' This second appeal has been filed against the judgment and decree of the District Judge, Mirpur, passed on 25-11-1986 whereby he dismissed the appeal of the appellant against the judgment of the Sub-Judge, Mirpur, dated 30-7-1984, and affirmed the same.
2. Briefly stated, the facts giving rise to this appeal are that the appellant Fazal Elahi filed a suit for declaration and permanent injunction against the respondents in the Court of Sub-Judge, Mirpur, in which the declarations to the effect that the sale-deed executed by respondents Nos. 6 to 8 in favour of respondent No,5 and registered on 23-7-1977 and sale-deed executed by respondent No,5 in favour of respondents Nos. 1 to 4 and registered on 21-5-1978 and the mutations attested on their basis are unlawful and void as against the rights of the plaintiff-appellant and the pro forma respondents; and that the entries in Jamabandi and Khasra Girdawari in repect of land measuring 7 kanals 7 marlas out of Khasra Nos.978, 983 and 984 situate in village Dheri Phelli, Tehsil Mirpur, in favour of respondents Nos.1 to 4 'on the basis of a warrant for possession issued by the Revenue.
Assistant, Mirpur, dated 20-9-1980 are also fictitious and wrong and the same are ineffective on the rights of the plaintiff-appellant and the pro forma defendant-respondents, were sought. As, a consequential relief, perpetual injunction restraining the respondents Nos.1 to 4 from interfering in the possession of the plaintiff-appellant and the pro forma defendants of the suit land, was also prayed for.
3. The case of the appellant was that the respondents Nos. 1 to 4 had purchased 42 kanals 8 marlas of land out of Khewat No,180/179, situate in village Dheri Phalli, Tehsil Mirpur, but in the case entitled.
"Noor and others versus Jalal and others", the High Court kept intact the above sale-deed to the extent of 4 kanals, 4 marlas and 2i sarsais as Mst. Neko, vendor, was found to be the owner of the land to the said extent and that on the death of their mother, Mst. Neko, the respondents Nos.6 to 8 got the suit land measuring 11 kanals 6 marlas wrongly mutated in their names against law and facts and sold it to respondent No,5 through sale-deed registered on 23-7-1977. It was his further case that the respondent No,5, in turn, sold the said land in favour of respondents Nos.1 to 4 who also got its mutation sanctioned in their names and later on the basis of the above sale-deed and mutation, filed a suit for partition of the same, in the Court of Revenue Assistant, Mirpur, who prepared the instrument of partition on the basis of which, on 20-9-1980, obtained a warrant for possession and then with the collusion of the revenue officials, got the entries fictitiously and against fact made in the Jamabandi and Khasara Girdawari about the possession having been delivered to them through cultivation.
4. The suit was resisted by the respondents on the ground that the suit land belonged to the respondents Nos. 6 to 8 who lawfully transferred it to the respondent No,5 who, in turn, then sold it to respondents Nos. 1 to 4 and that the partition proceedings were taken to the knowledge of the appellant and the possession of the suit land was obtained by them on- the basis of the warrant for possession issued on the basis of instrument of partition granted by the competent Revenue Officer.
5. After trial, the suit of the plaintiff-appellant was dismissed by the trial Court on the ground that the sale-deeds of the suit land first in favour of respondent No,5 and then in favour of respondents Nos. 1 to 4 were quite lawful inasmuch as the land in dispute was owned by Mst. Neko, on whose death it was legally mutated in the name of her daughters, namely, respondents Nos. 6 to 8 and that no suit was competent in the civil Court against the partition proceedings, with respect to the suit land and the entries with regard t9 its possession made in execution of warrant of possession issued on the basis of the instrument of partition granted in such proceedings. The appeal against the above judgment and decree dated 30-7-1984 was dismissed by the District Judge vide his judgment and decree dated 25-11-1986 as he also agreed with the above conclusion arrived at by the trial Court. Hence this second appeal.
' I have heard the learned counsel for the parties and have also gone through the record of the case. The learned counsel for the appellant has contended that the trial Court should have given its decision on issue No,2 which was to the effect as to whether the suit land was in possession of the plaintiff-appellant and by not doing . So, it has committed illegality on account of which the case needs to be remanded back to him for fresh decision. It is further contended by him that the Courts below have erred in holding that the civil Court had no jurisdiction to hear the suit to the extent it called in question the partition proceedings, in respect of the suit land and the entries with regard to its possession in the revenue record because, firstly, the partition proceedings taken by the Revenue Court were never made the subject of challenge in the suit and, secondly, the counsel for the appellant had abandoned that part of the relief before the trial Court as well as the first appellate Court.
' It is further contended in this connection that the execution of the warrant for possession. In execution of the instrument of partition was not a part of the partition proceedings and, as such, the trial Court was not debarred from declaring the entries with regard to delivery of possession of the suit land to respondents Nos.1 to 4 in purported execution of the warrant for its possession issued on the basis of the instrument of partition to be mala fide, fictitious and against the facts.
The learned counsel for the appellant, however, conceded that the High Court in its judgment dated 6-6-1977 had never held Mst. Neko to be the owner of only the land measuring 4 kanals 7 marlas and, as such, on her death the suit land was lawfully mutated in the name of her daughters who had thus right to sell it to respondent No:5. He accordingly did not press the ground taken in the memorandum of appeal that the sale-deeds of the suit land were not lawful.
6. The learned counsel for the respondents, on the other hand, contended that the proceedings in the execution of the warrant for possession issued on the basis of the instrument of partition are included in the partition proceedings in view of the provisions of Sections 121 and 122 of the Land Revenue Act as it is the Revenue Officer who can execute such a warrant for delivering possession of the land allotted to any of the share-holders under the insrument of partition within three years from the date recorded in the said instrument and thus the entry as to the delivery of possession made in the revenue record by the Patwari in execution of the warrant for posse'ssion in respect of the suit land in the name of respondents Nos.1 to 4, could not be made the subject of a suit before a civil Court.
7. After giving my due consideration to the above contentions of the learned counsel for the parties, I am of the view that the suit of the plaintiff-appellant has rightly been dismissed by the trial Court by its judgment dated 30-7-1984 which has also been rightly upheld by the first appellate Court. As regards the claim of the appellant made in the plaint that the sale-deed of the suit land in favour of respondent No,5 was unlawful as the respondents Nos.6 to 8 were not its lawful owners and, as such, could not transfer the same to respondent No,5 from whom respondents Nos.1 to 4 had purchased A it, it stands rebutted from the record of the case. His contention that the High Court had, in its judgment passed on 6-6-1977, held Mst. Neko only entitled to 4 kanals 7 marlas of land which she had alraedy sold before her death, does not find support from the above judgment, a perusal of which would show that the High Court never held so. Mst. Neko was a full owner of the land which, on her death, was mutated in the name of respondents Nos.6 to 8, with the result that respondent No,5 had become its owner on the same having been sold to him by above vendors- respondents. The respondent No,5 being its owner was competent to sell it to respondents Nos.1 to 4 who had become its owners by purchasing it from respondent No,5.
8. So far as the contention of the learned counsel for the appellant that the proceedings for delivery of possession of the suit land in execution of the warrant for possession issued by the Revenue Officer onthe basis of the instrument of partition prepared in the proceedings for partition before him, are not part of the partition proceedings, is concerned, I am unable to subscribe to it as in my view, such proceedings are part of and included in the partition proceedings as delivery of possession by the Revenue Officer amounts to giving effect to the decision made in the partition proceedings by drawing instrument of partition. Under section 121 of the Land Revenue Act, the Revenue Officer is required to cause the instrument of partition to be prepared and to record the date on which the partition is to take effect therein, while under section 122 of the said Act, the instrument of partition entitles a shareholder to apply to the Revenue Officer for possession of the land allotted to him any time within three years from the date recorded in the said instrument and the Revenue Officer is bound to give effect to that instrument so far as it concerned the applicant as if it were a decree for immovable property. Thus, in view of the above provisions of law, the process of delivery of possession of the property allotted on partition to a shareholder, is in continuation of the partition proceedings initiated before the Revenue Officer and, as such these proceedings can only be called in question before the Revenue Officer by way of review, appeal or revision, as the case may be, under the relevant law and the civil Court is debarred from entertaining a suit in respect of them in view of the provisions of section 158 of the Land Revenue Act. In view of the above legal position, the Courts below were perfectly right when they held that the entries in the revenue record made in execution of the warrant for possession issued by the Revenue Officer giving effect to the instrument of partition could not be questioned in a civil suit by the party aggrieved by them.
9. Even otherwise if it is assumed for the sake of arguments that the civil Court had the jurisdiction to make the declaration sought by the appellant in his suit with respect to entries in the revenue record regarding the delivery of possession of the suit land to the respondents Nos.1 to 4, still the appellant had failed to prove the said entries to have been fictitiously made and the possession of the suit land was never delivered to them in execution of the warrant of possession issued on the basis of the instrument of partition. Under Illustration (e) of section 114 of the Evidence Act, official and judicial acts are presumed to be regularly performed in view of which presumption of law it would be presumed in this case that possession of the suit land was delivered by the Patwari to respondents Nos.1 to 4 in execution of the above warrant for possession and the entries made to that effect in the revenue record were correct unless such a presumption is rebutted but the appellant had failed to lead any reliable evidence on the 'basis of which the above presumption could be held to have been rebutted. The only evidence on record in this respect is that of plaintiff- appellant which, obviously, is not sufficient to rebut the above presumption of law attached to the impugned entries in the revenue record and to hold that these are wrong and fictitious as the possession of the suit land was never delivered to respondents Nos.1 to 4 in execution of warrant for its possession issued by the Revenue Officer to give effect to the instrument of partition allotting the same to the share of the said respondents.
' For the reasons stated above, I find no substance in this appeal which is dismissed with costs.