MUHAMMAD NASIR MAHFOOZ, J.---Through instant revision petition, the petitioner has called in question the judgment and decree dated 14.03.2013 of learned Additional District Judge, Lakki Marwat, whereby accepting appeal of respondents/ defendants against the judgment and decree dated 17.12.201 1 of learned Civil Judge, Lakki Marwat, suit of petitioner was dismissed.
2. Brief facts of the case are that petitioner and performa respondents have filed a suit for declaration and permanent injunction and recovery of Rs,20000/-. It is averred in the plaint that they are owners in possession of suit Khasra Nos, 5465 and 5466, in Khata No, 399 including shamilat-e-deh of Moza Darra Pezu, while real respondents have no concern whatsoever , with the same and they be restrained to pose themselves as owner or to change the nature of property . The petitioner also claimed Rs,20000/- for the trees, which they cut and taken away .
Hence, the suit.
3. Real respondents/ defendants were summoned, who appeared and conteste d the suit by submitting written statement, wherein they contended that they have purchased the disputed property vide mutation No,10995 dated 06.11.1979, Mutation No,660 dated 29.11.2007 and through unregistered deeds No,465 dated 28.07.2008, deed No,67 dated 26.02.2007. On divergent pleadings of the parties issues were framed and parties' adduced pro and contra evidence. On conclusion of trial, the learned Civil Judge, Lakki Marwat decreed the suit vide judgment and decree dated 17.12.201 1. The respondents/ defendants being feeling aggrieved, preferred appeal before the learned Additional District Judge, Lakki Marwat, who after hearing arguments of learned counsel for the parties, accepted the appeal and dismissed the suit of petitioners/ plaintif fs, vide impugned judgment and decree dated 14.03.2013. Hence, the instant revision petition.
4. Arguments of learned counsel for the parties heard and record perused.
5. Perusal of revenue record abundantly makes it clear that the suit property comprising khasra Nos,5465 and 5466 is shamilat-e-deh, wherein the name of predecessor of petitioner namely Mir Ahmad son of Yaru is shown in the column of possession. As per pedigree table Ex:PW 1/2, father of petitioner has succeeded the estate of Sher Muhammad, his brother , who was issue less and both have had inherited from said Mir Ahmad, who was their grandfather . According to Ex: DW1/D-5, which is revenue record of shamilat-e-deh, but of other khasra numbers, not including suit khasra numbers. Predecessor of respondent Noor Muhammad is shown to have purchased 192 Kanal and 6 Marlas, vide impugned mutation No, 660 attested on 29.11.2001. Parties are in unison on the point that the said Noor Muhammad had pre-empted certain transactions in the disputed shamilat-e-deh and the said decree was affirmed up to Hon'ble Supreme Court of Pakistan in C.P. No,252 of 1999 decided on 31.05.2001, so this mutation is infact not sale mutation but attested on the basis of said judgment.
6. Findings of learned courts below in their impugned judgments reveals discussion on the merit of the case, but this fact has been ignored that the petitioner is still recorded as joint owner in the revenue record in the column of cultivation because entries in the column of ownership in the shamilat property is only made when person purchases any B property along with share in shamilat. Purchase of any property without purchasing share in shamilat is alien to the principle that person belonging to non-proprietary body could not be given same status as a person belonging to proprietary body of the village, who inherits his ownership rights. Reference in this regard is made to case reported as 2018 SCMR 2051 , titled "Muhammad Asjad Abbasi and others v. Iqbal Muhammad Chauhan and others " relevant Para is reproduced below:-- "This Court in the case of Ghulam Hussain v. Allah Baksh (1991 SCMR 1386 ) while interpreting section 3 of the Ordinance, has already held as under: "As regards the three last cases, it may be noted that these related to share in the shamilat. In the first one it was held that since plaintiffs did not base their claim upon any right as proprietors of any land assessed to land revenue, they were not entitled to the share in the shamilat. This was in view of the fact that only land holders had/have any right in shamilat. The Ordinance I of 1959, however , envisaged that even if land-holding is sold it will not be taken that Shamilat rights have also been sold unless specifically so stated: The right in Shamilat was no more contingent on land holding. The reasons may be that the legislature took into account the fact that because of drought or famine, a landholder may sell his land, go away to any other place or in the neighbourhood for livelihood and still retain his cattle and graze them in the old pasture of shamilat, or, that he was not to be ousted from the community by depriving him of his share in the shamilat. Reasons may be diverse but it is clear that the Ordinance recognized two rights independently of each other and not contingent, i,e, right in the land proprietorally held a right in the shamilat land. The second case too, is based on contingency of land holding for share in shamilat and if the former is lost by adverse possession the latter is also lost. But this too is prior to the Ordinance. In the third case, the right was lost because from cause of action suit was not filed within limitation."
7. In view of above, I hold that petitioner being co-sharer this petition must be partially allowed to the extent that a decree for perpetual injunction is granted in favour of petitioner without disturbing right of respondents, who are also joint owners in the suit property . The impugned judgment and decree is modified accordingly .