' DR. SAJID QURESHI, J.---Brief facts of the case are that the respondents filed a suit for declaration and mandatory injunction against the petitioners titled as "Malik Shahzada Khan and others v.
Collector and others" (Suit No,358 of 1991) claiming therein that the respondents' father Fojdar got 35 Kanals 3 Marlas land from Khasra No,1729, 286 old (present Khasra Nos.298, 299 and 1849) situated in Village Noon Tehsil & District Islamabad through exchange Mutation No,1592 dated 23- 12-56 and inadvertently at the time of incorporation of revenue entries in the Jama Bandi of 1956- 57 the revenue officer entered only 25 Kanals 13 Marlas instead of 35 Kanals 3 Marlas in favour of respondents since they were in possession of land. They remained unaware of the entries. In the year 1991, they found out that out of 35 Kanals 3 Marlas land only 25 Kanals 13 Marlas of exchanged land was in their name in the revenue record. The suit was filed and was contested by the petitioners and on the pleading of the parties, the issues were framed and later on when the other suit titled Lal Khan and others v. Shahzada Khan and others was filed and both the suits were consolidated. The suit titled "Malik Shahzada Khan and others" v. Controller and others was ex parte decreed in favour of the respondents on 29-5-1996. The petitioners filed the appeal against the judgment and decree dated 29-5-1996, which was accepted and the case was remanded vide order dated 19-11-1997 for decision afresh. The petitioner also filed the suit for declaration, cancellation of Mutation No, 1592 dated 23-12-1956 on 6-1-1997. Suit No,79 of 1997 titled "Lal Khan and othersv. Shahzada Khan and others against the respondents claiming therein that Mutation No,1592 dated 23-12-1956 is the result of forgery and fraud committed upon the petitioners by the respondents for the reason that respondents' father transferred and executed 33 Kanals of land in the name of the petitioners, whereas they were entitled for 35 Kanals 18 Marlas of land in exchange and one Khasra number 1168 measuring 2 Kanals 18 Marlas was left in the impugned Mutation which was also verbally agreed by the parties to transfer in the names of petitioners. Furthermore the Fojdar father of the respondents was owner in Khasra No,1136 only to the extent of 1/4th share and in Khasra No,1167 only to the extent of 1/2 share whereas he by concealing the defect of title and by committing fraud upon the petitioners, transferred the whole Khasra numbers in the name of the petitioners and due to this fraud, when the Mutation was incorporated in the subsequent jama bandies ownership was only 17 Kanals was transferred in the names of the petitioners. This fact was revealed when a quarrel took place between Malik Shahzada Khan, Munir Ahmad Patwari and Lal Khan over construction of a pulley and the suit titled "Shahzada Khan v. Lal Khan" was filed against the petitioners. The petitioners then inquired about their ownership and checked the revenue record, the petitioners requested the respondents to transfer the 35 Kanals 18 Marlas of land in the names , of the petitioners or otherwise cancel the exchange Mutation No,1592 dated 23- 12-1956 but in vain. That both the suits were consolidated and both the parties led their respective oral as well as documentary evidences. The respondents relied upon their previous evidence, which they produced and which was recorded in the suit titled Shahzada Khan v. Collector and others in which, Shahzada Khan himself appeared as P.W.3 and he also produced P.Ws.1 and 2 in support of his version. He also produced documentary evidence from Exhibit P-1 to Exhibit P-6, whereas on the petitioner's side Lal Khan appeared as D. W.1 and also produced Muhammad Amin as D.W. 2 and documentary evidence from Exhibit D-1 to D-4 were also produced for strengthening his version. After hearing the arguments of the parties, the suit titled Malik Shahzada Khan v.
Collector and others was decreed while the suit titled Lal Khan and others v. Shahzada Khan and others was dismissed on 14-5-2001. The present petitioners filed an appeal against the judgment and decree dated 14-5-2001 which was accepted and the case was remanded back to the trial Court for decision afresh on each and every issue and after giving findings about Issue No,8-A.
That through judgment and decree dated 29-3-2003; the learned trial Civil Judge Mr. Aamir Saleem Rana dismissed both the suits. That both the parties filed the appeal before the District Judge, Islamabad, which were later on entrusted to Mr. Arhad Ali, Additional District Judge, Islamabad, who vide his judgment and decree dated 14-4-2004 decree the suit of the respondent titled as Shahzada Khan and others v. Collector and others and dismissed the suit of the petitioners titled as Mazhar Khan and others v. v. Shahzada Khan and others (previously titled as Lal Khan and others v. Shahzada Khan and others in the trial Court).
2. The learned counsel for the petitioners stated that both the Courts did not give separate findings on each issue violating the provisions of Order XLIII, Rule 31 of the C.P.C. The learned counsel stated that the respondents were ,not owners of 33 Kanals of land, which they transferred through exchange Mutation No,1592 dated 23-12-56 at the time of transfer was not given any weight by the Courts below and oral as well as documentary evidence was ignored. The respondents were owners of 35 Kanals and the appellate Court did not see the Mutation in which the land was transferred in exchange in favour of the petitioners through three different Khasra numbers from there different Khewats. That one of P. W.3 stated in his evidence before the trial Court during cross-examination that if the defendants would give 35 Kanals 3 Marlas, they were not ready and willing to give them 33 Kanals, meaning thereby that they were not ready to perform their part of agreement regarding the exchange Mutation and the sole ground was sufficient to cancel the exchange Mutation. At the time of transfer of exchange Mutation No,1592 the Khasra Nos. 1167 and 1136 was proportionally owned, hence the respondents were not competent to transfer the whole land in the name of the petitioners. On the point of adverse entry in the revenue record the petitioners' counsel relied on 2004 SCM R 1502, (Supreme Court of Pakistan) (Rehman v. Yara) in which it was held that adverse entry in the revenue record along with evidence of the documents coupled with admission of witnesses indicated the possession of the plaintiff and the person in possession of the land could not rush to the Court only on the basis of adverse entry in the revenue record. The learned counsel further stated that the High Court in a civil revision could interfere he relied on 2000 SCM R 533 (Muhammad Siddique v. Muhammad Akram) Supreme Court of Pakistan, 1985 CLC 2309 (Karachi) Muhammad Daud Khan v. Muhammad Usman Ghani). On the point of misreading the evidence, the Appellate Court should consider the reasons recorded by the trial Court and by misreading the evidence, could reverse the findings. The learned counsel stated that, based on this judgment, the ADJ should have reversed the decision. He also relied on PLD 1989 SC 568 Nasir Abbas v. Manzoor Haider Shah, 1996 M LD 818 (Karachi) (Haji Abdul Jameel v. Anjuman Jameh Masjid Haqani), PLJ 1973 Lahore 450, Muhammad Din v. Province of West Pakistan). Finally, the learned counsel concluded that there was sufficient evidence oral as well as documentary on the file about the defect of the title in the suit-land, which the respondent's father transferred in the names of petitioners through the exchange Mutation and the respondent's father Foujadar concealed this fact and committed forgery and fraud upon the petitioners in connivance with the revenue authorities and transferred the land with their defective title in names of the petitioner. In light of this he argued that the suit titled "Lal Khan v. Shahzada Khan" may be decreed with costs and the suit of the respondents titled "Shahzada Khan v. Collector" may be dismissed.
3. The learned counsel for the respondents reiterated the facts that vide Mutation No,1592 the land was exchanged measuring 35 Kanals 3 Marlas with the land measuring 35 Kanals 18 Marlas with the defendants that 2 Kanals 18 Marlas were not mentioned in the exchange in Khasra No,1168 and upon inspection of the revenue papers it was revealed that the petitioners only owned half the land but they exchanged land measuring 33 Kanals while two Kanals 18 Marlas were to be required to be transferred through Mutation or exchange. This did not happen due to the mala fide contention. He stated that the entries were incorrect. In one appeal "Shahzada Khan v. Collector", the learned counsel stated that this decision is against the law whereas the suit of the petitioner was a counter blast and the due judgment was based on surmises and conjectures. The learned counsel stated that the Mutation was for 35 Kanals 3 Marlas which was exchanged with 33 Kanals. The learned counsel relied on PLD 1978 SC (AJ&K) 75 Mustafa and three others v. Muhammad Khan, in which it was held that there is a right to alienate land in case of joint possession. In 2003 CLC 909 Bibi Jan v.
Mir Zaman, in which it was held that there is settled law that when any of the co-owners is in possession of specific area of joint property he can alienate the same subject to final adjustment at the time of actual partition. The learned counsel also relied on PLD 1959 SC 9 (Muhammad Muzaffar Khan v. Muhammad Yousaf Khan), in which it was held that the principles of reciprocity and mutuality would imply that the purchaser had a right to be regarded as owner of an area equivalent to that transfer, the whole joint Khata. In 1995 CLC 195.1 SC AJ&K, (Muhammad Afzal Khan v. Muhammad Latif), in which it was held that transfer of land could take place even though his share in specific field numbers exceed his shares provided it should not exceed his overall entitlement of share in whole land.
' Arguments heard record perused and case law examined.
' The learned ADJ, Islamabad, in his consolidated judgment, dated 14-4-2004 has disposed of the two appeals namely (Malik Shahzada Khan v. Collector, Islamabad) and (Lal Khan v. Malik Shahzada Khan). Reference was made to the learned trial Court and the oral and documentary evidence and the arguments of learned counsel for parties. The controversy here is that Malik Shahzada Khan (the respondent) has maintained that his predecessor had exchange 35 Kanals land but actually in the revenue record 25 Kanals have been transferred in the name of the respondents and whereas the remaining 10 Kanals in record is to be corrected. From the record, the Mutation was attested accordingly but in the revenue record the entitlement has been shown as 25 Kanals whereas as per Mutation 35 Kanals and 3 Marlas were given. The petitioner case is that the respondent is not in possession of property measuring 35 Kanals 3 Marlas; that the petitioners have no where in their written statement taken any plea against the Mutation No,1592 dated 23-12- 56 it was also claimed that respondent in connivance with the official of the revenue department fraudulently obtained the said Mutation and due to their influence, the Mutation measuring 2 Kanals 18 Marlas was left out and not incorporated in Mutation thereby depriving the petitioner of property measuring 2 Kanals 18 Marlas. From the record, the Mutation No, 1592 dated 23-12-56 is an admitted document although it was alleged to be forged as a result of fraud. However, the parties have not labelled any forgery to this document as far as execution was concerned. The petitioners are not in possession of 35 Kanals 3 Marlas but they challenged the Mutation. The petitioner could not prove the exchange of 35 Kanals with 35 Marlas of the respondent. The Mutation shows that it was 35 Kanals 3 Marlas exchanged with 33 Kanals. The allegation with regard to transfer to less property by the petitioner is fake since the Mutation property measuring 33 Kanals has been transferred to the predecessor of the petitioner. As regard to the oral transfer of 2 Kanals 9 Marlas the petitioner has failed to prove any oral exchange. Clearly, the petitioner is in possession of 33 Kanals whereas the respondent is in possession of over 35 A Kanals 3 Marlas. In these circumstances, this civil revision is dismissed, the judgment of the learned ADJ, dated 14-4-2004 is upheld. Parties to bear their own costs.