1988 PLP 1250 (CLC)

3. The record further reveals that before the learned trial Court the appellants anchored their claim on Mutation No. 21 and other entries in the revenue record largely founded thereon which alongwith mutation No.21 were tendered by them in evidence as EX.P.1, (copy of Khasra Girdawari), Ex. P‑2, (copy of Roznamcha Waqaiti), Ex,P‑3 (copy of mutation), Ex.P‑4 (copy of Roznamcha Waqiati), Ex.P‑5 (another copy of Roznamcha Waqiati), Ex.P‑6, (copy of Roznamcha Waqiati comprising entry dated 26‑5‑1973 Ex.P‑7 (copy of the Addl: Commissioner's order dated 8‑6‑1971, which was set aside in revision by the Board of Revenue vide Ex. D‑2 (wrongly mentioned as P‑2 in the orders of the Courts below), Ex.P‑8 (copy of Khasra Girdawari for Kharif 1975 and Rabi 1976), Exhs.P.9 and P.10 (copies of Khasra Girdawari), EX.P.11 (copy of the order dated 8‑3‑1972 passed in the pre‑emption suit) Ex.P.12 (copy of Parcha Ishtimal).

4. The fate of the appellants' suit largely hinged on the trial Court's decision on issues Nos.3 and 4, reproduce below: "Whether the plaintiffs are the owners and in possession of the suit land? OPP Whether the decree of the Admn. Civil Judge, Sheikhupura dated 8‑3‑1972 is ineffective and inoperative and not binding on the plaintiffs? OPP." The learned Civil Judge referred to the appellants' oral and documentary evidence and maintained that mutation No.580 was reviewed and mutation No.21 sanctioned in their favour much before the institution of the pre‑emption suit by respondent No.10 against respondents Nos.2 to

9. He thus held that the decree in favour of respondent No.10 was not binding on the appellants who otherwise too were not impleaded as a party to the suit. Before the learned first appellate Court, the respondents were allowed to produce the Board's order Ex.D‑2 by way of additional evidence. However, their request to tender in evidence the sale deed dated 13‑9‑1955 was turned down. It shall be useful to quote hereunder the operative part of the judgment of the learned first appellate Court, which embodies the reasons for setting aside the decree of the trial Court:‑ The impugned order confirms that the learned Civil Judge placed reliance upon order of Addl:Commissioner, Ex.P.2. Sale made by Dil Muhammad in favour of Abdul Wahid was declared against the provisions of Martial Law Regulation No.64 in the judgment Ex.P.2. In fact the moot point involved in the suit was as to whether the said alienation was really hit by Martial Law Regulation No.64 or not. Order of Member, Board of Revenue, Ex.D.2 makes the position clear. This order confirms that initially the sale made by Dil Muhammad in favour of Abdul Wahid was based upon the registered sale‑deed dated 13‑9‑1955 when Martial Law Regulation No.64 was not yet in force. Later mutation No.580 was attested after enforcement of Martial Law Regulation No.64, but the same was cancelled under the wrong presumption that the mutation itself created title. However, it is well‑settled that mutation itself, does not create or extinguish title, but it is only an evidence of alienation. The fact that mutation No.580 was based upon a previously executed registered sale‑deed, is manifest even from the documents of contesting respondents produced by them in evidence as Ex.P.4. Ex.P.4 is a copy of mutation No.21 which was attested after cancellation of mutation No.580. The first endorsement on the back of the said mutation confirms that mutation No.580 was the result of registered sale‑deed."

4. With this background of the case, with which the learned counsel for the appellants was confronted, we now proceed to deal with the contentions halfheartedly raised by him before us. He argued that the question pagged on the violation of Martial Law Regulation No.64 was neither urged in the pleadings of the parties nor put in to issues; the learned Additional District Judge, therefore, fell in error to decide the appeal on the rectitude of non‑violation of Martial Law Regulation No.64. It was also submitted that the documentary evidence adduced by the appellants fully established their title; a heavy burden lay on the respondents to produce the sale‑deed aforesaid, which was never placed by them on the record; there was thus no effective rebuttal of the proof tendered by the appellants in support of their claim.

5. It is correct that Martial Law Regulation No.64 does not find mention, in the pleadings of the parties but in order to prove issue No.3, the appellants themselves produced the Additional Commissioner's order Ex.P‑7, mutation No.21 Ex.P4 and other documents relating to the review of mutation No.580 and its cancellation vide mutation No.21, on account of alleged violation of Martial Law Regulation No.64. These documents coupled with Ex. D‑2, necessitated the discussion of the question, as to whether or not the transaction evidenced by mutation No.580, was hit by Martial Law Regulation No.64. Such discussion was essentially germane to issue No.3. The entire controversy was clinched by the Board's order Ex. D‑2, which has been upheld by us vide our judgment rendered today in W.P. No,2404/78 filed by the appellants. It is, therefore, idle for them to question the impugned judgment on the plea that the controversy regarding Martial Law Regulation No.64 was neither referred to in the pleadings nor reflected by the issues. We may observe that when the parties led their evidence, the case had to be examined in the broad spectrum of the points discussed therein which by no means are alien to the issues falling for determination in the suit. The burden of proof of issue a No.3 was on the appellants. In these circumstances, the non‑production of sale‑deed by the respondents, was not fatal to their stand. The decision of the Board of Revenue (Ex. D‑2) was an effective rebuttal of the evidence mustered by the appellants. The learned first appellate Court, therefore, rightly interfered with the judgment and decree of the trial Court and dismissed the appellant's suit. For all these reasons this R.S.A. is found without merit. It is dismissed with costs. H.B.T./G‑110/L Appeal dismissed.