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Civil Petition for Special Leave to Appeal No. 166 of 1975, decided on 8th August, 1981.

(On appeal from the judgment and order of the Lahore High Court in R . S . A . No, 46 of 1975 , dated 4‑2‑1975) .

‑‑‑Art. 185(3)‑‑Suit for declaration‑‑Plea that decree passed in 1936 remained unexecuted, not sustained‑‑Report made by Girdawar 30 years back in discharge of his duties showing that possession was handed over to decree‑holder, relied upon‑‑No material brought on record to rebut its correctness nor any evidence given that it was doubtful in any way‑‑Finding of High Court affirmed‑‑Leave to appeal refused.

‑‑‑Art. 185(3)‑‑Leave to appeal, grant of‑‑Plea not pressed in High Court not permitted to be raised in support of petition for leave to appeal‑‑Petition dismissed.

Sh. Hamid Mukhtar, Advocate and Abdul Karim, Advocate‑on -Record for Petitioners.

Mahmood A . Qureshi, Advocate‑on‑Record for Respondents.

Date of hearing: 8th August, 1981.

Leave to appeal has been sought from judgment, dated 4‑2‑1975 of the Lahore High Court whereby petitioners second appeal arising out of a decree passed in favour of respondent No. I in a declaratory land suit, was dismissed.

Respondent's claim was that notwithstanding, her having a decree with regard to the suit land in 1936, the Revenue record showed the petitioner as owners at the relevant time. Learned counsel for the petitioners has explained that although such a decree was passed in favour of respondent No. 1, nonetheless the Revenue authorities realizing that tine entire land nut teeing the: subject‑matter of the suit could not farm part of the decree, therefore, the suit land was shown ire the name of petitioner No. I (the other petitioners are stated to be vendees regarding the suit land at different times). Learned counsel has also contended that petitioners Nos. 2 to 5 being bona fide purchasers for consideration could not be deprived of the land in dispute on the basis of the decree passed in 1936 to which they were not parties. Learned counsel lastly contended that the respondents not being in possession at the time of the filing of the suit, the same could not be fled simply for declaration and further that if it would have been a suit for possession, the question of limitation and other related questions would have arisen and the respondents would have been non‑suited.

The main contention of the learned counsel relates to the identity of the property. The contention is that the property which actually belonged to the predecessor‑in‑interest of Mst. Rajan, petitioner, and had devolved on her through regular mutations was through mistake made the subject‑matter of the decree passed in 1936: and further that even if the said decree was not challenged and had attained finality, the same remained unexecuted within time and the entries in the Revenue record in petitioners' favour in this behalf were not only correct, but also supported their claim regarding possession.

Similar argument was raised before the High Court which was repelled as follows:

It has been submitted by the learned counsel for the appellants that the property from the very beginning, was in the name of Sher Khan and Lal Khan. The one belonging to Sher Khan was inherited by Mat. Rajan and the other of Lal Khan went to Mat. Anwar Begum. The property in the name of Sher Khan could not be inherited by Mat. Anwar Segum and in the present suit the entire estate of both Sher Khan and Lal Khan has wrongly been claimed by the respondents. This objection has no force because there is no dispute between the parties that the area which was the subject‑matter of the previous decree, dated 30‑1‑1936 differed, in any way, from the one in dispute. In para. No. 8 of the judgment of the learned District Judge it is observed that after tracing down the suit land the learned counsel for the parties had agreed before him that the suit land was the same which had been mentioned in portions 'A' and 'B' of the judgment Exh. P. 2. The whole of the land was claimed by Mat. Anwar Begum and declaration with possession with respect to whole of it was granted to her. The learned District Judge has given reasons in detail to show that the appellants did not raise a plea in their pleadings that the land in suit belonged to the parties in equal shares. The learned counsel, when confronted with admission made on behalf of the parties before the learned District Judge, could not make out how an area belonging to the appellant had been included in the present suit and how the property of Sher Khan would be affected by the decree, previously passed. Had there been cause against the decree, it would not have been allowed to become final.

It has been further argued that the learned District Judge has, in his judgment, not been able to locate how the share of Sher Khan, the predecessor‑‑in‑interest of Mat. Rajan, was wiped out. On this account the judgment was considered incomplete in not making a proper determination of the ownership of Mat. Rajan. The property belonging to Mat. Rajan was not in issue before the learned District Judge. The only contention before him was property in dispute and he has held that the entire property in suit belonged to Mat. Anwar Begum and her two sons."

Although the learned counsel for the petitioners has not been able to point out any infirmity in the above‑noted/quoted reasoning of the learned Single Judge in the High Court, we have, for our own satisfaction, seen the judgment and decree, dated 30‑1‑1936, copies of which were not placed on record of this petition but have been produced during the hearing for our perusal. Issues Nos. 1 and 2 in the earlier suit were: ‑

(1) whether the land in dispute is ancestral property of Raz Khan qua Sardar Khan the deceased husband of defendant No. 1 (Mat. Rajan, the present petitioner);

(2) whether the collaterals of Baz Khan, the deceased father of the plaintiff are living, if so, of what degree

Learned Civil Judge, decided the issue No. 1 in the negative, i.e. against Mat. Rajan. With regard to issue No. 2 it was held that she had hopelessly failed to establish relationship between Sardar Khan her predecessor‑in‑interest and Baz Khan. The said issue was also decided against her. On the remaining issues, the decision after discussion of the relevant customary law was rendered in favour of Mat. Anwar Begum. The property now in dispute, being also the subject‑matter of the judgment/decree passed in 1936, therefore, in so far as the substance of the argument of the learned counsel is concerned, there is no merit in it.

Undoubtedly, as held by the trial Court in this case, if the decree passed in 1936 in favour of Mat. Anwar Begum would have remained unexecuted, the results might have been different; because assuming that the possession would in that case have remained with the petitioners, Mat. Anwar Begum might have been constrained not only to file a suit for declaration but also for possession. But the decision of the learned trial Court on the factual aspect of the execution of the decree and the possession of the land in dispute which was in favour of the petitioners was set aside by the learned first appellate Court. The reasoning in the first appellate judgment in this behalf was attacked in the High Court. The learned Single Judge took note of the argument and dealt with the same as follows:‑

"It was next urged that the learned District Judge had wrongly based reliance on the report of the Girdawar (with regard to the execution of the decree) which was not formally proved. This objection has also no force because the report made was a document thirty years old and no material has been brought or record to rebut its correctness nor any evidence given that it was doubtful in any way. In execution of the decree for possession the Girdawar had made a report in the discharge of his duties that possession was handed over to the decree‑holder (Mst. Anwar Begum). Not only this there were other factors also which were considered by the learned Court to arrive at a conclusion that the decree was duly executed in time and possession delivered to Mst. Anwar Begum.

Learned counsel for the petitioner has not been able to assail the afore quoted finding. We have no reason to differ. Therefore, the arguments with regard to the execution of the previous decree, possession and form of the present suit, are without any force and of no avail to the petitioners.

The petitioners other than Mat. Rajan, who claimed to be bona fide purchasers for consideration were duly represented before the High Court. The plea now being raised on their behalf was not pressed in the High Court. We do not consider it necessary to permit it to be raised now in support of this petition. It has no force and is accordingly dismissed. The copies of the judgment and decree of 1936 which, it appears from the endorsement made thereon, have been obtained from original Court record, be returned to the learned counsel for the petitioners, who had made a verbal request in this behalf at the time of the hearing of the petition.

M. I. Petition dismissed.

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