PLJ 2022 Quetta (Note) 53
Specific Relief Act, 1877 (I of 1877)--
----Ss. 9, 42 & 54--Suit for declaration possession and permanent injunction was decreed--Appeal--Allowed--Purchasing of property of shamilat deh--No witness of transfer was produced by petitioner--No partition of property of shamilat deh--Non mentioning of boundaries of suit land in plaint--Modification in judgment of trial Court--Jurisdiction of revenue authorities--Petitioner neither produced any witness of transaction nor witnesses mentioned in transfer--Even the petitioner has not mentioned in plaint from whom he purchased property and how much consideration was paid--Record reflects that suit property is Shamilat Deh and ownership of village people--Without partition no person can transfer land to other--It is also now settled that no decree of ownership regarding the Shamilat Deh land on basis of any agreement by a private person or cognovits can be granted--No error was committed by Judge in High Court while ignoring this objection raised by counsel for petitioner as that would not make any difference even if case would have been remanded to District Judge--We modify judgment recorded by trial Court in favour of respondents by holding that judgment recorded by trial Court shall be inter-party and not enforceable against other share-holder in Shamlat nor shall same be binding on Revenue authorities who have jurisdiction to work out share in Shamlat according to holding of and owners in village or estate--Petition dismissed.
[Para 5 & 8] A, C, E, F & I
2014 SCMR 1537 ref.
Declaration Title--
----Agreement to sell--No declaration of title can be made on basis of agreement-to-sell nor a decree of title can be granted in respect of Shamlat-deh land unless all co-owners are given chance to contest on merit suit of plaintiff claiming rights exclusively or himself.”
[Para 8] G
Evidence beyond pleadings--
----Parties were bound by their pleading and evidence beyond pleading could not be considered. [Para 5] B
PLD 2011 SC 151 ref.
Land Revenue Act, 1967 (XVII of 1967)--
----S. 136--Restriction on partition of shamilat land--Land in Shamilat Deh is not only ownership of villagers living in that village but also ownership of coming generations following in succession--The misuse, sale and illegal occupancy will deprive future generations of their due inheritance and societal rights--Section 136 of The Land Revenue Act, 1967 clearly imposes restriction and limitation on partition of Shamilat land. [Para 8] D
Jurisdiction of Civil Court--
----Having limited jurisdiction regarding Shamilat Deh land, Civil Court Cannot grant permanent injunction against all share-holders who possess land in estate as well. [Para 8] H
Mr. Kashif Kakar, Advocate for Petitioner.
Mr. Abdul Musawir, Advocate for Respondent No. 1.
Syed Manzoor Shah, Advocate for Respondent No. 1-A.
Mr. Khalil-uz-Zaman, Additional Advocate General for Official, Respondents.
Date of hearing: 28.6.2021.
PLJ 2022 Quetta (Note) 53
Before: Abdul Hameed Baloch, J.
versus
GULAB KHAN and others--Respondents
C.R. No. 136 of 2020, decided on 2.7.2021.
Judgment
The petitioner/plaintiff assailed judgment and decree dated 22nd February, 2020 (impugned judgment and decree) passed by Additional District Judge, Harnai, whereby the appeals filed by the Respondents/Defendants Nos.1 and 1-A were allowed and the judgment and decree dated 21st January, 2020 of Civil Judge, Harnai was set aside and suit of the petitioner/plaintiff was dismissed.
2. Precise facts of the case are that the petitioner/plaintiff filed a suit for declaration, possession and permanent injunction against the respondents/defendants in the Court of Civil Judge, Harnai, with the following prayer:--
a. Declare that the plaintiff is the owner of the land Bearing No. 1, Mouza Ghound Harnai;
b. Direct the Defendant Nos. 1 and 1-A to remove all illegal and unlawful encroachments on the land bearing Khasra No. 1, Mouza Ghound Harnai;
c. That the Defendant Nos. 1 and 1-A be directed to hand over the peaceful possession of the land bearing Khasra No. 1 Mouza Ghound Harnai to plaintiff;
d. Restraining the Defendant Nos. 1 and 1-A by way of permanent injunction not to transfer, sell or alienate the property in question;
e. Declare that occupation of Defendant Nos. 1 and 1-A upon Khasra No. 1 is illegal and unlawful without any jurisdiction;
f. Any other relief which this
3. The respondents/Defendants Nos. 1 and 1-A filed separate written statements, raised legal as well as factual objections, stating therein that the suit land is Shamilat Deh of village Ghound. Each co-sharer of the property of the village has right and entitlement of proportionate share in accordance with Hasb-e-Haqiat-Aab. All the co-sharers are necessary party to be arrayed in the suit. They prayed for dismissal of the suit.
4. The trial Court out of the divergent of the parties framed issues, on which the parties produced pro and contra evidence. On conclusion the trial Court vide judgment and decree dated 21st January, 2020 decreed the suit. Being aggrieved the respondents/Defendants Nos. 1 and 1-A filed separate appeals in the Court of Additional District Judge, Harnai, which were accepted vide impugned judgment and decree dated 22nd February, 2020 and the judgment and decree dated 21st January, 2020 of Civil Judge, Harnai (trial Court) was set aside and suit of the petitioner/plaintiff was dismissed, hence this revision petition.
per Hisas-e-Haqiat-e-Aab in Shamilat Deh meaning thereby that share in Shamilat Deh according to Hisas-e-Haqiat-e-Aab. The record further reveals that the petitioner/plaintiff purchased the land in question and transfer it to his name vide Ex: P/3-D. It is clearly mentioned therein that the alleged seller Hazrat Shah and other owned 8 rods 28 poles as per referred transfer. Hazrat Shah and his brother sold out the
“In civil litigation, a party thereto has to set out its /his case in pleadings especially which relates to facts--In absence of any fact, no plea can be allowed to be raised, agitated and set forth at a later stage--Raising of such plea is beyond the scope and is impermissible as per the law.”
6. DW-4 Mumtaz Ali Patwari produced Shajra-e-Kishwar as Ex: D/4-E, Fard Taqseem-e-Aab (division of Aab) consisting of three pages as Ex: D/4-G, Ex: D/4-I and Ex: D/4-J. The referred document clearly mentioned the name of the person who possesses the land as per share Aab (آب بمقدار اراضی). The referred document further reveals that the other persons have land including defendants in the Mouza.
7. The petitioner/plaintiff contention that he purchased Shamilat Deh measuring 96 rods 4 poles. The Shamilat Deh (village common land) being joint and un-partitioned. The person recorded in property body of village would be entitled to Shamilat Deh to the extent of their respective property holding in village. Any of such person could claim possession only through partition of entire Shamilat Deh but not otherwise. In Firdos Khan v. Zain Muhammad, 2011 MLD 521, it was held:
“7. As per evidence of the Patwari Halqa, it is established on the record that there is sufficient common (Shamilat Deh) of the village which is joint and yet has not been partitioned where in the petitioners including the respondents being recorded in the proprietary body of the village are entitled to the extent of their respective proprietary holding in the village and that too after partition of the same. The petitioners through instant suit cannot claim possession of the property as they have claimed in Part-III of their plaint. While considering the area of the suit property which is 1 Kanal, 12 Marlas and so many petitioners in the shape of representative suit, it appears that the suit property has changed its character and has become a residential or commercial property which would be more valuable as certain glimpses in the cross-examination of the attorney of petitioners appear in this regard showing the location of the property. The petitioners have attempted to seek the possession of the property in this way which is against law. They can claim possession only through partition of the entire village common land. Their present suit in this regard is not maintainable.”
8. The record reflects that the suit property is Shamilat Deh and ownership of village people. Without partition no person can transfer the land to other. If any such transaction including gift without consultation of other owners of Shamilat Deh carried out by the petitioner/plaintiff the same would be violation of the condition laid down in Wajib-ul-Arz, as held in case Sher Afghan v. Muhammad Rafique, 2012 CLC 1803, which reads as under:
“4. As a matter of fact, the land in Shamilat Deh is not only the ownership of the villagers living in that village but also the ownership of the coming generations following in succession. The misuse, sale and illegal occupancy will deprive the future generations of their due inheritance and societal rights. Section 136 of The Land Revenue Act, 1967 clearly imposes restriction and limitation on the partition of Shamilat land. In the instant case, while attesting the Mutation of Shamilat Deh, all co-sharers have not been consulted, which is mandatory. It was incumbent upon the Revenue Officer to summon all interested parties and stakeholders for consultation, before attestation of such Mutation. It has been held in 1985 CLC 796 that partition sanctioned without consulting a large number of co-sharers is not justified. It has also been held in 2003 SCMR 1857 that partition of
Further held in case of Muhammad Rasheed alias Muhammad Rafiq v. Muhammad Mushtaq Khan, 2016 CLC 1485:
“5. We have heard the learned counsel for the parties and gone through the record along with the impugned judgment. The controversy involved in the matter is admittedly regarding the Shamilat Deh land and according to the documents, i.e. Misl-e-Haqiat, Exh.DA and the decree passed by the Civil Court in favour of the appellants dated 29.04.1984, Exh.DF, referred to and heavily relied upon by the learned counsel for the appellants, nothing is spelt out that the land in question was properly partitioned and the shares according to the entitlement of the inhabitants have been determined. It is well settled principle of law that the declaration cannot be claimed on the basis of possession over the Shamilat Deh land until and unless the same is partitioned and specific certificate by the Collector is granted. Moreover, it is also now settled that no decree of ownership regarding the Shamilat Deh land on the basis of any agreement by a private person or cognovits can be granted. Our this view find support from a case reported as Raja Asmatullah Khan v. Qudratullah and another (2014 SCR 1537) wherein, it has been observed that:
“13. Although the decree dated 26.7.1995 attained finality against the judgment debtor and the respondents herein but his finality is not absolute as the nature of the land, subject matter of the decree is Shamlat Deh land. The appellant, decree-holder has been proved to be land owner in the village. Thus, he is entitled to Shamlat land according to his proportionate share. This Court has already enunciated principle of law in number of cases that the decree of ownership regarding the Shamlat land on the basis of the agreement of a private person on cognovits cannot be granted. In this regard an authoritative judgment is reported as Khalid Hussain and 3 others v. Haji Muhammad Rafique and another [2008 CLC 1737] relevant portion of which reads as under:
“21. The proposition was again considered by a learned Judge of this Court who subsequently rose to the prestigious office of Chief Justice of Azad Jammu and Kashmir in PLA No. 68 of 2006 decided on 23.6.2006 and reported as Walayat Khan v. Abdul Khaliq and others [2006 SCR 92]. In para 5 while holding that no declaration on title can be made on the basis of agreement-to-sell nor can a decree of title be granted in respect of Shamlat Deh without providing opportunity of hearing to other co-owners. It was held in para 5 of the judgment as below:
“5. No doubt that the learned District Judge while deciding the appeal of petitioner has not recorded his findings on each issue as is postulated under Order XX, rule 5 of the Code of Civil Procedure but in this case without seeking amendment in the first suit, two more suits were filed. The total acreage of Shamlat-deh land is 316 kanal, out of which only 7 kanals of land is in dispute but its boundaries were not mentioned in any suit so that the same may become ascertainable as was the purpose of law. On imaginary grounds the declaration was sought. In these circumstances no error was committed by the learned Judge in the High Court while ignoring this objection raised by the learned counsel for the petitioner as that would not make any difference even if the case would have been remanded to the District Judge. This practice would have just dragged the parties to further litigation without any useful purpose. No declaration of title can be made on the basis of agreement-to-sell nor a decree of title can be granted in respect of Shamlat-deh land unless all the co-owners are given chance to contest on merit the suit of the plaintiff claiming rights exclusively or himself.”
Thus, following the enunciated principle of law, we observe here that no title or ownership shall be conferred upon the appellant through the decree dated 26.7.1995. However, he is entitled to retain possession subject to the legal partition of the village in Shamlat land according to law and the decree shall only be treated final against the judgment debtor and respondent herein in the light of hereinabove stated reasons and facts.”
Furthermore, having limited jurisdiction regarding the Shamilat Deh land, the Civil Court Cannot grant permanent injunction against all the share-holders who possess the land in the estate as well. After partition of the Shamilat Deh land, if anybody is in the possession of the land in excess of his legal share, then legal proceedings can be initiated whereas, in the case in hand, the position is quite different as the basic foundation, i.e. legal partition of land, is not available; therefore, the superstructure built shall automatically fall. In another case reported as Barkat Ali and another v. Sultan Mehmood and 18 others [2009 CLC 899] while dealing with the proposition this Court observed as under:
“10. From the pleading of the parties as well as the judgments recorded by the lower Courts it appears that the suit land is admittedly Shamilat Deh, about which the Civil Courts have limited jurisdiction and admittedly cannot grant permanent injunction against all the share-holders who possess the land in the estate as well. Similarly unless the Shamlat Deh land is partitioned by metes and bounds by the Revenue authorities no specific share can be declared to be in possession of any land-owner. In this view of the matter we modify the judgment recorded by the trial Court in favour of the respondents by holding that the judgment recorded by the trial Court shall be inter-party and not enforceable against other share-holder in the Shamlat nor shall the same be binding on the Revenue authorities who have jurisdiction to work out the share in Shamlat according to the holding of land owners in the village or estate.”
After taking into account the principle of law enunciated in the supra cases, we are of the view that the documents referred to and relied upon by the appellants do not create any such right on the basis of which the decree for declaration of permanent injunction can be granted against the other share-holders until the Shamilat Deh land is partitioned among the share-holders. Therefore, the arguments in this regard are not convincing in nature and are hereby repelled.”
In view of what has been discussed above, the instant revision petition being devoid of merit is hereby dismissed and the judgment and decree dated 22nd February, 2020 passed by Additional District Judge, Harnai is upheld. No orders as to costs.
(Y.A.) Petition dismissed
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