahia, one of the above three remaining sons of Juma, and he would, not be dispossessed till the tenancy was divided amongst the donors. In the year of Bandobast of 1865 entries regarding Muaffi were entered. Since the time of the creation of Muaffi the land continued to be cultivated by Ilahai and after him his son, Sharaf Din, and then his son, present respondent/defendant, in terms of the Jamabandi of 1865. In year 1960 upon the promulgation of Martial Law Regulation 64 Muaffies were released. Thereupon, under Mutation No. 561 dated 1,7-4-1960 the suit land was mutated exclusively in the name of Sharaf Din son of Ilahia.

The appellants/plaintiffs, being the successors of the other remaining two sons Amira and Phalla, filed the aforesaid suit wherein they challenged the above mutation and claimed their 2/3rd share in the suit land. The above suit was resisted by the respondents/defendants, the successors of Ilahia. On the basis of the pleadings of the parties, the following issues were framed:--

(1) Whether Ilahia, Phalla and Amira had given the suit land in maffi to shrine of Imam Sahib Sialkot? O.P.P.

(2) If issue No.1 is proved whether the defendants alone were entitled to the suit land after the cancellation of the maffi? O.P.D.

(3) If issue No.2 is proved against the defendants what is its effect on Mutation No. 561, decided on 17-4-1960? O.P.P.

The learned trial Court, after recording evidence of the parties and after hearing the parties, by the aforesaid judgment and decree dated 29-5-1963 answered the above first issue in the affirmative and second issue in the negative and under issue No.3, it was held that the respondents were entitled to the extent of 1/3rd share in the suit land and the remaining 2/3rd belonged to the appellants. Against the above judgment and decree, the respondents filed aforesaid civil appeal which was dismissed by the learned District Judge Sailkot, by his aforesaid judgment and decree dated 9-1-1964. Against the above judgments/decrees, the respondents filed aforesaid R.SA. Which was allowed by a learned Single Judge of the Lahore High Court. Leave, therefore, was granted to consider inter alia the question, whether the High Court was justified in reversing the concurrent finding of the two Courts.

3. We have heard the arguments of Mr. Ghulam Dastgir, learned Advocate-on-Record for the appellants. We also heard one of the respondents present in person.

4. It appears from the evidence on record and from the three judgments of the Courts below that from 1865 to 1892-93 the suit land was in the names of the three aforesaid surviving sons of Juma.

However, it is not known as to how the names of Amira and Phalla were deleted from the revenue record in the year 1892-93 which position continued till the filing of the above suit. The High Court has been influenced by the above factum that the said land remained in the revenue record in the name of Ilahia or his descendants exclusively till the filing of the suit. In our view, the High Court has failed to give proper effect to the factum that there is no record to indicate on what basis the, names of Amira and Phalla were deleted from the revenue record in 1892-93. The learned District Judge has dilated upon this question as follows:-- "13.It is contended by learned counsel for the defendants that Sharaf Din had been shown to be the sole owner of the Khasra ever since 1892-93 and the plaintiffs had done nothing during this period to get this entry corrected. In the circumstances a presumption of correctness must be drawn in favour of the entries which have persisted since 1892-93. In my opinion the answer to this argument is provided by one of the conditions of the muaffi. This condition has been quoted above and is to the effect that the partners in possession shall not be ejected till there is a regular partition. Since so far no partition of the Khasra has taken place the plaintiffs were not affected by the entry as occurring in the record of rights. Besides, as the land was dedicated to the shrine the plaintiffs would not be bothered as to whose name existed in the column of ownership of the record of rights. As a result of the above discussion I find that issue No.1 was rightly decided by the trial Judge in favour of the plaintiffs."

5. If the suit land was factually gifted by the three brothers as was found by the two Courts, it must follow that the land was to be reverted back to the three brothers or to their descendants.

6. In our view, even if the High Court was not satisfied with the material on I record and as the dispute was inter se between the members of the same family claiming through the common ancestor, it would have been proper to have remanded the case to the trial Court. We' would, therefore, allow the above appeal and set aside the judgments of the Courts below with the direction to the learned trial Court that it will decide the matter afresh after framing an additional issue, namely, "on what basis the names of Amira and Phalla were deleted from the revenue record". The appeal stands disposed of in the above terms with no order as to costs.