MUNEER HUSSAIN SHAH And 4 Others vs KAZIM HUSSAIN SHAH And 15 OTHER

MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, with the leave of the Court, has been preferred against the judgment and decree passed by the High Court on November 15, 1995, whereby the appeal filed by the appellants, herein, was dismissed.,

2. The precise facts, of the case, are that a declaratory suit was filed by the plaintiffs-respondents with regard to the suit land challenging the Mutation No.288, dated December 9, 1981. The case of plaintiffs-respondents was that the decree on the basis of which the mutation was sanctioned pertained to a different land and not the land of which the mutation was sanctioned. The trial Court came to the conclusion that there had been dispute between the parties since long and that the decree on the basis of which the mutation was attested pertained to the land comprising different survey numbers and different Khewat and the present suit filed by the plaintiffs-respondents was rightly decreed by the trial Court, The Sub-Judge has also observed that it appeared that the mutation was sanctioned as a result of connivance between the Revenue Officers and the, appellants. The appeals taken to the District Judge, Mirpur and the High Court filed by the appellants were dismissed. Hence this appeal.

3. Arguing the case on behalf of appellants Mr. Muhammad Riaz Alam, the learned counsel submitted with vehemence that the Courts below as well as the High Court have committed error in overlooking and ignoring ,he fact that the land comprising Survey Nos.83 and 74 were allotted new Survey numbers as 187 and 159, respectively in the subsequent settlement. Thus, it has not been correctly held that the land of which mutation was attested was a different land from one which was decreed earlier in favour of appellants in their suit. It was also explained by the learned counsel for the appellants that the impugned decree has been based on an earlier judgment whereby the suit of the appellants for some of the survey numbers was dismissed, however, Survey No.94 was not included in the earlier suit, as such the judgment and decree to that extent was not maintainable. It was further contended on behalf of appellants that Survey No.83 is admittedly in possession of the appellants, as such a declaration for the same to be in the ownership and possession of plaintiffs-respondents is not sustainable.

4. Raja Hassan Akhtar, the learned counsel for respondents, controverted the contentions raised by the learned counsel for the appellants and submitted that Mutation No.288 was sanctioned with regard to the suit land for which no decree was passed in favour of defendants-appellants. The learned counsel argued that the earlier suit filed with regard to the disputed survey numbers was dismissed by the Sub-Judge and the- appeal taken to the District Judge also failed. The contention of the learned counsel for the appellants with regard to the Survey No.94 mentioned earlier was seriously opposed by the learned counsel for the respondents and it was claimed that in the Revenue Record the said survey number is in the ownership and possession of plaintiffs- respondents. The learned counsel, however, frankly conceded that out of the land in dispute Survey No.83 was subsequently, exchanged with the land comprising Survey No. 102 originally owned by Wazir Hussain Shah, the predecessor-in-interest of appellants 2 to 5. The learned counsel strenuously contended that the aforesaid two numbers, even if not included in the previous decree, in no way effect the merits of the case as these numbers, in accordance with the Revenue Record are in the ownership of plaintiffs-respondents.

5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that the earlier suit filed by defendants-appellants on July 4, 1995, with regard to Survey Nos.74, 83 and 105 was dismissed. However, a decree for joint possession for Survey Nos. 98, 99, 100, 102, 103, 104 and 106 to the extent of one-third of their share and one --half of one-third of the share of Inayat Shah, deceased, was passed. The present suit relates to the land comprising Survey Nos.94, 83, 74, 74-Min, 105-Min and 105-Min (Old), 210, 187, 159, 163, 236, 235 (New), Khatas Nos.262/158, 159, 160, 263/159-Min, 264/158, 161, 265/160, Khewat Nos.41 and 42, situated in Village Daghar, Tehsil Dadyal. .

6. As regards Survey No.94 mentioned above, it was observed by the High Court that the same was not included in the earlier suit. The above observation on our perusal of the record is found to be absolutely correct. Thus, neither a decree for the aforesaid survey number was passed in favour of defendants-appellants nor the suit was held to be dismissed with regard to the said survey number. The perusal of Jamabandi for the years 1978 79 and 1989--90 Exhs.P.E. And P.G. Shows that this survey number is entered in the ownership of plaintiffs-respondents, therefore, the impugned decree in so far as the aforesaid Khasra number is concerned has rightly been passed in favour of plaintiffs-respondents and the argument advanced by the learned counsel for the appellants, being devoid of any legal force, is hereby repelled. The High Court also expressed the view that with regard to Survey No. 83 the earlier suit filed by the appellants was dismissed and the same was later on exchanged for Survey No.102 With predecessor-in-interest of appellants 2 to 5 which now falls in possession of appellants by virtue of the said ex6hange, as such does not in any way affect the merits of the case. The aforesaid observation made by the High Court is also legally and factually correct.

7. The nut-shell of the above discussion is' that Mutation No.288 attested with regard to the suit land was illegal and inoperative against the rights of plaintiffs-respondents and was rightly cancelled by the Courts below and the High Court.

8.The High Court also observed that concurrent findings of facts recorded by the Courts below cannot be interfered with, unless some gross illegality, A misreading, non-reading. Of evidence of some substantial injustice has been pointed out. This observation made by the High Court too is in consonance with the settled principles of law which is hereby endorsed and approved.