MUHAMMAD NAEEM ANWAR,J.- This single judgment in the instant petition shall also decide connected civil revisions as an identical controversy is involved in all these petitions between the parties pertaining to their ancestral property of the two revenue estates of Alpuri & Lalonaie bearing Khasra Nos. 7, 13, 8, 9, & 12 of Alpuri and khasra No.1286 of Lalonaie 'and Khasra Nos. 10 & 11 possess by them but owned by the predecessor in interest of defendants No. 8 to 15 (Nosherwan).
Particulars of the connected civil revisions are as under: 1) C.R No.730-11/2011 Rahmat Munir Vs. Aqal Munir and others 2) C.R No.152-P/2015 GuI Munir through LRs Vs. Rahmat Munir and others 3) C.R No.213-M/2016 Aqar Munir and others Vs. Gul Munir and others 4) C.R No.214-P/2016 Aqal Munir and others Vs. Gul Munir and others 5) C.R No.216-M/2016 Bakht Munir Vs. Muhammad Zubair and others
2. C.R No.152-M/2015 is in respect of the suit filed by Rahmat Munir and Bakht Munir, wherein they have challenged the entries of the revenue papers pertaining to khasra No.8 measuring 07-marla of the revenue estate of Alpuri in favour of Rafi Ullah etc. and further alienation in favour of Gul Munir through mutation No.1717 dated 10.05.2011 as ineffective upon their rights but since khasra No.8 is also the subject matter of suit No.10/1 filed on 29.09.20008, thus, this C.R No.152-M/2015 also requires disposal through this consolidated judgment.
3. Relevant facts for disposal of all these petitions are that Pir Dad who was the owner of the property bearing khasra Nos.7, 8, 9, 12, & 13 of the revenue estate of Alpuri and khasra No.1286 of the revenue estate of Lelonai District Shangla, had five (05) sons and three (03) daughters, out of whom Aqal Munir and Bakht Munir, Saif Ullah s/o Aqal Munir filed suit No.10/1 of 2010 on 29.09.2008 kir declaration to the effect that the property marked and particularized on the strength of the decision of the elders dated 07.09.2006 to the extent of plot No.2 is owned and possessed by plaintiffs No.1 & 2 while plot No.3 is the ownership of plaintiff No.3; that their brothers, sisters and other defendants including official defendants, have got no right either to deny their proprietorship or to interfere in it. Ancillary relief for mandatory injunction was also sought to the effect that the property reflected in the decision of elders may be incorporated in the revenue papers in favour of plaintiff No.1 & 2 to the extent of plot No.2 while in favour of plaintiff No.3 to the extent of plot No.3 and that for the purpose of expenses for alienation of the property, defendants No.1 to 3 be directed to contribute 3/5th share. Further mandatory injunction was also sought that to the extent of khasra No.11 measuring 9-marla of the revenue estate of Alpuri in jamabandi for the year 2006-07 that defendants No.1 & 2 be directed to pay an amount of Rs.1,000,000/- to plaintiff No.1 but before 30th of March 2009 so that he could act upon igrarama bearing No.479-C dated 29.04.2008 and that to the extent of expenses for alienation in the revenue papers, 2/5th share be paid to plaintiff No.l. A prayer was also sought that in case, the entry in the revenue papers to the extent in the estate of Alpuri is not made in favour of plaintiff No.1 before 30th March, 2009, or in case of failure of defendants No.1 to 3 in payment to defendants No.8 to 15 (the legal heirs of Nowsherwan Khan), defendants No.1 to 3 shall make the payment of the loss of plaintiffs No.1 & 2; that the defendant No.1 to 3 be directed to transfer the property from khasra No.10 with measurement of 07 feet in width and 50 feet in length, total measuring 01-marla and 03-sarsai as marked in plot No.2, be incorporated in favour of plaintiff No.1 and property measuring 20 feet in width and 50 feet in length measuring 03-marl and 06-sarsai, be incorporated in favour of plaintiff No.3 in the revenue papers.
A relief for perpetual injunction was also sought that the defendants be restrained from making any interference and in alternate, a decree for recovery of possession was also sought that if the defendants do not act upon the settlement affected on 09.07.2006, the entire property be' considered as ownership of their predecessor in interest and possession to the extent of their shares be transferred to them through partition. Suit was resisted by the defendants through their separate written statements. From the divergent pleadings of the parties, the learned trial court framed issues and recording of evidence led the learned trial Court to the conclusion that the plaintiffs could not prove their case to the extent of reliefs A (i), (ii)(iii)(iv)(v)(vi), B-(i) (ii)(iii)(iv)(vi) whereas preliminary decree to the extent of khasra No.7, 8, 9, 12 & 13 of the revenue estate of Alpuri and khasra No.1286 of the revenue estate of Lelonai was granted in favour of the plaintiffs and defendants Nod to 6 but the possession of the all the owners shall be protected as much as possible, that the price of plot owned by defendants No. 8 to 15 shall be paid by plaintiff No.1, that the plot of defendant No. 7 measuring 5 Marla, which is in possession of plaintiffs No. 1 & 3, they shall pay the price as per their respective possession to him. The judgement & decree was pronounced on 29.05.2010. This preliminary decree was assailed by Rahmat Munir, Aqal Munir and Saif Ullah through their appeals No. 147/13 84 No.148/13, which were dismissed by the learned District Judge/ Zila Qazi, Shangla on 12.04.2011, being time barred, hence, this civil revision and connected C.R No.730-P/2011.
4. After passing of the preliminary decree, Aqal Munir and his son Saif Ullah have filed an application for appointment of receiver, which was turned down by the learned trial Court through its order dated 10.04.2014 and there-against Civil Appeal No.17/13 of 2014 was also dismissed being meritless by the learned Appellate Court vide order dated 27.04.2016, hence, connected C.R No.213- M/2016.
5. During pending adjudication of the referred to above civil revisions, a commission was appointed, whose report was objected to by Aqal Munir, Saif Ullah and Bakht Munir etc. After recording of the statement of the learned local commission, the preliminary decree was converted into final decree, on the basis of confirmation of the report-ecommission, against which, Civil Appeals No.19/13, 20/13, 21/13 of 2014 were filed by Bakht Munir, Mst. Pari Zadgai and Aqal Munir but same were dismissed by the learned appellate Court through its judgment dated 27.06.2016, hence, C.R No.214-M/2016 and C.R No.216-M/2016.
6. Rahmat Munir and Bakht Munir sons of Pir Dad filed Civil Suit No.58/1 of 2011 for declaration to the effect that khasra No.8 measuring 07 Marla of the revenue estate of Alpuri known as was initially the ownership of Pir Dad (the predecessor in interest of the plaintiffs and defendants No.1 to 3), who had sold it in favour of Muhammad Rahim, the predecessor in interest of defendants No.4 to 13 but after the death of Pir Dad and Muhammad Rahim, defendants No.4 to 13 have sold the property to plaintiffs and defendants No.1 to 3 in equal share for sale consideration of Rs.50,000/- for which, an agreement was scribed. Since, defendant No.4 Rafi Ullah was minor and on whose behalf the defendant No.5 has signed the deed, which resulted into the entries of the revenue papers in their favour but defendant No.4, on attaining majority, with connivance of Gul Munir (respondent No.1) has sold his share in favour of defendant No.1 through mutation No.1717 dated 10.05.2011, thus, these entries are ineffective upon their rights. This suit was decreed by the learned trial Court on 09.10.2012, against which, Gul Munir filed Civil Appeal No.58/13 of 2013 but same was dismissed by the learned Additional District Judge/Izafi Zila Qazi, Shangla vide his judgment and decree dated 20.03.2015, hence, .C.R No.152-M/2015.
7. Arguments heard and record perused.
8. Insofar as the dismissal of Civil Appeal No.147/13 of 2010 filed by Rahmat Munir against the preliminary decree of the learned trial Court dated 29.05.2010 and Civil Appeal No.148//13 of 2010 filed Aqal Munir etc. on the ground of limitation is concerned, suffice it to say that the judgment of the learned trial Court was passed on 29.05.2010, appeal No.147/13 was filed on 06.07.2010, the application for getting the attested copy of the judgment was filed on 16.06.2010 and copy was provided on 21.06.2010, the appeal could be filed on the last date i.e., 04.07.2010 by excluding the period lapsed in getting the attested copy of the judgment u/s 12 (2) of the Limitation Act, 1908 (the Act of 1908) whereas Civil Appeal No.148/13 of 2010 was filed on 07.07.2010, application for obtaining attested copy of the judgment of the learned trial Court was filed on 12.06.2010 and copy was provided ,on the same date, the appeal could be filed on the last date i.e., 30.06.2010 by excluding the time consumed in getting the attested copies of the judgment, thus, both the appeals were dismissed by the learned appellate Court, being barred by time. In civil appeal No.147/13, no application u/s 5 of the Act of 1908 was filed for condonation of delay whereas, in Civil Appeal No.148/13, an application was filed for condonation of delay but no sufficient reason was mentioned therein. The arguments of learned counsel for the parties were regarding the particulars of date of submission of the applications for getting the attested copies of the judgments, preparation thereof, receipt of attested copies of the judgment of the learned trial Court and the dates of filing of appeals but those facts relate to the attested copies, which were obtained for the purpose of filing of Civil Appeals No.147/13 and 148/13 but neither the attested copies of the Court of appeals were annexed with both these petitions nor the learned counsel for the parties were in possession of those particulars. In such circumstances, nothing contrary to the judgments of the appellate Court dated 12.04.2011 could be produced before the Court for determining of fate of the appeals, which are subject matter of the instant civil revision and connected C.R No.730-P/2011, with specific reference to the condonation of delay in filing of their appeals and law on this point is settled that the person seeking the condonation of delay is required to explain the delay of each day with plausible and particular reasons, which element is lacking in both these petitions/Law is settled that in seeking condonation under section 5 of the limitation Act 1908, each and every day is required to be explained with plausible reasons but the petitioner has failed to do so. Reliance in this regard may be placed on the case of "Secretary Education Department, Government of N.W.F.P, Peshawar and others Vs. Asfandiar Khan" (2008 SCMR 287). Learned counsel for the parties remained unable to justify the filing of appeals after expiry of the period of limitation as provided under the law in terms of section 96 of the C.P.C and Article 152 of the Limitation Act, hence, both these petitions are hereby dismissed being without substance.
9. C.R No.213-M/2016 is the outcome of an application submitted by the petitioners for appointment of a receiver after passing of the preliminary decree when the proceedings for conversion of the preliminary decree into final decree were pending adjudication before the trial Court and that application was dismissed by the learned trial Court on 10.04.2014 and an appeal there-against also failed vide order dated 27.04.2016. Appointment of the receiver has been recognized as one of the harshest remedy available under the C.P.C and it is allowed only in exceptional cases. The party seeking appointment of receiver has to show some emergency or danger or loss, demanding immediate action. It is also pertinent to mention that the party seeking appointment of receiver has to prove that at such interlocutory stage of the suit by means of cogent evidence that the property involved therein was at great risk and danger of getting destroyed at the ends of the other party, which was likely to cause irreparable loss to him. It was essential that the receiver should be appointed and directed to take over the possession of the property. Reliance in this respect is placed on the cases of "Abdul Rashid Vs. Zahid" (2001 YLR 349), "Sahib Khan v. Muhammad Ramzan and another" (2000 MLD 729), "Mst. Saeeda Khatoon v.
Haji Zangi Khan and others" (2009 YLR 175) and "Sikandar Abdul karim Vs. Mst. Qamar Jehan and 11 others", (2009 CLC 42). Moreover, the appointment of receiver is a stopgap arrangement during pendency of the suit with certain essential ingredients: i. The appointment of a receiver pending in a suit is a matter resting in the discretion of the Court; The Court should not appoint a receiver except upon the proof by the applicant that prima facie his suit shall be decreed; iii. Not only the above but will have to show the adverse and conflicting claim to the party and emergency or danger or loss demanding immediate action. and of his own mind, he must be reasonably clear and free. from doubt because the element of a danger is an important consideration for the appointinent of receiver; iv. The order for appointment of receiver will not be made in a case where has the effect of depriving the defendant or a de facto possession, since that might cause irreparable wrong. It would be different where the party is shown to be in medio that is to say in enjoyment of no one; and v. The Court, in the application made for the appointment of receiver, looks to the conduct of the party who makes the application and will usually see that his conduct has been free from blames and that if it is shown that interest of a person seeking the appointment of a receiver is exposed to manifest peril, a receiver has to be appointed.
Though in the case of "Ch. Muhammad Ishaq and others Vs. Ch. Abdul Ghani" (2000 SCMR 1326), the High Court has appointed a receiver and the order was affirmed by the apex Court in a suit pertaining to possession of the property inter se the parties but even then it was during pendency adjudication of the suit whereas, in the instant matter, the application was filed when the suit was culminated into preliminary decree and at that moment, the matter was pending for conversion of the preliminary decree into final decree because the application was filed on 13.11.2012 whereas suit was decreed on 29.05.2010. Not only the basic ingredients for appointment of receiver were not in consonance with the provisions of order XL of C.P.C but the emergent situation, wherein a receiver could be appointed, is also missing in the matter in hand. When confronted, learned counsel for petitioners could not point out any danger or urgency when the application for appointment of receiver was moved thus, the controversy was rightly laid to rest by the learned trial Court while dismissing the application when the matter was pending for conversion of the preliminary decree into final decree and the impugned order of the learned Appellate Court dismissing the appeal against order of the learned trial Court is also in consonance with law, to which learned counsel for the petitioners has not been able to point out any illegality or legal infirmity, thus, this petition (C.R No.213-M/2016) is dismissed being devoid of merits.
10. C.R No.152-M/2015 is the outcome of suit No.58/1 of 2011 filed by Rahmat Munir and Bakht Munir against Gui Munir and others but in respect of the property bearing khasra No.8 measuring 07- marla of the 'revenue estate of Alpuri, which is the subject matter of partition amongst the parties as per their shari and legal shares in case the plaintiffs of suit No.10/1 remained unable to prove the case being based upon the decision of the elders/ salisaan dated 09.07.2006, therefore, keeping in view the subject matter of suit. No.10/1, this petition is decided through this consolidated judgment, wherein the plaintiffs of suit No.58/1 have challenged the entries of the revenue papers on the basis of mutation No.1717 attested in favour of Gul Munir son of Pir Dad from Rafi Ullah s/ o Muhammad Rahim, for transfer of the property to the extent of his share in lieu of Rs.81,000/- copy of the mutation is available on record at page No.31 of C.R No. 152-M/2015 but neither it is legible either from order of the revenue officer or otherwise that who were the marginal witnesses of this mutation, vide which, the property was transferred in favour of Gul Munir. The moot question involved in the C.R No.152-M/2015 is as to whether sale consideration was received by Rafi Ullah from Gul Munir? In order to prove, one Izzat Khan who was one of the attesting witnesses of mutation appeared before the Court as DW-3 but has categorically stated that in his presence, no money changed hands. DW-1 was Badar Munir, the attorney for defendants but he too could not place it on record that when, where and how much amount was paid. To a partidUlar question, he replied that the matters were settled earlier to the attestation of mutation. Ikram Ullah (DW-2) has not uttered even a single word regarding the payment of sale consideration in his presence rather he in his examination-in chief has deposed that the amount was earlier received by him but he was not the witness of payment of sale consideration. Not even an iota of evidence is available on the record to justify the attestation of mutation in favour of the petitioner/ defendant No.1 of suit No.58/1. No doubt that attestation of mutation could not be made the base for a declaration but it is of equal importance, when the entries in the revenue papers are incorporated on the basis of mutation, which affects the right of a person and in such an eventuality u/s 53 of the Land Revenue Act, 1967, a declaration could be sought and the person, beneficiary of the entries of the revenue papers or the vendee of the mutation, in such circumstances, was required to prove the sale in his favour from his vendor. The defendant. of the suit being beneficiary of the mutation was required to prove the correctness & genuineness of the mutation because the Law requires certainty, certitude and sureness from the executant, beneficiary and marginal witnesses of a document. Rel: Mst.
Kalsoom Bibi and another Vs Muhammad Arif and others" (2005 SCMR 135), "Muhammad Samar Vs. Mumtaz Bibi and others" (2020 SCMR 276), & "Mst. Tafrian Vs. Zarshaid Khan and another"
(2016 YLR 1883, Peshawar). The petitioner has not been able to discharge his onus, thus, the learned trial Court has rightly decreed the suit to the extent of share of the vendor of the mutation challenged through suit No.58/1 and appeal there-against was rightly dismissed by the learned Appellate Court. Learned counsel for the petitioner has not been able to point out any illegality or irregularity in the concurrent findings of the learned Courts below, therefore, this petition, being devoid of merits, is hereby dismissed.
11. Now comes to the C.R No.214/2016 86 C.R No.216- NI/2016. During pending adjudication of the application submitted by the decree holders for conversion of preliminary decree into final decree, Tehsildar Irrigation was appointed as a local commission with directions to: i. inspect the spot, to measure the property and to determine the possession; ii. determine the shares of parties in terms of the preliminary decree and mode of partition by specification of path and passage of water; iii. determine the market value of the property; iv. if the property is not partitionable then to prepare a comprehensive report regarding the determination of the issue involved.
The local commission proceeded to the spot on 19.05.2016 and in presence of the parties,. Patwari Halqa of the revenue estate of Alpuri and Lelonai measured the property, prepared the sketch of the entire disputed property, particularized the possession of Rahmat Munir, Saif. Ullah, Aqal Munir, Bakht Munir, Gul Munir, Muhammad Zuabir and Mst. Pari Zadgai, Mst. Sherin Zadagai and Mst. Meher Bano. According to the shares, each brother was the owner to the extent of 1- k -2 1/5 .m while each sister was the owner to the extent of 0 -11 13/100 shares out of total property measuring 06-kanal and 03-marla in view of their status being five brothers and three sisters and share of each brother is 2/13 and of each sister is 1/13. Comprehensive report of the local commission was submitted but it was objected to by the parties and as such statement of the local commission was recorded as CW-1, however, objections were discarded and report of the local commission was confirmed, resultantly the preliminary decree was converted into final decree, against Which, the appeals of the petitioners of both these petitions failed. It is pertinent to mention that the learned local commission when proceeded to the spot, he has considered khasra No.1284 & 1285 measuring 03 Maria and amalgamated the same with khasra No.1286, the total measurement of all these three khasra numbers was found by him as 08-marla, which was divided into equal shares, 04- marla were considered to be the ownership of step-brothers Saif ur Rahman etc. and 04-marla were distributed amongst the parties wherein a market of 08 shops alongwith basement and a hall are constructed, which was found in possession of Muhammad Zubair. It is important to note that during the course of arguments, learned counsel for the parties were asked about the joint character of khasra No.1284 & 1285, which were not the part of suit No.10/1, however, learned counsel for the parties alongwith Muhammad Zubair unanimously admitted it at the bar that these two khasra numbers, which were not the part of suit No.10/1, is joint ownership of the parties from their predecessor Pir Dad. Thus, the local commission has rightly taken it into consideration for the purpose of partition. The local commission found that Rahmat Munir is in possession of 10-marla in excess to his share, possession of Bakht Munir was found to be deficient of 9 1/2 marla. The possession of Saifullah and Aqal Munir was found deficient to 4 1/5 marla, Muhammad Zubiar 13- marla and 2 1/2 marla of the sisters whereas Gul Munir was found to be in possession of his actual entitlement. As per the report, Muhammad Zubair was given 18-marla, 03 brothers were given 04- kanal 86 02-marla while 11-marlas were suggested for the sisters. If the total entitlement of 06- kanal 03-marla is considered and the property which was distributed amongst others comes to 05- kanal and 11-marla then in such circumstances, the remaining property is only 12-marla.
Irrespective of the fact of addition of 02 khasra numbers, which were added later on but to the extent of 04-marla which were equally held to be the share of all the parties, even then the specification of the shares in terms of the contents of the report and sketch prepared by the local commission is not in consonance with each other. Mst. Pari Zadgai and his other sisters were found at the very south of the sketch, Muhammad Zubair and Gul Munir and Bakht Munir were specified at different places in the sketch, but their possession at the spot as suggested and decreed, are different. Saif Ullah and Aqal Munir, who were given the area as mentioned above, have got no direct connection with the road except their property bearing Icha,sra No.11, though the same was the subject matter of the suit irrespective of the fact that it was the ownership of the others but regarding which, a suit remained pending adjudication and at the end, it was decreed in favour of Rahmat Munir and he was held entitled to be the sole owner after the sale consideration amounting to Rs.25,00,000/-. Apart from his owned property, out of ancestral property as suggested by the learned local commission in the sketch as well as in the report have no direct link with the road, however, the same may be taken into consideration because his owned property is adjacent to Bisham road but the striking aspect of the report as submitted by learned counsel for the parties and Muhammad Zubair that at point No.3, which was found in possession of Bakht Munir a triangle portion, at the end, was suggested for sisters. Whether it is equal to their entitlement and whether Muhammad Zubair and Gul Munir were given more than their dues shares and if so in juxtaposition with the property wherein a market has been constructed in khasra No.1286,' 1285 and 1284 of the revenue estate of Lelonai, for the purpose of determination of the share of each and every owner, it is still ambiguous that whether the learned trial Court, while converting the preliminary decree into final decree, has made base for the same the sketch or the contents of the report of the local commission. Learned counsel for the parties were asked but they could not explain it because there is a reflection of sketch at three spots of the report-e- commission/ its contents but particular shares of each and every owner, the specification as suggested by the local commission in the contents of the report is in negation of the sketch and that too without any justification. No doubt, the parties have objected to the report-e-commission but in consonance with their objections, they have not cross-examined the learned local commission, thus, the impugned order of the learned trial Court to the extent of determination of the shares, particular specifications, possession of the parties to their respective entitlement in juxtaposition with the sketch is not correct, thus, order of the learned trial Court dated 04.07.2014 and that of the learned Appellate Court dated 27.04.2016 are hereby set aside. After setting aside of the orders, the matter is remanded to the learned trial Court to determine the fate of report-e- commission in the light of the objections of the parties qua the cross examination of the objectors and to determine the particular specifiCations of shares, entitlement, possession, adjustment, deduction afid subtraction of the excess area of each owner, in the legacy of Pir Dad. The learned trial court shall, after receipt of the copy of this judgment, shall issue notices to the parties for their appearanCe and after hearing the parties, shall pronounce a judgment, in accordance with law.
12. With above observations, all these petitions are decided accordingly.