Redi Gul and others, petitioners have filed the instant revision petition against Haji Sawab Gul and others, respondents, wherein he has challenged the judgment and decree passed by Mr. Fazle Subhan, Additional District Judge, Nowshera, vide which the learned Judge accepted the appeal of the respondents Haji Sawab Gul and others through Appeal No, 26/13 of 2001 decided on 17.12.2003.
2. Briefly narrated the facts of the case are that Haji Sawab Gul and others plaintiffs-respondents filed a suit for declaration that they are owners in possession of 25 kanals of land out of 75 kanals 1 marla comprising Khasra No, 146, situated in the area of village Shahkot Payan, Tehsil and, District Nowshera and the entries in the revenue record from which their names have been deleted by the revenue authorities as owners, are illegal and not binding on the plaintiffs-respondents. They had also prayed for possession and correction of the revenue record.
3. The defendants were summoned, who submitted detailed written statement and out of the pleadings of the parties the following issues were framed:--
1. Whether the plaintiff has got cause of action?
2. Whether plaintiff is estopped to sue?
3. Whether plaintiffs suit is bad for non-joinder of necessary parties?
4. Whether plaintiff suit is maintainable?
5. Whether plaintiff malafidely instituted for special costs?
6. Whether suit is time barred?
7. Whether plaintiffs were the owners of the suit property?
8. Whether defendants are the sole owners of suit land?
9. Whether plaintiff name wrongfully not mentioned in the revenue record?
10. Whether the pedigree table mentioned in Para-1 of plaint is correct and true?
11. Whether plaintiff is entitled for grant of decree as prayed for?
12. Relief.
4. The parties produced their respective evidence which they wished to produce and the learned Civil Judge, 1st Class, Nowshera, namely Miss Rozina Rehman, after hearing the learned counsels for the parties and scanning the evidence on the record, dismissed the suit of the plaintiffs- respondents, vide judgment and decree in Suit No, 14/1 decided on 18.9.2001.
5. Against this judgment and decree, the plaintiffs/respondents filed an appeal before the learned Additional District Judge, Nowshera and who after hearing the learned counsels for the parties and perusing of the record accepted the same through Civil Appeal No, 26/13 of 2001 decided on 17.12.2003 and granted the decree to the plaintiffs/respondents as prayed for.
6. Learned counsels for the parties' submitted detailed written arguments, which were placed on record and perused.
7. Learned counsel for the petitioner Syed Mir Muhammad, Advocate submitted that the defendant/petitioners are in physical possession upon which they have built a house over a portion of the suit land and are residing in it, while the rest of the land is under their cultivation. It was also argued that as the respondents are out of possession, thus, their suit was not within time and was liable to be dismissed. It was also argued that the suit land being `Shamilat', neither the. suit was brought in representative capacity under Order I, Rule-8 C.P.C. nor all the owners of Shamilat were made party to the instant litigation and thus, the suit was not maintainable.
Reliance was placed on Brederi Issaian Basti Charhdi through Inayat Masih and 6 others Vs. Aziz Baig and 8 others (PLJ 2002 Lahore 412) and Mst. Allah Jawai and others Vs. Muhammad Ali and others (1994 MLD Page 1269). It was also submitted that the plaintiffs tried to show that they are the owners of the suit land being successors of Mir Ahmad but they could not prove any link with the said Mir Ahmad as their predecessor-in-interest and there was no evidence on the record that they have proved the pedigree table. Reliance was placed on Muhammad Naeem and others Vs. Ghulam Muhammad and others (1994 SCMR Page-559) and it was submitted that in view of the fact that no link was proved with the said, Mir Ahmad, the suit was liable to be dismissed.
8. On the other hand learned counsel for the respondents Mr. Muhammad Arif Khan, Advocate submitted in the written arguments that the plaintiffs/respondents had become owners of the suit land vide inheritance Mutation No, 8 attested on 16.9.1930 and their names were deleted from the revenue record without any justification. This mutation was brought on file as Exh. CW 1/1 in the statement of Jehan Gul patwari and it was placed on record without any objection. It was also argued that the omission of the names of the plaintiffs/respondents without any justification will not debar them to bring a suit for declaration as the petitioner/defendant were in possession of the, suit land as co-owners and the possession of the one co-owner is the possession of all co- owners and the mischief of limitation will not come in the way of the plaintiffs/respondents.
Reliance was placed on Ghulam Mahmood Vs. Hukam Khan and others (1997 CLC Page 822) and Muhammad Jan etc. vs. Mst. Sahib Jan (2005 SCJ Page-422) and Abdul Latif Vs. Muhammad Zaman and 3 others reported in (PLD 1983 Peshawar-225).
9. I have gone through the record of the case and have considered the submissions made by the learned counsels for the parties.
10.Perusal of the record reveals that on 16.9.1930 Mutation No, 8 was attested in favour of Mir Ahmad predecessor of the respondents and without any justification. Their names were omitted from the revenue record, statement of CW-1 was recorded by the learned appellate Court and this mutation was placed on record without objection which cannot be questioned in view of the dictum laid in National Bank, of Pakistan Bannu Branch through its Manager Vs. Sayed Mir reported in (1987 CLC Page 1103).
11. Mutation No, 8 attested on 1.6.9.1930 was duly incorporated in the Jamabandi for the year 1928/1929 copy Ex. PW 1/17 and subsequently the name of Mir Ahmad predecessor of the respondents was omitted from the revenue record. Once it is established on the record that pursuant to the above mutation the inheritance devolved on the predecessor-in-interest of the respondents namely Mir Ahmad, there was no need to prove the pedigree table independently, as the respondents had become co-sharers. Regarding the limitation, it is important to note that every fresh jamabandi, carrying on incorrect entry gives a fresh cause of action so the suit was not time barred as held in the case of Ghulam Mahmood Vs. Hukam Khan and others (1997 CLC Page- 822) and Chiragh Din Vs. Nawab Din (2007 CLC Page-31):
12. The suit was not in representative capacity, as it was not with respect to the ownership of the entire shamilat deh, rather the suit was for correction of revenue record, as an incorrect entry had cropped up in revenue record, for which all the necessary parties, in whose presence, an effective adjudication could be passed were before the trial Court.
13. The judgment and decree of the appellate Court is based on sound, reasoning and is in accordance with the established principles of appreciation of evidence, which calls for no interference.
14. In view of the facts and circumstances of the case narrated above, this revision petition fails which is dismissed with no order as to costs. I had disposed of this revision petition by a short order dated 11.2.2008 and the above are the reasons for the same.