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Civil Petition for Leave to Appeal No. 240/R of 1984, decided on 22nd January, 1986.

(On appeal from the judgment and order of Lahore High Court Rawalpindi Bench, dated 19‑5‑1984 in Civil Revision No. 85/1) of 1984).

‑‑‑Art. 185(3)‑‑Leave to appeal, grant of‑‑Questions of fact having been rightly determined by Courts below against petitioner, primarily for want of evidence‑‑Petition not meriting consideration, dismissed.

Bashir A. Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd January, 1986.

Leave is sought to appeal against the judgment and order of the Lahore High Court, Rawalpindi Bench, dated 19‑5‑1984 passed in Civil Revision No. 85/ D of 1984.

2. According to the statement of facts the petitioner was co‑owner of land measuring 133 Kanals 9 Marlas bearing different Khasra Numbers situate in village Bolianwala, Tehsil and District Attock. Haji Ahmad, predecessor‑in‑interest of the respondents and Muhammad Azeem, not party to the proceedings, were occupancy tenant on the suit land in equal shares on one‑third Batai cash. Haji Ahmad sold his right of occupancy In the year 1948 to his co‑tenant Muhammad Azeem where after Muhammad Azeem came in occupation of the entire land; that since the sale by Haji Ahmad was without the consent of the petitioner end other owners of the land, the petitioner successfully avoided the sale of the right of occupancy by Haji Ahmad in favour of Muhammad Azeem and obtained a decree in the year 1953 under the provisions of the Punjab Tenancy Act, 1887. In execution of the decree the petitioner obtained Malkana possession of half share in the land on 4‑3‑1956.

3. The suit was contested by the parties and the learned trial Court dismissed the suit of the petitioner. Appeal filed by the petitioner was dismissed by the learned Additional District Judge, Attock per order, dated 22‑12‑1983. The petitioner then filed civil revision before the Lahore High Court, Rawalpindi Bench which was dismissed, vide the impugned order, dated 19‑5‑1984. The petitioner now seeks leave to appeal against the impugned order on the following grounds that:

(i) Haji Ahmad the predecessor‑in‑interest of the respondent had sold his right of occupancy to his co‑occupancy tenant Muhammad Azeem in the year 1948. On coming into force of the Punjab Tenancy (Amendment) Act, 1952 he was not in occupation of the suit land and as such could not benefit from the amended provision of law;

(ii) the petitioner had successfully avoided the sale by Haji Ahmad under the provisions of the Punjab Tenancy Act, 1887 and had come to be clothed with all the rights that Haji Ahmad possessed as occupancy tenant in the land."

It was further contended that to avoid the sale made by Haji Ahmad, who was left with no right or interest in the land to obtain any benefit under section 114 of the Punjab Tenancy Act, petitioners' rights could not be affected in the circumstances. Learned counsel pointed out, in the impugned order, the statement of Abdul Haleem son of Haji Ahmad where he had admitted that the Girdawar had not gone to the land to deliver possession and that all the formalities had been completed in the Patwarkhana and, therefore, the entire execution proceedings were a sham and fake transaction; that Mutation No. 3114 was attested on 23‑8‑1972 i.e. after more than 12 years of the decree, dated 30‑6‑1958, that the learned High Court has not taken into consideration the fact that the mutation attested beyond 12 years of the decree was of no consequence and that this period was further reduced to six years when section 48 of the Code of Civil Procedure was amended on 14‑4‑1972.

4. We have examined the contentions raised by the learned counsel and find that Haji Ahmad deceased or for that matter the present respondent had never entered upon the land in dispute; that the warrant affixed was not affixed in a conspicuous place or the proclamation was made properly. But these are the questions of facts which the Courts below have determined against the petitioner and it lay upon the petitioner to have proved that due compliance with the provisions of law was not made. The report of the Girdawar to the contrary would have the presumption of truth unless there was cogent evidence to rebut the same. The lower Courts have rightly held the point against the petitioner primarily for want of evidence. This being the case, the petition does not merit consideration. Consequently; the petition is dismissed.

M. I. Petition dismissed.

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