ALI HUSSAIN QAZILBASH, J.--This is an appeal by leave against the order and judgment of a learned Single Judge of the Peshawar High Court, dated 13-1-1975.
2. The facts are that the appellants and the pro forma defendants 1,2 and 9 to 11 (now respondents) brought a suit alleging that five nafar Shamilat attached to land bearing Khasra Nos. 682, 728, 943, 1226, 1337, 1338 and 1340, situate in village Masho Gaggar, Tehsil and District Peshawar, belonged to Ghulam Muhammad son of Hayatullah who sold the same without Shamilat on the basis of a decision of the Revenue Court to Habibullah for a sum of Rs.400.00 and a mutation was attested on 1e-8-1919 This mutation was pre-empted by Wali Muhammad, minor son of Ghulam Muhammad, and the suit was decreed. Pursuant thereof mutation No.1494 was attested on 16-8-1919. Thereafter Wali Muhammad made a gift of the suit land to Abdul Hakeem vide Mutation No. 1495 attested on 16-8-1919. A suit was brought by Habibullah challenging the pre-emption decree obtained by Wali Muhammad on the ground of collusion. The suit was decreed on 19-5-1920 and the land was mutated without any share of Shamilat in the name of Habibullah vide mutation No.1694 attested on 1i-6-1923. Though besides Mutation No. 1495, Mutation Nos. 1305, 1494 and 1694 clearly mentioned that the transfers were effective without Shamilat, yet Abdul Hakeem procured a Fard Badr bearing No. 79 attested on 1-11-1929 and thus brought himself in the revenue record as owner of Shamilat of the Khasra numbers conveyed by Ghulam Muhammad. Partition of Shamilat took place in 1962 and therein respondents 3 to 8 (heirs of Abdul Hakeem) were allotted Khasra Nos.
2737/2 and 2509/1 measuring 138 kanals 1 marla on the basis of wrong revenue record. The present suit was thus filed by respondents 1 to 5 for a declaration to the effect that they alongwith defendants 1, 2 and 9 to 11 (now respondents) are owners in possession of five Nafar Shamilat attached to Khasra Nos. 682, 728, 934, 1226, 1337, 1338 and 1340, measuring 13 kanals 17 marlas situate in village Pasho Gaggar, Tehsil and District Peshawar, and that the revenue entries showing the Shamilat in the name of Fazl-e-Rahim and four others (now appellants) are wrong and of no effect and that the partition of the Shamilat on the basis of the above entries was wrong and liable to cancellation. In the alternative a prayer was made for a decree for possession of 138 kanals 1 marla of the banjar qadeem land comprised in Khasra Nos. 2737/2 and 2509/1 which has been allotted to the appellants in lieu of the said Shamilat on the strength of the wrong revenue record. It was a contested suit. The appellants in their written statement admitted paras. 1 to 5 of the plaint as correct adding, however, in reply to para 4 that Ghulam Muhammad had made a gift of Malkiyat and Shamilat lands in favour of Abdul Hakeem and since he had conveyed only, malkiyat to Habibullah, Shamilat land, therefore, remained with Abdul Hakeem and thereafter with his heirs.
The pleadings resulted in the framing of as many as eight issues, of which issues 6 and 7 are relevant and are as under: "6. Did not the plaintiffs' predecessor-in-interest alienate the suit property, if so, its effect?
7. Are the plaintiffs entitled to the decree prayed for?"
After recording and examining the evidence, the learned Civil Judge. Ist Class Peshawar, came to the conclusion that the Shamilat share relating to land purchased by Hujjatullah, father of Ghulam Muhammad, from Abdus Salam, remained with the latter, the plaintiffs (now' respondents) not being entitled to the Shamilat share cannot claim anything in respect of it irrespective of the fact that the contesting defendants (now appellants) have or have not any valid title to the same. The suit was thus dismissed on 31-1-1969. The appeal of the respondents before the learned Additional District Judge, Peshawar, was also dismissed on 6-4-1970. The contesting respondents then filed a Regular Second Appeal in the High Court which was accepted on 13-1-1975.
3. Leave was granted in this case to consider whether Abdus Salam had sold to Hujjatullah lands with or without Shamilat, if the same was without Shamilat rights, then neither Ghulam Muhammad nor his heirs can claim any share in the partition of Shamilat.
4. The learned counsel for the parties heard. The above question had come under consideration before the learned Single Judge of the High Court who in his well-considered judgment repelled the findings of the Courts below by observing:-- One fails to understand what compelled the learned trial Judge to advert to mutation No.459/270 attested on 2-6-1896 copy Ex. D.W. 1/2 on the record when paras 1 to 5 of the plaint do not refer to the transactions antecedent to the jamabandi of 1917-18 and the assertions made in these paras, were by and large admitted to be correct in the joint written statement filed by defendants 3 to 5.
The only assertion that the contesting defendants made was the transfer in favour of their predecessor, namely, Abdul Hakeem, was with 'Shamilat' and that when he disposed of the land to Habibullah by mutation No.1694 he retained the 'Shamilat'. It comes to this that when the learned trial Judge and later the appellate Court referred to mutation 459/270 of the year 1896 they were traversing beyond the pleadings and this was quite evidently impermissible and the result is that the plaintiffs have been prejudiced. There is yet another reason why the Courts should not have gone beyond the pleadings and that is to be found in the fact that though an application for amendment of the written statement was made on 26-9-1968 by the contesting-defendants with a view to traverse beyond the pleadings and to trace the history of the 'shamilat' from 1895-96, that application was stoutly opposed by the plaintiffs and was eventually rejected on 6-11-1968 vide order at serial No.19. In this state of the pleadings it is quite obvious that the Courts below have considered the evidence which was not admissible and have, therefore, erred in their conclusions.
The moment one takes out of consideration the record prior to 1917-18 and confines oneself to the pleadings of the parties, the controversy submits to easy solution. The Khasra Nos. 689, 728, 943, 1226, 1337, 1338 and 1340 admittedly owned by Ghulam Muhammad were transferred by him to Habibullah without a 'shamilat' and that when the sale was pre-empted by Wali Muhammad a minor son of Ghulam Muhammad, he got back what had been disposed of by his father. He got the land without 'shamilat' vide mutation No. 1494. Very naturally by the subsequent mutation No. 1495 Wali Muhammad could not sell more that what he had acquired to Abdul Hakeem and in this state of record it is idle to argue that he could transfer the 'shamilat' share. That which he had not acquired, how could he transfer that. Again all doubts should stand resolved by the subsequent mutations as a result whereof Abdul Hakeem's acquisition was transferred by mutation No. 1694 to Habibullah making it clear that the transfer has been without 'shamilat'. It comes to this that transfer in favour of Abdul Hakeem was without 'shamilat'. It is indeed idle to argue on the basis of mutation No. 1495 that 'shamilat' had been transferred. Be that as it may, mutation No.1495 being silent on the question of transfer of 'shamilat will not transfer 'shamilat' share because of legal position as it then prevailed was settled that where 'Malkiyyat' land is transferred without specifying that the 'Shamilat' was included, the transfer shall be of 'Malkiyyat'.
It is a common ground between the parties that where Malkiyyat land is transferred without specifying that shamilat was included, the transfer shall be of the Malkiyyat land only. Section 3 of the West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959, is also to the same effect.
5. After considering the arguments of the learned counsel for the parties in the light of the findings of the learned Single Judge of the High Court, we find that the appeal has no merits. The pleadings of the parties and the evidence produced make it quite clear that the land in dispute was owned by Ghulam Muhammad who vide mutation No. 1305 attested on 16-8-1919 sold it to Habibullah without shamilat. Through mutation No. 1494 attested the same day, i.e. 16-8-1919, on the basis of a suit for pre-emption, Wali Muhammad got it from his father without shamilat. Mutation No. 1495, again attested on 16-8-1919, through which a gift was made by Wali Muhammad, minor son of Ghulam Muhammad, in favour of Abdul Hakeem, is silent about the transfer of shamilat. This was quite obvious because Wali Muhammad could not transfer to Abdul Hakeem more than what he had acquired. The fact that Abdul Hakeem was transferred the land without shamilat is further established by mutation No. 1694 attested on 11-6-1923 when he transferred the land to Habibullah without any share of shamilat. It is thus clear that only Malkiyyat land was sold to Abdul Hakeem.
The appellants at one stage tried to wriggle out of their written statement and submitted an application for its amendment but the same was rejected. We, therefore, are not inclined at this stage to examine that aspect. The appeal thus fails and is dismissed with costs.
6. Before concluding it may be made clear that the heirs of Abdus Salam are not bound by this judgment. They are at liberty to sue separately for acquiring their rights.