Dilawar Khan vs Sanaullah etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

C.R. No. 21-B of 2010 Dilawar Khan Vs Zangi Sardar etc

JUDGMENT

Date of hearing 21.04.2015 .

Appellant-Petitioner: Dilawar Khan By Haji Zafar Iqbal, Advocate.

Respondent: Sana Ullah & Others by

Irfan Ullah, Advocate.

MUHAMMAD YOUNIS THAHEEM, J.--- The

defendant Dilawar Khan ( herein called as petitioner) through the instant revision petition called in question the judgment and decree dated 18.12.2009 of the learned District Judge, Lakki Marwat, whereby appeal of the petitioner has been dismissed by upholding the impugned judgment and decree dated 22.9.2008 passed by the learned Civil Judge-II, Lakki Marwat in

civil suit No.117/1 vide which suit of the respondents was decreed in their favour.

2.Briefly stated the facts as disclosed through the plaint are that Plaintiff Umer Khan now represented through his legal heirs (herein after called as respondents) have instituted a suit against the defendant Dilawar Khan and others (herein called as petitioner) seeking declaration to the effect the suit land is “Shamelat Deh” and is in possession of the plaintiff for a long time as co-sharer , in it; that Zangi

Khan defendant No.1, now represented trough his legal heirs ( herein after called as respondents) is neither co-sharer in it nor has possession of the impugned “khasra jat” but he had entered and attested “tamleek”/gift mutation No.1105 on 29.6.2000 in favour of defendants No.2 to 13 in collusion with revenue authorities without the consent of owners of “Shamelat” as per list of proprietary body and against law; that now while taking

advantage of the said wrong mutation, defendants are bent upon making interference in the land of plaintiffs being cultivated by them and also cutting of trees of various description; that the said “Tamleek” mutation No. 1105 by defendant No.1 in favour of defendants No.2 to 13 is ineffective upon the rights of possession and ownership of plaintiff and is liable to cancellation.

3.When summoned the respondents, they contested the suit by submitting Ç written statement and

from divergent pleadings of the parties, the learned trial court framed following issues:-

1.Whether plaintiff has got a cause of action?

2.Whether plaintiff is stopped to sue?

3.Whether the suit of the plaintiff is not maintainable in its present form?

4.Whether suit of the plaintiff is bad for mis-joinder and non-joinder of necessary party?

5.Whether the suit is liable to be rejected under order 7 rule 11 CPC?

6.Whether the suit of the plaintiff is frivolous and defendants are entitled to special costs under section 35 of CPC?

7.Whether plaintiff is co sharer and in possession of the property in dispute?

8.Whether the gift deed executed by the defendant No.1 in favour of defendants No.2 to 13 is illegal and liable to be set aside?

9.Whether the plaintiff is entitled to the decree as prayed for?

10.Relief? Ç

4.The parties were given opportunity to produce their respective evidence, which they wished to adduce. After hearing arguments of learned counsel for the parties, the learned trial court decreed the suit in favour of respondents/plaintiff, vide impugned judgment and decree dated 22.9.2008.

5.Being aggrieved, petitioner/defendant preferred an appeal against the said judgment and decree before the learned District Judge,Lakki Marwat

but met the same fate, vide impugned judgment and decree dated 18.12.2009. Hence, the instant revision petition.

6.The learned counsel for petitioner advanced the following arguments:-

The learned counsel for petitioner

contended that suit of Respondent /plaintiff was in- competent due to non-joinder of co-owners of “Shamelat” land and is not representative suit in view of Order 1 Rule 8 of CPC which is mandatory; he further argued that the petitioner is coming in possession of suit land since long from fore fathers and supported his pleadings as well as mutation No.1105; he relied upon cases titled as “Muhammad Rafiq Vs Zafar Iqbal & others” (2010 CLC 918) Lahore and “Sahib Gul & otherVs Marwarang & others” ( 2010 CLC 658) .

7.Learned counsel for the Respondents advanced following arguments:-

The learned counsel for Respondents

argued that in case of trespass in the joint property any one among the joint owners can bring suit for ejectment against stranger to “Shamelat deh”; that the “Shamelat deh” are owned by (7) Aqwam i.e (1) Fateh Khan Khel, (2) Ghani Khan Khel, (3) Badosh Khel, (4) Alam Khel,(5) Shahbaz Khel,(6) Bazi Khel and (7) Aghfar Khel whileÇ petitioner’s predecessor belong to Sheikh caste of Mauza Takhti Khel and do not belong to any member khel of proprietary body.

So, the suit gift mutation No.1105 is against law and had correctly adjudicated by both the courts below and supported the judgments of forum below and relied on cases titled as “ Major Muhammad Ayub Khan & others ...Vs...Cap. Jamroaz Khan and others” (1977 SCMR 371), “Rasab Khan and others Vs Abdul ghani and others” ( PLD 1985 SC ( AJ &

K) 69 and “Ghulam Rasul and others Vs Sad Ahmed and others” ( 2012 CLC 1655).

8.The valuable arguments of both the learned counsel for the parties heard and record perused.

9.Perusal of record reveals that the suit property is admittedly “Shamelat Deh” comprised on Khasra No.2061, 2065 and 2182, recorded as the ownership of seven (7) “Aqwam”, i.e Fateh Khan

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Khel, Ali Khan Khel, Badosh Khel, Alam Khel, Shahbaz Khel, Bazi Khel and Aghfar Khel, whereas vide mutation No.1105 attested on 29.6.2000, some portion of same Shamelat land has been transferred by defendant No.1 namely Zangi Sardar (now dead) to other defendants No.2 to 13 in column of cultivation.

Now the question before this court is as to whether said Zangi Sardar (defendant No.1) was the owner in the “shamelat”, and belonged to seven said “Aqwam” of Mauza Takhti Khel/Gorzai, Tehsil and district

Lakki Marwat mentioned above and have rightly, validly and legally transferred the portion of suit land “shamelat” in favour of defendants No.2 to 13.

10.Sher Azzad, attorney for defendants examined as DW-1, whereas Jan Sardar one of the defendant examined as DW-2. Both of them in cross examination have admitted that the petitioners /defendants are “Sheikh” by caste. As per Jamabandi of the village Sheikh tribe is not owner in the suit “Shamelat”, hence ownership Ç rights of Zangi Sardar

(defendant No.1) in the suit “Shamelat” does not arise. Further nothing available on record which could suggests that said Zangi Sardar (defendant No.1) had purchased any ownership rights in the suit Shamelat”.

No doubt Patwari Halqa when examined as PW-1, has stated in his statement that vide mutation No.1689 attested on 16.7.2005 ExPW1/D-3 inheritance mutation of Samand was attested in favour of Zangi Sardar in column of cultivation and through said

mutation No.1689 of the even date. Zangi Sardar has mutated the suit “Shamelat land in favour of petitioner, vide impugned Gift Mutation No.1105 but the record is silent about the fact that how, when and by which mutation, the father of Zangi Sardar namely Samand Khan had become owner in the suit “Shamelat” and in absence of any other corroborative evidence, Samand Khan has no right to alienate the property in favour of Zangi Sardar and Zangi Sardar to defendants No.2 to 13.

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11.Above all, “Wajibul Arz” Ex PW 2/1 produced by ADK carries high degree of presumption of correctness which governs and regulates matter relating to proprietary body of village “Shamelat” and also does not permit alienation of specific portion in the “Shamelat” in column of cultivation. If it is presumed that Zangi Sardar has possessory rights in the some portion of “Shamelat” even then he has no right to alienate the same or got attested the impugned

mutation of that specific portion of “Shamelat” without concurrence of all the owners of “Shamelat”.

12.The petitioner’s counsel argued that suit of respondents was liable to be dismissed being in violation of provisions of Order 1 Rule 8 of CPC is not convincing and cannot take refuge to protect his alleged Act. In this regard, reliance is placed on case titled Major Muhammad Ayub Khan & others ...Vs...Cap. Jamroaz Khan and others” (1977 SCMR 371). Relevant portion Ç is reproduced below:-

“There is no doubt that the oral

evidence shows that there are only four kanals of the cultivable land out of the whole suit land. Because of the fact, the arguments developed by the learned

counsel for the appellant that the

respondents are not in actual physical possession of rest of the suit land. Our view, is that even if it were so (though the revenue authorities have shown in the plaintiffs in possession of the whole suit land) this fact per se, does not affect the

nature of the suit because it is neither the case of the appellant nor there is any evidence on record to show that vendor Major Mohammad Ayub Khan, is a

proprietor in this village. Since his possession is that of total stranger, the plaintiffs being amongst the proprietary body will be deemed to be in constructive possession of every inch of the land, a fortiori, against a stranger. In view of this fact, we find title force in this alternate plea as well, and hold that the plaint as framed does not suffer from the defect pointed out by the learned counsel for the appellant”

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Similar circumstances are about filing of suit only by one of owner of “shamelat” i.e plaintiff and about legal position if compliance of Order 1 Rule 8 of CPC is not made by plaintiff/respondent, the relevant portion is reproduced below:-

“6. So far as the application of

Order 1 rule 8 C.P.C is concerned, a cursory glance over the plaint shows that the plaintiffs have challenged the impugned sale in their

individual capacity and not in a

representative capacity so as to attract the application of Order 1, rule 8 C.P.C. Order 1 rule 8 CPC, it may be stated, is an enabling provision and does not necessarily require a person or persons to bring a suit under this rule if such a person or persons undertake to sue in their invididual capacity and not in a representative capacity. In our view any proprietor; who has a right to share in Shamelat Deh, can bring

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a suit of the present nature in respect of an injury to his right even through such a sale is injurious to the other proprietary body as well.

We find full support for this view from Mulla’s Code of Civil Procedure (13th Edition), page 953 and 954, where the learned author has reproduced the decision given in L.Ramashiah Vs M.Ramayya(1),

“Order 1, rule 8, Civil Procedure Code, is an enabling provision and does not compel anyone to represent many, if, by himself, he has a right of suit. This rule does not vest a right of suit in a person and if he, by himself, has no right to sue, he cannot proceed to sue on behalf of other by invoking the aid of Order 1, rule 8, Civil Procedure Code. At the

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same time, Order 1, rule 8, Civil Procedure Code, does not debar a member of the village community from maintaining a suit in his own right in respect of a wrong done to him though the act complained of may also be injurious to some other villagers.”

(b)It is significant to note that it is not even claimed, much has proved, that the vendee has any proprietary right in the village. In view of this, it will be reasonable to presume that the vendee is a total stranger to the village community. Therefore when a co-sharer sell, a common village property beyond his share to a stranger, any co-sharer” having interest in the common property, can bring a suit on behalf of all,

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even without the aid of Order 1, rule 8 C.P.C , provided he does not set up any adverse claim or title of his own against the other co-sharers affected by the sale-deed. In the present case, tla” plaintiffs have not set up any adverse title against the other co- sharers and all that they have prayed for, is a declaration to the effect than the impugned sale-deed is invalid and ineffective except to

the extent of the share of the

vendor”

13.In view of the evidence available on record both the courts below have rightly non-suited the petitioner. There have been no misreading or non reading of evidence and no jurisdictional defect nor any illegality or material irregularity has been pointed out. Thus this court does not find any reason to interfere with the concurrent finding of facts, recorded by both the courts below. Thus the instant petition

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being without any substance is hereby dismissed. No order as to costs.

Announced

JUDGE