Muhammad Ishaq etc. vs Meraj Din etc.

HCJD/C-121

ORDER SHEET.

LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

C. R. No. 1282 / 2016

Muhammad Ishaq, etc.

Versus Meraj Din, etc.

JUDGMENT

Date of Hearing: 19.01.2022 Petitioners By: Mr. Tariq Zulfiqar Ahmad Chaudhry, Advocate Respondents: Proceeded ex-parte vide orders dated 06.10.2016 and 22.12.2021.

ABID HUSSAIN CHATTHA, J: This Civil Revision is directed against the concurrent Judgments and Decrees dated 16.10.2010 and 30.05.2016 passed by Civil Judge, Sahiwal and Additional District Judge, Sahiwal, respectively, whereby, the suit for declaration alongwith permanent injunction of the Respondents was concurrently decreed.

2.The brief facts of the case are that the Respondents averred in the plaint that predecessor-in-interest of the parties were real brothers who were allotted land measuring 34-Kanals and 12-Marlas fully described in the body of the plaint (the “Property”) in equal shares in lieu of settlement claim after migration from India and jointly settled in Chak No. 141 / 9.L, Tehsil and District Sahiwal. Each brother was entitled to approximately 11- Kanals and 11-Marlas out of the Property. All the three brothers lived together peacefully and cultivated the Property jointly and in the year 1963-1964, the elder brother Bhag Din being head of the family through a private partition, divided the land between them and since then, each brother and his respective family is owner-in-possession of its respective share which was specifically described in the plaint. There was no dispute during the life time of the brothers but after the death of predecessor-in- interest of the parties, the Petitioners in the year 1998 forcefully tried to

dispossess the Respondents and accordingly, Revenue record was scrutinized, whereby, it transpired that the Property is jointly owned by all three brothers but Revenue record in the year 1949 / 1950 todate was illegal as the share of each brother was not recorded therein equally. It was also asserted that land measuring 9-Kanals was mortgaged at the time of allotment and after its redemption, it also became a joint property of the parties and is included in the Property. As such, the Respondents sought a direction to the effect that each family of the three brothers were owners- in-possession of the Property in equal shares since inception and more so, after private partition and accordingly, the Revenue entries in terms of their respective equal shares are liable to be rectified being erroneously incorporated in Jamabandi for the years 1949 / 1950, 1956 / 1957 and 1996 / 1997 since written entries in the year 1949 / 1950 were repeated in subsequent Jamabandi without their knowledge. Permanent injunction was also sought against the Petitioners with respect to respective ownership and possession of the Respondents regarding their share in the Property.

3.The suit was resisted by the Respondents on both factual and legal plane. It was averred that all three brothers submitted separate claims, hence, independent allotment was made against their respective claims which was not challenged by any party to the suit and as such, the Revenue entries were rightly incorporated.

4.Keeping in view the divergent pleadings of the parties, the Trial Court framed issues on which evidence of the parties was duly recorded.

5.The Courts below have thoroughly examined the evidence produced by the parties. It was conclusively established that the Property jointly belonged to the three brothers and devolved thereafter to their legal heirs. The Property was divided through private partition in the year 1963 and since 1964, the three brothers and their families are separately cultivating their respective shares. The fact of private partition was duly proved through independent witnesses who were owners of adjacent lands. Abdul Majeed (DW-1), one of the Petitioner, admitted that it is correct that they filed a suit with mala fide intention. He has no knowledge as to whether Miraj Din and his legal heirs are in possession to the extent of their shares from the date of partition since 1964. He further confirmed that since 1947

to 14.07.2010, the Respondents never gave any share of produce to the Petitioners. Accordingly, the claim of the Respondents was duly established.

6.Learned counsel for the Petitioners was confronted as to what is the misreading and non-reading of evidence on record or as to how the impugned Judgments and Decrees were illegal within the scope of Revision in terms of Section 115 of the Code of Civil Procedure, 1908. He contended that the Courts below have erred in law to recognize private partition when the same was not incorporated in Revenue record. Any private partition which is not incorporated in the Revenue record is not valid and cannot be recognized and enforced by the Court in terms of Sections 135 to 147 of the Punjab Land Revenue Act, 1967 (the “Act”). He stated that the Petitioners were owners of 20-Kanals, whereas, the Respondents are owners of 14-Kanals as the claims of each brother were independent and as such, the revenue entries since 1949 / 1950 in the Jamabandi could not be corrected by the Civil Court. Reliance was placed on cases titled, “Syed Musarrat Shah and another v. Syed Ahmed Shah alias Lal Bacha and 8 others” (P L D 2012 Peshawar 151); “Bashir Ahmad and another v. Muhammad Akram and 3 others” (2018 C L C Note 19); “Latif Khan v. Altaf Khan and 9 others” (2018 C L C 608) and “Nazir Ahmad (deceased) through Legal Heirs v. Muhammad Rafique and 4 others” (2016 M L D 1926).

7.Arguments heard, record perused.

8.Chapter XI of the Act deals with formal partition of land. Section 135 of the Act provides a right to any joint owner of land who applies to a Revenue Officer for partition of his share based on ownership and a complete mechanism regarding partition of land is prescribed in the following Sections of Chapter XI of the Act. Importantly, Sections 140 and 141 of the Act provide that the Revenue Officer shall ascertain the questions, if any, in dispute between any of the persons interested in the partition of the holding, distinguishing between questions as to title in the land of which partition is sought and questions as to the land to be divided or the mode of making the partition. Further, if a question of title in the holding is raised in the partition proceedings, the Revenue Officer shall

inquire into the substance of such question and if, the Revenue Officer is of the opinion that the question of title raised in a partition proceedings is well founded, he may, for reasons to be recorded, require a party specified by him to file a suit in the competent Court, within a period not exceeding thirty days from the date of his order for obtaining a decision regarding the question. As such, even in formal partition proceedings under the Act, the questions of title to the Property falls within the jurisdiction of the competent Court. The Respondents in the instant case had in fact sought a declaration with respect to their ownership and possession regarding the Property in equal shares which was proved among other things through the fact of private partition as well. It was merely used as a piece of evidence. Therefore, the argument of learned counsel that the private partition if not incorporated in the Revenue record is not valid as it is not a relevant argument being not an issue in hand. The issue was regarding declaration of title in equal shares in the Property and as such the recognition or incorporation of private partition in terms of description of specific shares in the Property in Revenue record was not subject matter of the suit.

9.The overall claim of the Respondents is that since inception, the three brothers and their families are owners-in-possession of the Property in equal shares and in order to prove the same, one of the relevant fact was that of private partition. In fact, Abdul Majeed, DW-1 had candidly admitted in cross-examination that his father, Bhag Din had effected private partition between the brothers. Further, the Petitioners could not establish that the three brothers were allotted independent properties based on independent settlement claims. The Judgments referred by the learned counsel for the Petitioners are clearly distinguishable from the facts and circumstances of this case and are of no help to the Petitioners.

10.In view of the above discussion, there is no merit in the instant Civil Revision and the same is dismissed.

(Abid Hussain Chattha) Judge *Ahsan Shah*