This judgment shall decide Civil Revision No.26 of 1995 and Civil Revision No.27 of 1995, as both the petitions proceed against a common judgment of a learned Additional District Judge, Chakwal.
2. On 29-10-1991, deceased respondent No.2 (hereinafter referred to be as respondent) filed a suit against the petitioners. In the plaint it was stated that the plot measuring 5 Marlas and 148 sq. Ft.
Bearing Khasra No.3466 situated at Bhon Road was evacuee property and P.T.O. Was issued in favour of one Mst. Hameeda Begum on 6-4-1967 and thereafter P.T.D. Was issued. On 8-9-1972, the said lady agreed to sell the plot to the respondent for a consideration of Rs.85,000. He filed a suit against the said lady, which was decreed on 25-9-1972. Accordingly he sought a declaration that he is owner of the said plot and the respondents had nothing to do with it and they be restrained from interfering with his possession.
3. On 6-6-1991, the petitioners filed a suit against the respondent and the Provincial Government. In this plaint, it was stated that the said plot was owned by Risaldar Fateh Muhammad, predecessor- in-interest of the petitioners and after his death, they were coming in possession of the said plot as owners. It was complained that the respondent had illegally got himself entered in the column of possession as Bila Lagan. It was further stated that the property was neither evacuee nor any evacuee was in possession- nor it was sold to any evacuee. They also sought a declaration that they were owners in possession of the said plot and the respondents be restrained from interfering with their possession.
4. Both the suits were contested by the parties with the pleas raised in their respective plaints. The suits were consolidated and issues were framed. The proceedings were conducted in the suit filed by the respondent. Vide judgment and decree dated 13-7-1992, the learned trial Court decreed the suit of the said respondent but dismissed the suit of the petitioners. The two appeals filed by the petitioners were heard by a learned Additional District Judge, Chakwal, who dismissed the same by means of a consolidated judgment and decree dated 11-10-1994.
5. Learned counsel for the petitioners contends that the evidence on record has been misread by the learned Courts below. According to the learned counsel, there is no evidence on record to show that the property was ever treated to be evacuee by the Custodian on or before 1-1-957. Further contends that the only entry made in favour of the alleged evacuee non-Muslim and then the Government was shown in the column of possession as and in absence of any proof that the possession of the evacuee was adverse or that the land had been purchased by him, the title of the petitioners could not be extinguished.
6. Learned counsel for the respondent, on the other hand, argues that rightly or wrongly the property was treated as evacuee and this being so, the suit was not competent and the Civil Court had no jurisdiction to decide the nature of the property. Learned counsel further relies on the said P.T.O. And P.T.D. To assert that this is the evidence that the property was treated as evacuee and the matter was beyond the domain of the Civil Court. Relies on the case of Ahmad Khan and 5 others v. Member, Board of Revenue and 3 others 1986 CLC 1677; Sh. Fazal-ur-Rehman's v. Pakistan through the Secretary, Ministry of Works and Rehabilitation, Islamabad and others 1987 SCM R 1036 and Syed Abdul Hakim v. Muhammad Azam Khan and another 1991 SCM R 1976.
7. I have gone through the copies of the records appended with both the civil revisions with the assistance of the learned counsel for the parties. There is no dispute regarding the description of the property i.e. Its area and its Khasra number. The Revenue Record is available on the file. Exh.P.13 is the copy or Jamabandi for the year 1939-40, Khasra No.3466 is recorded to be owned by Ghulam Muhammad and Fateh Muhammad. It is in possession of Kalu Ram Singh as and the column of Lagan reads that. To the similar effect are the entries in the Jamabandi for the year 1942-43. In Exh.P.15 for 1946-47 and Exh.P.16 of 1951-52 column of possession and column of Lagan contain the same entry. However, only Risaldar Fateh Muhammad is recorded to be the owner. Exh. P.17 records Risaldar Fateh Muhammad as an owner while Rehabilitation Commissioner is recorded in the column of possession. The Lagan column is empty. Again in Exh.P.18 for 1959-60, Risaldar Fateh Muhammad is recorded to be the owner while Kalu Ram Singh recorded as 1963-64 contains the same entry. So, is the case in Exh.P.20 for the year 1967-68. In Exh.P.21 for the year 1971-72, the petitioners are recorded in the ownership column while the Central Government is recorded in the possession column as Qaabiz and in the column of Lagan. The same entries are in Exh. P.22 for 1975-76, Exh.P.23 for 1979-80, Exh.P.24 for 1983-84 and Exh.P.25 for 1987-88. Vide Exh.P.8 P.T.O.
No.600855 was issued in favour of Mst. Hameeda Begum. It appears that the plot was put to auction and was purchased by the said lady and the said P.T.O. Was issued in her favour on 6-4- 1967. Exh.P.9 is the P.T.D. In favour of the said lady. This document depicts that the evacuee owner of the Plot bearing No.3466 is Kalu Ram Singh. Vide Exh.P.1. Dated 8-9-1972, Mst. Hameeda Begum agreed to sell the plot to the respondent. Exh.P.E. Is the copy of the plaint which was conceded vide Exh.P.4 by Mst. Hameeda Begum and decree Exh.P.7 was passed in favour of the respondent.
8. Having examined the said records, the position which emerges is that till date the plot is owned by the petitioners, who are successors-in-interest of the said Risaldar Fateh Muhammad. In the interregnum period, the said Ghulam Muhammad died and apparently Fateh Muhammad survived him. Then Fateh Muhammad died and the petitioners were recorded as owners of the plot. It is equally true that Kalu Ram Singh was recorded as non-occupancy tenant not paying any rent and claimed sale in his favour. There is no allegation, plea or proof that the petitioners or any of their predecessor ever sold the land to Kalu Ram Singh. Needless to state that by now law stands clearly laid down regarding the reading of the entries in the Jamabandi/periodical records. The presumption of correctness attaches only to the entries on column of ownership and possession.
Kalu Ram Sigh was a non-occupancy tenant. No presumption of correctness attaches to the column of Lagan. Thus a person recorded as a tenant in the column of possession shall be deemed to be a tenant unless and until he proves the entries in the column of Lagan. The entries in the column of Lagan is that. I have already stated above that there is no evidence on record that the land was ever sold by the petitioners or their predecessor-in-favour of the said Kalu Ram Singh.
9. It is settled principle of law that, under the Evacuee Laws only the evacuee interest vested in the Custodian and the latter was acquired by the Federal Government. The said evacuee was a non- occupancy tenant. He was of course not paying any rent but in absence of any proof of the said sale-- non-payment of rent would not extinguish the tile of Muslim lawful owner. Reference may be made to the case of Shah Muhammad v. Khan Poor PLD 1986 SC 91.
10. So far as the competency of the suit is concerned, I may refer to a recent judgment of Honourable Supreme Court of Pakistan in a case of Muhammad Ismail v. Abdul Haq and others 2001 SCM R 1350. I deem it proper to reproduce here the observations made by the Honourable Supreme Court of Pakistan in paras. 10 and 11 of the judgment appearing on pages 1355 and 1356 of the report:-- "10. We have considered the arguments of the learned counsel for the parties and have also minutely examined the record. The contentions raised by the learned counsel for the appellant are not tenable. In view of the provisions of the Act, referred to hereinabove, the property was not declared as evacuee before 1-1-1957, and simple allotment of the property by the Deputy Settlement Commissioner, in any case, does not confer legal rights to the appellant. According to Exh.P.3, which is a Jamabandi for the year 1934-35, Allah Ditta, father of the respondents, is shown as owner of the property (agricultural land), over which the house was constructed and Diwan Chand Hindu was a tenant only. Soon after the death of Allah Ditta, the same property was mutated in favour of the respondents, who are his legal heirs. The said mutation in favour of the respondents was also entered in the Revenue Record, which had been produced before the trial Court as Exh.P.5.
11. The above evidence furnished on behalf of the respondents has gone unchallenged and there is nothing in rebuttal except the order of the Deputy Settlement Commissioner, which shows that the property was allotted to the appellant herein. The narration of the above facts and documents clearly establishes that the property in question was a Muslim property, which, in any case, should not have been allotted by the Deputy Settlement Commissioner under the Settlement Laws. In our considered opinion, the order of the Deputy Settlement Commissioner, referred to above, was without jurisdiction and was coram non judice, because neither the Custodian of the Evacuee Property, nor any of his subordinate officer had adjudicated upon with the regard to the nature of the property as evacuee one. "
11. In the case before me, the entire evidence on record pertaining to the said plot clearly goes to show that it is the petitioners who are the owners of the land. There is nothing on record to show that the Custodian or any other Competent Authority even made a conscious adjudication as to the treatment of the said plot as evacuee. The only material available on record is the said P.T.O.
And P.T.D. Issued by the Deputy Settlement Commissioner. The property by all means of Muslim property could not have been transferred by the said Officer and the aforesaid documents are without lawful authority and liable to be declared as such.
12. The learned Courts below after reading the said documents on record proceeded to hold that the property has been treated as evacuee because of the issuance of --the P.T.O. And P.T.D. And as such they do not have the jurisdiction in the matter. They have clearly misdirected themselves and have refused to exercise the jurisdiction vested in them after proper reading of evidence on record.
I may here deal with the observations of the learned Additional District Judge in para. 10 of the judgment. He says that the said. Collusive decree in favour of the respondent could have only been questioned under section 12(2), C.P.C. The learned Additional District Judge appears to be oblivious of the provisions of Article 58 of the Qanun-e-Shahadat Order, 1984. In the present case, it was the respondent who had set up the said judgment and decree and by all means the decree being passed on void documents is coram non judice and liable to be set aside.
13. For all what has been discussed above, both the civil revisions are allowed and the judgments of both the learned Courts below are set aside and the suit filed by the petitioners is decreed while the one filed by the respondent is dismissed. The parties are, however, left to bear their own costs.