PLJ 2023 Lahore (Note) 24
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Suit for declaration--Decreed--Dismissal of appeal--Concurrent findings--Suit property was inherited in names of two widows after death of their husband--After second marriage suit property was transfer in name of one widow--Sole and full owner of property--Sale of property by widow of deceased with active and direct knowledge of petitioners--Presumption of truth--Neither petitioners nor their predecessor-in-interest approach civil Court for challenge complete ownership of deceased’s widow--Correctness and validity of sale-deed was not challenged by petitioners--Proper appreciation of evidence by Court below--Challenge to--Counsel for petitioners, remained unable to point out any document showing that Mst. Bakhat Bhari ever to be declared and recorded in revenue record as a limited owner of suit property--Mst. Bakhat Bhari was in fact fully owner of suit land and she transferred same with their active and direct knowledge--Petitioners, were estopped by their conduct to challenge the, correctness and validity of sale-deed which was duly registered and same has presumption of truth--N either petitioners nor their predecessor-in-interest despite having knowledge that suit land was transferred through a registered sale-deed by Mst. Bakhat Bhari through predecessors-in-interest of plaintiffs and defendants, approached civil Court to lay challenge qua complete ownership of Mst. Bakhat Bhari and her right to further transfer suit property for reason of being limited owner and in consequence whereof, to get cancelled or rescinded sale-deed--Concurrent findings of both Courts below on a question of fact are based on proper appreciation of evidence available on record and do not suffer from any illegality or material irregularity affecting jurisdiction of Courts below, same cannot be taken to any exception at revisional stage--Civil revision dismissed.
[Para 6] A, B, C & D
2010 SCMR 1630 ref.
Mr. Bashir Ahmad Khan Buzdar, Advocate for Petitioners.
M/s. Quratulain Ejaz and Syed Muhammad Ali Gilani, Advocates for Respondents No. 1 to 32.
Mr. Sikandar-i-Azam, Assistant Advocate General for Respondents No. 33 to 36.
Date of hearing: 13.9.2022.
PLJ 2023 Lahore (Note) 24
Present: Shakil Ahmad, J.
MURAD ALI (deceased) through Legal Heirs and others--Petitioners
versus
MUKHTIAR AHMAD and others--Respondents
C.R. No. 220-D of 1999, heard on 13.9.2022.
Judgment
Concurrent findings of facts recorded by Courts below whereby suit filed by Mukhtar Ahmad and others (Respondents No. 1 to 32 herein) was decreed by learned Senior Civil Judge, Layyah vide judgment and decree dated 30.11.1989 and the appeal filed by Murad Ali and others (petitioners herein) was dismissed by learned Additional District, Layyah, vide judgment and decree dated 25.1 1.1998.
2. Facts, in brief, leading to the filing of instant revision petition are that Respondents No. 1 to 32 filed a Suit No. 547 of 1986 dated 23.12.1986 seeking declaration to the effect that they are owners in possession of suit property measuring 2703 Kanals 6 Marals, as detailed in the plaint, which according to contents of plaint was owned by Mst. Bakhat Bhari widow of Yar Muhammad as per the entries in the record of rights for the year 1944-45, who sold the land to Sultan Ahmad (predecessors-in-interest of Plaintiffs No. 8 to 19 of the suit). Mansab Dar Khan (predecessors-in-interest of Plaintiffs No. 1 to 7 and Defendant No. 21), Karam Elahi (predecessors-in-interest of Plaintiffs No. 20 to 32 and Defendants No. 19 to 21) and they are owners in possession of suit land along with Defendants No. 19 to 21 and Defendants No. 1 to 17 (petitioners herein) or any other person has no nexus with the said property. As per contents of plaint, mutation 755 was entered and sanctioned on the basis of sale-deed, however, Thal Development of Authority (hereafter referred to as TDA) acquired some portion of the suit land for development schemes and for that reason, mutation was cancelled, however, subsequently suit land was adjusted as per possession of plaintiffs and when plaintiffs initiated the matter to get entered mutation on the basis of registered sale-deed dated 25.03.1954, revenue officer instead of sanctioning the mutation in favour of Plaintiffs No. 19 to 21, got entered inheritance Mutation No. 1743 dated 19.05.1979 in favour of petitioners and mutations sanctioned in favour of plaintiffs was cancelled and appeal filed by plaintiffs before Settlement Officer, Layyah was allowed, in pursuance of which, Mutation 1743 and subsequent mutations were cancelled. Order passed by Settlement Officer was assailed before Commissioner D.G Khan Division and appeals filed were dismissed and the decision of Settlement Commissioner was maintained. Petitioners filed revision petitions before Member Board of Revenue, Punjab Lahore and same were partially allowed vide order dated 23.06.1986 whereby plaintiffs were held entitled only to the extent of 1/8th share of Mst. Bakhat Bhari whereafter plaintiffs filed suit challenging the order of Member of Board of Revenue on various grounds including that defendants failed to prove themselves collateral of Yar Muhammad and even Defendant No. 19 to 21 were the attesting witnesses of sale-deed dated 25.03.1954. In the meanwhile, on 26.04.1987, Shahnaz Kausar and two (sic) filed declaratory Suit No. 166 of 1987, claiming themselves to be the owners in possession of the suit land on the basis of registered sale-deed dated 25.03.1954. Petitioners appeared and contested both suits. Eight issues, in view of divergent pleadings of the parties including that of relief were framed on 16.03.1987. Both the parties led their respective oral as well as documentary evidence and after hearing learned counsel for the parties, learned trial Court decreed both suits vide judgment and decree dated 30.11.1989. Petitioners preferred two separate appeals to impugn the said judgment and decree. Both appeals were dismissed by learned appellate Court vide judgment and decree dated 25.11.1998, hence, instant revision petition.
3. Learned counsel for petitioners argued that both Courts below failed to properly comprehend the real controversy between the parties and proceeded to pass the impugned judgments and decrees merely on presumptive grounds. To explain the same, it has been argued that Mst. Bakhat Bhari, in fact, was limited owner and she was not at all competent to transfer the land through sale-deed and she was only entitled to sell the suit land only to the extent of 1/8th share. It has further been argued that petitioners’ in fact were entitled to the inheritance of Yar Muhammad being his collateral and inheritance mutation was correctly sanctioned by Assistant Commissioner-II and final order passed by Member Board of Revenue was passed correctly but both Courts below without any lawful justification decreed the suit. It has further been argued that since learned counsel for the respondents (plaintiffs in suit) himself opted to give the statement before Member Board of Revenue qua settlement by way of compromise in the way that plaintiffs were entitled only to the extent of 1/8th share belonging to Mst. Bakhat Bhari, therefore, they were not entitled to challenge the same by way of filing of civil suit. According to learned counsel for petitioners, since Mst. Bakhat Bhari was a limited owner, therefore, she was not entitled to sell more than 1/8th share but both Courts below failed to resolve the controversy as evidence available on record and wrongly decided the matter against the petitioners and requested for acceptance of this revision petition.
4. As against that, learned counsel for respondents argued that Mst. Bakhat Bhari was sole owner of suit land as per the entries made in record of rights pertaining to the year 1944-45 and she sold the land through registered sale-deed No. 131 dated 25.03.1954 in favour of Sultan Ahmad and others and since then they were owners in possession of the suit property. According to learned counsel for respondents, some of the defendants, even were attesting witnesses of sale-deed dated 25.03.1954. It has further been argued that no tangible material/evidence was produced showing Mst. Bakhat Bhari as a limited owner and similarly there was no evidence available on the record suggesting any embargo upon Mst. Bakhat Bhari qua further alienation of the property as being limited owner. It was therefore argued that since Mst. Bakhat Bhari was full owner as per revenue record therefore she was fully competent to transfer the land. It has further been argued that neither petitioners nor their predecessor-in-interest ever challenged the sale-deed dated 25.03.1954 even when it was observed by the Commissioner D.G. Khan, while dismissing the appeal filed by petitioners, that matter was required to be resolved properly by the civil Court instead of revenue authority, however, petitioners instead of resorting to the civil Court by challenging the right of Mst. Bakhat Bhari to transfer the suit land by way of sale-deed or even seeking the cancellation of sale-deed, preferred revision petition before Member Board of Revenue who proceeded to decide the matter on the basis of concurrence of learned counsel for the parties without even recording the statements of learned counsel for the parties in this regard. It was therefore concluded that concurrent findings of both Courts below on facts and law are not amenable through revisional jurisdiction and requested for dismissal of this revision petition.
5. Heard. Record perused.
6. Suit land originally was owned by Yar Muhammad, who died in the year 1930 and inheritance mutation was passed in favour of Mst. Bakhat Bhari and Mst. Jannat (both widows of Yar Muhammad) and on the eve of second marriage contracted by Mst.Jannat, her share stood transferred in favour of Mst.Bakhat Bhari and Mst.Allah Jiwai (real mother of Yar Muhammad) vide Mutation No. 131 dated 25.03.1933 and on the demise of Mst. Allah Jiwai, property reverted to Mst. Bakhat Bhari vide mutation dated 09.05.1933. As per entries of record of rights for the year 1944-45, Mst. Bakhat Bhari was golejnd full owner of the suit land and she transferred the land through sale-deed dated 25.03.1954. Learned counsel for petitioners, remained unable to point out any document showing that Mst. Bakhat Bhari ever to be declared and recorded in the revenue record as a limited owner of the suit property. Learned counsel for petitioners also failed to refer any entry in the revenue record showing any impediment in the way of Mst. Bakhat Bhari qua selling or further alienation of the suit property. Learned counsel for petitioners remained unable to controvert the proposition that Ghulam Haider [predecessor-in-interest of Petitioners No. 12-(i) to 12(vi)] and Sultan Mehmood [predecessor-in-interest of Petitioners No. 16-(i) to 16-(vi)] were attesting witnesses of impugned sale-deed dated 25.03.1954 and even Ahmad Ali (predecessor-in-interest of Petitioners No. 1-(i) to 1-(vii), 2-(i) to 2-(xiii), 3 and 4 also accepted the sale-deed as correct in appeal that was filed before Colonization Officer. Continuous and long acquiescence on the part of predecessor-in-interests of Petitioners No. 1-(i) to 1-(vii), 2-(i) to 2-(xiii), 3, 4, 12-(i) to 12(vi) and 16-(i) to 16-(vi) is also reflective of the fact that even according to them Mst. Bakhat Bhari was in fact fully owner of the suit land and she transferred the same with their active and direct knowledge. These petitioners, therefore, were estopped by their conduct to challenge the, correctness and validity of sale-deed dated 25.03.1954 which was duly registered and same has presumption of truth. Even as per contents of document Exh:D-14 Mutation No. 294, a specific clog was put over Mst. Allah Jiwai (mother of Yar Muhammad) that she could not sell or mortgage her share but in subsequent mutations whereby share of Mst. Jannat and Mst. Allah Jiwai was transferred to Mst. Bakhat Bhari, no such clog was imposed by hinting any custom based on Wajib-ul-Arz (واجب الارض) for further alienation of the suit property or declaring Mst. Bakhat Bhari as limited owner of the suit property. Petitioners failed to bring on record any tangible document suggesting that Mst. Bakhat Bhari was in fact a limited owner. It may further be seen that neither petitioners nor their predecessor-in-interest despite having the knowledge that the suit land was transferred through a registered sale-deed by Mst. Bakhat Bhari through predecessors-in-interest of plaintiffs and defendants, approached civil Court to lay the challenge qua complete ownership of Mst. Bakhat Bhari and her right to further transfer/alienate the suit property for the reason of being limited owner and in consequence whereof, to get cancelled or rescinded the sale-deed dated 25.03.1954. Where concurrent findings of both the Courts below on a question of fact are based on proper appreciation of evidence available on the record and do not suffer from any illegality or material irregularity affecting the jurisdiction of the Courts below, the same cannot be taken to any exception at revisional stage. Reliance in this regard may safely be placed on case reported as “Sultan Muhammad and another v. Muhammad Qasim and others” (2010 SCMR 1630).
7. The upshot of above discussion is that instant civil revision is devoid of any merits, the same is dismissed. No order as to cost.
(Y.A.) Revision dismissed
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