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Civil Revision No. 178/D of 1986, decided on 28th‑April, 1986.

‑‑ Art. 118‑Burden of proof‑‑Entry in revenue record‑Alteration of‑Beneficiary of entry in revenue record relating to possession, held, would be required to prove facts necessary for justifying change of entry in his favour‑In absence of proper material, Court would be justified in holding that altered entry was brought about illegally.

‑‑ S. 44 ‑‑Entry in Revenue Record‑Alteration of‑Requirements -Once entry in Revenue record was proved to be illegal, previous entry, held, would be deemed to stand‑Entry in Revenue Record would subsist till a new one was lawfully substituted therefor.

‑‑ S. 115‑West Pakistan Land Revenue Act (XVII of 1967), S. 52‑Revisional jurisdiction, exercise of‑Possession, proof of Assertion of possession not supported by Revenue Record which would be best evidence of possession, cannot be sustained‑View of evidence and law taken by Court of Appeal, being based on Revenue Record and not suffering from infirmity of fact and law, held, could not be interfered with in revisional jurisdiction.

Allah Dad v. Muhammad Ali and others P L D 1956 Lah. 245 ; Ganesha Mal v. Ibrahim and others A I R 1919 Lah. 237(2) ; Jhangi v. Ramzan (1910) 13 P R 1910 ; Panna and Giriraj v. Madunlal A I R 1955 Raj. 173 and Karam Chand v. Dr. Karamdad Khan A I R 1938 Lah. 465 ref.

Muhammad Munir Peracha for Petitioner.

This is a civil revision by Azam Khan, defendant No. 1, arising out of a suit filed by Azad Khan against Azam Khan and 6 others on 19‑2‑1983 in the Court of Civil Judge, Pindigheb for declaration that plaintiff was in possession of land measuring 2 Kanals, Khasra No. 7414 situated at Mauza Narr, Tehsil Pindigheb as co‑sharer and for a perpetual injunction restraining the defendants from causing interference with his settled possession. Allegations set forth in the plaint are that Azad Khan plaintiff was in Hissadari possession of land measuring 2 Kanals afore described and had also constructed his residential house on the suit property. Azam Khan, defendant, had by exchange Mutation 84 sanctioned on 13‑2‑1983, obtained some property in Khasra No. 7414 and by virtue of the exchange, had started causing interference with plaintiff s possession. With these facts, it was claimed that it be declared that plaintiff was in possession of suit property as co‑sharer and defendants were not entitled to cause any interference. Defendants 2 to 4 are real brothers of Azam Khan, while, defendants 5 to 7 are his sons. All the defendants contested the suit. It was pleaded by them that the plaintiff bad earlier also tiled a civil suit against the defendants which was decided on compromise between the parties, on 16‑12‑1974 and this decision operated as res judicata under section 11, Civil Procedure Code; that the defendants 2 to 7 were unnecessary parties and the suit was bad for misjoinder of the parties ; that various other persons who owned share in Khasra No. 7414 were necessary parties to the suit and in their absence trial cannot proceed; that defendant No. 1 was in possession of 7 Marlas of land on the eastern side of Khasra No. 7414 and the plaintiff had no right to claim relief against him. On merits, claim of the plaintiff ‑as given in the plaint was denied. On the pleadings of the parties, trial Court framed following issues :‑

"(1) Whether the plaintiff's present suit is barred under the provisions of section 11 of C. P. C. O. P. D.

(2) Whether the plaintiff is in possession as Hissadar of the suit property and its effect O. P. P.

(3) Whether defendants Nos. 2 to 7 are unnecessary parties to this suit and the suit is bad for misjoinder of necessary parties and its effect O. P. D.

(4) Whether the suit is bad for non‑joinder of necessary parties and its effect O. P. D.

(5) Whether the defendant No. 1 is in possession as Hissadar Malik of seven Marlas of specific piece of land in the east of Number Khasra 7414 for the last more than 12 years and its effect O. P. D.

(6) Whether the suit has been incorrectly valued for the purposes of court‑fee and jurisdiction If so, its effect and what is the correct valuation O. P. D.

(7) Whether the defendants are entitled to get special costs from the plaintiff under section 35‑A, C.'P. C. If so, its extent O. P. D.

(8) Relief."

Trial Court found that plaintiff was in possession of land measuring 1 Kanal 13 Marlas Khasra No. 7414 and the remaining 7 Marlas of land out of the same Khasra number was in possession of defendant No. 1 and in the result of the aforesaid findings proceeded to dismiss the suit with costs on 20‑2‑1985. Plaintiff appealed. Learned Additional, District Judge found for plaintiff, set aside the decision of the trial Court and decreed the suit in favour of the plaintiff as prayed for on 22‑3‑1986. Against this decision, Azam Khan has preferred a petition for revision. Mr. Muhammad Munir Peracha, Advocate who appeared on behalf of the petitioner contended that the finding of the Court below holding plaintiff to be in possession of 2 Kanals of land was result of clear misreading of evidence. It was argued that the petitioner, in result of exchange of properties, with Manzoor Hussain, bad entered into posses sion of 7 Marlas of land on the eastern side of Khasra No. 7414 as co‑sharer and the plaintiff who was also a co‑sharer had no right to claim declaration of his title and confirmation of possession from the civil Court. Further contended that decision of the trial Court was supported by record and the Court of Appeal could not have justifiably caused any interference. Counsel has been heard and with his assistance, trial Court's record has also been looked into.

Evidence produced in support of the issues consists of oral testimony of witnesses and copies of revenue papers. Plaintiff's case was that lie was in settled possession of the suit property as co‑sharer,' had built a house on the property and was in its complete control and Azam Khan defendant on the basis of a solitary entry in Khasra Girdawari showing him to be in possession of 7 Marlas of land on the eastern side of Khasra could not justify his interference with possession of the plaintiff. As against this, defendant's version was that he was in possession and was using 7 Marlas as the courtyard of his house. Possession was supported on the oasis of exchange mutation dated 13‑2‑1983 Exh. P. 3. Plaintiff's case was supported by Muhammad Akbar, his son and Special Attorney. In defence, apart from Azam Khan, Malik Bashir Abmad, Yasin Khan and Fateh Khan appeared as D. W. 1 to Q. W. 3. In Exh. P. 2 which consists of two Perts, Khasra No. 7414/1 was shown in the joint ownership of Col. Ghulam Hussain and others, was recorded as Maqbooza Malikan. Classification of the land was Ghair Mumkin Ghar and its area was 56 Kanals 10 Marlas. In the second Pert, Khasra No. 7414/1 measuring 2 Kanals was shown in possession of Azad Khan, Hissadar and the classification of land shown was Ghair Mumkin Makan and courtyard. Two Perts when read together, bring out that total area of aforesaid Khasra number was 58 Kanals 10 Marlas. Exh. P. 3 is an exchange mutation. By this mutation, Manzoor Ahmad, a co‑owner was shown to have transferred 7 Marlas of land out of Khasra No. 7414 measuring 2 Kanals to Azam Khan in lieu of property received by him from Khasra No. 551. It appears Manzoor Ahmad had transferred 194/1170 share from the entire Khasra number and not from its part which measured 2 Kanals Looked at thus, it comes out that the share transferred was not correctly calculated.. As observed above, mutation was entered on 1.2‑1983 and was finally sanctioned on 13-2‑1983. Exh. P. 4, copy of Khasta Girdawari for Kharif 1982 records Azad Khan's possession over the suit property measuring 2 Kanals and its classification was recorded as Ghair Mumkin Makan, Entry as to the possession of Azad Khan Hissadar was changed in Rabi 1983. When Azam Khan was shown in possession of 7 Marla of land as Hissadar or the eastern side of Khasra No. 7414. As regards the rest of the land I Kanal 13 Marlas, previous entry was allowed to continue. Obviously, except for the exchange‑mutation, there was no basis for alteration of the previous entry which showed Azad Khan in possession of the suit property as co‑sharer. Oat the examination of oral evidence and the entries in Revenue papers, Court of Appeal found that possession of Azad Khan Hissadar continued despite adverse entry in Exh. 4 which showed Azam Khan to be in possession of 7 Marlas of land. No material was brought on record to support the change of entry in Khasra Girdawari in Rabi 1983. Copy of the daily diary has not been put in. As Azam Khan was the beneficiary of entry in dispute, it was for him to prove that necessary facts justifying the change. In the absence of proper material, Court of, Appeal was amply justified in holding that the altered entry was brought about illegally. It is well‑established proposition of law that once an entry in the revenue record is proved to be illegal, the previous entry is deemed to stand, for an entry subsists till a new one is lawfully substituted for it. See Allah Dad v. Muhammad Ali and others (P L D 1956 Lah. 245). It is also well‑settled that a co‑sharer in exclusive possession of a parcel of joint land, is entitled to maintain his Hissadari possession till the joint property was partitioned by actual metes and bounds and no person including a co‑sharer can dispossess him except through the media of a partition suit. A co‑sharer dispossessed by another in the Mehal where lands are held in severalty is entitled to recover separate possession even apart from the provisions of Specific Relief Act. See Ganesha Mal v. Ibrahim and others (A I R 1919 Lah. 237), where Scott Smith, J. observed :‑

In the case of a joint Khata of agricultural land out co‑sharer ordinarily cultivates one field and other co‑sharers cultivate other fields, and it is certainly not the law that one sharer can dispossess the other against his will from the field of which he has possession. In Jhangi v. Ramzan (1910) 13 P R 1910 it was stated that in accordance with well‑known law and custom as to possession of plots of Shamilat by individual co‑sharers the defendants in forcibly dispossessing were qua plaintiff mere trespassers. In accordance with this principle I hold that plaintiff‑appellant': peaceful possession was a substantive right, the infringement of which gave rise to a cause of action. As pointed out, in that case also the plaintiff might have sued under section 9, Specific Relief Act, but he was not bound to do so. Plaintiff cultivated Cheri to the land in Kharif 1916 and it may very possibly have been lying vacant in the succeeding Rabi. That fact alone would not however entitle defendant to take possession without the plaintiff's consent . I hold that the plaintiff is entitled to recovery of possession . , . . ."

In Panna and Giriraj v. Madanlal (A I R 1955 Raj, 173), Ranawat, J. observed :‑

Coming to the second point, it may be pointed out that though the entire village is owned by the village community as Shamlat Deh, all the co‑sharers possess separate pieces of land for their cultivation and the plaintiff's father according to the practice of the village could remain into the possession of the land which was in his occupation at that time until partition. The point urged‑ on behalf of the appellant is that the title to the suit land vested only in the village community and the plaintiff could not, therefore, claim exclusive possession of the suit land. The decree for possession however in the present case does not take away or prejudice any rights of the co‑sharers in Shamlat Deh and the apprehension of the appellant in this behalf is without any basis. The tenure of the land prevalent in the area of the former Alwar State was on the lines of the tenure system of the Punjab and the authority cited by the learned counsel of the respondent in Karam Chand v. Dr. Karamdad Khan A I R 1938 Lah. 465 applies with equal force to this case. The defendant if he so chooses to do has got a right to claim partition and his rights of Shamlat Deh as has been observed above would not be affected in any manner by this decree."

In this case, however, it was not the case of the petitioner that he had forcibly dispossessed Azad Khan from any portion of the property in his possession i.e. 2 Kanals, Khasra No. 7414. Petitioner's possession, however, was supported on altogether different grounds. It was urged that the peti tioner was in possession of this part of property since long much before the exchange mutation was sanctioned in his favour. This assertion does not receive support from revenue papers which are the best evidence of possession. Prior to Rabi 1983, name of Azam Khan figures nowhere. III was not dented that Azad Khan was a co‑owner and had obtained 21 Kanals of laud from a recorded co‑owner. In these circumstances, in my opinion, Court of Appeal was not erroneous when it found that plaintiff was in possession of the suit property as co‑sharer and the entry to favour of Azam Khan was totally incorrect. I am also of the opinion that finding of possession by the Court of Appeal has the support of record. In the result. I do not find that view of evidence and law take by the Court of Appeal suffer from any infirmity be that of fact or law. For the above various reasons, this petition is found to be without merit and is dismissed summarily.

A. A. Revision dismissed.

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