MIAN SAQIB NISAR, J.-- This second appeal calls in question the judgments and decrees of the Courts below, whereby the suit for declaration find by the respondents/plaintiff. Fs, was allowed by the learned Civil Judge on 20.4.1972 and the appeal of the appellant's side was dismissed on 12.11.1 974.
2. Briefly stated the facts of the case are, that the land measuring 396 Kanals, 2 Marlas, situated in Mouza Maddad Ali, Tehsil Chiniot, District Jhang; was owned by, the defendants and was given to the respondents as Taraddudkars through mutation No. 83, dated 9.1 1.1917, on the terms and conditions settled therein. On the amendment of the Punjab Tenancy Act, 1887, the respondents being the occupancy tenants/taraddudkars of the suit land, were conferred with the ownership rights to the extent of 1 /4th share of the land and mutation No. 227, dated 9.6.1961 in this behalf, was attested in their favour. On 7.5.1969, the respondents find a suit for declaration, challenging the aforesaid mutation, and claiming that they be declared to be the owners in possession of the 10/16th share of the aforesaid land, as they had been paying the share of the produce to the extent of the aforesaid shares, and consequently, were entitled by operation of law to the ownership of 10/16th share, therefore, the mutation No. 227, dated 9.6.1961, only conferring upon the right to the extent of 1 /4th share is illegal and inoperative. This suit was contested by the owners of the property, who were the defendants in the main case, It may however, be mentioned here that this appeal was earlier disposed of vide judgment dated 29.9.1997, the original defendants, as well as the present appellants approached the Honourable Supreme Court, through Civil Petition No. 169-L of 1998 and Civil Petition No. 444-L of 1998, which were disposed of vide separate judgments dated 6.7.2000. But the accumulative effect is that the present appellants were substituted for the original defendants/appellants of the case, therefore for all intends and purposes, are treated to be the appellants of the present case.
3. Coming back to the case, it may be stated that issues were framed; parties were put to trial and the learned Civil Judge, vide judgment and decree dated 20.4.1972 allowed the suit, holding that the plaintiffs/respondents as "taraddudkars" were paying the share of the produce to the original owners to the extent of 10/16 share, [ thus under the law, are entitled to the ownership to the same extent, therefore, the mutation No. 227, dated 9.6.1961 was declared to be illegal and unlawful. On the issue of limitation, it was concluded that as the respondents are the owners in . Possession of the suit property, and they are aggrieved of the latest entry in the revenue record, thus the suit find from such entry, was within time. Aggrieved the owners preferred an appeal against the said judgment and decree, which has been dismissed on 12.11.1 974; hence this second appeal.
3. Learned counsel for the appellants has contended, that the respondents were given the land by virtue of Mutation No. 83, dated 9.11.1917, and this mutation clearly settles the terms and conditions of taraddudkari; by virtue of condition No. 2 of the said mutation, the respondents/plaintiffs were entitled to 1 /4th share of the produce and thus in the light of Section 114(b) of the Punjab Tenancy Act, 1887, as amended, they were only entitled to 1 /4th share in the ownership of the land, therefore, the mutation No. 227, dated 9.6.1961, was rightly attested in favour of the respondents. Both the Courts below have misconstrued the express terms and conditions of the mutation No. 83 of 1917, and this has serious reflection upon the findings of fact, recorded by them.
4. Learned counsel for the respondents by relying upon the "paragraphs 173 and 211 of the Settlement Manual by Douie's states that the respondents were entitled to 10/16th share and thus the judgments and decrees of the Courts below, are absolutely in accord with the law. Besides on the basis of oral evidence led by the respondents, it was clearly establishes, that they were getting 10/1 6th share of the produce.
5. I have heard the learned counsel for the parties. .The most important proposition involved in the matter is' about the interpretation of mutation No. 83, dated 9.11.1917, which has been produced on record as Ex. P-3 and is an admitted document between the parties. According to the terms and conditions, contained therein, it clearly seems that the said land was given on Taraddudkari to the respondents, and at that time, a well was already in existence; the respondents were obliged to get the well repaired and in that behalf, they had to incur 2/3rd share of the expenses while l/3rd share was to be paid by the owners. Condition No. 2, undoubtedly, stipulates that in lieu of Taraddudkari, the Taraddukars were entitled to 1 /4th share of the produce as ' Haq-e-Taraddud'/Haq-e-Bhotari".
According to condition No. 10,-till such time, the water from the canal was available to the land in question, the taraddudkars could also cultivate the land through the repair of the afore-mentioned well, but in case, the canal water was not available, in that eventuality, they. Were obliged to dig another well, at their own expenses, and if it was not so done, they were liable to surrender the possession of half of such land to the owners, given under the taraddudkari arrangement. But in the entire document Ex. P-3, there is no mention that in case, the other well is dug by the respondents, then they were entitled to any further share of produce, the main condition about the share of produce agreed upon between the parties, remained unchallenged i.e. Upto 1/4th share and nothing beyond. This document, has not been properly construed by the Courts below and there is sheer misreading of terms and conditions thereof.
6. Under the provisions of Section 114(2)(b), tarraddakars were entitled to the ownership of that part of the land under Taraddadkari, which corresponds to the share of produce. As mentioned earlier, reading Ex. P-3, the entitlement of the respondents/plaintiffs, remained unchanged, during the period of taraddarkari to the extent of 1/4th share and thus mutation No. 227, dated 9.6.1961, was rightly attested in the light of law mentioned above.
7. Argument of learned counsel for the respondents that witnesses of the appellants had appeared and stated about the share of produce to the extent of 10/16 share, one of the appellants' witness appeared and admitted the same position, therefore, the respondents/plaintiffs were entitled to the ownership to the extent of share claimed in the suit, suffice it to say that there is no written instrument between the parties changing the terms and conditions of Ex. P-3; mere oral statement in the light of admitted document on the record, cannot be given much weight. Even otherwise, at the time of attestation of Mutation No. 227 the plaintiffs namely Yara and Mathela were present but they never raised any objection and the present suit was find after considerable period of time. This has reflection upon the conduct of the respondents/plaintiffs, as well.
8. As regards the question of limitation, suffice it to say that there is no error in the judgment of the Courts below, because the respondents could always feeling aggrieved of the latest entry in the revenue record, agitated their rights. This is exactly what has happened in the present case. This finding on the question of limitation is kept intact.
9. As regards the last contention of learned counsel for the respondents that according to paragraph 173 of the Settlements Manual mentioned above, plaintiffs/respondents are entitled to the share, which they had claimed in the suit, it may be mentioned that as per same paragraph, parties are free to defeat the general customary incidents and when there was an express agreement between the parties, settling terms and conditions in clear and unequivocal terms, this general paragraph about the custom prevalent in the area, would have no relevance, It may be pertinent to state here that in case, the parties ever intended to change the terms and conditions envisaged by Ex. P-3, they could have easily done so by another written instrument between the parties, which could have fallen within the category of the novation of contract, this aspect is conspicuously missing in the present matter.
In the light of above, I find that both the Courts below have grossly misinterpreted and misread the document Ex. P-3, It is settled law that the misinterpretation and misconstruction of a document is a question of law. The argument of learned counsel for the respondents that the concurrent findings of fact, should not be interfered, thus has no force and is hereby repelled.
In view of what has been observed above, by allowing this appeal, the judgments and decrees of the Courts below are set aside with the result that the suit of plaintiff stands dismissed. No order as to costs.