Shahab Ud Din Vs Provincial Government

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

C.R No.920-P/2024 with CM 1680/2024 Shahab-ud-Din & others Vs.

Provincial Government through Secretary Education & others

Date of hearing: 13.04.2026

Mr. Muhammad Yasir Khattak, Advocate for the petitioners.

Mr. Irshad Ahmad Khan, AAG, for the official respondents.

JUDGMENT

KAMRAN HAYAT MIANKHEL, J.- Through this civil revision filed under section 115 of Civil Procedure Code, the petitioners have challenged the judgments and orders of the two Courts below, whereby suit of the petitioners was dismissed under Order VII Rule 11 CPC vide order dated 01.02.2021 and appeal of the petitioners also met the same fate vide order dated 22.08.2024.

2.Brief and succinct facts of the case are that petitioners along with others got the landed property through succession. The petitioners filed a declaratory cum permanent mandatory injunction suit along with relief for possession through partition against the Provincial Government and others to the effect that

petitioners / plaintiffs (petitioners) alongwith respondents / defendants (respondents) are co-owners in suit khasra No.431/1 and 1699 measuring 88-kanal 17-marla in mouza Billitang Kohat. The petitioners have further averred in their plaint that khasra No.434 12-kanal 19- marla has already been transferred by them to the Education Department for playground and similarly, in khasra No.1699 out of 77-k and 14-marla, 7-kanal and 14- marla have been mutated through mutation No.2218 in favour of respondent No.1 (Provincial Government). The respondents No.1 to 3 in league with revenue officials attested a mutation in the column of cultivation and also tatimmajaat Nos 1/1699, 2/1699, 2522/1699, 2523/1699 and 2514/1699 were chalked out without any formal partition, thus having no legal status. The petitioners further averred in their plaint that the mutation in the column of cultivation does not create or transfer rights specifically when the same was attested without the consent of other owners.

The petitioners further averred in their plaint that due to chalking out of impugned tatimmajaat has resulted in having no access to their other adjacent lands and;

therefore, the Revenue Record is liable to be corrected.

3.The respondents were summoned and only

respondents No.1 & 2 contested the suit by submitting their written statement denying all the allegations so set-

out by petitioners in their suit. The respondents No.1 & 2 also filed an application under Order VII Rule 11 CPC, which was accepted vide order dated 01.02.2021 and the petitioners feeling aggrieved challenged the same by way of filing an appeal, which was dismissed vide order dated 22.08.2024, hence this Civil Revision.

4.The learned counsel for the petitioners argued that the petitioners are co-owners in khasra No.431/1 and 434 and Mst. Shafeela Begum has transferred his land measuring 7-kanal 14-marla in column of cultivation vide mutation No.2218 attested on 16.04.1989 in khasra No.1699 and due to incorrect attestation of mutation, the name of Mst. Shafeela Begum is still reflected in revenue record as owner. He further contended that while attesting mutation No.2218 tatimmajaat Nos.1/1699, 2/1699, 2522/1699, 2523/1699 and 2514/1699 were chalked out, which are illegal and against the law of partition; and this important aspect of the case has not been considered by the two Courts below while rejecting the plaint of petitioners. He further contended that both the Courts below have non-suited the petitioners on the ground that petitioners have got no cause of action and the previous suit bearing No.219/1 decided on 15.07.2008 was of different nature and on different cause of action as well as parties of the suit were not the same. He further argued

that civil suit No.481/1 decided on 20.10.2010 of Mst.

Shafeela Begum was also on different cause of action and parties were also not the same. Whereas on the other hand, the learned AAG stated that the learned Trial Court as well as appellate Court has rightly rejected the plaint at its inception for the reason that the suit of the petitioners was about the chalking of tatimmajaat in mutation No.2218 and 2219 attested on 16.04.1989. He further argued that these mutations were challenged by the predecessor of the same petitioners in a suit titled Molvi Ghulam Yahya vs. Provincial Government as well as by Mst. Shafeela Begum through another suit against the Education Department and both the suits have been dismissed and appeals against the said judgment also met the same fate. He further argued that the petitioners have not disclosed these facts in their suit.

5.Arguments heard and record perused.

6.From perusal of the case record it is crystal clear that petitioners have sought declaration that they are co- owners in khasra No.1699 and also admitted in their plaint that the adjacent khasra No.434 is transferred to Education Department through mutation No.2219 attested on 16.04.1989 for the purpose of playground. Further perusal of the record reveals that another mutation No.2218 was attested in favour of Education Department by Mst.

Shafeela Begum in khasra No.1699 to the extent of 7- kanal and 14-marla and in which different tatimmajaat were carved out. The petitioners have challenged the chalking out of these tatimmajaat has these have been carried out without consent of the co-owners and are liable to be cancelled. The main claim of the petitioners is that due to chalking out of these tatimmajaat in khasra No.1699 and mutation No.2218, the right of access to the adjacent lands has been badly affected.

7.Perusal of the revenue record reveals that most of the land of the petitioners is banjar qadeem and ghair mumkin mountain. The land involved in khasra No.1699 was admittedly a joint ownership, but due to mutation No.2218 dated 16.04.1989, tatimmajaat were carved out, thus partitioning the land without any formal order of partition. No doubt, Mst. Shafeela Begum being owner was competent to transfer her land but no share could have been separated or tatimmajaat could have been carved out, out of the common property without any express permission of the other co-owners as all the co- owners have an interest in the whole of the common property. Reliance in this regard is placed on “Abdul Latif v. Abdul Qayum” [PLD 1992 Peshawar 103] wherein it was held that;

“3. The land involved in Khasra No.786 was admittedly joint ownership of petitioner

Abdul Latif and Mst. Narmoon etc. The ladies could sell their share out of the joint property but no share could be separated or a "Tatima" carved out of the common property in the absence of any express permission of the petitioner who is a co-sharer in the whole of the property and interested in every inch of the joint land. The position would have been otherwise if Mst. Narmoon and her daughter Mst. Gulshan had been the only owners of Khasra No.786. They in that case could sell a specific portion from the joint land and B deliver possession to the transferee after separation of the portion sold by carving out a "Tatima'.

4.In the instant case the transferee from the ladies shall be clothed with the same rights which they had in the property and he would be now a co-sharer in the joint land to the extent of the share purchased by him from Mst. C Narmoon etc. no more and no less. The learned Courts below have quite ignored this aspect of the matter and failed to apply the correct law on the subject. No doubt, that the respondent has made some construction over the property on the roadside but the issue of these improvements shall be determined at the time when the property would be divided by metes and bounds at the time of partition.”

8.The carving of tatimmajaat through mutation No.2218 will not affect the rights of co-owners and the land will remain as joint property and the Education Department who is transferee from Mst. Shafeela Begum would be co-sharer in the joint property to the extent of share so transferred by her.

9.As far as the rejection of plaint is concerned, the revenue record so annexed with the plaint discloses that most of the land is banjar qadeem and not abadi deh and Section 172 of the Land Revenue Act expressly bars the

jurisdiction of the Civil Courts in matters of partition and other connected matters.

10.Both the Courts below have not considered this important aspect of the case and rejected the plaint under Order VII Rule 11 CPC, hence, the instant Civil Revision is partially allowed and the judgments / orders of the Courts below are respectively set aside and the plaint of the petitioners is returned to them under Order VII Rule 10 CPC for presentation before the proper forum.

Announced.

JUDGE

Amjad PS SB Hon’ble Mr. Justice Kamran Hayat Miankhel