MUHAMMAD NAEEM ANWAR, J.- Legal heirs of Ayub Khan being aggrieved from the judgment and decree of the learned Additional District Judge-I, Charsadda, dated 19.03.2019, whereby, on acceptance of the appeal of respondent No.1, judgment and decree of the learned trial court passed in civil suit No. 61/1, was dismissed.
2. Facts of the instant petition, in brief, are that Mst. Imrania filed a suit for declaration to the effect that she is owner in possession of the property, bearing Khasra No. 641, 832, 54, 41 and 07, measuring 06 Kanals-06 Marla, situated in the Revenue Estate of Mandozai Charsadda and the entries of the revenue papers on the basis of partition mutation No.3319, dated 04.09.2001, effecting her right is liable to rectification as the entire partition proceedings, acceptance of the application and issuance of warrant for actual possession are unjustified. She alleged that mutation No. 1595 and 1596 were attested in her favour on the basis of the decree of the court, but in partition proceedings, no specific shares were given to her and, as such, the entire proceedings are against the law, and she is not bound from the wrong entries. A relief for perpetual injunction and recovery of possession to the extent of her share in the disputed property was also sought.
3. Defendants No.1 and 2, when summoned, resisted the suit on the grounds that the partition proceedings have culminated to its logical end and, as such, grievance of the plaintiff, if any, could only be resolved from the court of competent jurisdiction. Legal objections were raised regarding non-accrual of cause of action, estoppel, incompetency of the suit and want of jurisdiction and, on factual side, it was averred that the application of the petitioner for setting aside ex parte proceedings was dismissed by the revenue forum against which no appeal has been filed and, as such, has gained finality.
4. The learned trial court from the pleadings of the parties framed issues and recorded evidence.
Completion of evidence and hearing of the parties resulted into the judgment/ order of the learned trial court, dated 09.06.2006, whereby it was held that the plaint be returned to the plaintiff for its presentation before the appropriate forum, which order was assailed by the plaintiff through her appeal No. 50/13 of 2006, which was allowed and the matter was remitted back to the learned trial court with the direction to decide it after hearing of the parties on the basis of evidence already recorded, vide judgment dated 12.03.2007. Feeling aggrieved, the present petitioners filed a revision petition No. 860/2007 before this court, which was partially allowed, vide judgment dated 05.10.2015, with the observations that since the evidence of the parties have already been recorded and the matter was before the learned appellate court which ought to have been decided in accordance with law without remanding it to the learned trial court, accordingly, the matter was remitted to the appellate court for its decision. After remand of the case, learned appellate court through the impugned judgment and decree, dated 19.03.2016, allowed the appeal of Mst. Imrania and decreed her suit by setting aside the judgment and decree of the learned trial court, hence, the instant petition.
5. Muhammad Shoaib Khan, Advocate, the learned counsel for the petitioners, contended that plaintiff Mst. Imrania was party before the Revenue Officer and after acceptance of the partition application, she filed an application for setting aside of the judgment and order which application was dismissed against which she preferred an appeal but her appeal was also dismissed and, thereafter, she, without questioning the order before the competent forum i.e., Additional Commissioner, as provided under the provisions of section 172 of the Land Revenue Act, because it was the sole jurisdiction of the Revenue Officer, but she filed a civil suit which was incompetent. He vociferated that the judgment of the learned appellate court decreeing the suit of Mst. Imrania affected the rights of the petitioners and shares to the extent of their propriety right in the disputed property. He added that the relief, if any, could only be granted to the respondents but from the appropriate forum and the institution of the civil suit was in derogation of the law which run counter to the basic provisions of Land Revenue Act but the appellate court has not adverted to this legal aspect, therefore, there is an error which requires rectification and correction in terms of section 115 of the C.P.C.
6. As against that, learned counsel for the plaintiff/respondents supported the impugned judgment.
7. Arguments heard and record perused.
8. Scrutiny of record reveal that the plaintiff had filed a suit for declaration in respect of the property, as described in heading of the plaint, situated in the revenue estate of Mandozai, Charsadda, on the ground that two mutations were attested in her favour, bearing No. 1595 and 1596. Extract from the Jamabandi for the year, 1926-27, reflects the names of the predecessor in interest of the plaintiff in column of cultivation as vendee. Ex.PW 1/2 is also in respect of the share of Samad Khan, the father of the plaintiff, along with TawoosKhan, Ibrahim and Fazal Rabi sons of Abdul Mutalib. Ex.PW 1/3, Ex.PW 1/4, Ex.PW 1/5, Ex.PW 1/6 and Ex.PW 1/7 are in respect of the shares of Samad Khan, the predecessor in interest of the plaintiff, but in column of cultivation, whereas, Ex.PW 1/8 is Jamabandi for the year, 1953-54, which reflects the entry of mutation bearing No. 1451 from one Tawoos Khan to the extent of 1/4 shares, measuring 01 Kanal-16 Marla, in favour of Saif-Ur- Reman, attested on 18.12.1955. One Ibrahim has alienated his share through mutation 1452 in favour of Saif-Ur-Rehman through mutation, attested on 28.12.1955. There is an important entry of mutation 1470 whereby the inheritance of Samad Khan was transferred to his legal heirs and this mutation was attested on 20.12.1955. Mutation No. 1595 was attested based on the decree of the court from Saif-Ur-Rehman in favour of Mst. Imrania to the extent of 1/4 share in the property, measuring 01 Kanal 16 Marla, through attestation of mutation dated 18.03.1958. There is another mutation No. 1596 whereby 1/2 shares were transferred through decree of the court in a preemption suit, attested on 15.03.1958, in favour of Mst. Imrania. Extract from Jamabandi for the year, 1953-54 (Ex.PW 1/8) reflects two important alienations of the property, one through inheritance and second through decree of the court, however, the perplexity of the same is the attestation of mutation in the column of cultivation. It is settled principle of law that purchaser in column of cultivation is not competent to file a suit for partition as it is in respect of the partition of the property amongst the co-owners i.e., the set of owners from a particular Khata, and it is also settled law that vendee of column of cultivation step into the shoes of his vendor. This was the reasons, when Board of Revenue in different occasions had issued directions that mutations in column of cultivation are creating complications for the owners, hence, through different notifications mutations in column of cultivation were banned. Despite that and with the relaxation of attestation of mutation of column of cultivation, the properties were being mutated even in column of cultivation. In year, 1983, a controversy came to this court in a regular appeal No. 378 of 1971 which was heard of this court on 22.12.1982 in case titled Kala Khan vs Shah Hussain and 9 others (1983 CLC Peshawar 684) wherein this court has observed that alienation in column of cultivation shall be adjusted at the time of partition or at the time of settlement. In the above referred case, his lordship Mr. Justice Fazal Ilahi Khan, as then he was, has placed reliance on the case titled Muhammad Muzaffar Khan vs Muhammad Yousaf Khan (PLD 1959 SC 09) wherein it has been held that:- "The vendee of co-sharer, who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property, no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property to the extent of the area purchased by him, provided that the area in question does to exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers."
9. Adverting to the facts of the instant case, it requires determination that from whom the predecessor in interest of the plaintiff has purchased the property and upto what extent. The predecessor in interest of the plaintiff along with others was the purchaser of column of cultivation.
Saif-Ur-Rehman is the vendee of column of cultivation, who had transferred 01 Kanal- 16 Marla and 03 Kanal 12 Marla in favour of Saif-Ur-Rehman. Both these mutations were challenged before the court through a suit for recovery of possession through pre-emption and were decreed in favour of Mst. Imrania in whose favour mutation 1595 and 1596 were attested. On the death of predecessor in interest of the plaintiff, his inheritance was devolved upon Mst. Imrania and others. All these calculations by considering the vendor of the column of cultivation and to the extent of his/their entire proprietorship in the revenue estate of Mandozai shall be the determining factor for resolution of the controversy. Since Mst. Imrania and for that matter the other vendees of column of cultivation could not file application for partition being the vendees of column of cultivation, however, there is no clog for the vendee of column of cultivation to get determine her/his rights from civil court. This exacerbated dissension has been resolved by the Hon'ble Supreme Court in the case of Raza Khan through Legal Heirs and 3 others versus Member, Board of Revenue, N.- W.F.P., Peshawar and others (1999 SCMR 873) wherein it was held that though the purchaser of column of cultivation could not ask for partition being not the joint owner however, he may get resolve his dispute from the civil court. It was observed that: "We are not inclined to the view that the appellants had any interest in the partition- proceedings regarding the land in dispute. The learned Additional Commissioner was of the considered view that an application under section 135 of the Land Revenue Act could be filed only by a joint owner against the other joint-owners and that where there is no joint land no application for its partition is competent. Ass the present appellants were not possessed of the requisite locus, there is no need to determine whether the procedure of service was according to law or not. The contention of the respondents" counsel that they have acquired right in the joint property by a mutation of sale but the same has been sanctioned in the cultivation column instead of "Malkiati" column as there was ban on sale of land, is without any substance or force.
The respondents cart claim remedy for such disputes in a regular Civil Court instead of asking for relief from the Revenue Officer dealing with a partition case."
10. In the matter in hand, Mst. Imrania has already approached the civil court for determination of her right. The total entitlement of Mst. Imrania on the strength of mutations attested in her favour through judgment and decree and the property which was devolved upon her from her father Samad Khan are subject to the ownership of their vendors are the question requiring resolution because it is settled proposition of law that that a person cannot transfer a better title than he own as envisaged in terms of the Latin maxim 'Nemo datquod non-habet (no one can give what they do not have).The total entitlement of the vendor shall be the shares alienated through mutations.
Mutation No. 1595 and 1596 in isolation with the rest of the factors may not be made basis for rectification of the entries in revenue papers unless the status of the vendor/vendors is determined.
The record reflects that there is no evidence regarding the total ownership of the vendor of Mst.
Imrania and her predecessor in interest for resolution of her entitlement, thus, I have left with no other option but to have resort to the provisions of Order XLI rule 25 of the Code of Civil Procedure for proper determination from trial Court. The plaintiff in her suit shall implead the other vendors of column of cultivation along with the legal heirs of Samad Khan (her predecessor in interest) and during the evidence Mst. Imrania shall place on file Goshwara Milkiyat of Tawoos Khan from whom Saif-Ur-Rehman has purchased property. It shall also be seen by the learned trial court that from whom the property was transferred to Tawoos Khan as he too was the vendee of column of cultivation. The alienation of Tawoos Khan shall be subject to his right based on entries in column of ownership. Thus, the findings of the learned appellate court for cancelation of mutation to the extent of shares of Mst. Imrania were not correct until the revenue record is placed on record to which her total entitlement shall be subject to the ownership of her vendor or from whom she has derived title of the property. With the able assistance of learned counsel for the parties in juxtaposition with the provision of section 172 of the Land Revenue Act 1967, I have gone through the entire record, but I am constrained to hold that since intricate question of law and facts is involved in the matter, therefore, it cannot be resolved by the revenue officer. Reference may be made to the case of Syed Sardar Shah vs. Oazi Masood Alum (2003 CLC 857), Mst. Gul Pari alias Gubaro vs. Zarin Khan (PLD 1994 Peshawar 249 & Jan Muhammad through Mubarik Ali and others v.
Nazir Ahmad and others(2004 SCMR 612).Though, the revenue officer is empowered to resolve the question but whenever there are complicated questions of law & facts, as in the instant, cannot be resolved by Revenue Officer, therefore, the submission of learned counsel for the petitioners for the dismissal of suit of the plaintiff is misconceived.
11. No doubt, on one hand the entire proceedings of partition which culminated in partition mutation were affected by the suit of Mst. Imrania and, on the other hand, her right could not be overlooked as both i.e., the beneficiary of partition mutations and the vendee of column of cultivation shall be seen in juxtaposition. The entire confusion and perplexity are, in fact, is based upon the attestation of mutations in column of cultivation but even then, the rights of the parties require determination once for all based on Latin Maxim "Ubi jus ibi remedium" which encapsulates the principle that when a legal right is violated, the law provides a corresponding remedy or relief to the aggrieved party.
12. For the reasons discussed above, the instant petition is allowed, accordingly, the judgment and decree of the learned appellate court is set aside and suit of the plaintiff Mst. Imrania shall be deemed pending before the learned trial court where entire vendees of column of cultivation and that of column of ownership shall be arrayed and, thereafter, the matter shall be resolved in view of the principle laid down in the case of Muhammad Muzaffar Khan, supra, and Kala Khan, supra. The learned trial court after receipt of this judgment of this court shall issue notice to all the concerned.
No order as to costs.