JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH.

(Judicial Department)

C.R No.159-B of 2013.

Ahmad
Vs
Jahangir Khan and others.

JUDGMENT
Date of hearing 28.01.2018 .

Appellant-Petitioner: By Mr. Sardar Naeem Khan,

Advocate.

Respondent: By Waris Faheem & Javed Aslam,

Advocate.

MUHAMMAD NASIR MAHFOOZ, J.--- Through instant

revision petition, the petitioner has called in question the

judgment and decree dated 14.03.2013 of learned Additional

District Judge, Lakki Marwat, whereby accepting appeal of

respondents/ defendants against the judgment and decree dated

17.12.2011 of learned Civil Judge, Lakki Marwat, suit of

petitioner was dismissed.

2. Brief facts of the case are that petitioner and

performa respondents have filed a suit for declaration and

permanent injunction and recovery of Rs.20000/-. It is averred

*Azam Khan/P.S* (S.B) Mr. Justice Muhammad Nasir Mahfooz.

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in the plaint that they are owners in possession of suit Khasra

No. 5465 and 5466, in Khata No. 399 including shamilat-e-deh

of Moza Darra Pezu, while real respondents have no concern

whatsoever, with the same and they be restrained to pose

themselves as owner or to change the nature of property. The

petitioner also claimed Rs.20000/- for the trees, which they cut

and taken away. Hence, the suit.

3. Real respondents/ defendants were summoned,

who appeared and contested the suit by submitting written

statement, wherein they contended that they have purchased the

disputed property vide mutation No.10995 dated 06.11.1979,

Mutation No.660 dated 29.11.2007 and through unregistered

deeds No.465 dated 28.07.2008, deed No.67 dated 26.02.2007.

On divergent pleadings of the parties issues were framed and

parties adduced pro and contra evidence. On conclusion of trial,

the learned Civil Judge, Lakki Marwat decreed the suit vide

judgment and decree dated 17.12.2011. The respondents/

defendants being feeling aggrieved, preferred appeal before the

learned Additional District Judge, Lakki Marwat, who after

hearing arguments of learned counsel for the parties, accepted

*Azam Khan/P.S* (S.B) Mr. Justice Muhammad Nasir Mahfooz.

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the appeal and dismissed the suit of petitioners/ plaintiffs, vide

impugned judgment and decree dated 14.03.2013. Hence, the

instant revision petition.

4. Arguments of learned counsel for the parties heard

and record perused.

5. Perusal of revenue record abundantly makes it

clear that the suit property comprising khasra No.5465 and

5466 is shamilat-e-deh, wherein the name of predecessor of

petitioner namely Mir Ahmad son of Yaru is shown in the

column of possession. As per pedigree table Ex:PW ½, father of

petitioner has succeeded the estate of Sher Muhammad, his

brother, who was issueless and both have had inherited from

said Mir Ahmad, who was their grandfather. According to Ex:

DW1/D-5, which is revenue record of shamilat-e-deh, but of

other khasra numbers, not including suit khasra numbers.

Predecessor of respondent Noor Muhammad is shown to have

purchased 192 Kanal and 6 Marlas, vide impugned mutation

No. 660 attested on 29.11.2001. Parties are in unison on the

point that the said Noor Muhammad had pre-empted certain

transactions in the disputed shamilat-e-deh and the said decree

*Azam Khan/P.S* (S.B) Mr. Justice Muhammad Nasir Mahfooz.

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was affirmed up to Hon’ble Supreme Court of Pakistan in CP

No.252 of 1999 decided on 31.05.2001, so this mutation is

infact not sale mutation but attested on the basis of said

judgment.

6. Findings of learned courts below in their impugned

judgments reveals discussion on the merit of the case, but this

fact has been ignored that the petitioner is still recorded as joint

owner in the revenue record in the column of cultivation

because entries in the column of ownership in the shamilat

property is only made when person purchases any property

alongwith share in shamilat. Purchase of any property without

purchasing share in shamilat is alien to the principle that person

belonging to nonproprietary body could not be given same

status as a person belonging to proprietary body of the village,

who inherits his ownership rights. Reference in this regard is

made to case reported as 2018 SCMR 2051, titled “Muhammad

Asjad Abbasi and others Vs Iqbal Muhammad Chauhan and

others” relevant Para is reproduced below:

“This Court in the case of Ghulam Hussain v.

Allah Baksh (1991 SCMR 1386) while
interpreting section 3 of the Ordinance, has
*Azam Khan/P.S* (S.B) Mr. Justice Muhammad Nasir Mahfooz.
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already held as under:

"As regards the three last cases, it may be

noted that these related to share in the
shamilat. In the first one it was held that
since plaintiffs did not base their claim
upon any right as proprietors of any land
assessed to land revenue, they were not
entitled to the share in the shamilat. This
was in view of the fact that only land
holders had/have any right in shamilat.
The Ordinance I of 1959, however,
envisaged that even if land-holding is sold
it will not be taken that Shamilat rights
have also been sold unless specifically so
stated: The right in Shamilat was no
more contingent on land holding. The
reasons may be that the legislature took
into account the fact that because of
drought or famine, a landholder may sell
his land, go away to any other place or in
the neighbourhood for livelihood and still
retain his cattle and graze them in the old
pasture of shamilat, or, that he was not to
be ousted from the community by
depriving him of his share in the
shamilat. Reasons may be diverse but it is
clear that the Ordinance recognized two
rights independently of each other and
not contingent, i.e. right in the land
proprietorally held a right in the shamilat
land. The second case too, is based on
contingency of land holding for share in
shamilat and if the former is lost by
*Azam Khan/P.S* (S.B) Mr. Justice Muhammad Nasir Mahfooz.
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adverse possession the latter is also lost.

But this too is prior to the Ordinance. In
the third case, the right was lost because
from cause of action suit was not filed
within limitation."

.7. In view of above, I hold that petitioner being co-

sharer this petition must be partially allowed to the extent that a

decree for perpetual injunction is granted in favour of petitioner

without disturbing right of respondents, who are also joint

owners in the suit property. The impugned judgment and decree

is modified accordingly.

Announced.
28.01.2018
JUDGE

*Azam Khan/P.S* (S.B) Mr. Justice Muhammad Nasir Mahfooz.