' RAUF AHMAD SHEIKH, J.---The petitioners have assailed the vires of judgment and decree dated 8- 4-2010 passed by the learned ADJ, Khanewal, whereby an appeal filed by them against the judgment and decree dated 9-12-2004 passed by the learned Civil Judge 1st Class, Khanewal was dismissed.
2. The facts in brief as emerge on perusal of the record are that respondent No,1/plaintiff filed a suit for declaration to the effect that he is exclusive owner in possession of the land measuring 10- kanals fully described in the headnote of the plaint. On the basis of the Mutation No,68 dated 31-7- 1954 and that the registered tamleek deed executed by Siraj Din (who died during the pendency of the suit and is now represented by petitioners Nos.2 to 5 i,e, defendants Nos.3-A to 3-D) in favour of Muhammad Sharif (who died during the pendency of the appeal and is now represented by petitioners Nos.1-a to 1-c) and the consequent Mutation No,580 dated 19-1-1993 are illegal, against the facts, void and liable of Cancellation so revenue record based on the above mentioned documents are liable of correction and that the plaintiff/respondent No,1 is owner in possession of V2 share of the disputed land. As consequence relief, it was prayed that defendant No,4 be restrained for ever from claiming the ownership over the property and transferring the same. It was contended that the predecessor of the plaintiff and defendants Nos.3-A to 3-D were residents of Tehsil Narwala of Patiala State. On independence, they along with their father Fattoo left their native place but Fattoo died on the way, whereas the plaintiff and Siraj Din original defendant No,3 arrived in Pakistan. The units of agricultural land left by their late father were transferred to Pakistan and land measuring 20-kanals was allotted to them jointly vide Mutation No, 68 dated 31-7-1954.
Siraj Din deceased, predecessor of defendants Nos. 3-A to 3-D was older than the plaintiff/respondent No,1, who asked him to settle in the City and start some business there and that his share in produce would be given to him regularly. On this the plaintiff shifted to Khanewal City, where he used to earn his livelihood through labour, whereas Siraj Din continued the cultivation of the disputed land but he used to give share in produce to the respondent No,1 regularly. It is alleged that two years prior to the institution of the suit, deceased Siraj Din stopped the payment of share in produce so the plaintiff/respondent made a demand in this regard but he fraudulently refused and told that he was exclusive owner of the land. On this the plaintiff/respondent checked the revenue record and found that Siraj Din with the help of the officials of the Settlement and Revenue Departments did not get Mutation No,68 dated 31-7-1954 entered in the revenue record and has illegally transferred the land to his grandson in order to deprive the respondent No,1 of his proprietary right. It is contended that the disputed tamleek deed and mutation are illegal and liable of cancellation.
3. The defendants Nos.3 and 4 contested the suit. It was contended that land measuring 20-kanals was allotted to predecessor of defendants Nos.3-A to 4 and that the plaintiff/respondent No,1 had no link with or right over it. It was also alleged that the civil court lacked the jurisdiction to hear the suit and it was also barred by time. It was further urged that plaintiff/respondent No,1 had no locus standi or cause of action to file the suit. Accordingly the learned trial court framed the following issues:--
(1) Whether the plaintiff is owner in possession of the suit land in pursuance of Mutation No,68 dated 31-7-1954? OPP
(2) Whether the registered tamleek by the defendant No,3 in favour of the defendant No,4 vide Mutation No,580 dated 19-1-1993 is against law and facts, against the principle of natural justice and liable to be set aside? OPP
(3) Whether the plaintiff is entitled to get the decree for declaration and in consequential relief decree for perpetual injunction for the reasons mentioned in plaint? OPP
(4) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether this Court lacks jurisdiction to hear the matter in question? OPD
(7) Whether the plaintiff is estopped to bring the suit by his words and conduct?OPD
(8) Whether the suit is badly time barred? OPD
(9) Whether the suit is improperly valued for the court fee and jurisdiction? OPD
(10) Whether the defendants are entitled to get costs from the plaintiff? OPD
(11) Relief.
4. After recording the evidence and hearing the arguments the learned trial court passed the decree for declaration as prayed for in ' favour of respondent No,1 'and against the petitioners, The same was assailed through an appeal before the learned Additional District Judge, which was dismissed through impugned judgment and decree dated 8-4-2010.
5. The learned counsel for the petitioners has contended that both the courts blow have miserably failed to appreciate the evidence available on record; that under Para No,67 of the Settlement Scheme, the mutation of succession of the deceased owner was to be attested but thereafter, the owners were required to seek allotment of their respective shares in accordance with law but respondent No,1 never wade prayer for allotment so he has no right over the land and lacked the locus standi to file the suit; that the jurisdiction of Civil Court is clearly, barred under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 so the impugned judgment and decree are void ab initio and the same are not sustainable in the eyes of law; that both the courts have miserably failed to appreciate that the suit having been filed on 29-12-1998 was hopelessly barred by time and that admittedly the. Respondent No,1 is in possession of the land so the suit for declaration without a prayer for a decree for possession is hit by proviso to section 42 of the Specific Relief Act, 1877. In support of the contentions raised reliance is placed on 2002 SCM R 829 and PLD 2011 SC 916.
6. On the other hand, the learned counsel for respondent No,1 has I contended that neither any order of the Settlement Authorities is assailed nor any proceedings have been called in question so the ouster of jurisdiction as embodied in section 25 of the Act ibid is not attracted; that the Settlement Authorities rightly allotted the land to both the brothers being heirs of the deceased land owner, who died before arrival in Pakistan and thereafter, the mischief was committed by the deceased with the help of the Revenue Officers and officials of the Settlement Department and as such the civil court being the court of ultimate jurisdiction had the jurisdiction to decide the matter under section 9 of the Code of Civil Procedure, 1908; that the possession over the land by Siraj Din was as co-heir/sharer and the plaintiff/petitioner was also in constructive possession of the same and as such the suit having been brought within two years of attaining of the knowledge of the fraud committed by the deceased and officials of the Departments was not barred by time. In support of the contentions raised reliance is placed on PLD 1990 SC 1.
7. According to the plaintiff/respondent No,1, he and deceased Siraj Din were real brothers, who migrated from India and the mutation of inheritance was attested in their favour by giving equal shares to them in the disputed land. This contention was not specifically refuted in the written statement and only an evasive denial was made to the effect that the remaining contents of para No,1 are incorrect. However, the petitioner No,2 as D.W-1 had stated for the first time that Naseer alias Nasira brother of his father had gone back to India after attestation of mutation and did not come back. This contention is totally false as both the brothers had also inherited land in village Kot Chutta, District D.G Khan and jointly alienated it on 16-2-1972 as is clear from the copy of Mutation Exh.P14. The mutation of inheritance Exh.P1 was attested on statement of Siraj Din, who categorically stated that he and Nasra are sons of Fattoo, who had died while coming to Pakistan at the time of independence. The mutation was attested on 3-9-1954 under the scheme by giving equal shares to his both sons. Thereafter, in Jamabandi for the years 1956-1957 (Exh.P11) both the brothers were shown to be in possession of the land under the Settlement Commissioner but then after 1960-1961, the land was firstly shown to be in exclusive possession of Siraj Din and then he was entered as owner of the same. It is thus obvious that the entries were not carried forward properly after 1956- 1957. Admittedly, the land was initially allotted to both the brothers in equal shares but thereafter, Siraj Din predecessor of the petitioners maneouvered entries in the revenue record. There is nothing on the record to show that this land was given to him in lieu of his 1/2 share only.
Admittedly, he himself remained in possession till execution of the impugned tamleek deed in favour of his son's son Muhammad Sharif, who was predecessor of petitioners Nos.1 to 3. According to Muhammad Sharif, the tamleek deed was made in his favour in 1993-1994 so till 1993-1994 the respondent No,1 would be deemed to be in constructive possession. According to him, he has filed the suit on attaining the knowledge of the forged tamleek deed and mutation attested in pursuance thereof. The suit having been filed on 29-12-1998, therefore, was not barred by time.
Even if it is admitted that Muhammad Sharif lawfully got 1/2 sharer of his father's father, he became co-sharer with respondent No,1, as share could have not been transferred. As such, the petitioner is in constructive possession with him also and the suit is not hit by proviso of section 42 of the Specific Relief Act, 1877. The next question raised by the learned counsel for the petitioners is that the civil court lacks the jurisdiction. Section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 provides as under:-- "Save as otherwise provided in this act, no Civil Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act".
The mutation of inheritance was attested by the Settlement Authorities, where-under both the sons of the deceased land owner were given their due shares. These entries were duly carried to Jamabandi for the years 1956-57, but thereafter, the same were unauthorizedly changed without ,any order of the competent authority. The ouster of jurisdiction under the above mentioned provision is not absolute. The plaintiff/respondent had not challenged any order of the Settlement Authority rather his grievance is that after attestation of the mutation under the orders of the competent authorities, the entries in the revenue record were illegally changed and this fact is established on the record beyond any doubt. The case law cited at the bar by the learned counsel for the petitioners is not applicable on the facts of the present petition. The concurrent findings of the courts of competent jurisdiction on the question of fact, cannot be interfered with in exercise of revisional jurisdiction under section 115 C.P.C. The impugned judgments and decrees do not suffer from any illegality or infirmity. The revision petition is without merits and the same is hereby dismissed.