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Civil Revision No. 1921-D of 1984, decided on 8th July, 1985.
---S.53--Correction of entries in Jamabandis--Plaintiff's name recorded as a co-owner in estate in earlier Jamabandis--Name of such plaintiff missing from subsequent Jamabandis--Effect--Presumption of correctness, would attach to entries in earlier Jamabandis, and in absence of evidence that name of such plaintiff had been lawfully omitted in the later Jamabandis, omission thereof, would appear to be as a result of oversight--Provisions of S.53 confer a right to seek correction of entries existing in record-of-rights.
---S.53--Limitation Act (IX of 1908), Art. 127--Civil Procedure Code (V of 1908), S. 115--Suit between co-sharers not based on plea of possession and dispossession--Defendant neither claiming ouster nor adverse possession--Suit for joint possession brought by a co-sharer against other co--sharers based on title, in absence of plea of ouster or adverse possession, held, would not be barred by limitation--Decree passed by two Courts below was upheld by High Court in revisional jurisdiction.
B.A. Chaudhary for Petitioners.
Record has been received and perused.
2. Hidayat Ullah respondent No.1, claiming himself to be entitled to 1/3rd share in the agricultural land left by his father Abdul Rahim in village Saidowali, Tehsil Sialkot, filed a suit for grant of a decree of joint possession thereof against his brother Muhammad Faiz and the legal heirs of his other brother Abdul Aziz, who had in the meanwhile died. He based his claim on the plea that his name lead been inadvertently left out from the Jamabandi of 1955-56 with the consequence that the shares of the other two sons of Abdul Rahim came to be indicated as half and half -in he succeeding Jamabandis despite their having been continued to be shown in the earlier Jamabandis from the year 1942-43 to be the owners of 1/3rd share each, the remaining one.-third being his defendants contested the suit by denying his assertion and also raising the plea of limitation. The suit was set down to be tried on the following issues:-
"(1) Whether the suit is within time 'O.P.P.
(2) Whether the plaintiff was owner shown in the suit land to the extent of 1/3 share and is entitled to joint possession of 1/16th share of suit land O.P.P.
(3) Whether the defendants admitted claim of the plaintiff and executed an agreement to that effect If so to what effect O. P. D.
(4) Relief .
Parties led their evidence. Learned trial Judge found that the plaintiff is an owner of 1/3rd share in the land like his two other brothers and had been so continued to be recorded in the Jamabandis Exhs.P.9, P.10 and P.3 but his name was later on omitted. He held that there was no evidence led with regard to the admission of the plaintiff's right through some agreement and disposed of issue No.3 accordingly. Under issue No.1 he held that the suit was governed by the 12 years limitation and was within time. Consequently, on 30-4-1975, he passed the decree prayed for.
3. Defendants filed an appeal there against which was heard by a learned Additional District Judge before whom only the issue with regard to limitation was contested with reference to Article 127 of the Limitation Act and was repelled with the conclusion that the parties being co-sharers, there was nothing to show that the plaintiff had been ousted from this land and their appeal was consequently dismissed on 11-7-1984. They have now come up to this Court on revision.
4. Learned counsel argued that since the name of the plaintiff did not appear in the Jamabandis on account of his having already taken his share in the land in the year 1955-56, therefore, he was bound to have first filed a suit for declaration regarding his title but the suit, as brought is barred by limitation and also under the provisions of the Consolidation of Holdings Ordinance. There is no merit in this contention because the plea with regard to the alleged satisfaction of the plaintiff's share in the land was not taken in the written-statement. Entry of his name exists in the earlier Jamabandis as an owner of 1/3rd share of the land in suit. Two Courts below have rightly based their judgments on them because presumption of correctness attaches to those entries and there is no evidence that his name may have been lawfully omitted in the later Jamabandis and hence the omission appears to be a result of an over-sight. Section 53 of the Punjab Land Revenue Act, 1967 confers a right to seek correction of entries existing in the record of rights. The relief of possession claimed by the plaintiff is a larger one and includes that of declaration as well. This suit is not based on the plea of possession and dispossession and the defendants have neither alleged ouster nor adverse possession. Parties have been found to be the co-sharers. There cannot be any question of his suit on the basis of title being barred by time. Decree passed by the trial Court, as upheld in the appeal below, is unexceptionable on the record.
5. There does not emerge any case for exercise of revisional jurisdiction. Hence, dismissed in limine.
A.A./G-23/L Revision dismissed.
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