Through the above captioned appeal the appellant has sought the annulment of the judgment and decree of the learned Additional District Judge Dadyal, dated 14-10-2003, whereby he has dismissed the appeal filed by the appellant and maintained the judgment and decree passed by the learned Civil Judge, Dadyal.
2. The relevant and necessary facts for the disposal of the instant appeal are, that the appellant (plaintiff) brought a suit for declaration in the Court of learned Civil Judge, Dadyal. It was averred by him that the plaintiff-defendant and pro forma-defendants were co-sharers. They were jointly occupying the land measuring 6 Kanals and 12 Marlas, comprising Survey Nos. 1745 and 1757. It was further averred by him that the entries regarding the possession of the suit-land in Khasragirdawri pertaining to the year, 2000 Rabbi, were recorded in the name of father of attorney with the connivance of attorney. Subsequently, a gift-deed was executed on 29-8-2000, in favour of defendants Nos. 2, 3 and 4. On the basis of this gift-deed, a Mutation No,417 was sanctioned in their favour. Later on, on the basis of the aforesaid mutation, entries in the Revenue Record were recorded. It was further alleged by him that specific survey numbers were gifted by defendant No,1 in favour of defendants No,2 to 4, while defendant No,1 was not entitled to execute the said gift- deed, as he was not retaining its. Possession. It was further averred that the gift-deed was beyond the share of the donor. It was based on fraud, it was craved that the gift-deed may be declared null, void, inoperative and ineffective on his rights.
3. This suit was contested by the defendants, after the trial of which it was dismissed by the trial Court. Feeling aggrieved by the said judgment and decree of the trial Court, the appellant filed an appeal in the Court of learned District Judge, Mirpur, which was, later on, entrusted to the learned Additional District Judge, Dadyal, for -hearing and disposal. He dismissed the same. Hence the instant appeal.
4. Sardar Muhammad Azam Khan, the learned counsel for the appellant strenuously argued that both the Courts below have failed to consider that the specific survey numbers were gifted by the donor, while he was not retaining the possession of these survey numbers. These were under joint possession of the plaintiff, defendant No,1 and pro forma-defendants. In this respect, the learned counsel referred copy of Jammabandi, Exh.PA pertaining to the year 1996-1997 and contended that in this document, joint possession of Ghulam Ilussain, Muhammad Sain and Fazal Hussain was recorded. He further referred the copy of Jammabandi, appended with the original gift-deed and submitted that it too contained the joint possession of the plaintiff and defendants. He further referred copy of Mutation No,417 and stated that even in this document, joint possession of defendant (appellant) (donor) and pro forma-defendants was recorded. The defendants have miserably failed to prove the exclusive possession on the aforesaid survey numbers. He referred copy of Khasragirdawri pertaining to years 1997 to 2000. He argued that these documents contained joint possession of Ghulam Hussain, Muhammad and Fazal Hussain, but in Rabbi, 2000, the possession of Muhammad Hussain was recorded on 'Khat-e-Chaleepa' by Girdawar Halqa. He was not, at all, competent to alter or amend the Girdawri. He referred West Pakistan Land Revenue Rules 39 and 40 and submitted that under these rules, no correction in the entries of Khasragirdawri can be made without sanction of the Collector of the District. It was further argued by him that as the lower Court has observed that through family partition, this land has came into the share of Muhammad Hussain. It is without any substance. He referred section 147 of the West Pakistan Land Revenue Act and contended that under this provision of the said Act, even family partition has to be endorsed by the Revenue Officer. There is nothing in the record, on the basis of which it could be said that it was endorsed by any Revenue Officer. He referred 2000 CLC 1750 in support of his contention. It was next contended by him that there are three requirements of the gift deed and it can only be completed if it is accepted by the donee. He submitted that this gift was not accepted by the donee, therefore, it is liable to be set aside. It was next maintained by him that in the copy of Khasragirdawri, pertaining to the year 2000, possession of Muhammad Hussain has been recorded which is against the fact because in 2000 he was in England and he had sent Power of Attorney which was placed on record, therefore, these entries were against the factual position.
5. While controverting in the arguments of the learned counsel for the appellant, the learned counsel for the respondents contended that both the Courts have resolved that through family partition, the land in question came into the share of Muhammad Hussain. He referred statements of Muhammad Atif and Muhammad Bashir and contended that they have categorically stated that land in dispute was under the exclusive possession of Muhammad Hussain donor. It was next contended by him that as the contention of the learned counsel for the appellant is concerned, that the donee has not accepted the gift-deed, has no substance, because on this ground, only the donor can challenge the gift-deed. He referred PLD 1979 SC(AJ&K) 242 in support of his contention. He further contended that a co-sharer having possession of a specific survey number, can alienate or transfer the said survey number. He referred PLD 1978 SC(AJ&K) 78 and 1980 CLC 196 in support of his contention.
6. I have heard the learned counsel for the parties, perused the record and have given my utmost muse to the respective arguments, advanced by the learned counsel for the parties.
7. The perusal of the record shows that on 29-8-2000 a gift-deed was executed by Muhammad Hussain son of Rajwali in favour of Wasim Hussain, Nadeem Hussain and Qudrat Hussain sons of Mushtaq Hussain from Survey Nos. 1745 and 1.753. In this way, the specific Survey Nos. Were gifted by him. This gift-deed was executed by attorney of Muhammad Hussain, namely, Mushtaq Hussain on 29th of August, 2000. Now the question arises whether a co-sharer can transfer specific survey number?
8. It is well-settled established principle of law that only a co-sharer retaining the possession of specific survey number can transfer the specific survey number, if he is not retaining the possession of specific survey number, then he cannot transfer the whole of the specific survey number. He can only transfer his share from that specific survey number.
9. In this case, the question arises whether the donor Muhammad Hussain was retaining the possession of the land in dispute on August 29th, 2000, when he had transferred the land through the present gift-deed? According to Exh.PA copy of Jammabandi pertaining to the year 1996-1997, Ghulam Hussain, Muhammad and Fazal Hussain were retaining the possession of aforesaid two survey numbers, which have been transferred subsequently by Muhammad Hussain. According to Misil-e-Haqayyat pertaining to the year 1989-1990, this land was under the possession of the afore named persons. According to the copy of Khasragirdawri Exh.PE and PF of Khareef, 1990 to Rabbi 2000, both these survey numbers were under the joint possession of these persons. In the copy of Khasragirdawri of Rabbi 2000 on Khat-e-Chaleepa the possession of Muhammad Hussain was recorded on March 6th 2000. Now, the question arises that after Khat-e-Chaleepa the Girdawar was competent to change the Khasragirdawri? No doubt, during the checking before the completion of Khasragirdawri he can record any finding but when once the Girdawri has been completed and recorded in favour of any party by way of Khat-e-Chaleepa then the Girdawar was not competent to alter or change the possession recorded through Khat-eChaleepa. It can only be changed through Dkhal Kharaj. This view finds support from PLD 1987 AJK 85 (87) which reads as under:- "The entry made in the survey register (DB) and relied upon by the learned counsel for the appellants to show that possession of the land in dispute was transferred to the donees- appellants, I think is of no help for the reason that this entry was made by the Patwari after a Khat- e-Chaleepa was drawn by him. The entry with regard to change of possession after a Khat-e- Chaleepa is drawn, can only be made by the Patwari after a summary inquiry is held by a Revenue Officer and he, after having to the conclusion that the entry is required to be changed has given a direction to the Patwari to effect the change which has not been done in this case".
10. It would not be out of place to mention here that under rule 40 of the West Pakistan Land Revenue Rules, 1968, (hereinafter to be referred as Rules of 1968), no alteration can be made in register of 13 Girdawari after Dhal Bach of the respective harvest has been drawn up, except with the sanction of the Collector, which means that when once Khasragirdawri is completed then no change in the entry could be drawn without permission of Collector. In this case, when Khat-e- Chaleepa was drawn by the Patwari, then it means that the Dhal Bach was also drawn, but as in Azad Kashmir the land is exempted from revenue, therefore, no question of Dhal Bach arises, but when the Khat-e-Chaleepa was drawn, then it means the Dhal Bach was also drawn and in rule 40 these words have been used for the purpose that when the Khasragirdawri has been completed then no change in the entry could be made without the sanction of the Collector. In the instant case, when Khat-e-Chaleepa was drawn up by the Patwari then the Khasragirdawri was completed in all respects after which no alteration can be made in it, without the sanction of the Collector. Therefore, the Girdawar was not competent to amend it, after the drawn up of Khat-e- Chaleepa.
11. Now, the case of the respondents was that through family partition these survey numbers have come into the share of Muhammad Hussain, therefore, he was entitled to transfer the said survey numbers. It is to be noted that even private partition has to be affirmed by the Revenue Officer and in case, any partition has been made, without intervention of the Revenue Officer, the party has to apply and the Revenue Officer after receiving the application has to enquire into the case and if it is found that the partition has in fact taken place, then he may affirm it, otherwise he will not affirm the same. As such has been laid down in section 147 of the West Pakistan Land Revenue Act, 1967, which reads as under:--
147. Affirmation of partition privately effected.--(1) In any case in which a partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition." Now, the question emerges that if at all the private partition has taken place between the appellant and respondent, even then the appellant has to prove before the Revenue Officer that the partition has taken place, but no such document was produced by the respondent in support of private partition. Therefore, it could not be said that partition has taken place between the parties.
12. Assuming for the sake of arguments that partition has taken place, even then the same does not change the nature of joint property and the same remains joint until and unless its partition has been affirmed by the Revenue Authorities. This view finds support from 2000 SCR 17, which reads as under:- "We have given due consideration to the matter. It is admitted that the parties are co-sharers in the suit-land. However, each of the parties claims that the suit-land had fallen to its share in pursuance of private partition. It may be observed that private partition does not change the nature of the joint property and the same remains joint until and unless it is partitioned by the Revenue Authorities according to the Land Revenue 'Act. Thus, if the parties were co-sharers in the suit-land, as they were, plaintiffs were not entitled to bring a suit for possession because they were already in possession of a part of the survey number which is also inclusive of the suit-land."
13. Now, if at all the private partition has taken place between the parties as alleged by the respondents, even then it has not been affirmed by the Revenue Officer, therefore, the status of the property shall remain the joint as laid down in the aforesaid report.
14. It stultifies me that in the year 2000 on March 26th, 2000, the possession of Muhammad Hussain was recorded on Khat-e-Chaleepa while according to the record of the case, he was not residing in Pakistan on the aforesaid date as it is evident from the power of attorney executed by Muhammad Hussain in favour of his son Mushtaq Hussain, on the basis of which the gift-deed was executed. It clearly contained that in 2000 Muhammad Hussain was living in England. When he was living in England, then how he occupied the land and how the entries were recorded in his favour.
15. It is well established principle of law, that a co-sharer cannot transfer the specific survey number until and unless he was retaining its possession. In this case, the specific survey numbers have been gifted by Muhammad Hussain, while he was not retaining the exclusive.Possession of these survey numbers, and these remained under the joint possession of Muhammad Hussain and others, therefore, he was not entitled to transfer the specific survey numbers through the gift-deed.
He was only entitled to transfer his share from those survey numbers. It is also pertinent to note that even the mutation sanctioned on the basis of present gift-deed also contained joint possession which means that the donor was not in exclusive possession of the land. The upshot of the above discussion is that this appeal is accepted and the judgments and decrees passed by the Courts below are hereby set-aside. The suit of the appellant (Plaintiff) is decreed to the extent that the gift-deed executed by Muhammad Hussain from the specific survey numbers is set-aside. It shall remain intact only to the extent of the share of Muhammad Hussain from the said survey numbers.