1995 PLP 695 (CLC)

Saeed Baig for Petitioner. Saadat Hussain for Respondents. Date of hearing: 30th April, 1994. This revision petition filed by Arbab Jamshed Ahmad and another and the connected C.R. No. 481 of 1992 brought by Khurshid Ahmad Arbab, petitioner, under section 115, C.P.C., call in question the judgments and the decrees of the learned District Judge, Peshawar, dated 21‑6‑1992, by which, in affirmance of the judgment and the decree dated 25‑7‑1989 passed by the learned Civil Judge 1st Class, Peshawar; in a suit for declaration of the former's title to and confirmation of his possession over the disputed land and for the annulment of Sale Mutation No. 956 attested on 20‑8‑1979 on behalf of Arbab Abdul Hamid Khan deceased in favour of defendants‑respondents Nos.l to 4 on the ground of fraud, collusion and non‑payment of sale consideration. Another relief claimed was for perpetual injunction restraining the defendants Nos. 1 to 5 from raising construction thereon or from alienating it further. Still another relief claimed was of possession of the disputed land. 2. .As both the revision petitions have arisen out of the common judgments and decrees of the Courts below in a single suit and are directed against the single sale mutation, therefore, both are being disposed of by this judgment.

3. The plaintiff‑petitioner had categorically denied both in the plaint as well as in the witness‑box that Arbab Abdul Hamid Khan deceased had ever sold the disputed land to any one and, therefore, had challenged the legality and propriety of Mutation No. 956 sanctioned on 20‑8‑1979 on behalf of Arbab Abdul Hamid Khan deceased aforesaid in favour of defendants Nos. 1 to 4 on the ground of fraud practised upon Arbab Abdul Hamid Khan deceased by Ghazan Khan defendant‑respondent and also for non‑payment of sale consideration. It is averred that Ghazan Khan defendant‑respondent was able to play this fraud upon Arbab Abdul Hamid Khan deceased because the former was tenanting the disputed land on behalf of plaintiff and defendants Nos. 6 to 8. 3‑A. Defendants Nos. 1 to 5 controverted the assertions made in the plaint and claimed that Arbab Abdul Hamid Khan having sold the land by Mutation No. 956 attested on 20‑8‑1979 in favour of defendants Nos. 1 to 4 on receipt of a sum of Rs.40,000 in the presence of the Tehsildar, Peshawar, remained neither the owner nor in possession thereof since 1979. A few legal objections including those of estoppel and lack of cause of action were also raised. The pleadings of the parties gave rise to as many as ten issues including the relief. The petitioner is aggrieved only of the findings of the Courts below on the following three issues:‑ (7) Whether defendants Nos. 1 to 5 have purchased the suit property from Arbab Abdul Hamid Khan for Rs.40,000? (8) Whether the plaintiff is a co‑sharer in possession of the suit land and mutation No. 956 attested on 20‑8‑1979 regarding 4 Kanals in favour of defendants Nos. 1 to 4 is based on fraud and misrepresentation, null and void, without consideration, without jurisdiction and ineffective on the rights of plaintiff? (9) Whether the plaintiff is entitled to the decree as prayed for? The learned trial Judge took up issues Nos. 7 and 8 together and observed that the plaintiff‑petitioners had questioned even the competency of Arbab Abdul Hamid Khan deceased to alienate the disputed land which, according to the learned trial Judge, was ill‑founded. The learned trial Judge had worked out the share of Arbab Abdul Hamid Khan in 96 Kanals of the disputed Khata out of which "Arbab Abdul Hamid Khan's entitlement was more than 4 Kanals which he could very safely alienate." The learned trial Judge also repelled the contention of the learned counsel for the plaintiff -petitioners that money did not exchange hand between the vendees and Arbab Abdul Hamid Khan vendor and maintained that although Zarif, one of the witnesses to the attestation of mutation, had appeared in the witness‑box but in cross‑examination he admitted that payment of sale consideration had not been made in his presence, none thciess, he admitted that Arbab Abdul Hamid Khan had concurred in the attestation of mutation on his behalf and had admitted the receipt of sale consideration. The learned trial Judge has additionally relied on the testimony of Nfst. Shaukat Ara widow of the deceased/vendor who had testified that her husband had received Rs.40,000 as sale consideration of the suit land and that the said amount was handed over to her by the deceased. Both the issues were thus decided against the plaintiff- petitioner. Issues Nos. 1 and 9 were also discussed jointly and in view of the findings on Issue No. 7 the plaintiff was held to have got no cause of action and as such was not entitled to the decree as prayed for. As a result of the findings on these issues and other issues involved, the suit of the plaintiff‑petitioner was dismissed.

4. The petitioner, feeling aggrieved, filed two appeals in the Court of District Judge, Peshawar, which too were dismissed on the ground that the petitioner had simply disputed the attestation of mutation and had neither produced any member of the revenue staff who had entered and attested the mutation nor had sent the signature of the vendor on the impugned mutation to the handwriting Expert. The learned appellate Court was further of the view that "there was enough evidence on the record to show that a sum of Rs.40,000 as sale consideration had been paid to the vendor and that at the time of attestation of the impugned sale mutation, the vendor himself was present. Finding no substance in the appeals, as stated earlier, both were dismissed.

5. Feeling still dissatisfied, the petitioner has come up in revision petitions to this Court.

6. Mr. Saeed Baig, learned counsel for the petitioner, has questioned the findings of the learned trial .fudge on Issues Nos. 8, 9 and

10. In this context, he has serious criticism on the finding of the learned Courts below holding that the vendees were not under any legal obligation to discharge the burden of proving negative assertion that no mutation had been attested on behalf of the vendor/deceased. According to him, he could deny the mutation after which the burden shifted to the answering respondents to prove the propriety of the mutation which they had miserably failed to discharge. In support of this proposition reliance was placed on the recent judgment of the Supreme Court in the case of: (i) Muhammad Azam and others v. Muhammad Yar and others (1988 CLC 2388) and (ii) Hakim Khan v. Nazeer Ahmad Lughmani and others (1992 SCMR 1832). 7.Mr. Saadat Hussain, learned counsel for the respondents, on the other hand, placed reliance on Muhammad Younas Khan and 12 others v. Government of N.‑W.F.P. through Forest and Agriculture and others (1993 SCMR 618) to urge that a mutation which had been entered and attested in regular course of official proceedings and no fraud was proved to have been practised in attestation thereof cannot be said to be ineffective merely because it has been challenged to be fraudulent. According to the learned counsel, the burden of proof has been rightly shifted to the plaintiff‑petitioner because the mutation had found its way into the Revenue Record and made reference to: (i) PLD 1950 Rev. (Pb.) 36), (ii) Abdul Khaliq v. Board of Revenue, West Pakistan, Lahore and others (PLD 1962 (W.P.) Karachi 147) and (iii) Haji Ghulam Rasool and others v. Chief Administrator of Auqaf, West Pakistan, Lahore (PLD 1966 (W.P.) Lahore 978) wherein it has been held that unless the mutation entry has been incorporated in the Jamabandi it has no presumption of truth attached to it and that it is only when it is so incorporated that it has a presumption of truth. It has been further held in those authorities that the entries in the record‑of‑rights are not conclusive proof of the facts recorded therein and such entries shall be presumed to be true only until the contrary is proved in the civil Court.

8. There is no cavil with this general proposition which is almost now settled since 1926 when in the case of Nirman Singh and others v. Thakur Lal Rudra Partab Narain Singh and others (AIR 1926 PC 100) the Privy Council has not approved the view that mutations are documents of title. Nonetheless, it is equally now settled law that a presumption of strong nature in favour of entries of mutation and record‑of‑rights is created which is but rebuttal. The strong presumption that is attached to the impugned Mutation and the subsequent Revenue Record that had been prepared there under tends to create a strong presumption of truth which in the circumstances of this case has not been rebutted at all.

9. The contentions of the learned counsel for the petitioners on the factual plane, I am afraid, are devoid of substance. The learned trial Judge as well as the appellate Court have appraised the evidence in its true perspective. In owning the suggestion of the petitioners' counsel by Muhammad Zarif (D.W.2) that sale consideration was not paid in the presence of the latter, his deposition as to the attestation of mutation at the instance of the vendor in favour of defendants Nos. 1 to 4 is not belied. D.W. Muhammad Zarif had been categorical in the witness‑box that Arbab Abdul Hamid Khan had admitted the. property of the sale transaction before the Revenue Officer. Nonetheless, since the suit had been brought after the death of the vendor, the difficulty of the vendees to produce best evidence qua proof of the payment of sale consideration was apparent. Nonetheless, they had produced Mst. Shaukat Ara D.W., the widow of the deceased/vendor who had testified to the receipt of sale consideration. Her evidence could not possibly be brushed aside merely because the petitioners and respondents Nos. 6 to 8 on the one hand and she were locked in litigation over her status as widow of the deceased/vendor. It has been conceded at the Bar that the petitioners in these two revision petitions have since admitted her to be the widow of Arbab Abdul Hamid Khan deceased. The sale transaction through a mutation can be proved either through evidence of payment of sale consideration or admission of the vendor to have received it notwithstanding the summary nature of the mutation proceedings under the law. In the instant case, the vendor is proved to have admitted the receipt of sale consideration after which the impugned mutation had been attested. The question of onus, after the evidence had been consciously led by the parties, looses mush of its significance. The observations of the appellate Court that after the mutation had been incorporated in the Revenue Record the onus shifts to those who deny the propriety of the mutation is thus not exceptionable.

10. No doubt, the mutations by themselves do not confer any right or extinguish the title, nonetheless, the evidence of facts which they purport to record cannot easily be brushed aside. In Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf (PLD 1971 SC 376) it was laid down that the weight and importance to be attached to the mutations is, in no way, diminished by the fact that they have been allowed by those who were going to be adversely affected by them to remain unaltered for such a large number of years, even though they were aware of the entries in the record. In this case, sine the attestation of the impugned Mutation No.956 dated 20‑8‑1979 long after the petitioner had returned from abroad, had found its way in the Revenue 'record which had continued to persist till 1981 when this suit was brought, therefore, the burden to prove that the petitioners were unaware either of the attestation of the impugned mutation of the subsequent entries in the Revenue Record, heavily lay on them which, in the instant case, has not at all been discharged by the petitioners.

11. In consequence, the judgments and decrees of the two Courts below which had concurrently found the pivotal issues of fact against the petitioners, cannot be interfered with in exercise of revisional jurisdiction of this Court. In' this view of the matter, the concurrent findings of the Courts below on the question of fact that the impugned mutation had been correctly entered and attested on behalf of the deceased/vendor and that the petitioners have not been able to prove that the disputed land had not been sold. by him by virtue of Mutation No.956 attested on 20‑8‑1979 are unexceptionable. Resultantly both the revision petitions are dismissed with costs. A.A./1686/P Revisions dismissed.