' ABDUL LATIF KHAN J.---This civil revision petition under section 115, C.P.C. Is directed against the judgment and decree dated 10-12-2011 of the learned Additional District Judge, Paharpur D.I. Khan, whereby appeal of the petitioner-plaintiff against the judgment and decree dated 19-1-2011 of the learned Civil Judge-III, D.I.Khan, was dismissed.
2. Short facts leading to the instant revision petition are that the petitioner/ plaintiff filed a suit for declaration and possession through ownership against the respondents-defendants in respect of disputed land measuring 40 kanals 2 marlas detailed in the heading of the plaint. The defendants appeared before the learned trial court and filed their written statement. The learned trial court after framing issues, recorded evidence of the parties and hearing arguments of the learned counsel for the parties, dismissed the suit of the plaintiff vide judgment and decree dated 19-1-2011.
Appeal preferred against the judgment and decree of the learned trial court, was dismissed on 10- 12-2011, hence the present revision petition.
3. Learned counsel for the petitioner contended that disputed property measuring 40 kanals, 2 marlas devolved upon the petitioner vide inheritance Mutation No.748 attested on 14-5-1965 situated in Khata No.90 of Mauza Wajhoon Tehsil Paharpur District D.I.Khan, but the same is not incorporated in the Revenue Record at the time of preparation of Misl-e-Haqiat during settlement for the year 1968-1969. He contended that the names of respondents Nos.6 and 7 (Allah Yar and others) were wrongly incorporated in the column of ownership and that too without the aid of any instrument. He contended that the courts below have wrongly observed regarding entries in the Revenue Record. He added that in addition to the disputed property inheritance Mutation No.842 was given effect in Khata No.71 in favour of the petitioner which is not disputed in the instant case but the respondents tried to intermingle the same with Khata No.90 and the courts below have misconceived in delivering the judgment impugned herein.
4. As against that, learned A.A.-G. For the official respondents and learned counsel for the private respondents contended that the entries in the Revenue Record with regard Khata No.90 were incorporated in their names as a result of "Istimal" and the petitioner has got no locus standi to challenge the proceedings of settlement and the civil court has got no jurisdiction to adjudicate the matter.
5. I have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.
6. The perusal of the record reveals that the respondents are recorded as owners in Khata No.90 whereas the entries in the name of petitioner are not incorporated therein. The perusal of Mutation No.748 which is inheritance mutation of the predecessor of the petitioner in the name of the petitioner Mulazim Khan and Shehzadi has been attested in respect of Khata No.90. These entries were not made in the Revenue Record and for this very purpose the suit has been filed. The learned counsel for the respondents when confronted with the situation as to how the names of Allah Yar and others incorporated in Khata No.90 and with the aid of which instrument, he was unable to assist the court, rather contended that their names were incorporated in this khata during the course of "Istimal" but was unable to meet the query that if at all the impugned property has been incorporated in their name during "Istimal" then which of the property in lieu thereof has been incorporated in the name of the petitioner. He referred to Khata No.94 and contended that in lieu of Khata No.90 the same was given to the petitioner but the perusal of the entries in Khata No.94 reveals that the ownership column contains the names of the respondents (Allah Yar and others), so this being the position the learned counsel for the respondents was handicapped to assist the court as to how the entries in khata disputed property were incorporated in their names and failed to justify the same. The evidence available on file and statement of the Revenue officials recorded suggest that the petitioner became owner by dint of inheritance Mutation No.748 but the same has not been incorporated in the Revenue Record and the plea of the petitioner to this effect was well- founded and the courts below were unable to evaluate the evidence in accordance with law. As such the entries A in Khata No.90 are to be made on the basis of inheritance Mutation No.748 and the names of the respondents, wrongly entered in the Revenue Record, are liable to be deleted, as they have no nexus with the suit property.
7.
8. #TBS
9. B
10. C
11. #TBE
12. The respondents had taken the plea in their written statement that inheritance Mutation No.748 was in fact in respect Khata No.71 and the petitioner has nothing to do with the Khata No.90 which is misconceived for the reason that Mutation No.748 specifically attested regarding Khata No.90 vide which property measuring 40 kanals, 2 marlas was to be entered in the name of petitioner in Khata No.90 whereas inheritance Mutation No.842 was attested in favour of the petitioner with regard to Khata No.71, in respect of land property measuring 26 kanals, entries to this effect were made in Khata No.71. So the entries in Khata No.71 were not incorporated as the result of Mutation No.842 gather it was based upon Mutation No.748 and has got no nexus with the suit property. The learned trial court has not properly evaluated the evidence whereas the learned appellate court has wrongly concluded about the jurisdiction of the civil court apart from the findings on merits.
The prayer of the petitioner-plaintiff has not been considered by the learned appellate court as contained in the averment of the plaint which speaks about the entries to be incorporated on the basis of inheritance Mutation No.748 in Khata No.90 and has never challenged the consolidation proceedings. The observations of the learned appellate court that the proceedings of consolidation are to be challenged under section 26 of the West Pakistan Consolidation of Holdings Ordinance, 1960 are misconceived because neither the petitioner has challenged the proceedings nor there is any bar to file a declaratory suit under section 42 of the Specific Relief Act challenging the entries in the Revenue Record before the civil court and the civil court has ample powers to adjudicate the matter unless expressly or impliedly barred. Even otherwise the learned appellate court has given no reasoning and the appeal has been dismissed being meritless which 'is alien to law, for on one hand it is observed that the civil court has got no jurisdiction while on the other the appeal has been dismissed on merit, which is contradictory observation as in case of lack of jurisdiction, the appeal/ suit has to be returned to the plaintiff for presentation before the proper forum instead of dismissing the same on merits, which is not permissible under the law.
8. For the foregoing reasons, the present revision petition is accepted, set aside the impugned judgments and decrees of the learned lower courts and suit of the petitioner-plaintiff accordingly decreed.