Muhammad Zaman Vs Daraz Khan etc

ft'[)G\IEN]' SHEET

iN i'IIE I'ESU:\\\'Afl Ifl(;Fl COURT, BANNU BENCh (./t,dicial DL'/?CIF't/nenl)

Civil Rc'vi.ciw, peritiot, Xo.255-I3 of2Oi/ i!:z/u:,w,uul Zwnw: etc. Vs Daraz K/ian etc

.1 VDGM ENT

l)atc of ltcirint 06 01 20 (

Pciiiiner( S ) ';\ppcllitnt(s

RC.J)Oi1(lCni(S)

l'1tl1 IAJvlr%1.AI) VOI.iNIS T}IAIIEE'sl.J,.. Throuc.h the tistani revi slim pet it ion, petit loners plui nh Its have challencd the validity and propriety of the impugned judwmiit and decree dated 07.01 .2011. tendered by learned I )istr jet .tudie. KdraL. whereby the appeal IBed by petitioners pl:iinti 1k aiains( the judgment and decree dated 17.12.2009. rendered bv learned Civil ludtw-lll. Karak was dismissed by upholding the impugned judgment and decree of the learned trial eon rt

2.In essence, a declaratory Suit was instituted by plaint il Is (herein-alter called as petitioners) being becoming

H

owners vRk mulzuion Nos. 1132. 1133, 1144, 1141, 1148.1144) & 1169 against defindants. (herein after called as respondents) lr possession through redemption of landed property measurinQ 30 Kanat & lU MarIa (40 Kanal 10 Maria a 11cr correct ion) out of total mortgage landed property mew-mrimz 91 Kanat and 9 Mann in Khata No.189/193, Khasra No.241. 236. 237. 238. 228. 229 and 230, situated in villaec Ahmed \Vala [chsil and district Karak: that they have also prayed for a decree of declaration to the effect that the entries in the revenue record. showint respondents No.1 to 16 as mortgagees Awnl' are incorrect and inellective upon their rihis as vell as on the rights of respondents No.37 to 43 and the (respondeitts'deIndants) are not entitled to transfer the suit property to respondent No.17, hence mutation No.1 17S entered on 17/02/2005 is incorrect.

collusive and is liable to cancellation; that they had also \ prayed for permanent injunction and a decree of evicuon of respondent No. 17 from the house owned and possessed by them.

r. ..

The suit was contested by respol)(1cnts-deI,(htnts hcrc'hv numerous foctual and legal objections were raised over the niaintajnabjljtv of the suit being non-joinder of necessary party. particularly to law of limitation. Learned trial Court. framed the issues out of divergent pleadings of parties. 'l'hcrelbre parties were permitted to lead their respective evidence. At the conclusion of trial, the learned trial Court alier hearing boll) the parties, dismissed the suit vide its impuncd judgment 1 711 2 '2009.

Being augrieved from the impugned iudgment and dcrce ol the learned trial Court. petilioners/plainti Ii's preferred an appeal before the Court ol' learned District Judge. Karak and afler hearing arguments of Learned counsel for parties. said appeal was also dismissed with cost of Rs.5)UO!- ide judment and decrLe dated 07/01/2011.

I knee. the instant Revision petition.

learned counsel for petitioners contended that the impugned judgments and decrees of boll) the learned courts below are against law and focts on record, hence are not maintainable;

that both the tmpuncd judgments and decrees of' the learned I 'l

courts below are the result of non-reading and misreading of evidence available on lite: that the learned Appellate court. while isnussine the appe:il. has fnled to appreciate the law on the subject and decided the appeal in it very cursory manner without considerint the evidence: that the petitioners have success 1u11y proved by producin documcntai' as 'xci! as oral evidence that they are not only niortcacees of the suit land but are also the owners to the extent of their purchased shares measuring total 40 Kinat 10 Marlas tluotih sale mutations as discussed above but this aspect of the case was not considered iii the light of evidence on record by the learned lower appellate Court relying on the mere oral assertion of Patvari 1-laiqa which is contrary to record and thus jodttments and decrees of the learned Courts below being based ott niisreadinc and non-teading of evidence & mion- appreciation o I law arc liable to he set aside and suit of the llaint fR as prayed for may kindly be decreed.

C'. On the other band, the learned counsel for respondents supported the impugned judgments and decrees of both the learned courts below: that the impugned j udgmentsancl decrees of the learned courts below have been rendered alter

'V..

proper appreciation of Ia' and evidejice wh cli could not he iItterlcrC(i with by this Court so submitted for the dismissal ol ulistailt revision pet (ion.

7.I have heard learned counscl for parties and with their \aluable asustance have gone through the record.

The present petitioners became land o'vners stcppcuig iuito the Shoes of the morteacors vidc mutations No.1 I 32. 1133, 1144. II 4$. 1149. and 1169 hoin IRs of original mortgtigors Relimat Shah etc and the Iceal heirs of them. It is pertinent to mclii ion that the present petitioners are the L.Rs of La! Marjan, t ho -as oiieinallv tenant under the predecessoc of present respondents uliorteagees. It is l'urtlicr uieeessarv to mention that present n1orteaees 'respondents had purchased the mortgagee ritlits. vide mutation No.2067, 2068. 2069 and 2070. The present iiiortuece had Further racts lrretl morteace rights vide inutation No.1178 attested on 17.02.2005 in Iuivour of defendant No.17 and a house has been built on this property by respondent No. 17.

Patvari haiqa appeaced as P\V- I, who produced relevant revenue record regzirdine Fard Janiabandi, mutations and Klt:isra Gird iri. The mortgage. as per rcventte record is

H (

tIsutnIctuac in nature :iutd the rcs icIcnts are their predecessor conlintlously receivjne Listlinict ol the Same land, SO every receipt ol the tisufruet is to he treated as pavntcnt towards ntortgac amotilu br the pOq)ose o iii ml tat ion and every receipt of usu Iici is considered towards acknowledgment of it. In this regard the J pro\ isbn cont ained in section 20 of the Limitation Act is attracted. \vhjclt is reproduced as:

Oil UCCOUflf of debt or of interest on iegact. -

(1)/J'herc put,ne,it 0/i (weouni of ii debt in nj ii:(eres' on a legwr is made before the

expiratiw, of the prescribed period hi' the

person liable to pay the debt or legacy, or hi' his duly atitlzorjsed (!ent, a fresh period of /mntiuwn s/ia/i he coinpiiledfronz the time t'/icn the p(ii/neiif was izl(u/c:J

fProtidcd that an acknou'leth,,ne,it of the /)ay!nei:( (ipjiears in f/ic lzand,i'rithi' of, or in ii irritinL' Six,'/:e(/ 1y, f/Fe person lila king the J)(i• }'inelit/

Ejji'ct of receipt of proiluct' of nortgagcd laud.-- (2)V/iere ,,,ort'aed land is in the possessiouz of the uzzoriqaqee, the receipt oft/ic rent or produce ()f.Vltc/1 1(111(1 vh till be deenied to be a panic,:! for the purpo.re of subsectjo,, (1).

C

I 0.

Moreover, this aspect has suffleientiv been explained in the itiduinent of this Court in ease titled, /Thid:,lla/z .Jw: and 3 others i's !-lizii'as K/ui,: and 1/ others" (PLO 2002, Peshaii'r,,' 2IJ Lw folIovine the iudment of I lob'ble Supreme Court ciclgvered in case tt(lcd "Abthd Ijqqj's All Akhar and øiher.v" LL999 .ccMR 253/). but this aspect has been ignored by both the Cniris below and JIM e non-suited the subsequent n1orteatrs'plaintii1s univ on the pretext that iii the above suit mutations univ simple alienation has been made and words" under nlorivaec" had not been ' ritten which is quite erroneous view of the l:iets iiIt(l liiv,

II. In ' icw of section 42 0' the West Pakistan Land Revenue .'\ct. any land owner vhoc name has been entered in the rc ernie record ol' riehts he can ' itlidlv transfer his ownership rii.his by entering mtitat ion and thereafter attestation of ii and after 1ttC5titjt 01' mutation the person in whose fttvour mutation is attested steps into the shows of previous owner, as his 11a11cs was - previously appearing in the column of ownership and non- mCnIionint ol' vords''uuder morteatc" does not disentitle the owners to tile the suit for redemption. This legal aspect escaped

r.

- from the judicial notice olboth the Courts below, so in (lie light of' above discussion. it is held thu sale mutations in favour of plain ii fl's arc couched With as under mortgage".

12.It is in evidence that defendant No.17 had purchased moligee rights vide mutmion No.1! 78 entered on 17.02.2005 in lieu ni Rs. .t.O(t.tiOO-- (iiiir iitc) ,iid thcre:ujlej cujislu-ticted hutise n sonic portion ot'ihat mortgage land in his possession measuring 9 Kanal 7 MarIa and incurred Rs. 58.200/- as per receipts kXl)W32 consists ol live sheets much before plaintiffs became owners in the extent ol' 40 Kanal 10 MarIa out of total mortgage land measurint 01 Kanal 9 MarIa so the plaintilfs/pctitioners could 1101 claim CViCtiOfl against respondent No.! 7 as lie had pit ref ii5c'(l mon gilgec ni ehts out o I total area under mortgage measuring 9 11 Kanal 9 \ tarlim. ftc other Iceal heirs of original I owners 'iii rt iors had not filed an' suit for redemption to the extetit of their ownership so the possession under respondent No.1 7 could not be disturbed as he has in his possession 9 Kanal 7

\J.

MarIa as having mortgagee rights tlfl(ler remaining morigagors %\h() had nut suld out their ownership rights. Moreover, the plaimilis have narrated in tue plaint 30 Kanal tO Maria as their

P

a

o tiership while according to revenue record their ownership is 40 Kanal 10 MarIa so the areun)cnt of Icarned counsel or respondents that this amounts partial redemption which is not permissible under la antI on this score suit is liable to dismissal.

In lesponse toiisar'.umcnt. the learned counsel for petitioners submitted tIiit iii the plaint tnadvertetttiv area was written its 30 Kmn:it itt Maria ot:Iwilly accordinci to the sale mutations the t pI:tititiftspetititmners had l)UrCliimC(l 40 Kanal 10 MarIa and subniiued be Ore the Court that, this Court has ample powers to coirect the above clicussid inadvertence, hence the arguments of learned counsel (Or respotidenis seems not reasonable and only Oil this pt mt ease em in it ot be re ma tided hack or the correct ion of' i1

inadvertence so the submission of learned counsel for petitioners seenis tc rmm IIC and in the plaint and onward in the judicial Ii Ic hcre it appears 30 Kanal 10 MarIa that is coected and instead 40 Kanal 10 MarIa is inserted. So olhcc is directed to insert the saute in the plaint ith red iik.

13.it is seticd law that I lih Court itt exercise of its power cnvisaeetl under section 1 1 5 CPC does not interfere in the concurrent liculines of , litct recorded by the first two courts of ('mmci u rrh)' ifigh ut, tt*IAUU Kei"ti

p

but where there is misread ma and non-readina of evidence on the record which is conspicuous. or where there is an error in the exercise of jurisdiction by the Courts below or where the Courts hail acted in the exercise oh I*is jtitsdiction illegally ni with material irreaularitv. the revisional court shall interfere and could upset the concurrent tindinus. Re1 "A'uiw-ud-I)in and others Vs S/ic/hi, Zia-ul- Quniar au,! others (21)1 6 SCIR 24), n'/zereiIa it is lie/u! u:.c:

"Owing tO the aforelncn(iolze(I Ol?ISS1OflS and con:,n,.c.c,ons of the co,,rt.r he/oii' in reathiuig the et'idc,ice on the record and proper i'.vercise of jurisdiction b' the Ietirflc(I rcri.siuiz Court, the latter has up/h iniezj'ered with the too concurrent eerdicts.

13.For the at'orc discussed reasons, the instant revision petition is allowed and judeiiciiis and decrees ol' two Courts hCIO'V arc set de except aeainst respondent No. 17 and agaipst this respondeitt No. 17 suit is dismisse(l. Resultantly suit of petitiotters 'plainti il's is decreed in above terms. \Vith no order as to eOts.

Anhiottncc(1.

,JU1)GE

-, CEFTIFIED 'IC) F TRtJF. COPY

(A

Author , ZA