P L D 2002 Lahore 58 (PLP)

(2) Whether a sum of Rs. 28,000 was fixed in good faith or actually paid as price of the land in dispute? OP. Vendee. (3) If Issue No. 2 is not proved; what was the market price of the land in dispute at the time of the sale? OP Parties. (4) Whether the vendee/defendant has effected any improvements over the land in dispute? If so, when and to what extent and effect? . OP. Vendee. (5) Whether the vendee/defendant has incurred any expenses in connection with the registration, completion of the sale? If so, to what extent and effect? O.P Vendees. (6) Whether the pre‑emptors are estopped by their conduct from bringing the suits? O.P. Vendees. (7) Whether the pre‑emptors Balya and Khan Muhammad are estopped by their words and conduct from bringing the pre‑emption suits? O.P. Pre‑emptor Shahra. (8) Relief.

4. After recording evidence, the learned trial Court vide judgment and decree dated 23‑10‑1983 dismissed both the suits of the pre‑emptors. Upon Issue No. 1 regarding superior right of pre‑emption, the learned trial Court did not place reliance on the copy of pedigree‑table Exh. P. 1 as the same did not connect the pre‑emptor (respondent No. 1) with the vendor. The learned trial Court also held that the pre‑emptors did not have any superior right of pre‑emption on the other claim being a co‑owner in the estate or co‑sharer in the Khata.

5. In the appeal filed by the respondent Shahra, the learned First Appellate Court placed reliance upon Exh. P‑2 which was a copy of Mutation No. 45 and Exh. P‑3 copy of Jamabandi for the year 1979‑80 to hold that Exh. P‑2 was a mutation of inheritance of Mst. Fajjan and that there is a pedigree‑table given in this mutation of the respondent/pre‑emptor and the vendor. According to which, the vendor is shown to be the real uncle of the pre‑emptor. The learned First Appellate Court also relied upon the case of Abdul Ahad and others v. Roshan Din and "36 others PLD 1979 SC 890 to come to the conclusion that Mutation Exh. P‑2 has conclusive evidentiary value. The learned First Appellate Court however, did not accept the other claim of superior right of pre‑emption of the respondent as being co‑sharer in the Khata and being co‑owner in the estate. The appeal of the respondent was thus, accepted and a decree dated 6‑7‑1985 for possession through pre- emption was passed in favour of the respondents.

6. The vendee/petitioner has challenged the judgment and decree passed by the learned First Appellate Court upon Issue No. 1 alone. This issue relates to the superior right of pre‑emption.

7. Placing reliance upon the cases of Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988 and Abdul Nabi and 29 others v. Jan Muhammad and 26 others 1998 CLC 1842, learned counsel for the petitioner vehemently urged that no presumption of correctness attaches to a mutation which has not been incorporated in the relevant Jamabandi. According to the learned counsel, Exh. P‑2 by itself would have no evidentiary value particularly when no positive and direct evidence has been led by the respondent to prove his superior right of pre‑emption on the basis of being a collateral of the vendor. Learned counsel for the petitioner further distinguished Abdul Ahad's case (supra) relied upon by the learned First Appellate Court by stating that in that case, the mutation in question was incorporated in the Jamabandi and was thus, held to carry an assumption of truth. He further submitted that in the cited case, the contestants alongwith others personally appeared before the Revenue Officer and gave a pedigree- table under his own thumb‑impression. It was on this pedigree‑table that the land was then mutated. As stated above, the mutation was given effect to and incorporated in the Jamabandi of the village.

8. On the other hand, the learned counsel for the respondents submitted that mutation Exh. P‑2 also contained a pedigree‑table which proved the relationship of the pre‑emptor with the vendor and that such a mutation and the pedigree‑table mentioned therein would carry presumption of truth. He further submitted that besides the said mutation, there was oral evidence on the record to prove that the, respondent was a collateral of the vendor.

9. Arguments heard. Record perused.

10. Although, Mutation No. 45 Exh. P‑2 is a mutation of inheritance and there is a pedigree‑table given in this mutation, the said mutation shall be of no avail to the respondents/pre‑emptors, as no corroborative evidence has been produced by him in this regard. No evidence has been produced to prove the pedigree‑table. In the absence of any such evidence and as the said mutation has not been incorporated in the Jamabandi, no presumption of truth can be attached to such document. In Muhammad Bakhsh's case (supra), it has been held that even entries in the Jamabandi do not provide, foundation of title in property but are mere items of evidence to prove title. A According to Abdul Nabi's case (supra), the entries in the record of rights do not confer any right/title nor carry any presumption and party in whose favour such entries are recorded must establish his right or title by adducing independent evidence.

11. The learned counsel for the petitioner is also correct in submitting that the cited judgment relied upon by the learned First Appellate Court in Abdul Ahad's case (supra) was distinguishable. The mutation proceedings in that case were based upon the proceedings wherein the claimant had given a pedigree‑table under his own thumb‑impression. The mutation was later incorporated in the Jamabandi. The mutation in the cited case was also based upon Naqsha Surat Dehi which contained a pedigree‑table wherein a statement is attributed to a collateral supporting the relationship. When viewed in this back drop, the production of mutation Exh. P‑2 simpliciter in the present case does not fulfil the standard of conferring evidentiary value upon such mutation.

12. The upshot of the above discussion is that the findings of the learned First Appellate Court that the respondent has been able to prove his being collateral of the vendor is not based upon any sound principle of law. The mutation by itself is not sufficient to prove the superior right of the respondent. As a result, the civil revision is accepted and the judgment and decree dated 6‑7‑1985 passed by the learned District Judge, Bahawalnagar is set aside. The parties are left to bear their own costs. H.B.T./M‑767/L Revision accepted.