Dr. Shahabuddin vs Itbar Gul

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

CR No. 1320 of 2011.

Date of hearing...16.02.2015

Dr. Shahabud Din etc Vs Itbar Gul etc.

Petitioner(s) by...Mr. Ibad-ur-Rehman, Advocate........................

Respondent(s) by...Haji Muhammad Riaz, Advocate...................

ABDUL LATIF KHAN, J:- Through this single judgment, I intend to dispose of instant revision petition as well as connected CR No.1321/2011 titled “Dr.Shahabud Din etc Vs Phulail Khan etc” as in both the petitions common question of fact and law are involved and has been preferred against the judgment/decree dated 20.06.2011, passed by learned Additional District Judge, Nowshera whereby appeal filed by petitioners against judgment & decree dated 22.05.2010 passed by learned trial Court was dismissed.

Arguments heard record perused.

2.A perusal of record reveals that

respondents filed a suit claiming their entitlement in

the suit property being legal heirs of Mir Baz s/o Kata Baz and declaration was sought that mutation No.236 attested on 31.1.1943 Ex.PW.1/18 was with regard to only a portion of the property to the extent of 4 Kanals whereas the entire land has been shown in the name of Isa Khan which is illegal and ineffective upon their rights and subsequent mutations in this regard affecting the rights of plaintiffs are also liable to be annulled.

3.The petitioner also filed a suit regarding suit property alongwith others claiming that Mir Baz s/o Kata Baz predecessor of the plaintiff has rightly disposed of the entire share by dint of mutation No.236 in disputed Khasra number having left with no share in the suit property. The suit of petitioner was dismissed by the trial Court however the suit filed by respondents/plaintiffs was decreed. The appeal filed by petitioner also met the same fate.

4.The vital issue in the instant case is as to whether by dint of mutation No.236 Mir Baz has disposed of 1/10th share measuring 4 Kanals in favour of Isa Khan and had wrongly entered the entire share of Mir Baz with collusion having no

binding effect upon the rights of the plaintiff and in turn the entries are liable to be corrected. The petitioner claims that entire share of Mir Baz was transferred in their favour through mutation, the burden squarely lies upon the petitioners being beneficiary of the documents that the entire share of Mir Baz was transferred by dint of mutation who have failed to prove the same through confidence inspiring evidence. The petitioner has not discharged the burden and kept on arguing that Mir Baz had transferred his entire share who was recorded owner of the property to the extent of half share equivalent to 20 Kanals, 1 Marla since 1928-29, copy of Jamabandi available on file is Ex.PW.1/1 and was intact upto 1946-47. In the year 1950-51, his name was deleted by dint of disputed mutation No.236, the perusal of which shows that it was attested only to the extent of 1/10th share on behalf of Mir Baz in favour of Isa Khan who in turn sold it to the petitioner. The petitioners have admitted in the evidence that only 4 Kanals of land in disputed Khasra was purchased by them and rest of the property was purchased in other Khasra number. It

is also admitted by the petitioner that property measuring 4 Kanals out of Khasra No.446 was purchased and the remaining disputed Khasra remained in possession of Katabaz as owner which was lateron devolved upon his legal heirs. DW.2 had also no knowledge of the sale in respect of the shares of the property. Mutation No.329 dated 3.3.1949 was attested in favour of petitioner on the basis of mutation No.236. It is by now established that the vendee cannot transfer better title to his purchaser as Isa Khan was owner to the extent of 4 Kanals therefore property more than 4 Kanals cannot be mutated by way of mutation No.329.

5.It is submitted that statement of Patwari Halqa (PW.1) was recorded in absence of petitioner’s counsel and cross examination was reserved however perusal of the order sheet reveals that both the parties consented to record remaining evidence through commission and thereafter did not raise the plea that the statements of Patwari Halqa remained un-crossed. The petitioner has not made any serious effort to this effect nor has even tried to produce Patwari Halqa in the connected case which

though was not consolidated however clubbed and tried simultaneously and judgment was also delivered on 22.5.2010 by learned trial Court on same date. The petitioner has not raised this objection nor produced Patwari in his own case at the relevant time and now at this juncture before revisional Court took the plea which cannot be allowed for the first time. It is also submitted that certain mutations were also annulled in respect of property having different Khasra number and is not included in the suit of the plaintiff/respondent which is only in respect of Khasra No.446. The learned counsel for respondents vehemently opposed the contention being misconceived and candidly submitted that his case is only to the extent of Khasra No.446 and has got no nexus with other Khasra number mentioned in mutation No.236.

Moreover Khasra No.464 is find mentioned in the mutation however the perusal of entire record speaks that it is Khasra No.464 regarding which the suit has been filed and to the extent of Khasra No.446 revenue record, pleadings of the parties as well as the evidence of the parties are silent so it

seems to be a clerical mistake which is not fatal to the case.

6.Admittedly respondents are in

possession of the property and the instant matter hinges upon the correction of revenue record only.

The petitioner could not rebut the possession over the property of respondents/plaintiffs nor justified their claim of acquiring the entire property by dint of mutation No.236 & 329 and as such wrong committed if perpetuates and incorporated in the subsequent Jamabandi would give rise to cause of action in favour of respondents/plaintiffs to claim the annulment and correction of entries wrongly made in the name of petitioner by misinterpreting mutation No.236.

7.It is submitted that the trial Court ought to have consolidated both the suits and evidence of one case cannot be considered in other case and should be recorded separately. The preposition advanced, though having legal status, has no nexus with the instant case for the reason that evidence was recorded through commission with consent of the parties and no objection to this effect was raised

at the relevant stage and instead for the first time this plea has taken before revisional Court which is not permissible under the law.

8.The Courts below have decided the lis pending before them with conscious and application of independent mind which is not open to any exception.

For the aforesaid reasons, the instant petition alongwith connected CR No.1321/2011 being devoid of merit are dismissed.

Announced.

JUDGE

“A.Qayum”