MRS. FAKHAR-UN-NISA KHOKHAR, J. This be considered as admitted case.
2. Brief facts in this Civil Revision are that declaratory suit was filed on 20.5.1996 by the respondents x that they are owners of suit property measuring 475 kanals and 18 marlas being shareholders in the inheritance from predecessor situated in Mauza Tola Mangli Tehsil Esa Khail District, Minawali.
The averments in the plaint disclose that predecessor of the petitioners purchased the suit property in.Shamlaat-deh through mutation No. 290 dated 10.8.1911, which was incorporated in the Jamabandi for the year 1912- 13. The entries in the revenue record remain the same till the year 1928-29 but in the Jamabandi for the year 1933-34 name of Dil Ameer son of Sh. Amir was deleted and in the year 1944-45 name of Faqeer Shah son of Sh. Amir was deleted and in the year 1956-57 the name of Ali Shah s/o Amir Sh. Was also deleted. As per contention of defendants Muhammad Shah s/o of Sh. Amir sold out his share to the predecessor of respondents vide mutation No. 3123 and the same was incorporated vide Jamabandi for the year 1940- 41- Afterwards Dilmeer transferred the land in favour of his grand-sons and this fact was incorporated in the Jamabandi for the year 1952-53. Sh. Amir had six sons namely Mussali, Ghareeb Shah, Ali Shah, Faqeer Shah, Dil Ameer Shah and Muhammad Shah. The respondents/defendants as per their contention purchased the share of Muhammad Shah son of Sh. Amir vide mutation No. 3123. Mussali had a son Jamadar, who died issueless. Petitioners No. 1 to 3 and 8 are the legal heirs of Jamadar and petitioners No. 1 to 7 are also the legal heirs of Ali Shah son of Sh. Amir, lt was averred in the plaint that name of Ali Shah was illegally deleted from' the record. Petitioners No. 8 to 31 are the legal heirs of Faqeer Shah. The respondents are owners of 1/6 of the total land, which they purchased. The petitioners No. 32 to 44 are the legal heirs of Dil Ameer and name of Dil Ameer, Faqeer Shah and Ali Shah were illegally deleted from the record, therefore, the record is to be corrected. The petitioners/plaintiffs came to know about deletion of their names in the year, 1994 therefore, Dil Ameer, Faqeer Shah, Mussali and Rajan Shah submitted an application to the Collector Consolidation of 22.1.1994, whfl made report that the revenue record be corrected. The petitioners/plaintiffs resorted to the Collector/Deputy Commissioner for the aforesaid correction and were directed by the revenue authorities to go to the Civil Court vide order datecl 4.1.1996,, therefore, they filed a suit for declaration. Suit was contested on preliminary objections that suit was barred by time non-maintainability and for lack of cause of action. The defendants averred in their written statement that they are the actual owners in possession of the suit land and suit filed by the plaintiffs/petitioners was false and frivolous. Out of pleadings of the parties the following issues were formulated :-
(i) Whether the plaintiffs have got no cause of action? OPD.
(ii) Whether the suit is time barred? OPD.
(iii) Whether the suit is not maintainable in its present form? OPD.
(iv) Whether the suit is not maintainable in view of preliminary objection No. 6 of the written statement? OPD.
(v) Whether this Court lacks jurisdiction to adjudicate upon the matter? OPD.
(vi) Whether the plaintiffs are owners in possession of the disputed land? OPP.
(vii) Whether the plaintiffs being the legal heirs of Ali Shah, Dala Meer and Faqir Shah are co- owners of 4/6 shares out of disputed Khata No. 348 while the defendants No. 2 to 43 are co-sharers to the extent of 2/6 shares? OPP.
(viii) Whether the entries of revenue record are incorrect and against facts and as such are liable to be rectified? OPP.
(ix) Whether the plaintiffs are entitled to get the decree as prayed for? OPP.
(x) Relief.
3. Respective oral as well as documentary evidence was produced by the parties. Suit filed by the plaintiffs was dismissed by the learned Trial Court vide judgment and'decree dated 16.4.2001. Being aggrieved the petitioners/plaintiffs went in appeal, the same was aiso dismissed vide judgment and decree dated 27.11.2001. Beth the concurrent findings of the learned Courts below are under challenge in the instant Civil Revision.
4. Arguments advanced by learned counsel for the petitioners are that the findings of the learned Courts below ar6 erroneous and based on conjectures and surmises. The learned Trial Court as well as the learned Appellate Court violated the mandatory provision of Order XX, Rule 5 C.P.C, and misconceived and especially misread the documentary evidence produced on record by the parties and in this way they have committed material irregularity and illegality, placed reliance on "Abdul Rashid Vs. Sessions Judge, Jhang etc". (PLD 1979 Lahore 613), in which it is held that High Court would interfere even with discretionary orders in case of finding being based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law.
5. Learned counsel for the respondents argued that the judgments and decrees of both the learned Courts below are well=reasoned and based on legal premises and foundations. The petitioners did not give the time of death of their predecessors. The respondents are not related to the petitioners in any manner whatsoever. They are identified by their own entity. The plaintiffs suits are time barred under Article 120 of the Limitation Act, why did they sleep for 40 years and after 40 years elapsed they have come to agitate the matter if they had any right on the disputed property it stands extinguished, relied on Abdul Rasool etc. Vs. Muhammad Nawaz etc. (1986 CLC 2261), where it was held that under Section 52 of the Land Revenue Act, 1967 if there are long standing entries in record of rights effect entries bearing out possession; of defendants foj a long period.Held, could not be ignored altogether merely because change taking place in entries was not warranted by any mutation etc. Long-standing entries in record-of-rights confirmed in course of Settlement (Bandobast) would claim greater presumption of truth than those appearing in any other periodical record, lt was observed that under Section 42 of the West Pakistan Land Revenue Act. 1967, such rights could be acquired by inheritance, purchase, mortgage, gift or otherwise, in an estate as land-owner, or as tenant for a fixed term exceeding one year-where however, change in entries in record-of-rights did not relate to title but only to possession, such change held-would not require any specific order from Revenue Officer, ln cases involving change of possession, where such change was disputed, mutation would have to be effected. Persons not disputing change of possession would be deemed to have acquiesced in such change-plea of alteration in such entry being unauthorized or illegal, could not be entertained after years of such change appearing in all succeeding Jamabandis. The plaintiff losing possession of land during years 1927- 28-suit brought in the year 1969, being beyond period of six.Years held would be hit by limitation. He further argued that suit beyond the period of six years to challenge entries in the revenue record would be hit by Article 120 of the Limitation Act, placed reliance on 'Tanzeem Bazyabi-e- Haqooq Malkan-e-Orush, Abbottabad through General Secretary Vs. Deputy Commissioner/Collector, Abbotabad and others (1992 CLC 382 Peshawar D.B.). He further relied on "Sardar Anawar Ali Khan and others Vs. Sardar Baqir AN through legal heirs and others (1992 SCMR 2435) where it was held that correction of entries in the revenue record- Limitation-Land in question was consistently recorded in the name of predecessor-in-interest of defendants for the last about a century and during that long period Jamabandis were prepared and alienations were effected resulting in the incorporation of transferees as owners in revenue record but no efforts were made by plaintiffs or their ancestors to get those entries corrected. Plaintiffs suit for correction of entries filed by them after such a long time was barred by limitation disentitling them to grant of relief. Section 53 of West Pakistan Land Revenue Act. 1967 and Article 185 of the Constitution of Pakistan-concurrent findings of fact of th ee Courts below. Effect. All the three Courts below had concurrently found defendants to be owners of land in question entries in revenue record correctly showing them as proprietors; and plaintiffs not proved to be joint owners with them. Such findings being findings of fact were not open to challenge when no illegality, jurisdictional error, or misreading or non-reading of evidence could be pointed out. He further relied on Muhammad Rafique Vs. MDA and others" (1997 MLD 3009). He further contended that no authenticated pedigree table record was produced. According to the averments of the plaintiffs their entries existed in the year 1943 but in the year 1944 and 1956 their entries were deleted. The property in question is Shamlat Deh, which is un-partitioned and after 20 years the entries cannot be changed.
6. I have heard the learned counsel for the parties and perused the record. The plaintiffs filed a suit for declaration that they are the legal heirs of their predecessor in interest Sh. Amir and are owners of suit property measuring 475 kanals and 18 marlas in Shamlat Deh situated in Mauza Tola Mangti Tehsil Esa Khail District Mianwali and they want correction of revenue record in respect of their respective shares of the legal heirs of their predecessor-in-interest. The suit was contested by the defendants on ground of lack of cause of action and limitation etc.
7. The learned Trial Court decided issue No. 1 in respect of cause of action against the defendants holding that the plaintiffs are the legal heirs of Dil Meer, Faqir Shah and Ali Shah whose names were deleted without any reason. The learned Trial Court decided issues No. 2,3 and 5 regarding limitation, non-maintainablity of suit and lack of jurisdiction in favour of the defendants. The learned Trial Court decided issue No. 4 in favour of the plaintiffs and held that the suit is maintainable. Ab
8. From the perusal of both the judgments none of the learned Courts below have considered the Jamabandis and all the relevant documents and the evidence produced by the parties. Had they considered the documentary evidence of the parties, the issue wise judgments delivered by them would not have suffered from non-consideration of material evidence and erroneous assumption of facts, cropping up due to misreading of evidence. The stance taken by the plaintiffs/petitioners was that they are owners in possession as legal heirs of their predecessor in interest who purchased the suit property in Shamlaat Deh through mutation No. 290, dated 10.8.1911 which was incorporated in the Jamabandi for the year 1912- 13 but their names in the revenue record were being dropped for no reason from time to time due to the error of Patwari. The defendants also as per contention of the plaintiffs have purchased the share of Muhammad Shah son of Sh. Amir vide mutation No. 3123. The learned Trial Court decided issue No. 1 regarding cause of action holding the petitioners as owners in possession of the suit property but decided the case o the case onXof limitation and lack of jurisdiction. The contention of petitioners is that they came to know about the deletion of the entries of their names at the time of consolidation proceedings, as per evidence they submitted application to the Collector Consolidation on 22.1.1994, who directed the revenue authorities to correct the revenue record. Since long standing entries in the revenue record they were directed by the revenue authorities to move to the Civil Court, therefore, the findings of the learned Trial Court on issue No. 8 are entirely erroneous for non-suiting the petitioners who rightly moved to the Civil Court after-direction passed by the revenue authorities. The omission to exercise jurisdiction vest in the Trial Court is an error patent on the record.9. While perusing the documentary evidence this Court summoned the Patwari Halqa to assist the Court in respect of the documentary evidence and the Jamabandis produced on record by the parties and also mutation No. 3123 exhibited from Ex.P-1 to P-13 on pages 34 to 145 and from Ex.D-1 to D-8 upto page 244 of the record of this petition, perusal of all the exhibits show that mutation. No. 3123 by virtue of which the defendants purchased the share of Muhammad Shah. Mutation No. 3123 was decided on part sarkar dated 13.4.1941 but mutation of inheritance in respect of legal heir of Muhammad Shah took place on 9.12.1953 and his widow Mst. Nandooni had inherited property in the year 1953 but on the part sarkar mutation No. 3123 was sanctioned on 13.4.1941 on the statement of Mst. Nandooni.
How the mutation could take place in favour of the defendants from Muhammad Shah on the statement of Mst. Nandooni in the year 1941 while Muhammad Shah was alive and his mutation of inheritance took place through mutation No. 3977, dated 9.12.1953. Vide Ex.P-1 Sh. Amir purchased 455 kanals 9 marlas from Namar/his right of Shamlaat Deh in .Respect of 592 kanals 11 marlas. Vide Ex.P-2. Jamandar Gharib Shah, Muhammad Shah, Faqir Shah and Ali Shah got mutation of inheritance of Sh. Amir in equal share of 1/6 and these entries continued. But in the Jamabandi for the year 1933-34 the share of Dil Meer son of Sh. Amir was dropped due to error of Patwari and it also disappeared in the Jamabandis for the year 1936-37 which are exhibited- as Ex.P-1 to P-13 and also show the names of Jamandar Gharib Shah, Faqir Shah and Ali Shah son of Sh. Amir. But in the Jamabandi for the year 1940-41 name of Faqir Shah disappeared, ln the ^Jamabandi for the year 1944-45 the share of Jamandar Gharib Shah, Ali Shah and Lai Muhammad are shown as 1 /4th equally, ln the Jamabandi for the year 1952-53 name of Ali Shah disappeared and in the Bandobast 1984-85 same state of affair exists, therefore, no consolidation took place. The first.
Bandobast took place in the year 1928-29 and the second Bandobast has taken place in the year 1984-85 and the khasra numbers are changed. From the Jamabandi exhibited at page 221 of the record of this petition it is clear that Gul Muhammad defendant/respondent is in excess of 1/12 share when he purchased 1/6 share of Muhammad Shah but through a completely illegal entry of mutation.
10. Chapter III of the Land Revenue Act relates to the classes of Revenue Officers which are as follows:
(a) The Board of revenue;
(b) The Commissioner;
(c) The Collector;
(d) The Assistant Collector of the first grgde;
(e) The Assistant Collector of the second grade; Chapter VI of the said Act relates to the Record of Rights and Periodical Records. Section 41 gives mandatory duty to the Collector to get prepare the record of rights by the Patwari. An edition of record-of-rights under sub-section (2) shall be called the periodical record for the estate. Under sub-section (3), the Collector shall also cause to be maintained by the Parwari of each estate a register of mutations in the prescribed form. Under Section 42 of the Land Revenue Act any person acquiring by inheritance purchase, mortgage, gift, or otherwise, any right in an estate as a land owner has to report his acquisition of right to the Parwari of the estate who shall record such report in the . Roznamcha to be maintained in the prescribed manner and shall enter in his register of mutations every report made to ' him under sub-section (1) or sub-section (2) and shall also make an entry in the roznamcha and in the register of mutations respecting the acquisition of any such right for which he has reason to believe to have taken place and of which report should have been made to him under either of 'those subsections. Under sub-section (6) of Section 42 a Revenue Officer shall from time to time inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which under the foregoing sub-sections, report should have been made to the Patwari and entries made in that register; and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of right acquired. Under Section 45(10), it is the duty of registrar and subregistrars to send monthly reports to Tehsildars, particulars of all registered deeds, which purported to transfer agricultural land. Entries relating'to each deed were to be made on a separate slip and the office Kanungo would forward those slips to field Kanungo of the circle who would distribute them to Patwaris concerned for entries in their mutation registers for making an appropriate order for changes in revenue records in accordance therewith. Any clerical 6rror in the entries in the register Haqdaran Zamin by field Qanungo can be corrected through Fard badar and Board of Revenue in his revisional jurisdiction (PLD 1991 Lahore 314). Sub-section (17) of Section 45 prescribes the form where entries are long standing in the revenue record, lt creates an embargo that entries of long standing in revenue record should not be altered in summary manner, therefore, these entries can be corrected only by a Court of general jurisdiction.
11. Both the learned Courts below have not applied their mind judicially that the entries in the revenue record were not in respect of possession of the parties. Issue No. 1 was decided in favour of the plaintiffs holding them as owners in possession of the disputed property as legal heirs of their predecessor-in-interest, whose names were wrongly dropped by the revenue staff due to error or mistake. The entries in the revenue record were in respect of the shares of the legal heirs, which under the provisions of the Land Revenue Act were to be maintained by the revenue officer and the corrections of the shares of the legal heirs are not hit by the limitation. Had both the learned Courts below read the documentary evidence present on the record, they would have found that even the mutation of the defendant Gul Muhammad is not legal and correct and how the defendant is holding more land than the share of 1/6 which they claim to have purchased from one of the legal heifs and how Mst. Nandoon has given a statement when she had not become an owner in the property. The last entry in the Jamabandi for the year 1984-85 and all the shares of the legal heirs are being dropped due to the error of the Patwari who is bound by the above said provisions of law to maintain the record of* Jamabandis correctly. ..Moreover, the defendants are also claiming^to have purchased the share of one of the legal heir of Muhammad Shah through mutation No. 3123 and they are estopped by their conduct to question the entitlement of the legal heirs to get corrected their legal shares by a Court of competent jurisdiction No limitation runs against the correction of legal shares in respect of the owners in possession of the property in dispute whose entries are recorded in revenue record and both the learned Courts below decided that they are the owners in possession as legal heirs of their predecessors whose names are dropped not due to change of transfer by way of mutation but due to an error of the revenue field staff and why they should suffer from an act of the revenue staff, who ere bound by law to correctly maintain the revenue record, therefore, both the learned Courts below have failed to exercise jurisdiction vested in them by law. The impugned judgments are misconceived and are out come of non-reading of evidence specially the documentary evidence on record of this case.
12. In view of above Civil Revision is accepted, judgments of both learned Courts below are set aside, suit is decreed accordingly and the revenue authorities, the District Collector, Tehsildar, Qanungo and Patwari are directed to correct the entries in the revenue record.