PLJ 2012 Lahore 111
[Rawalpindi Bench Rawalpindi]
Present: Ch. Muhammad Tariq, J.
SHAHNAZ AKHTAR etc.--Petitioners
versus
RIAZ HUSSAIN etc.--Respondents
C.R. No. 658 of 2002, heard on 22.3.2011.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Joint property--Suit land had been partitioned and possession of co-sharers were delivered--Neither exhibited the order of partition nor copy of Roznamcha Waqiati showing delivery of possession, nor plaintiff produced tatimma--Validity--Relied document was not signed by revenue officer or any other competent authority--Entries on mutation were also not countersigned by competent authority--Mere entry in Registrar of mutations did not have any sanctity in eyes of law--Respondents had failed to prove that the suit land was partitioned and possession of land was handed over to predecessor in interest--Revision was accepted. [P. 113] A & B
Sh. Zameer Hussain, Advocate for Petitioners.
Mr. Muhammad Noman Munir Paracha, Vice-Counsel for Respondents.
Date of hearing: 22.3.2011.
Judgment
This instant Civil Revision has been directed against the judgment and decree dated 24.07.2002 passed by Mr. Muhammad Mahmood Chaudhry, learned District Judge, Chakwal who accepted the appeal of the respondents, set aside the judgment and decree dated 21.09.2001 passed by Ch. Abdul Haq, learned Civil Judge 1st Class, Chakwal and deereed the suit of respondents-plaintiffs.
2. Precisely stated the facts leading to the filing of this civil revision are that Ghulam Haider, predecessor in interest of the respondents, instituted a suit for decree for possession against Hayat Muhammad and Muhammad Iqbal, predecessor in interest of petitioners-defendants alleging therein that 13 kanals & 14 marlas of land from Khasra No. 9882/2107 of Khewat-Khatooni No. 837/1572, located in village Bhaun was originally owned by both the parties. Partition took place. Mutation of Partition No. 5221 was accordingly sanctioned and 6 kanals and 19 marals of land was handed over to the plaintiff. The predecessor of respondents remained in possession. Later on, petitioners-defendants illegally dispossessed the predecessors of respondents and occupied the land.
3. The suit was contested by the petitioners. After framing of issues and recording of oral as well as documentary evidence of the parties, the learned trial Court vide judgment and decree dated 21.09.2001 dismissed the suit of the respondents-plaintiff. Feeling aggrieved, the respondents filed an appeal which was allowed on 24.07.2002 by the learned District Judge, Chakwal. Hence this Civil Revision.
4. Learned counsel for the petitioners inter alia contends that admittedly, the suit property is joint amongst the petitioners and the respondents. But the learned first appellate Court has erred while holding that the suit land has been partitioned and respective possession of co-sharers has been delivered to the respondents. Learned counsel further avers that the impugned judgment and decree is against the law and facts which is fanciful and has been passed in a hasty manner without going through the documentary evidence adduced by the parties. Learned counsel further contends that there is no such evidence on record that after the so-called partition, the possession of land was handed over to the respondents, therefore, the civil revision be accepted, the impugned judgment and decree be set aside and the judgment and decree passed by learned trial Court dated 21.09.2001 be restored.
5. On the contrary, learned counsel for the respondents has vehemently opposed this civil revision on the grounds that previously, the suit land was joint amongst the petitioners and the respondents. Thereafter, the suit for partition of joint holding was filed before the revenue Court who after decreeing the suit in favour of the respondents, prepared ` ' and after adopting due course of law, handed over the possession of suit land to the respondents. Further contends that there is no illegality in the impugned judgment. The names of respondents have already been incorporated in the revenue record, therefore, the civil revision be dismissed with costs throughout.
6. The arguments advanced by learned counsel for the parties have been heard and the record available on file has also been perused.
7. According to Register Haqdaran Zameen for the year 1979-80, the suit land Measuring 13 Kanals 14 Marla bearing Khasra No. 9882/2107/2, Khatooni No. 837/1572 situated in the revenue estate Bhaun, District Chakwal was joint property between the petitioners and the respondents. The suit filed by Ghulam Haider for possession on the ground that he was in exclusive possession of his share after partition was initially dismissed by the learned trial Court. However, in appeal, the suit of respondents was decreed.
8. During the course of arguments, learned counsel for the respondents was repeatedly asked to produce any documentary evidence showing that the suit land was partitioned in their favour or possession was delivered to Ghulam Haider deceased but the learned counsel for the respondents has badly failed to produce any such document.
9. Perusal of record highlights that during the evidence, the respondents-plaintiff neither exhibited the order of partition nor copy of Roznamcha Waqiati showing the delivery of possession to the predecessor-in-interest of the respondents, nor the plaintiff produced "Tatimma" made in favour of the plaintiff as a result of partition. Learned counsel for the respondents has relied more on ` ' but this document is not signed by the revenue officer or any other competent authority. Similarly, the entries on the mutation were also not countersigned by the competent authority. Mere entry in Register of Mutations does not have any sanctity in the eye of law. Exhibit P1 to Exh. P5 do not disclose that the plaintiff, predecessor-in-interest of the respondents, was delivered possession as a result of decree for possession. Further, contents of Exh.P1 itself rebuts the contentions of the plaintiff made in the plaint, as according to the heading of the plaint, plaintiff Ghulam Haider had claimed that he is owner of land Measuring 6 Kanal 19 Marla in the suit Khasra number while according to Exh. P1, Hayat Mahmood has been shown as owner of 68 shares while Ghulam Haider owner of 16 shares out of total 96 shares. Exh. P1 itself is sufficient for rebuttal of contentions of learned counsel for the respondents-plaintiff.
10. The upshot of whole discussion is that the respondents have failed to prove that the suit land was partitioned and the possession of land was handed over to Ghulam Haider, predecessor-in-interest of the respondents. Resultantly, the civil revision in hand is accepted, the impugned judgment and decree dated 24.07.2002 passed by learned first appellate Court is set aside and the judgment and decree dated 21.09.2001 passed by learned trial Court is restored.
(R.A.) Revision accepted
[Rawalpindi Bench Rawalpindi]
Present: Ch. Muhammad Tariq, J.
SHAHNAZ AKHTAR etc.--Petitioners
versus
RIAZ HUSSAIN etc.--Respondents
C.R. No. 658 of 2002, heard on 22.3.2011.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Joint property--Suit land had been partitioned and possession of co-sharers were delivered--Neither exhibited the order of partition nor copy of Roznamcha Waqiati showing delivery of possession, nor plaintiff produced tatimma--Validity--Relied document was not signed by revenue officer or any other competent authority--Entries on mutation were also not countersigned by competent authority--Mere entry in Registrar of mutations did not have any sanctity in eyes of law--Respondents had failed to prove that the suit land was partitioned and possession of land was handed over to predecessor in interest--Revision was accepted. [P. 113] A & B
Sh. Zameer Hussain, Advocate for Petitioners.
Mr. Muhammad Noman Munir Paracha, Vice-Counsel for Respondents.
Date of hearing: 22.3.2011.
Judgment
This instant Civil Revision has been directed against the judgment and decree dated 24.07.2002 passed by Mr. Muhammad Mahmood Chaudhry, learned District Judge, Chakwal who accepted the appeal of the respondents, set aside the judgment and decree dated 21.09.2001 passed by Ch. Abdul Haq, learned Civil Judge 1st Class, Chakwal and deereed the suit of respondents-plaintiffs.
2. Precisely stated the facts leading to the filing of this civil revision are that Ghulam Haider, predecessor in interest of the respondents, instituted a suit for decree for possession against Hayat Muhammad and Muhammad Iqbal, predecessor in interest of petitioners-defendants alleging therein that 13 kanals & 14 marlas of land from Khasra No. 9882/2107 of Khewat-Khatooni No. 837/1572, located in village Bhaun was originally owned by both the parties. Partition took place. Mutation of Partition No. 5221 was accordingly sanctioned and 6 kanals and 19 marals of land was handed over to the plaintiff. The predecessor of respondents remained in possession. Later on, petitioners-defendants illegally dispossessed the predecessors of respondents and occupied the land.
3. The suit was contested by the petitioners. After framing of issues and recording of oral as well as documentary evidence of the parties, the learned trial Court vide judgment and decree dated 21.09.2001 dismissed the suit of the respondents-plaintiff. Feeling aggrieved, the respondents filed an appeal which was allowed on 24.07.2002 by the learned District Judge, Chakwal. Hence this Civil Revision.
4. Learned counsel for the petitioners inter alia contends that admittedly, the suit property is joint amongst the petitioners and the respondents. But the learned first appellate Court has erred while holding that the suit land has been partitioned and respective possession of co-sharers has been delivered to the respondents. Learned counsel further avers that the impugned judgment and decree is against the law and facts which is fanciful and has been passed in a hasty manner without going through the documentary evidence adduced by the parties. Learned counsel further contends that there is no such evidence on record that after the so-called partition, the possession of land was handed over to the respondents, therefore, the civil revision be accepted, the impugned judgment and decree be set aside and the judgment and decree passed by learned trial Court dated 21.09.2001 be restored.
5. On the contrary, learned counsel for the respondents has vehemently opposed this civil revision on the grounds that previously, the suit land was joint amongst the petitioners and the respondents. Thereafter, the suit for partition of joint holding was filed before the revenue Court who after decreeing the suit in favour of the respondents, prepared ` ' and after adopting due course of law, handed over the possession of suit land to the respondents. Further contends that there is no illegality in the impugned judgment. The names of respondents have already been incorporated in the revenue record, therefore, the civil revision be dismissed with costs throughout.
6. The arguments advanced by learned counsel for the parties have been heard and the record available on file has also been perused.
7. According to Register Haqdaran Zameen for the year 1979-80, the suit land Measuring 13 Kanals 14 Marla bearing Khasra No. 9882/2107/2, Khatooni No. 837/1572 situated in the revenue estate Bhaun, District Chakwal was joint property between the petitioners and the respondents. The suit filed by Ghulam Haider for possession on the ground that he was in exclusive possession of his share after partition was initially dismissed by the learned trial Court. However, in appeal, the suit of respondents was decreed.
8. During the course of arguments, learned counsel for the respondents was repeatedly asked to produce any documentary evidence showing that the suit land was partitioned in their favour or possession was delivered to Ghulam Haider deceased but the learned counsel for the respondents has badly failed to produce any such document.
9. Perusal of record highlights that during the evidence, the respondents-plaintiff neither exhibited the order of partition nor copy of Roznamcha Waqiati showing the delivery of possession to the predecessor-in-interest of the respondents, nor the plaintiff produced "Tatimma" made in favour of the plaintiff as a result of partition. Learned counsel for the respondents has relied more on ` ' but this document is not signed by the revenue officer or any other competent authority. Similarly, the entries on the mutation were also not countersigned by the competent authority. Mere entry in Register of Mutations does not have any sanctity in the eye of law. Exhibit P1 to Exh. P5 do not disclose that the plaintiff, predecessor-in-interest of the respondents, was delivered possession as a result of decree for possession. Further, contents of Exh.P1 itself rebuts the contentions of the plaintiff made in the plaint, as according to the heading of the plaint, plaintiff Ghulam Haider had claimed that he is owner of land Measuring 6 Kanal 19 Marla in the suit Khasra number while according to Exh. P1, Hayat Mahmood has been shown as owner of 68 shares while Ghulam Haider owner of 16 shares out of total 96 shares. Exh. P1 itself is sufficient for rebuttal of contentions of learned counsel for the respondents-plaintiff.
10. The upshot of whole discussion is that the respondents have failed to prove that the suit land was partitioned and the possession of land was handed over to Ghulam Haider, predecessor-in-interest of the respondents. Resultantly, the civil revision in hand is accepted, the impugned judgment and decree dated 24.07.2002 passed by learned first appellate Court is set aside and the judgment and decree dated 21.09.2001 passed by learned trial Court is restored.
(R.A.) Revision accepted
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