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Civil Revision No. 12 of 1964, decided on 31st January 1966.
S. 115 read with S. 100‑Second appeal maintainable in High Court‑Revision petition not competent‑Request for conversion of revision into second appeal‑No sufficient ground made out for excusing delay- Conversion declined.
Abdul Wahid v. Alladia P L D 1960 Kar. 472 ; N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowment Board, Madras P L D 1949 P C 26; Resal Singh and others v. Shadi (1917) 95 P R 371 and Umed Ali v. Municipal Committee, Jhangmaghiana A I R 1922 Lah. 233 ref.
Abdul Jabbar and others v. Azizul Haq and another A I R 19 42 Pesh. 35 ; Nur Jahan Begum v. Muhammad Ahsan Ullah Khan P L D 1960 Lah. 181 and Sreemati Guru Dasi v. Sarbananda Mahaldar and others P L D 1961 Dacca 243 distinguished.
, S. 12- Contiguous property‑ Vendee failing to prove that he was owner of contiguous land‑Not entitled to pre‑empt suit land.
, Ss. 25 & 27 -Determinution of price of suit land‑No material on record to show that vendee paid certain amount as consideration‑Valuation on basis of five years' average worked out by Patwari‑Held, rightly accepted by lower Court.
Kazi Matadullah Khan for Petitioner.
Sh. Allah Bakhsh for Respondents.
Date of hearing: 19th January 1966.
On the basis of mutation No. 1452, attested on 20‑9‑60, Ajun, son of Ghulam Muhammad, resident of Fathu Abdur Rahima, Tehsil Peshawar, sold land measuring 2 Kanals 17 Marlas, comprised in Khasra No. 1382/329, situate in the area of the same village, to Hameshgul for the ostensible sum of Rs. 5,700. This sale was pre‑empted by Nishan, son of Sherjan also a resident of Fathu Abdur Rahima, alleging that the disputed property had been sold for Rs. 1,000 but the inflated sum of Rs. 5,700 was entered in the sale‑deed with view to ward off a pre‑emption suit. Claiming his superior right of pre‑emption, he urged that he was a co‑sharer in the suit khata, was entitled to immunities and appendages and was also an owner of the contiguous land, whereas the defendant‑vendee lacked all these qualifications.
2. The defendant‑vendee, who resisted the suit, denied the plaintiff's superior right of pre‑emption and urged that the suit was barred by time, that the plaintiff was estopped from bringing the suit and that he had purchased the suit land for Rs. 5,700.
3. The pleas of the parties gave rise to the following issues framed by Mr. Zafar Ali Khan, Civil Judge, who had tried the case at its initial stages:‑
(1) Is the suit barred by time
(2) Has the plaintiff superior right of pre‑emption
(3) What is the market value
(4) Were Rs. 5,700 fixed or paid in good faith
(5) Is. the plaintiff estopped
(6) Relief.
After the conclusion of the evidence adduced by the parties, Mr. K. M. S. Samdani, Special Civil Judge, Peshawar, found the suit to be within time. On issue No. 2 he found that neither the plaintiff nor the vendee was a co‑sharer in the suit khata. He further found that the plaintiff‑respondent was one of the owners of the shamilat land comprised in Khasra No. 330, which is contiguous to the disputed Khasra number, but the defendant appellant was also the owner of the contiguous land bearing Khasra No. 1381/329, which is also contiguous to the suit property, and thus the rights of the defendant‑vendee were in no way inferior to those of the plaintiff, and so he answered issue. No. 2 in the negative. He found the market value of the suit property to be Rs. 1,170/25 in view of the five years average filed by the Patwari. He, however, found that the plaintiff admitted having sold 2J Marlas of land in the vicinity of the suit land for Rs. 400 and at that rate the market value of the suit land amounted to Rs. 8,000 and he accordingly held that the sum of Rs. 5,700 was fixed in good faith and paid. In view of his finding on issue No. 2, the trial Judge, by his order, dated 26‑11‑62, dismissed the plaintiff's suit with costs.
4. On appeal, the District Judge set aside the finding of the trial Judge on issue No. 2, as in his opinion, the defendant vendee had failed to prove his title to the land comprised in Khasra No. 1381/329 which is contiguous to the suit land, and in these circumstances the right of the plaintiff respondent was superior to that of the vendee. He further found that the defendant‑vendee failed to prove the payment of Rs. 5,700 as a sale consideration, and he accepted the valuation of the suit land as worked out by the Patwari on the basis of five years average and held that its market value was Rs. 1,170/25. In view of his above‑mentioned findings, the District Judge, by his order, dated 6‑11‑63, accepted the appeal, set aside the judgment and decree of the Court below and passed a decree for possession by pre‑emption of the suit property on payment of Rs. 1,170/25 with costs throughout.
5. The defendant‑vendee has come in revision to this Court.
6. Learned counsel for the respondent raised a preliminary objection urging that the revision petition was not maintainable.
In support of his contention he referred to ground No. 1 of the petition, where it was urged that the decision of the lower appellate Court in coming to the conclusion that the petitioner was not the owner of the contiguous land, was not based on any evidence and therefore, it had acted illegally and with material irregularity in the exercise of its jurisdiction. In para. 2, it was urged that the petitioner was shown as owner and in possession of Khasra No. 1381/329 in the Revenue Record and the presumption of truth under the law is attached to it which still stands unrebutted. The lower appellate Court did not apply its mind to this aspect of the case and thus acted illegally and with material irregularity in the exercise of its jurisdiction.
7. The question for determination would be as to whether the revision petition in these circumstance is competent when the petitioner has raised the question of illegality. In this context, reference was made to section 115, C. P. C. which is in the following terms:‑--
"The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."
A plain reading of section 115 (a) and (b), C. P. C. would show that a revision petition is competent in a case in which no appeal lies to the High Court. The learned counsel contends that second appeal under section 100, C. P. C. was competent to the High Court and therefore, the revision is not maintainable, secondly the lower appellate Court had the jurisdiction to hear the appeal and its jurisdiction has not been challenged in the grounds of revision. In support of his contention he relied upon Abdul Wahid v. Alladia (P L D 1960 Kar. 472) where it was held:‑
"The word thereto' in section 115 of the Civil Procedure Code, 1908 means to the High Court and the words, no appeal lies' occurring in the same section refers to an immediate appeal against the impugned order to the High Court. Revision under the section, therefore, is barred only where an appeal, whether first or second, lies immediately to the High Court where no such immediate appeal lies the High Court has jurisdiction to intervene in revision even if an appeal lies to the subordinate Court."
In view of the above‑mentioned authority, learned counsel urged that if an appeal lies to the High Court, a revision petition is barred. He also referred to section 100, C. P. C. which is in the following terms:‑
"(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely:‑
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law ;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) An appeal may lie under this section from an appellate decree passed ex parte."
Clauses (a) and (b) section 100 make a provision for a second appeal to the High Court if the decision being contrary to law or some usage having the force of law. In his grounds 1, 2 and 3 of the petition, the petitioner has attacked the judgment on the ground of illegality, etc., alleging that the lower appellate Court had acted illegally and with material irregularity in exercise of its jurisdiction and therefore, second appeal under section 100, C. P. C. was maintainable. In N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowment Board, Madras (P L D 1949 P C 26) last para, their Lordships observed as under:‑--
"Section 115 applies only to cases in which no appeal lies and where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court to satisfy itself upon three matters (a) that the order of the Subordinate Court is within its jurisdiction, (b) that the case is one in which the Court ought to exercise jurisdiction, and (c) that in exercise of jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error 'of procedure in the course of the trial which is material in that it may have affected, the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law. No such matters arose in this case, and the order of the High Court upon the petition was without jurisdiction."
8. The learned counsel for the petitioner, however, did not dispute the proposition of law as laid down in the authorities cited above, but contended that the procedure adopted by the District Judge was wrong and the revision petition under the circumstances is maintainable. In support of his contention, he referred me to the judgment of the trial Judge, who while deciding issue No. 2 had observed:‑---
"but then the Vendee defendant is the owner of the field bearing No. 1381/329 according to an entry in the Jamabandi of the year 1955‑56 which shows him to be in possession thereof without lagan' on account of sale in his favour. Both the above‑mentioned facts have been stated by the Patwari from the record in his custody. It is, therefore, evident that from the point of view of contiguity also the rights of the defend ant‑vendee are in no way inferior to those of the plaintiff pre‑emptor."
The District Judge on appeal, while dealing with issue No. 2, observed:‑---
"No doubt Khasra No. 1381/329 is contiguous to the suit property. There is no copy of the Revenue Record in respect of this Khasra No. showing the rights of the vendee in the same. So we are to rely on what the Patwari has stated about it. The first thing to be noted is that Mursalin is the recorded owner of this property and the possession over it is that of the vendee. As regards the nature of possession we find that in 1950‑51 it was bila lagan bawaja bai'. Further, we find that in 1945‑46, one Mian Gul was in possession of this property. On the strength of these entries, the vendee cannot be declared the owner of this property. This is only a claim which he has not got established by any recognized method, by getting a mutation attested, by getting the name of Mursalin deleted, by getting a deed of transfer executed. In the absence of any such, act, in the absence of Mursalin, the vendee cannot be considered as owner of this property. Even the Patwari has stated that the title of this land has not passed to Hamesh Gul vendee defendant through any mutation of sale, etc. This much evidence does not make the vendee the owner of Khasra No. 1381/329 and he cannot resist the claim of the plaintiff on the strength of its ownership."
Commenting upon the observation of the District Judge, the learned counsel argued that the name of the, vendee appellant in the Revenue Record as in possession of the disputed property bila, lagan bawaja bai', from which it appeared that he had purchased the disputed property from Mursalin and under section 44 of the Land Revenue Act, presumption of truth was attached to this entry unless it was rebutted. The District Judge by ignoring the entry in the Jamabandi for 1955‑56 showing the petitioner in possession as bila lagan bawaja bai' had acted with material irregularity as contemplated by clause (c) of section 115, C. P. C. It is true that the record of rights and Jamabandis are not the instruments of title, but they are presumptive pieces of evidence to show a person's title and under section 44 of the Land Revenue Act, a presumption of truth is attached to such entries. I do not agree with the contention of the learned counsel for the petitioner that the District Judge has committed an irregularity by refusing to accept the entry in Jamabandi for 1955‑56, as conferring title upon the, petitioner. The District Judge held that there was no foundation for the contention that the defendant appellant was the owner of the contiguous land because there was no sale‑deed or a sale mutation in his favour with respect to the above‑mentioned land and thus the order of the District Judge does not suffer from any illegality.
9. Learned counsel for the petitioner relied upon Abdul Jabbar and others v. Azizul Haq and another (A I R 1942 Pesh. 35) to show that the presumption of truth attaches to the entry in the record of rights and the annual record and it lies heavily on the person who alleges that the entry is wrong to prove that it is so, I respectfully agree with the proposition of law laid down in this authority, but in my opinion it is not applicable to the instant case. The entry in Jamabandi for 1955‑56, relied upon by the learned counsel for the petitioner does not show that he is the owner of the suit property. Similarly Nur Jahan Begum v. Muhammad Ahsan Ullah Khan (P L D 1960 Lah. 181) is also not applicable.
10. As a result of the foregoing discussion and in view of the authorities cited above, I am of the opinion that the revision petition is not competent because an appeal was maintainable in the High Court.
11. Learned counsel for the petitioner further urged that even if the revision petition was not maintainable then this Court had the powers to treat it as a second appeal. In support of his contention he referred to Sreemati Guru Dasi v. Sarbanda Mahaldar and others (P L D 1961 Dacca 243). At page 244 it was observed:‑
"There is abundant authority for the proposition that in the ends of justice this Court has the powers to treat a memorandum of appeal as an application for revision and vice versa an application of revision as an appeal in suitable cases. The present in my view, is a case in which I feel that this indulgence should be given to the petitioner and the application in revision, though not maintainable, should be treated as a memorandum of appeal."
The authority relied upon by the learned counsel for the petitioner does not lay down that a revision petition must be treated as a second appeal by the High Court. All that this authority lays down is that an appeal can be treated as a revision and a revision petition can be treated as an appeal in suitable cases. This revision petition was brought in this Court on 29‑1‑64 and it was during the course of arguments on 19‑1‑66, i.e. 'about two years after its institution that the counsel for the petitioner orally requested that the revision may be treated as a second appeal.
12. Learned counsel for the respondent relied upon Resal Singh and others v. Shadi ((1917) 95 P R 371). The facts of that case briefly were that Resal Singh and others plaintiff‑appellants had sued Shadi defendant‑respondent for the recovery of Rs. 2,300 on a balance for Rs. 1,690/3 together with interest. The Divisional Judge dismissed their suit on 21‑3‑1914 and an application for revision in the Chief Court was presented on 17‑6‑1914 and on 14‑10‑1914, the application was converted into a memorandum of appeal and the requisite court‑fee was made good. It was held:‑---
"under the provisions of the Punjab Courts Act of 1912, no revision could lie in this case as a second appeal was competent and it was immaterial whether there was sufficient ground justifying the Court's interference on second appeal. The proper date of presentation of the second appeal in this case was 14‑10‑1914 and no sufficient ground for extending the period of limitation had been shown. Legal adviser's mistake to justify extension must be a bona fide one, i.e. it must be done with due care and attention."
In Umed Ali v. Municipal Committee, Jhangmaghiana (A I R. 1922 Lah. 233) the same view was taken.
13. From the file it appears that the revision petition is not competent as a second appeal lay from the order of the learned District Judge. While making the oral request for converting the revision into an appeal, no sufficient ground was made out for excusing the delay in converting the revision into a second appeal and so I decline to treat the revision as a second appeal.
14. On merits, it was urged that the petitioner was the owner of the contiguous land bearing Khasra No. 1381/329. It is true that this Khasra number adjoins the suit land, but there is no material on the record to show that the petitioner vendee is an owner of this property. The mere entry in the Revenue Record showing him bila lagan bawaja bai' does not show that he has acquired the property. There is no sale‑deed or sale mutation in his favour regarding this land, and he even failed to produce Mursalin to show that he had purchased the land from him, and consequently, I hold that the District Judge was perfectly right in coming to the conclusion that the petitioner had failed to prove that he was the owner of the contiguous land. Lastly, there is no material on the record to show that he had paid Rs. 5,700 as a sale consideration, and the lower appellate Court rightly accepted the five years average filed by Patwari, according to which the market value .of the suit land amounts to 1,170.25.
15. As a result of the foregoing discussion, I maintain the judgment and decree of the District Judge and dismiss this revision with costs.
S. Q. Petition dismissed.
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