' Briefly the facts of the case are that Ali Muhammad predecessor-in-interest of respondent No.1 filed a suit for declaration and possession claiming that he was the owner of land measuring 156 Kanals, 7 Marlas in Chak Satha, Tehsil Wazirabad, according to Jamabandi for the year 195152. It was alleged that certain incorrect entries regarding his ownership were made in the subsequent Jamabandi for the year 1955-56 which were later corrected through Fard Badr No.50 dated 30-6- 1962, whereby the ownership of the plaintiff was restored. The original plaintiff namely All Muhammad was aggrieved of the attestation of a subsequent Fard Badr No.68 sanctioned on 14- 10-1963 according to which the entitlement of Ali Muhammad was reduced to 14 Kanals of land in the said Village. During the consolidation proceedings, the plaintiff was allotted only 16 Kanals in lieu of the aforesaid 14 Kanals of land and that the sanction of this subsequent Fard Badr No.68 was wholly illegal. Ali Muhammad filed an appeal against the consolidation scheme which was dismissed by the Additional Commissioner on 2-11-1964. Ali Muhammad then filed the suit in hand on 31-7-1967.
2. The suit was contested by the predecessors-in-interest of the petitioners on the ground that the suit was barred under the provisions of the West Pakistan Consolidation of Holdings Ordinance, 1960; that the suit was bad for misjoinder of causes of action; that the suit was incorrectly valued for the purposes of Court fee and jurisdiction and that the claim of the plaintiff was incorrect which was duly corrected through Fard Badr No.68.
' Issues:--- (1)Whether the suit is barred by the West Pakistan Consolidation of Holdings Ordinance, 1969? OPD (2)Whether the suit is bad for misjoinder of cause of action, if so. What is its effect? OPD (3)Whether the valuation for the purposes of court-fee and jurisdiction is incorrect? OPD (4)If so, what is the correct court-fee? OPD (5)Whether the plaintiff is entitled to the possession of suit-land? OPP.
(6) Whether the plaintiff had sold the land more than his share out of Khata Shamlat Taraf Jattan, if so, 'What is its effect? OPP.
(7) Relief.
4. After the first round of litigation when the suit was dismissed by the learned trial Court holding the same to be barred under section 26 of the West Pakistan Consolidation of Holdings Ordinance, 1960, the finding on this issue was reversed by the learned Appellate Court and the case was remanded to the learned trial Court for decision upon merits.
5. The learned trial Court after recording the necessary evidence found Issues Nos.2, 3 and 4 against the defendants. However, upon its findings regarding Issues Nos.5 and 6 the learned trial Court came to the conclusion that the plaintiff was not able to establish his ownership over the land beyond what was allotted to him though Fard Badr No.68 and proceeded to dismiss the suit vide judgment and decree dated 31-7-1973.
6. The plaintiff/respondent No.1 preferred an appeal which was also dismissed by a learned Additional District Judge, Gujranwala vide judgment and decree dated 18-6-1980.
7. The plaintiff further filed R.S.A. No.697 of 1980 which was accepted and the case was remanded to the learned District Judge, Gujranwala for decision afresh on merits.
8. After remand the learned District Judge, Gujranwala recorded the statement of Muhammad Khan, Consolidation Officer as C.W.1, who was then cross-examined by both the parties. C.W.1 also produced documents: Exh.C.I and Exh. C.II. Consequently in consideration of the record which included the statement of Muhammad Khan, C.W.1 the appeal of respondent No.1 was accepted vide judgment and decree dated 30-11-2001 with the result that the suit of the plaintiff respondent No.1 was decreed and the plaintiff was declared entitled to an area of 156 Kanals, 12 Marlas while holding that the deduction of 89 Kanals, 6 Marlas and 59 Kanals, 11 Marlas from Khewat Shamlat Taraf Jattan from the plaintiff's share was without lawful authority.
9. Learned counsel for the petitioners assails the impugned judgment and decree dated 30-11-2001 mainly on the grounds that the statement recorded by C.W.1 has been wrongly construed and that the intrinsic effect of the said statement was to non-suit the plaintiff. It is further submitted that the learned Appellate Court had not correctly interpreted the admission made by the plaintiff in his rejoinder, wherein the sale of 89 Kanals, 7 Marlas by the plaintiff to the predecessor-in-interest of petitioners Nos.1 to 3 and petitioners Nos.4 and 5 was acknowledged. In fact Mutation No.173 dated 9-10-1933 was conceded. It is also contended that there was no evidence on the record which would suggest that any land was sold by the petitioners defendants to the plaintiff or his predecessors-in-interest and that this conclusion was a result of gross misreading of evidence on the record.
' Referring to the statement of Muhammad Khan, it is contended that even this witness while appearing as C.W.1 had affirmed that Ali Muhammad had inherited land from Mst. Budhi through Mutation No.128 and that he sold this inherited land to Khushi Muhammad through Mutation No.173 and that All Muhammad was in fact the vendor whereas Khushi Muhammad etc. Were the purchasers. It was against the evidence on the record to conclude that Khushi Muhammad had ever sold any land in favour of Ali Muhammad plaintiff. It is submitted that even the Consolidation Officer fell in error to construe the Revenue Record incorrectly and came to a wrong conclusion that the petitioners had in fact effected any sale in favour of the plaintiff.
10. On the other hand learned counsel for respondent No.1 submits that the learned Appellate Court had passed a well considered judgment which is based upon the material on the record including the deposition of the Consolidation Officer whose statement was brought on the record as C.W.1 and who was duly cross-examined by both the parties. Learned counsel made particular reference to the fmdings of the learned Appellate Court in its judgment wherein reference has been made to the statement of C.W.1 copy of Mutation No.128, Exh.C.l, Mutation No.173 Exh.C.2, Jamabandi for the year 1939-40 Exh.C.3, Jamabandi for the year 1943-44 Exh.C.4 and Exh.C.5. Jamabandies for the years 1955-56 and 1959-60 Exh.C.6 and Exh.C.7, Fard Badr No. 50 dated 30-6-1962 Exh.C.8, Khatooni Ishtimal Exh.C.9, Fard Badr No.68, Exh.C.10 and Mutation Exh.C.11 and contended that the conclusion so arrived at was unexceptionable.
11. Arguments have been heard and record perused.
12. The original entitlement as to the ownership of Ali Muhammad predecessorin-interest of respondent No.1 is not disputed. It is on the record that All A Muhammad was the owner in the estate to the extent of 26 Kanals, 11 Marlas while 95 Kanals, 15 Marlas was the share of Ali Muhammad in the Shamlat Land as per his share Hasan Ahmad Khewat Ali Muhammad had purchased another 34 Kanals, 1 Marla from Shamlat. The original entitlement of Ali Muhammad thus, came to 156 Kanals, 7 Marlas. This entitlement of the plaintiff at the time of the consolidation proceedings was controverted by the petitioners/defendants. It was contended that the mutation of sale was correctly sanctioned on behalf of the plaintiff/respondent No.1 in favour of the petitioners and after sanctioning of the said mutations of sale, the plaintiff was not entitled to the alienated land. It was contended that land measuring 148 Kanals, 17 Marlas was alienated by the plaintiff/ respondent No.1 in favour of the petitioners.
13. In reply to the written statement the plaintiff submitted a replication a perusal of which shall be relevant for the determination of the controversy. It is stated in para.4 of the replication that Ali Muhammad inherited land of Mst. Budhi through Inheritance Mutation No.128 dated 5-11-1933 (this mutation was later exhibited as Exh.P.16). The inheritance mutation of Mst. Budhi included her share in the Shamlat land also. Through Mutation No.173 the entire land inherited by Ali Muhammad from Mst. Budhi was alienated through sale in favour of Khushi Muhammad and Lal the predecessor- ininterest of petitioners Nos.1 to 3 and 4 and 5 respectively vide Mutation No.173 dated 15-6-1935 (this mutation was later exhibited as Exh.P.17). The Shamlat land was not specifically mentioned in Mutation No.173 this necessitated the clarification by sanctioning Mutation No. 203 dated 19-5-1938 (Exh.P.11.). The Shamlat land related to Shamlat Taraf Jattan.
14. The contentions raised by the parties in their respective pleadings_ have been examined in detail in the light of the evidence produced by the parties as well as the statement of Consolidation. Officer C.W.1 recorded by the learned Appellate Court. After the sale recorded as above the names of Khushi Muhammad and Lal (predecessors-in-interest of the petitioners) were substituted in place of All Muhammad to the extent of 18 Kanals, 7 Marlas. The ownership of Ali Muhammad was thus confined to 1/3 share in the remaining Shamlat land measuring 89 Kanals, 6 Marlas as depicted in Mutation No.203 dated 19-5-1938 (Exh.P.11). Nothing has been discovered from the record to suggest that the predecessor-in-interest of the petitioners had alienated any land in favour of All MuhaMmad which could in any manner reduce the share of the predecessors- in-interest of the petitioners with the corresponding increase in the share of All Muhammad.
15. The statement of Muhammad Khan, Consolidation Officer C.W.1 is quite pertinent. He admits that Ali Muhammad inherited the entire holding including Shamlat land of Mst. Budhi through mutation of Inheritance No. 128 dated 5-11-1933. He further states that vide Mutation No.173. All Muhammad alienated the inherited land to Khushi Muhammad and Lal in equal shares which was further recorded in the relevant Jamabandi. Although, he stated that the Revenue Record further depicts Khushi Muhammad etc. As "Baiyaan" and All Muhamad as "Mushteri". The same is not supported by any material on the record. There is force in the submission of the learned counsel for the petitioners that there was nothing on the record to suggest any alienation from Khushi Muhammad in favour of Ali Muhammad. In fact he is correct in adverting to the statement of C.W.1. Who admitted that Khushi Muhammad etc. Had never sold any land. It is not understood as to on what basis the term "Baiyaan" was made with reference to Khushi Muhammad etc as there was no material to support such a description vis-a-vis Khushi Muhammad etc. It was in this view of the matter that incorrect entry in land Fard Badr No.50 was corrected through Fard Badr No.68 which was sanctioned on 14-10-1963.
16. In view of the foregoing, the fmdings recorded by the learned Appellate Court upon Issues Nos.5 and 6 are not supported by any material on the record. Resultantly, the civil revision is allowed and the judgment and decree of the learned Appellate Court dated 30-11-2001 is set aside. The parties to bear their own costs.