شملاٹ زمین کی فروخت: ایک اہم عدالتی فیصلہ
پاکستان میں زمین کی ملکیت اور شملاٹ (مشترکہ زمین) کے معاملات اکثر قانونی تنازعات کا باعث بنتے ہیں۔ لاہور ہائی کورٹ، ملتان بینچ کے ایک حالیہ فیصلے میں یہ طے کیا گیا کہ اگر کسی فروخت نامے میں شملاٹ زمین کا واضح ذکر نہ ہو، تو وہ خودبخود فروخت تصور نہیں ہوگی۔
کیس کا پس منظر
اس کیس میں مدعی (محمد دین کے ورثاء) نے مؤقف اختیار کیا کہ انہوں نے 126 کنال 10 مرلہ زمین فروخت کی تھی، لیکن شملاٹ زمین کو فروخت نہیں کیا۔ بعد میں زمین کی ازسرِ نو تقسیم کے دوران مدعا علیہ (عبداللہ کے ورثاء) نے شملاٹ بھی اپنے نام کروا لی، جس پر مدعی نے اعتراض کیا۔
عدالتی کارروائی
- سول کورٹ نے مدعا علیہ کے حق میں فیصلہ دیا اور کہا کہ زمین ان کے نام منتقل ہو چکی ہے۔
- اپیلٹ کورٹ نے سول کورٹ کا فیصلہ کالعدم کر کے مدعی کے حق میں فیصلہ دیا کہ شملاٹ زمین فروخت نہیں ہوئی۔
- لاہور ہائی کورٹ نے بھی مدعی کے حق میں فیصلہ دیتے ہوئے کہا کہ شملاٹ زمین کی فروخت صرف اسی صورت میں ممکن ہے جب فروخت نامے میں اس کا واضح ذکر ہو۔
قانونی اہمیت
یہ فیصلہ ان افراد کے لیے بہت اہم ہے جو زمین خرید و فروخت کرتے ہیں۔ 1959 کے ویسٹ پاکستان ڈسپوزیشنز (سیونگ آف شملاٹ) آرڈیننس کے مطابق، اگر کسی فروخت نامے میں شملاٹ زمین کو واضح طور پر شامل نہ کیا جائے، تو وہ خودبخود فروخت تصور نہیں کی جا سکتی۔
نتیجہ
یہ کیس اس اصول کو مزید مضبوط کرتا ہے کہ زمین کی فروخت میں مکمل شفافیت ضروری ہے۔ اگر کسی زمین میں شملاٹ کا حصہ ہو، تو اس کا واضح ذکر ہونا چاہیے، ورنہ یہ بعد میں قانونی تنازعات کا سبب بن سکتا ہے۔
JUDGMENT SHEET
IN THE LAHORE HIGH COURT
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
JUDGMENT
C.R.No.377-D/2003
Allah Bakhsh (deceased)
through his legal heirs etc.
VS.
Muhammad Hanif (deceased)
through his legal heirs etc.
Ch. Muhammad Iqbal, J:- Through this civil revision,
the petitioners have challenged the validity of judgment & decree
dated 05.03.2003 passed by the learned Additional District Judge,
Taunsa whereby the appeal of the respondents was accepted, the
judgment & decree dated 20.04.2001 passed by the learned Civil
Judge, Taunsa Sharif was set aside and the suit for declaration
filed by the respondents was decreed.
2.
Brief facts of the case are that Muhammad Din,
predecessor-in-interest of the respondents, filed a suit for
declaration against the petitioners/defendants and contended that
he was owner in possession of suit property fully described in the
headnote of the plaint as well as owner in Shamlat and Shamlat
of Caste Sikhani according to the proportionate of his own land in
Moza Tubb. The respondent/ plaintiff sold land measuring 126
Kanal 10 Marla through registered sale deed No.295 dated
12.12.1960 to Abdullah s/o Mehmood, predecessor-in-interest of
the petitioners/defendants, but he did not sell his share of Shamlat
Date of hearing
27.03.2024
Petitioners by
Syed Muhammad Ali Gillani, Advocate
Respondents by
Mr. Muhammad Khalid Khan Sikhani, Advocate
Ch. Muhammad Iqbal, J:- Through this civil revision,
the petitioners have challenged the validity of judgment & decree
dated 05.03.2003 passed by the learned Additional District Judge,
Taunsa whereby the appeal of the respondents was accepted, the
judgment & decree dated 20.04.2001 passed by the learned Civil
Judge, Taunsa Sharif was set aside and the suit for declaration
filed by the respondents was decreed.
2.
Brief facts of the case are that Muhammad Din,
predecessor-in-interest of the respondents, filed a suit for
declaration against the petitioners/defendants and contended that
he was owner in possession of suit property fully described in the
headnote of the plaint as well as owner in Shamlat and Shamlat
of Caste Sikhani according to the proportionate of his own land in
Moza Tubb. The respondent/ plaintiff sold land measuring 126
Kanal 10 Marla through registered sale deed No.295 dated
12.12.1960 to Abdullah s/o Mehmood, predecessor-in-interest of
the petitioners/defendants, but he did not sell his share of Shamlat
C.R.No.377-D/2003
2
of Caste Sikhani to him. The respondent/plaintiff remained in
possession of Shamlat Caste Sikhani in Moza Tubb. During the
consolidation proceedings, share of respondent/plaintiff in
Shamlat Caste Sikhani was transferred to the
petitioners/defendants alongwith the ownership of the land sold
by him. The respondent/plaintiff contended that the transfer of
Shamlat Caste Sikhani of Moza Tubb to the
petitioners/defendants is illegal and liable to be reversed. The
respondent/plaintiff further contended that the petitioners/
defendants alienated the suit land by different mutations within
family which transactions are based on mala fide. The petitioners/
defendants filed contesting written statement. The trial Court
framed issues, recorded pro and contra evidence of the parties
and finally dismissed the suit vide judgment & decree dated
20.04.2001. Being dejected, the respondents filed an appeal
which was allowed vide judgment & decree dated 05.03.2003 by
the appellate Court who by setting aside the judgment & decree
dated 20.04.2001 passed by the trial Court, decreed the suit of the
respondents. Hence, this civil revision.
3.
I have heard learned counsels for the parties and have
gone through the record.
4.
In order to prove the asserted stance in the plaint
Mehboob Ahmad has appeared as P.W.1, who stated that
Muhammad Din his father was the owner of suit land and he has
passed away; that the suit land is Shamlat of Caste Sikhani; that
his grandfather sold 126 Kanal land to Abdullah; that during
consolidation the said land was transferred to the defendants,
whereas the plaintiffs are in possession of the suit land. During
cross examination, he deposed that his grandfather sold land in
the year 1961 but did not sold the share of Shamlat; that the land
in Band Kucha is about 7-1/4 Kanal and the suit land is situated
C.R.No.377-D/2003
3
in Moza Qom Sikhani Band Kocha; that his grandfather
challenged the said consolidation proceedings through an appeal.
5.
Conversely, Noor Muhammad, one of the petitioners/
defendants has appeared as DW-1 and deposed that the suit land
was purchased from Muhammad Din and later on consolidation
proceedings were conducted and after the said proceedings, they
filed appeal which was dismissed. During cross examination, he
admitted it correct that the suit land is situated in Shamlat Qom
Sikhani and they have not filed any appeal against consolidation
proceedings as through said consolidation, the land of Shamlat
came to their possession; that Ahmad Din filed appeal which was
dismissed; that he did not know whether the Additional
Commissioner in his order directed the plaintiff to approach Civil
Court.
6.
The stance of the respondents/plaintiffs is that while
alienating the land measuring 126 Kanal 10 Marla through
registered sale deed No.295 dated 12.12.1960 their predecessor
Ahmad Din had not transferred the land of Shamlat Caste Sikhani
to the petitioners/defendants. Perusal of sale deed (Exh.P.3)
executed by Muhammad Din in favour of Abdullah, predecessorin-interest of the petitioners/defendants, shows that he sold only
his owned land and in the said instrument the alienation of
Shamlat has nowhere been mentioned therein. The said sale deed
(Ex.P3) was entered in the Revenue Record through a mutation
Ex.P14 which also shows that only the owned land was
transferred but the land of Shamlat Deh was not sold. The
documents of sale deed Exh.P.13 and mutation Exh.P.16 does not
show any entry of transfer of Shamlat land. The above Registered
C.R.No.377-D/2003
4
cum official documents wear a legal presumption of correctness.
It is settled law that a man can tell a lie but a document cannot.1
7.
As per Section 3 of West Pakistan Dispositions (Saving of
Shamilat) Ordinance, 1959, Shamlat cannot be presumed as
transferred unless specifically mentioned in the instrument of
disposition. For ready reference, aforesaid provision is
reproduced as under:
“3. Shamilat not included in disposition of land unless
specifically mentioned as subject-matter of the
disposition.—(1) Notwithstanding any law, usage or
custom to the contrary, in any disposition of land,
whether testamentary or otherwise, effected by the
maker by means of a writing or orally and whether made
before or after the commencement of this Ordinance,
words or phrases of a general nature, purporting to
convey rights or interests, incidental, contingent, or
collateral, to that land, shall not be so construed as to
include therein the Shamilat or any portion thereof
appurtenant to such land, unless such Shamilat or a
portion thereof has been specifically mentioned as the
subject-matter of the disposition.”
Under Para 7.19 of the Land Records Manual it is necessary to
show in the mutation whether such transfer of land includes the
shares of the Shamlat. The Hon'ble Supreme Court of Pakistan in
Abdur Rauf Khan’s case2
has held that the possession follows title
in such cases. In this case, the petitioners/defendants purchased
only land but not the Shamlat. The Hon’ble Apex Court in Fazal
Rahim’s3
case has held that in case at the time of selling of land
without specifying Shamlat only the ownership of the land will
be transferred and not the Shamlat. In Chiragh Shah’s case
4
it has
1 Abdul Ghani & Others. Vs. Mst. Yasmeen Khan & Others (2011 SCMR 837) and Saleem
Akhtar Vs. Nisar Ahmad (PLD 2000 Lahore 385)
2 Abdur Rauf Khan and another Vs. Firm Babu Munir Ghulam Siddique etc. (1976 SCMR
436)
3 Fazal Rahim and others Vs. Faqir Muhammad and others (1987 SCMR 1667)
4 Chiragh Shah (represented by legal heirs) Vs. Akhtar Munir and 25 others (1983 CLC 51)
C.R.No.377-D/2003
5
been held that Shamlat will not be presumed to be alienated if it
has not specifically been mentioned in the registered sale deed.
8.
So far as arguments of learned counsel for the petitioners/
defendants that the suit was hopelessly time barred and the suit
land/Shamlat was given to the petitioners/defendants during
consolidation proceedings and civil court has no jurisdiction,
suffice it to say that the Consolidation Authorities, in appeal and
revision, categorically advised the respondent/plaintiff to
approach Civil Court for correction of entries in the revenue
record and every new entry in revenue record creates fresh cause
of action and in this case recurring cause of action is available to
the respondents/plaintiffs. Further, the respondents/plaintiffs are
in possession of the suit land as such the suit is well within time
and the Civil Court has rightly adjudicated the matter.5
Thus, the
above arguments of learned counsel for the petitioners/defendants
is without any force and the same are hereby repelled.
9.
The trial court has failed to appreciate the legal and
factual aspects of the case and dismissed the suit of the
respondents/plaintiffs whereas the appellate court, after
discussing the facts as well as evidence of the parties, through a
well-reasoned judgment & decree has rightly allowed the appeal
of the respondent and decreed their suit as prayed for. It is well
settled law that in the event of conflict of judgments, findings of
appellate Court are to be preferred and respected, unless it is
shown from the record that such findings are not supported by
evidence.6
5 Abdul Sattar Khan and another Vs. Rafiq Khan and others (2000 SCMR 1574) and
Muhammad Yousaf through his L.Rs and others Vs. Noor din and others (1993 MLD 763)
6 Muhammad Hafeez & Another Vs. District Judge, Karachi East & Another (2008 SCMR
398) and Rao Abdul Rehman (deceased) through legal heirs Vs. Muhammad Afzal
(deceased) through legal heirs and others (2023 SCMR 815)
C.R.No.377-D/2003
6
10.
In view of above, this civil revision being devoid of any
merit is hereby dismissed. No order as to costs.
(Ch. Muhammad Iqbal)
Judge
Approved for reporting.
Judge
No comments:
Post a Comment