Mst. Sardar Begum, respondent, filed a suit against the petitioners alleging therein that one Fazal Hussain was owner in possession of land comprised in Khasra No,3173/2070/2 measuring about two Kanals, according to register Haqdaran Zameen for the year 1978-79. He sold the same in her favour through a registered sale-deed on 15-12-1961. The said transaction was entered in the Revenue Record vide Mutation No,2480 attested on 24-2-1962. About three years prior to the institution of the suit, the petitioners had trespassed and unlawfully occupied a portion thereof. She got the same demarcated from the Revenue Department and according to the demarcation report the petitioners have unlawfully encroached 17 Marlas from her said property as shown in the site plan annexed with the plaint. Prayer in the suit was for possession of the aforesaid encroached portion.
2. The suit was contested by the petitioners. Besides raising some legal objections it was asserted by them that Fazal Hussain, being co-sharer, could not alienate specific Khasra number but could sell his share only in the joint Khata; land in their possession was purchased by them through sale- deed and they have constructed houses thereupon and that if it be found that they have made any encroachment on some land belonging to the respondent in that event they had become owners thereof through prescription for more than 12 years.
3. After framing necessary issues and recording evidence the learned trial Court vide judgment dated 26-3-1988 decreed the respondent's suit. Petitioner's appeal against that decree was also dismissed by the learned Additional District Judge, Muzaffargarh on 7-11-1989.
4. The aforesaid decrees of the two Courts below are assailed by the petitioners in this civil revision.
5. The revision petition was admitted on 7-2-1990 to consider if at the time of sale the land allegedly purchased by the respondent was not specified and Tatimma in the mutation of sale was prepared as late as in 1981 and further that the land being under built up area could not have been properly demarcated and factually the land was not demarcated.
6. During the detailed arguments, learned counsel for the petitioners argued that mutation does not create any right or title, the Courts below erred in relying on Mutation No,2480 dated 24-2-1962 (Exh.P.3), in favour of the respondent as it was not attested in accordance with the registered sale- deed Exh.D.1, which does not show any demarcation of the plot; Tatimma in the mutation was prepared as late as in 1981 hence mutation being contrary to registered sale-deed was, therefore, illegal and finding of the two Courts below based on the said mutation are not tenable.
7. It was further argued that Appellate Court had appointed Imam Bukhsh Patwari as Local Commissioner for the purpose of demarcation who had submitted his report but it was not considered by the Appellate Court while deciding the appeal. It was also urged that the petitioners had filed an application for seeking permission to produce copy of Jamabandi for the year 1982-83 relating to Khata No,550 to prove that they were also owners of land other than that which they had claimed to be owners in their written statement but the appeal was disposed of illegally and with material irregularity without disposing of the said application and that demarcation report Exh.P.2, did not indicate tnat the petitioners were given notice or were associated in the demarcation proceedings hence said report was liable to be discarded and judgments of the two Courts below based on the aforesaid report are not tenable.
8. Ex parte arguments heard. Civil revision and its annexures perused.
9. From a perusal of the plaint coupled with respondent's evidence comprising of the statements of P.Ws.1 to 3, Exh.P.3, (copy of Mutation No,2480) and document produced by the petitioners Exh.D.1, (copy of registered sale-deed in favour of respondent), it was established that on 15-12-1961 a plot measuring about two Kanals comprised of Khasra No,3173/2070/2 in Khata No,407 was transferred by way of sale by its owner Fazal Hussain to the respondent and its possession was also delivered by the vendor; the said plot of land was bounded by four walls as is stated in the sale-deed. On the basis of the said sale-deed Mutation No,2480 was attested in favour of the respondent on 24-2- 1962. Tatimma of the land, sold and specified, in the sale-deed as Khasra No,3173/2070/2 was prepared on that very day viz 24-2-1962 when the said mutation was attested and is shown at the back of the said mutation; according to the Tatimma measurement of the said land was 18 x 20 Karams. It is indicated in the mutation that the vendor had sold his entire share in the Khata.
Demarcation report Exh.P.2, was proved by Imam Bukhsh Patwari, Ghulam Muhammad Girdawar and Muhammad Siddique P.W.1 to P.W.3, respectively. According to the said report petitioners were found in unlawful possession of a portion of the aforesaid land as indicated in the report. P.W.2, Ghulam Muhammad Girdawar was not cross-examined at all which implied that the petitioners had admitted his testimony.
10. The petitioners could not successfully rebut the aforesaid evidence and had miserably failed to establish that the disputed land in their possession either belonged to them or they were in adverse possession thereof for a'period of more than 12 years. D.W.1, Ch. Islam-ud-Din and D.W.2, Allah Bukhsh who deposed that petitioners were owners of the land which was in their possession neither knew the measurement of the area in possession of the petitioners nor Khasra number thereof. Aziz Khan, one of the petitioners while appearing as D.W.3, said that his father had purchased land from Sh. Riaz Hussain in 1970 and Abdul Sattar had purchased land in 1973 through registered sale-deeds. He could not disclose Khasra number of the lands so purchased. Registered sale-deed Exh.D.9, indicated that petitioner Abdul Sattar had purchased share measuring 5 Marlas in Khata No,471 from Qasim Ali etc. In 1973 and according to registered sale-deed Exh.D.10, Malik Muhammad Khan (predecessor-in-interest of the other petitioners) had purchased a share measuring 16 Marlas from Khata No,334 from Sh. 'Riaz Hussain, in 1970. According to the evidence produced by the petitioners they were, therefore, in possession of total land measuring 16 Marlas + 5 Marlas equal to 21 Marlas. Petitioners Aziz Khan while appearing as D.W.3, admitted during cross- examination that 2 or 3 years after 1976 additional construction was made by them without any sanctioned site plan and he did not deny that they had encroached upon an area of 17 Marlas belonging to the respondent during the said reconstruction but showed his ignorance about that fact. He said that petitioners had purchased one Kanal from Sh. Riaz Hussain but they are in possession of one Kanal and 16 Marlas on the spot. He volunteered that they had purchased 16 Marlas about 3/4 years ago but could neither disclose the name of the vendor nor could produce any sale-deed in respect of the said claim hence possession of 16 Marlas in their possession was unexplained. He further admitted during cross-examination that Ameer Haider one of the petitioners is his brother and did not deny the suggestion that the said Ameer Haider and petitioner Abdul Sattar were very much present at the time of demarcation.
11. Although it was proved on record that Fazal Hussain vendor of respondent was co-sharer in Khata No,407 of which Khasra No,3173/2070/2 was a part but it is also true that he was in exclusive possession of the said Khasra number measuring about two Kanals and that was his total share in the said joint Khata, which he had sold to respondent. A co-sharer can validly sell his share in the joint Khata and can lawfully deliver possession of a specific piece of land in his possession to the vendee. According to evidence the said vendor was in actual physical possession of his total share in the joint Khata in Khasra No,3173/2070/2 which was alienated by him in favour of respondent. It was, therefore, not of any legal significance if instead of describing it as his share in the joint Khata, Khasra number afore-mentioned was stated in the sale-deed. It was also established that total land purchased by Malik Muhammad Khan-predecessor-in-interest of petitioners Nos.2 to 5 was one Kanal, and he had purchased share in joint Khata. The share purchased by him through registered sale-deed did not relate to aforesaid Khasra number, entire land whereof was already purchased by the respondent. It was established on record that the petitioners were in possession of land more than that which was purchased by them and they could not justify their aforesaid possession.
12. A perusal of the impugned judgments shows that the aforesaid evidence was properly examined, assessed and appraised by both the Courts below and the aforesaid conclusions as stated above were correctly drawn by them. Their findings are not only based on evidence but are also supported by sound and plausible reasoning.
13. Contention of the learned counsel that Courts below had erred in relying on Mutation No,2480 Exh.P.3 and that the said mutation is contrary to sale-deed is misconceived and without force. The said mutation is neither in contravention of the sale-deed nor the learned Courts below had based their findings only on the basis of that mutation ut the findings were given on the basis of the entire evidence produced on record by both the parties which is stated hereinbefore.
14. From a perusal of the impugned judgments neither there appears to be any misreading of evidence nor any material piece of evidence appears to have been overlooked.
15. Concurrent findings of fact recorded by two Courts below regarding encroachment which are based on evidence cannot be successfully assailed in revision.
16. Contention of the petitioner's counsel that demarcation report of Imam Bukhsh Patwari who was appointed as Local Commissioner by the Appellate Court was ignored is without force because perusal of the order sheet, of the Appellate Court dated 13-6-1989 shows that he was not appointed as Local Commissioner by the Appellate Court but the parties had agreed to get the land demarcated out of Court by some Patwari and they had got the land demarcated from him.
Reason for not considering that report is given by the Appellate Court in para.6, of its judgment. The said report was not accepted in evidence by the Appellate Court and a perusal thereof shows that it was prepared without locating any permanent point (Pukhta Mauqa). Without consulting any 'Masaavi' or 'Shajrah Parchah' but was approximately made on the basis of photocopies of few pieces of 'Shajrah Parchah' and ultimately no definite finding was given.
17. Regarding argument about non-disposal of petitioners application by the Appellate Court for seeking permission to produce additional evidence, it may be observed that the said application was moved by the petitioners alongwith their memo. Of grounds of appeal. Till the final arguments on the case, their counsel had not requested the Court for its H disposal nor was anything said about it at the time of addressing final arguments on the appeal. From their conduct it can be implied that the petitioners were not interested in pursuing the same. It is not alleged in this civil revision that during final arguments the petitioner's counsel had also drawn the attention of the Appellate Court towards that application but the Court did not take notice of the same.
18. A copy of the said application is annexed with the civil revision. It shows that Jamabandi sought to be produced was in respect of Khata No,550 and the same does not relate to the Khasra number or the Khata in which the encroachment was made hence it was not relevant and no prejudice was caused to the petitioners by non-consideration of the said document by the Appellate Court.
19. Argument that demarcation report Exh.P.2, did not reflect that notice was issued to the petitioners or they were associated in the proceedings is devoid of any force inasmuch as presence of petitioners Abdul Sattar and Ameer Haider is marked in the said report and their Presence was also not specifically denied by Aziz Khan petitioner during his statement before the trial Court. Hence when the demarcation proceedings were conducted in their presence, question of non-service of notice becomes of no legal significance Or consequence and this was also held by the two Courts below.
20. Provisional jurisdiction is directed against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusion of fact or law not involving question of jurisdiction. There is no jurisdictional infirmity in the concurrent judgments of the two Courts below which are assailed in this civil revision.
21. Petition being devoid of any merit, is accordingly dismissed.