Syed Azhar Hussain vs MBR etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

JUDGMENT

WP No.480-A/2014 Date of hearing...07.04.2015

Syed Azhar Hussin Shah Vs Member Board of Revenue KPK, etc.

Petitioner(s) by M/S Haji Ghulam Basit, Yasir Zahoor Abbasi Advocates. Respondent(s) by Mr.Abdur Rauf Khan Jadoon Advocate. M/S Fida Muhammad Khan, Sultan Ahmad Jamshed, Malik Masoodur Rehman Amicus Curiae ABDUL LATIF KHAN, J:- Through instant petition, the petitioner seeks Constitutional jurisdiction of this Court, praying that:-

“By acceptance of instant writ petition, the judgments/orders of respondents No.1 & 2 may be declared illegal, void in violation of law, in excess of jurisdiction & as such ineffective upon the rights petitioner. Petitioner may further be granted any other appropriate relief, which the Court deems fit.”

Arguments heard and record perused.

2.A perusal of record reveals that

respondent No.4 Syed Sikandar Shah moved an

application to DOR, Abbottabad for cancellation of mutation attested in Khasra No.6 Shamilat Deh measuring 113 kanals , 2 Marlas situated in Moza Batang, Tehsil & District Abbottabad, consequent upon decision of the civil Court dated 23.12.2009, reports were obtained by the DOR that the applicant can seek remedy by filing partition application in the revenue Court to get his share separated. A review petition was also filed. The learned Additional Commissioner Hazara Division, Abbottabad by dint of order dated 24.12.2011 directed revenue authorities that no further transaction shall be made in the suit property till proper partition in due course of law. It is further directed that if respondents Syed Asghar Hussain Shah & others have sold more than due share then the same adjusted and those mutations which are yet to be attested may be considered only to the share of executant, so that the land owner in the shamilat land may not be deprived of their valuable rights. The order of Additional Commissioner was questioned before Board of Revenue, KPK , Peshawar who vide impugned order dated

3.2.2014 observed that the transaction in suit land in Shamilat are in violation of the notification issued by the Board of Revenue, KPK as being more than actual share in Shamilat and also observed that lifting of ban will also be against decision of Civil Court dated 23.12.2009 and as such the revision filed by the person stands dismissed.

3.The petitioner based their claim on the ground that that transfer of Hissadari has not been banned by any law or decision and vendee would step into the shoes of vendor and in case vendor had enjoyed Hissadari could not be stopped to transfer the same to the vendee. It is also added that the notification referred is unfounded and in violative of Constitution.

4.The revenue record available on file speaks about the property in respect of Shamilat Deh bearing Khasra No.6/old Kasra No.1. Though there was confusion regarding measurement of land however that is not disputed to be 113 kanals, 2 Marlas at the present. Right from 1872 to 1948- 49, the entry of ‘Maqbooza Malikan’ has been incorporated in ‘Khana Kaasht’ however in the year

1958-59, Wilayat Shah and others have been shown recorded in ‘Khana Kaasht’ whereas Jamabandi for the year 1965-66, entry is shown as Maqbooza Malikan. Lateronin the year 1972 gift mutation NO.271 was attested in the name of Nazir Hussain Shah & others to the extent of 300/313 shares out of 313 kanals, 2 Marlas which was wrong as the actual area was 113 kanals, 2 Marlas as they are donors. Wilayat Shah & others were entitled to transfer only to the extent of their shares and not more than that and as such the mutation No.271 could be amended accordingly however if the transfer made more than due share in Shamilat it would be subject to share in proper partition.

5.It is pertinent to mention that the owners recorded in column of cultivation as Hissadar in Shamilat Deh can only transfer property to the extent of their share and not more than that as all the owners of the revenue estate has the right in Shamilat Deh and only in the garb of possession the persons recorded as Hissadar in the column of cultivation could not deprive the original owner of Shamilat in the Shamilat land.

The entire Shamilat of the village cannot be sold by those persons beyond their due shares. The notification issued by the Board of Revenue in order to eliminate the apprehension of sale more than due share in Shamilat had the force of law and shall remain in field to curtail the illegal transfer beyond the due share by Hissadar owners under the garb of Hissadari to the exclusion of original owners of Shamilat.

6.It is by now established that vendor cannot transfer a better title than that he possesses at the time of transfer. Mere fact that mutation has been attested in favour of some of co-sharers would not extinguish title of other co-sharers.

Announced.

Dt.07.04.2015.

JUDGE

JUDGE

“A.Qayum”