ALIMAN Vs. ABDUL HANNAN

JUDGEMENT

(1.) Plaintiff is in Second Appeal against the concurrent judgments and decrees of the ld. District Courts; whereby suit filed by the appellant for declaration and permanent injunction, has been dismissed by both the District Courts.

(2.) Brief facts of the case of the plaintiff as pleaded in the plaint are that one Sh. Noor Mohd son of Sh. Hasandeeen resident of village Malai, Tehsil Hathin, District Palwal, the father of defendant no.1 was cosharer in joint possession to the extent of 1/4th share of the agricultural land comprising of khewat /khatoni no. 489/566, rect no. 11, killa no. 27(0-4), rect no. 8, killa no. 21/1 (5 - 15) rect no. 9, killa no. 22(2 - 4) rect no. 10, killa no. 1/1/1(1-11), 10/2/1(3-12), 11/1 (0 - 9), rect no. 11, killa no. 5/1 (7 - 9), rect no. 17, killa no. 3/1/1 (1 - 16), 8/2/ 1 (2 - 18), rect no. 19, killa no. 2(5-13), 9(9-10), 12(8-0), 13(5-11), 17(1-16), 18/1 (0 - 3), 23/1 (5 - 3), 23/2(2-17), 24(2-0) total measuring 67 Kanal -00 Marlas situated within the revenue estate of village Malai, Tehsil Hathin, District Palwal, vide Jamabandi for the year 1998-1999. It was further averred that vide Jamabandi for the year 1998-1999 Noor Mohd sold away the area of 3 Kanal -18 Marlas to Sh. Allaha Bux son of Ramjan (defendant no.2) bearing khewat/khatoni no. 446/528, rect no. 19, killa no. 12(8-0), 13(5-11), 17(116), 18/1(0-3) total measuring 15 Kanal -10 Marlas to the extent of 1/4th share which comes to 3 Kanal -18 Marlas by getting recited the specific killa numbers 12, 13, 17, 18/1 to the extent of 1/4th share and got the mutation of sale bearing No. 3819 dtd. 14/10/1999 of these specific killa numbers as per sale deed dtd. 14/5/1999. Allaha Bux further sold away the area in the form of specific killa numbers to Juhuruddin son of Noor Mohd (defendant no.3) 1/4th share in killa no. 19/13(5-11), 17(1-16), 18/1(0-3), 12/2(1-7), to the extent of 1/4th share and killa no. 9/22(2-4), 19/2(5-13), 9 (9-10) to the extent of 1/12th share vide sale deed dtd. 4/5/2011 vide mutation no. 4197 of 18/7/2011. Subsequently Late. Sh. Noor Mohd son of Hassanddin got suffered an admissive decree dtd. 10/1/2000 in favour of his son Sh. Abdul Hannan son of Noor Mohd (defendant no.1) getting recorded also specific killa numbers to the extent of 19/12 share i.e. 14 Kanal -7 Marlas and the consequent mutation no. 3829 dtd. 23/5/2000 was also got sanctioned of specific killa numbers bearing rect no. 8, killa no. 21/1(5-5), 9/22(2-4), rect no. 10, killa no. 1/1/1(1-11), 10/2/1(3-11), 11/1(0-9), 11/27(0-4), 17/3/1/1(10-16), (8/2) / 1 (2 - 19), 19/2 (5 -13), 19/9(9-10), 18/2(7-17), 23/1(5-3), 23/2(2-17), 24(2-0), 694(0-2), 695(0-2), 704(0-2), 705(0-2), 20/3(9-15), 10/9 (8-0), 10/1 (4 - 7) total measuring 73 Kanal -19 Marlas vide mutation no. 3829 as given in the decree in favour of Abdul Hanan, defendant no.1. It is further submitted that the defendant Abdul Hanan son of Sh. Noor Mohd., i.e. the defendant no. 1 further sold away specific killa numbers to the plaintiff by getting recited khewat/khatoni no. 489/586 rect no. 19, killa no. 9(9-10), 12(8-0) to the extent of 17 Kanal-10 Marlas to the extent of 80 /350 prime share and which comes to 4 Kanal 00 Marlas vide sale deed dtd. 21/7/2004. But the mutation of sale was declined by Revenue Authorities as killa no. 19/12 (8-0) has already been sold and mutated in favour of Allah Bux.

(3.) It was further contended that in fact Noor Mohd son of Hassandin was only co-sharer to the extent of 1/4th share in khewat no. 489/ 446 khatoni no. 566 measuring 67 Kanal-00 Marlas vide jamabandi for the year 1998-1999, so he was not competent to sale away the specific killa numbers either to Allha Bux son of Ramjan and suffer decree in favour of son Sh. Abdul Hanan son of Sh. Noor Mohd. Further sale by Sh. Allaha Bux to Sh. Juhruddin son of Noor Mohammad was nothing but a sale of share qua the whole khewat and the consequent mutation of sale should have sanctioned against the whole area in khewat as proportionate and not of specific killa numbers as got recited in the sale deed. Likewise the decree of specific killa numbers suffered by Sh. Noor Mohd son of Hassandin in favour of defendant no.1 Abdul Hannan son of Sh. Noor Mohd should also be treated as share against whole khewat no. 446/489 and not of specific numbers, since Sh. Noor Mohd, was only co-sharer and one of the co-sharer was not competent to sale away the land in specific killa numbers. So, the consequent mutation of decree also should have been entered and sanctioned as proportionate share qua the whole area of khewat. These sales by Sh. Noor Mohammad son of Hassandin to Sh. Abdul Hannan son of Sh. Noor Mohd and decree by Noor Mohd in favour of Abdul Hanan were actually a proportionate share against the area of whole khewat and not of specific killa numbers in khewat without getting it partitioned and the mutations in the revenue record should have affected as share against whole khewat and not against specific killas. It is alleged that the mutation entries of sales and Civil Court decree are erroneous and illegal and liable to be ignored qua other co-sharers. Moreover, by sanctioning a mutation of specific killa number also result into illegality, since by sanctioning mutations in favour of specific killa numbers also amount to effecting a coercive and illegal partition of khewat, since it generate new khewat, which contrary to law and without jurisdiction, as it only ACIG who is competent to effect partition of khewat, that too in compliance with the procedure laid down in Punjab Land Revenue Act Act after due notice and opportunity to all co-sharers in khewat. Now on the basis of illegal revenue entries the defendants are asserting right on specific killa numbers and of sale of the plaintiff share qua khewat and the plaintiff has come to know of these erroneous and illegal revenue record on 11/10/2017, where the plaintiff is in actual physical possession of area of 4 Kanals in khewat, since it was delivered aft the time of sale. The entries are not binding on the plaintiff's rights. The defendants on the basis of the illegal revenue records are claiming themselves to be exclusive owners of specific killa numbers specially killa no.19/12 and want to interfere in the possession of the plaintiff on suit land and if the defendants succeeded in their illegal motive, the plaintiff will suffer irreparable loss and injury. The plaintiff has requested the defendants not to make such assertion and interfere in possession of the plaintiff but defendants are adamant and refused to do so, firstly on 24/3/2015 and lastly on 11/10/2017, when the plaintiff has withdrawn her appeal with permission to file fresh suit, which is the date of cause of action. The plaintiff has earlier filed a suit for declaration and permanent injunction against the defendant no.1 qua the suit land which was withdrawn with permission to file fresh on same cause of action v.o.d 11/10/2017. With these pleadings, present suit was filed on 5/12/2017.