IN THE PESHAWAR HIGH COURT,

BANNU BENCH.

C.R No.06-B of 2008

Muhammad Nazir through LRs

Vs.
Ameer Jan and others.

Date of hearing 04.05.2015 .

Appellant-Petitioner: By Pir Hamd Ulah Shah,

Advocate.

Respondent: Shahid Saleem Mina

Khel & Hafeez Ullah

Khan, Advocates.

JUDGMENT
MUHAMMAD YOUNIS THAHEEM, J:- Through

instant revision petition, the LRs of petitioner

Muhammad Nazir, have called in question the

judgment and decree dated 09.02.2008 passed by

learned Additional District Judge-I, Lakki Marwat,

whereby up holding the judgment and decree dated

19.12.2006 of learned Trial Court/ Civil Judge-IV,

Lakki Marwat, the appeal of petitioner was dismissed.

2. Concise facts of the case are that

predecessor in interest of respondents No.1 to 10

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Baidullah Jan instituted a suit for declaration to the

effect that suit property comprising Khata No.262

bearing Khasra Nos. 1974, 1975, 1976, 1833, 1934,

1935, 1936, 1937 & 1972 measuring 1442 Kanals

situated at village Marmandi, Lakki Marwat is

“Shamelat-e-‘Deh” and was used for the purpose of

grazing fields of the village since 1904-05 and

petitioners/ defendants are neither the sole owners in

possession nor entitled to deprive other co-owners of

village from its utility being common property i.e.

Shamilat, as such any mutations or gift mutations in

favour of others in column of cultivation in violation

of shart wajibul Arz, is illegal, unlawful, void, hence,

the suit.

3. Petitioners/ defendants were summoned,

on appearance they contested the suit by submitting

written statement. On divergent pleadings of the

parties the learned trial court framed as many as seven

issues including relief. The parties produced pro and

contra evidence in support of their respective stance.

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On conclusion of trial, the learned trial court after

hearing arguments of learned counsel for the parties

decreed the suit vide judgment and decree dated

19.12.2006.

4. The petitioners/ defendants being feeling

aggrieved from the judgment and decree of learned

trial court preferred appeal before the Court of learned

Additional District Judge-I, Lakki Marwat. The

learned appellate Court after hearing arguments of

learned counsel for the parties dismissed the appeal

vide impugned judgment and decree dated 09.02.2008,

hence, the instant revision petition.

5. Arguments heard and record perused.

6. In this case statement of Patwari Halqa is

very important, who was examined as PW-1 and

produced Fard Jama Bandi for the year 1995-96 (Ex:

PW 1/1) according to which total Shamilat land is

1442 Kanal, Shajra Nasab Khandan No.170, (Ex:

PW1/4) according to which petitioners belongs to

same Khandan and Wajib-ul Arz of Moza Marmandi

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(Ex:PW1/5) consist of six pages. Perusal of the same

reveals that the disputed land is Shamelat-e-Deh used

for the purpose of pasture (Charagah) for the Aqwam

Baist Khel and Ghazni Khel whereas people of other

mozajat/village can graze their cattle with their

permission. Moreover, it is also admitted by DW-4,

Qasim Khan in his cross examination that disputed

property is entitlement of Baist Khel and Ghazni Khel

Aqwam. In view of such a situation, when it is

abundantly clear that suit property is Shamlat-e-Deh

and ownership of two Aqwam Baist Khel and Ghazni

Khel, no person from any one of the said caste is

authorized to transfer the disputed land, hence, any

kind of transactions including gift in column of

cultivation without the consultation of other owners of

common property carried out by the petitioners in

violation to the condition laid down in the Wajib-ul-

Arz (Ex:PW1/5), are illegal against the law, void ab

initio. In this regard wisdom is derived from the

Judgment in case titled “Sher Afthan Vs.

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Muhammad Rafiq and another (2012 CLC 1803)

Board of revenue Punjab, wherein it has been held:

“As a matter of fact, the land in

Shamilat Deh is not only the ownership
of the villagers living in that village but
also the ownership of the coming
generations following in succession.
The misuse, sale and illegal occupancy
will deprive the future generations of
their due inheritance and societal
rights. Section 136 of The Land
Revenue Act, 1967 clearly imposes
restriction and limitation on the
partition of Shamilat land. In the
instant case, while attesting the
Mutation of Shamilat Deh, all co-
sharers have not been consulted, which
is mandatory. It was incumbent upon
the Revenue Officer to summon all
interested parties and stakeholders for
consultation, before attestation of such
Mutation. It has been held in 1985 CLC
796 that partition sanctioned without
consulting a large number of co-sharers
is not justified. It has also been held in
2003 SCMR 1857 that partition of
Shamilat Land should be made on the
basis of Shart Wajib-ul-Arz and not on
the basis of Misl-e-haqiat.”
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7. The other point for determination is, as to

whether any wrong entry in column of cultivation or

mutation can be challenged through any member/ owner of

proprietary body or suit land is to be challenged through

representative suit in view of Order I Rule 8 of the Civil

Procedure Code. To this legal aspect I hold that any such

entry in shape of mutation in column of cultivation without

consultation of other co-owners or in violation of Wajibul

Arz can be challenged by any member of proprietary body

and it would not be necessary to be challenged by all the

members of proprietary body or through a representative

suit in view of Order I Rule 8 of CPC. Reliance is placed

on case titled, “Major Muhammad Alyub Khan Vs Capt.

Jamroz Khan and 3 others”, (1979 CLC 788)(SC (AJ&K)

wherein it is held that:

“A co-sharer or a co-owner in the

common village property can
challenge such a sale even if the
Shamilat Deh land sold is beyond his
share, provided it affects the interest
of the other proprietary body and the
challenger does not set up an adverse
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title of his own against the rest of the

proprietary body. Of course if such a
shareholder wishes to get the
possession of his own share in the
Shamilat Deh, he can do so through
partition proceedings and can get
possession to the extent of his own
share only.”

7. The scope of revisional jurisdiction is very

limited in which the court cannot set aside the

concurrent findings of facts recorded by Courts of

competent jurisdiction nor it can upset the same,

unless these findings are shown patently illegal,

without jurisdiction, based on conjectural

presumptions or erroneous assumption. No such

infirmity has been pointed out by the learned counsel

for the petitioner in the impugned judgments, hence,

not warranted any interference by this Court.

8. In view of the above discussion and the

dictum laid down by the august supreme Court, it is

held that both the courts below have rightly

appreciated the evidence as well as revenue record and

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reached on a right conclusion, which need no

interference under revisional jurisdiction of this Court,

therefore, this revision petition being devoid of merits

is dismissed. No order as to costs.

Announced.

04.05.2015

JUDGE