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Civil Petitions Nos.357‑358, 364, 369, 371‑372 of 1982, decided on 25th February, 1986.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 11‑1‑1982, in R.S.As. Nos. 538 to 543 of 1979).

Constitution of Pakistan (1973)‑‑

‑‑Art. 185 (3)‑‑ Jamabandis‑‑Pre‑emption‑‑Leave to appeal, grant of‑ Suit for correction in Jamabandis‑‑Dispute about determination of area sold and area pre‑empted‑‑ Case being arguable, leave granted for reconsidering matter and determining correct position.

Ch. Khurshid Ahmad, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Petitioners.

Riaz Anwar, Advocate Supreme Court for Respondent.

Date of hearing: 25th February, 1986.

This order shall dispose of Civil Petition for Special Leave to Appeals Nos. 357, 358, 364, 369, 371 'and 372 of 1982, as they involve the same question of law and are directed against the same judgment of (he High Court.

2. For the purpose of disposal of the petitions in hand, the facts giving rise to the present petitions are, briefly, that one Risaldar Maj. Ram Singh was the owner of land measuring 6,638 Kanals and 14 Marlas of land in Tehsil Bhakkar, District Mianwali, detail whereof are as follows: ‑

(1) He was the sole owner (as Aala Malak) of land measuring 4,598 Kanals in Khewat No.36.

(2) He was co‑owner of land with some others in Khata Nos.56 and 36, to the extent of 3/16th share which came to 1,404 Kanals, 3 Marlas (He and his co‑sharers owned this land as Aala Malak)

(3) He also owned 636 Kanals and 1 Maria of land in Khata No.45 (as Aala as well as Adnaa Malak).

3. As admitted by the counsel for the petitioners as well as the counsel for the respondents and Adnaa Malak is a person who occupies some land as defined in and Aala Malak is the actual owner of the land whether in cultivating possession or not. It is also the case of both sides that a person can be both Aala Malak as well as Adnaa Malak on the same land. This is so where the owner himself is in cultivating possession of the land.

4. Ram Singh sold his entire land to one Capt. Ataullah Khan on 29‑4‑1943. According to the petitioners the area of the land sold to the latter was 6,638 Kanals and 4 Marlas. Subsequently, on 28‑4‑1944, one Hussain Bakhsh filed a suit to pre‑empt the aforesaid sale. The suit was decreed with respect to the entire land. Thereafter, on 2‑6‑1950, the afore‑ mentioned Hussain Bakhsh sold 3/4th share equivalent to 4,978 Kanals and 16 Marlas of land to Muhammad Sharif Khan who, in turn, sold it to the six petitioners. The total land sold to these petitioners was 4,978 Kanals and 16 Marlas with the following categories:

(1) Adnaa Malkiat 477 Kanals 1 Marla

(2) Asia Malkiat 455 " 15 Marlas

Total entitlement of each petitioner thus came to 829 Kanals and 15 Marlas and the break‑up of the categories of land common to each petitioner is as follows:

(1) Adna Malkiat 79 Kanals 10 Marlas

(2) Aala Malkiat 750 " 5 "

5. Subsequently in 1960, the villages were brought under consolidation and the entitlement of the petitioners, under the prevalent rules, after converting Aala rights into Adnaa rights and adjustment in favour of the Thal Development Authority, came to 110 Kanals and 4 Marlas. Later on it was discovered that now in Jamabandi of 1949‑50 (Exh.P/22) respondent had been shown to be owner to the extent of 636 Kanals despite the fact that Ram Singh had sold his entire holding which had been pre‑empted by Hussain Bakhsh. The correction was therefore, got made therein through Fard Badar. Later, however, on a review application filed by the respondents in 1973, the Member, Board of Revenue recalled the order of correction of the Jamabandi by his order, dated 22‑3‑1974, on the ground that old entries in Jamabandis could only be got changed through the judgment of a civil Court. As a result (through Mutations 1300 to 1305) land measuring 106 Kanals was taken away from each of the petitioners, on the ground that 636 Kanals out of the total land were never sold by the respondents. The petitioners thereupon filed six separate suits, on 9‑5‑1974, for correction in the Jamabandis. They also challenged the Mutation Nos.1300 to 1305 (one in each suit) and sought declaration that they were owners in possession of land measuring 110 Kanals and 16 Marlas. In its written statement the respondent took up the position that Risaldar Maj. Ram Singh was the owner of the land to the extent of 7,274 Kanals and 5 Marlas and that out of this land only 6,638 Kanals and 4 Marlas had been sold by him (i.e. by Risaldar Maj. Ram Singh) to Capt. Ataullah. But while calculating the area the respondent included 636 Kanals and 1 Maria of land owned by Ram Singh as Aala as well as Adnna Malak, thus counting land measuring 636 Kanals and 1 Marla, twice. The six suits filed by the petitioners were contested, issues were framed and evidence led by the parties. All the suits were however dismissed by the learned Civil Judge and the appeal as well as the R . S . A . filed by the petitioners failed.

6. Hence the present petitions for leave to appeal.

7. The learned counsel for the petitioners has taken us through the relevant Jamabandis as well as the sale‑deeds, the plaint and the decree dated 13 5‑1948 of the civil Court in the pre‑emption suit filed by Hussain Bakhsh. He (the counsel) demonstrated from these documents that the total land belonging to Ram Singh, which was ultimately pre‑empted by Hussain Bakhsh, was 6,638 Kanals and 4 Marlas because the Khasra numbers in the sale‑deed, the plaint and the decree tallied with the Khasra No.1 in the Jamabandis relating to the land of Jamadar Ram Singh tallied with each other and this was found by us to be the land belonging to Ram Singh, the sale whereof to Capt. Ataullah was pre‑empted by Hussain Bakhsh.

8. The learned counsel then argued that since the six petitioners had purchased 3/4th of the entire land (i.e. 4,978 Kanals, 16 Marlas) and their entitlement after deductions made in favour of Thal Development Authority was calculated as 110 Kanals and 4 Marlas, they (petitioners) were erroneously deprived of 106 Kanals each on the ground that Ram Singh owned 636 Kanals and 1 Marla as Adnaa owner. He argued secondly that if 106 Kanals had at all, to be deducted, it should have deducted from their total entitlement i.e. 829 Kanals and 15 Marlas each, and not from 110 Kanals and 4 Marlas.

9. The learned counsel for the respondent, on the other hand, submitted that the only question involved in this case is as to how much area was sold by Ram Singh to Capt. Ataullah and how much land was pre‑empted by Hussain Bakhsh. According to him the total area of the land of Ram Singh was 7,488 Kanals, 3 Marlas because he (the respondent's counsel) counted 636 Kanals, 1 Marla twice once as Aala Malkiat and then again as Adnaa Malkiat. We have already mentioned all the facts and figures about the land belonging to Ram Singh which was pre‑empted, there appear to indicate that irrespective of the nature of ownership (either Asia or Adnaa), the area of the land sold by Ram Singh to Capt. Ataullah, was 6,638 Kanals, 4 Marlas, that he sold all this land to Capt. Ataullah and that Hussain Bakhsh had pre‑empted the whole of this land, which is evident, inter alia, from the Khasra numbers mentioned in the decree, dated 13‑5‑1945.

10. It appears to us that the petitioners have arguable case. As such, we grant leave for reconsidering the matter and determining they correct position.

Security in the sum of Rs.2,000.

11. The appeal shall be heard on the same record, with permission to file additional documents in support of the appeal.

M.I. Leave granted.

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