The relevant facts for the decision of this second appeal are that Mst. Muhammad Bibi widow of Sardar, occupancy tenant, died on 21-12-1950 issueless, therefore, land was mutated through Mutation No. 2117 dated 7-6-1953 in the names of respondents' side. The appellants took exception to the same. Their appeal was accepted by the Collector vide order dated 9-4-1954 while the revision of the respondents was dismissed by the Commissioner, Lahore Division, Lahore vide order dated 12-2-1956, which was assailed through revision before the Board of Revenue. This revision was still pending when parties moved written application stating that they have settled the matter out of Court and the present appellants have no objection to the revision of the respondents being accepted. However,, revision was dismissed in view of the compromise and parties were directed to appear before the Assistant Collector II Grade for giving effect to the compromise. The result was that the Mutation No.2257 was sanctioned on 15-6-1958 in favour of the respondents' side. The same is available on record as Exh.Pl. The present litigation started when the appellants filed suit on 6-4-1964 for declaration that the Mutation Exh.Pl was illegal and not binding on them. The suit was contested by the respondents. The trial Court accordingly framed issues and after hearing the arguments dismissed the suit vide judgment and decree dated 14-10-1970, which was assailed through an appeal before the First Appellate Court. The same was dismissed vide judgment and decree dated 10-7-1972 and thereafter, the present Regular Second Appeal was filed, which was admitted to hearing, notices were issued to the respondents, who have appeared and contested the appeal.
2. The learned counsel for the appellants argued that the alleged compromise Exh.Dl while copy of the same is available as Exh.D2 on the file of the trial Court, was not accepted by the Member, Board of Revenue and he proceeded to refer the parties to appear before Assistant Collector-II Grade, who proceeded to sanction the mutation without reference to the compromise. The argument, therefore, is that the appellants were not bound by the agreement. In this behalf, learned counsel has referred to Umar Bakhsh and 2 others v. Azim Khan and 12 others (1993 SCMR 374), Mst. Kurshid Begum v. Mir Muhammad and 8 others (1990 CLC 1614) and Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160). It is argued that the participation of the appellants' side was not proved in the mutation. It is added that there is no evidence, whatsoever, on the record as to the respondents being owners of the land. It is argued that Issue No.5 has been wrongly decided against the appellants because their pedigree-table was available alongwith the order of the Collector passed in earlier mutation. It is added that in any case the alleged compromise was not proved, therefore, it could not be made basis of the impugned mutation. In the alternate it is argued that the moment the respondents contended that the appellants have surrendered their rights through compromise Exh.Dl they accepted the appellants as owners by inheritance; then the question arises why the appellants should surrender their rights in favour of the respondents. The agreement was without consideration and against normal human conduct. There was nothing in the statement of D.W.7 as to why the appellants should surrender their rights. The arguments are summed up with the submission that the tenancy devolved on the appellants side in view of the provisions of sections 6, 38, 51 and 114 of the Punjab Tenancy Act.
3. On the other hand, the learned counsel for the respondents argued that according to section 59 of the Punjab Tenancy Act in order to succeed occupancy rights the appellants were to prove that the common ancestor was in possession. In this behalf, reference is made to proviso to section 59 of the Punjab Tenancy Act and reliance is placed on Bhagwan Das and others v. Shamsher Singh (44 IC 433), Bahadur and others v. Ram Sing (60 IC 456) and Ranbir Chand v. Mangal Singh and others (AIR 1929 Lahore 198). It is argued that admittedly the respondents are the landlords and in possession, therefore, there was no need for them to prove their ownership. It is added that the land was mutated through Mutation No.2257 Exh.PI as they were recorded as owners. It is argued that the appellants had no right in the land. They were only compensated for expanses in order to finish the litigation; 'therefore, there was no question of any consideration for surrendering their rights and there was nothing unnatural in their conduct. In any case the appellants have not cross- examined the D.Ws. As to their alleged right. It is argued that the suit was filed after about 6 years of the sanction of the mutation and there was no explanation for the same. It is added that Issue No.5 was properly delta in para. 7 of the judgment of the First Appellate Court. The next argument is that the suit was not competent because the mutations are sanctioned only for fiscal purposes and they did not create any right or title in the land. In this behalf, learned counsel has referred to S.M. Lutfullah v. Bibi Badrunnessa and others (PLD 1969 Dacca 52), Firdus Khan v. Sayid Azam Shah and 14 others (PLD 1970 Peshawar 141) and Muhammad Iqbal v. S.A.M. Khan, Member, Board of Revenue, Lahore and 3 others (PLD 1970 Lah. 614). It is argued that the compromise Exh.Dl was proved besides direct evidence by D.W.8 Hand-writing Expert.
4. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. The first question for determination is as to who was to succeed Muhammad Bibi widow of Sardar, who died issuelless. The parties in this behalf relied on section 59 of the Punjab Tenancy Act. Muhammad Bibi has died, as already noted, on 21-12-1950 while section 59 was amended by Act IV of 1951. Therefore, the case would be governed by the provision as it stood originally. The collaterals in order to succeed were to prove:
(i) common ancestor; and (ii) that common ancestor was in possession. The onus to prove both the ingredients was on the plaintiffs. It is true, in the pedigree-table the plaintiffs have the common ancestor but this was not sufficient. They were also to prove that the land was occupied by the ancestor. In the present case there is nothing on record to show that father of Ilahi Bakhsh and Allah Jowaya ever occupied the land or even that the said persons inherited the tenancy from their father. The learned counsel for the respondents, in this behalf, rightly referred to the judgments in the case of Bhagwan Das and others, Bahadur and others and Ranbir Chand (supra). The relevant portion of the latter judgment reads as under:---- "The burden of proving positively that the land in dispute was occupied by the common ancestor lay on the plaintiffs and conjectures can no more take the place of such proof in the case of occupancy land than in the case of proprietary land: ef. Bhagwan Das v. Shamsher Singh (55 P.W.R.
1918). In my opinion plaintiffs have failed to discharge the burden."
5. Now coming to the compromise. The appellants side came to know of the same on 5-5-1958 while suit was filed on 6-4-1964. During this period they I never raised a little finger although it was in their knowledge that the Member Board of Revenue has directed the parties to appear before Assistant Collector-II Grade. Their thumb-impressions on the Exh.Dl have been proved authentically besides direct evidence particularly by the statement of Handwriting Expert D.W.8. The argument that the impugned mutation was sanctioned without reference to the compromise is also against record. The Assistant Collector II Grade has clearly mentioned that the appellants have no objection in view of the compromise to the mutation being sanctioned in favour of the respondent.
The argument that the appellants were accepted as owners the moment compromise B was effected is without any basis because in the compromise Exh.Dl the appellants admitted that they were not claiming any right as heirs of Muhammad Bibi and in future they would have no right or claim over the land, therefore, they would have no objection to the land being mutated in the names of the respondents and revision being accepted. There was nothing unusual in this compromise when looked into the background of the proviso to section 59 of the Punjab Tenancy Act, according to which, the appellants had no right as there was nothing on the Revenue record to show that their common ancestor was ever in possession of the land.
6. This litigation has consumed almost three decades and the then Member, Board of Revenue is to be blamed for all this because parties submitted compromise before him and requested to accept the revision. But .It seems that unfortunately for the parties he did not apply his mind while rejecting the revision and referring the parties to appear before the Assistant Collector II Grade. Legally parties are at liberty to enter into a compromise and they are required to satisfy the Court that the dispute has been adjusted wholly by a lawful agreement. Thereafter, it becomes the duty of the Court to give effect to the same. It is not policy of the law to discourage parties from settling their disputes outside the Court rather the emphasis of modern times is on that the parties should be afforded opportunity to settle their disputes without the intervention of the Court. These remarks would apply with greater force to Islamic Society. It is relevant to refer here to Order XXIII, Rule 3, C.P.C., which reads as under:---- "3. Compromise of suit.--Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit. "
It is not the case where the Member, Board of Revenue was not satisfied as to the agreement being not lawful, therefore, he was under legal obligation to record the compromise and decide revision in accordance with the compromise or in other words in accordance with law and not in accordance with his whims.
I am fortified in my view by the judgment in the case of Messrs Country Products Export Ltd. v.
Messrs Bawany Sugar Mills Ltd. (PLD 1968 Karachi 115). The relevant portion reads as under:-- "6------..The Courts are under duty to record lawful compromises and a decree based on compromise, though it includes terms and conditions which were not initially within the scope of the suit but are considerations for compromise, would, nevertheless, be the decree of the Court, and unless there is express legal prohibition, such a decree would be executable under Order XXI, C.P.C."
The Member Board of Revenue was not justified to refer the parties to the Assistant Collector-I1 Grade because he had sanctioned the mutation and become functus officio.
7The result is that this appeal is dismissed with costs,