1998 PLP 1104 (CLC)

This revision petition is directed against the judgment and decree, dated 22‑10‑1995 passed by the learned District Judge, Bahawalnagar, whereby he affirmed the judgment and decree, dated 29‑3‑1992 passed by the Civil Judge, Bahawalnagar.

2. The respondent‑plaintiff filed a suit for a declaration to the effect that the oral sale evidenced by Mutation No.460, dated 13‑8‑1981, with regard to the land measuring 28 Kanals, 2 Marlas was against law and facts, without consideration and knowledge, collusive, fictitious and inoperative against her rights. She also prayed for the issuance of a permanent injunction restraining the defendants from claiming themselves to the owners of the said land. The brief facts of the dispute between the parties are that the disputed Mutation No.460 was attested on 13‑8‑1981 regarding sale of the suit land by Mst. Talia (plaintiff) in favour of Muhammad Yusuf (defendant No. l), while the same was already under mortgage with possession with Khan Bahadar (defendant No.2). The plaintiff alleged that she never sold the said land to the defendant No. l and she also never appeared before any Revenue Officer for attestation of the sale mutation. She also denied having received any consideration for the same. Both the defendants, through a joint written statement, controverted the allegations made in the plaint and claimed that the mutation in dispute was rightly sanctioned. The learned trial Judge framed the following issues:‑‑‑ (1) Whether the Mutation No.460, dated 13‑8‑1981 is void, illegal, result of fraud, without consideration and being so ineffective against the rights of the plaintiff? OPP. (2) Whether the plaintiff is entitled to the relief of perpetual injunction as prayed for? OPP. (3) Whether the plaintiff has got no cause of action against the defendants? OPD. (4) Relief All the issues were decided in favour of the plaintiff and the suit was decreed. The appeal filed by the defendants also failed. Hence, this revision petition.

3. The learned counsel for the petitioners at the very outset submitted that the learned District Judge had not given his findings on each and every issue separately and the evidence was not properly considered and discussed in the judgment and as such it was no judgment in the eye of law and the case required to be remanded to the first appellate Court for re‑hearing the matter in accordance with law. In support of this view, he relied upon the following authorities:‑‑‑ (1) Qurban Ali v. Hoor Bux and 2 others (1991 CLC 248). (2) Mst. Gul Shahbah v. Civil Judge‑III/Judge Family Court, Haripur and 2 others (PLD 1992 Peshawar 13). (3) Abdul Mannan and others v. Sikandar Khan (1992 CLC 505) and (4) Messrs Saqib Brothers and another v. Messrs Ciba Geigy (Pakistan) Limited (1991 CLC 710).

4. There is no force in the contention of the learned counsel for the petitioners. In fact, the learned trial Judge decided Issues Nos.l and 2 together being co‑related. He as well as the learned first Appellate Court examined and discussed the evidence of each and every witness thoroughly. The documents produced in evidence were also considered and their evidential value evaluated. The above-cited cases are not applicable to the case in hand as there is no omission on the part of both the learned Courts below regarding appreciation of evidence.

5. The learned counsel for the petitioner next contended that the possession was with the petitioners and the declaratory suit was barred under the provisions of section 53‑A of the Transfer of Property Act and section 42 of the Specific Relief Act. In this regard the learned counsel relied upon a chain of authorities, which are as follows:‑‑‑ (1) Hikmat Khan v. Shamsur Rehman (1993 SCMR 428). (2) Hafiz Muhammad Yamin and another v. Qazi Ghulam Mustafa and another (1976 SCMR 379). (3) Niaz Mohyuddin and others v. Muhammad Yar and others (1994 CLC 1628). (4) Muhammad Shafi v. Abdul Ghani and another (1983 CLC 2345). (5) Karachi Catholic Cooperative Housing Society Ltd. v. Mirza Jawad Baig (PLD 1994 Karachi 194). (6) Syed Zulfiqar Ali Shah v. Member, Federal Land Commission, Federal Government, Rawalpindi and 4 others (1989 MLD 2484). (7) Ahmed Mujtuba Khan v. Iqbal Shah (1990 CLC 1381) and (8) Major Amir Muhammad Khan v. Dr. Faqir Muhammad and others (1983 CLC 1173). The counsel for the petitioners specifically referred to the case of Karachi Catholic Cooperative Housing Society Ltd. (mentioned supra) to show that the change of possession of property amounted to act of part performance which created legal right in favour of the petitioners.

6. This contention is absolutely misconceived. The relevant part of section 53‑A of the Transfer of Property Act, 1882 is as under:‑‑‑ "53‑A. Part performance. ‑‑‑Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonably certainty, and the transferee, has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract," A simple perusal of this section makes it clear that it applied only to the transfer of an immovable property made by a writing signed 5y the vendor himself or on his behalf. So, the protection of section 53‑A is not available to petitioner No. l‑defendant No. l in this case. Even in the case of Ahmad Mujtuba Khan (referred above at section No.7) the essential conditions for applicability of section 53‑A, Transfer of Property Act, 1882 are stated to be as under:‑‑‑ (i) That the agreement should be in writing signed by the party or his agent whom it is sought to bind. (ii) That the transferee in part performance of the contract takes possession of the property or, if already in possession, should continue in possession and in the latter case should do some act in furtherance of the contract; (iii) That the transferee seeking to avail himself of the doctrine, should perform or be willing to perform his part of the bargain as contained in the writing; (iv) That when the contract has been partly performed all rights and liabilities under the contract should arise and be enforceable as between the parties to the contract notwithstanding that the transaction has not been completed according to law; and (v) That the application of doctrine should not affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. " In the instant case, the disputed land was already in possession of petitioner No.2 defendant No.2 being a mortgagee. The defendants did not deny the contents of relevant para. No.5 in this regard in the written statement. The petitioners‑defendants raised no objection about the form of the suit or the same being barred by law in the written statement. So, the suit of the plaintiff is not hit by the provisions of section 53‑A of the Transfer of Property Act or section 42 of the Specific Relief Act.

7. The learned counsel while relying upon the case of Muhammad Anwar v. Haji Muhammad Ismail and others (1992 MLD 860) submitted that as the mutation was attested in the year 1981, the proof of the same in accordance with the provisions of Article 79 of the Qanun‑e‑Shahadat Order, 1984 was not necessary. He submitted that the learned trial Judge committed material irregularity by applying Article 79 to the present case.

8. No doubt the provisions of Article 79 of the Qanun‑e‑Shahadat Order, 1984 are not applicable to the documents created prior to its enforcement, but even without its application the case of the plaintiff is otherwise proved. Faiz (P. W.1) and Muhammad Anwar (P. W .2) had allegedly identified the plaintiff at the time of the attestation of the disputed mutation. They categorically stated that the plaintiff had not sold the suit land to defendant No. l in their presence and neither they had identified her before the Revenue Officer nor thumb‑marked the disputed mutation. Mst. Talia Bibi as P.W.4 denied having appeared before the Revenue Officer for the attestation of the disputed mutation and having sold the suit land to defendant No.

1. She also denied having received any consideration money for the same. Ghulam Rasool (D.W.1) was examined by the defendants to prove the settlement of the bargain between the parties. He admitted that no document was executed regarding the alleged sale and no receipt regarding the payment of money was made. He also admitted that he was not present when the disputed mutation was sanctioned. Gehna (D.W.2), another witness of the bargain in dispute, also admitted that this transaction was not reduced into writing and no receipt regarding payment of money was executed. He was unable to tell the Killa numbers etc. of the suit land. He and D.W.1 are residents of a different village from that of the plaintiff. Muhammad Iqbal Patwari (D.W.4) stated that he had entered 'Rapat Waqiati' No.346, dated 24‑6‑1981, but he admitted that it did not contain his signatures. A perusal of the said Rapat (Exh.D‑1) shows that it is an unsigned entry. He also admitted that no corresponding entry was made in the Roznamcha Waqiati regarding the attestation of the disputed mutation. Muhammad Din, son of defendant No. 1, as D.W.5 deposed that at the time of attestation of the mutation Mst. Talia Bibi was identified by her son, namely, Muhammad Anwar and her husband's brother Faiz. He stated that he had also identified her at that time. His solitary statement in this regard has been rightly found to be insufficient to disprove the overwhelming evidence produced by the plaintiff. Muhammad Yusuf (defendant No. 1) deposed that he had purchased the suit land from the plaintiff for a sum of Rs.14,500, out of which Rs.10,000 were paid and the remaining Rs.4,500 were to be adjusted towards mortgage debt. He stated that he had got the mortgage redeemed on payment of the said money. He contradicted himself and denied in cross‑examination that the suit land was under mortgage with his brother Khan Muhammad. A person who made two contradictory statements at the same time cannot be believed. No attempt was made by defendant No. l to get the thumb impression of the plaintiff compared through the Finger Print Bureau. The findings of both the Courts below in this regard are unexceptionable.

9. It is well‑settled law that the High Court cannot interfere in exercise of revisional jurisdiction with the concurrent findings of facts unless there is any material irregularity or illegality affecting the decision of the Courts below. Even erroneous decisions on facts are not revisable except as mentioned above. The Supreme Court of Pakistan in the cases of Abdul Hameed v. Ghulam Muhammad (1987 SCMR 1005), Haji Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 SC 88) and Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53), held the same view. There are concurrent findings of facts in this case and no material irregularity or illegality affecting the decision of the Courts below has been pointed out. The revision petition is not maintainable and is dismissed, leaving the parties to bear their own costs. A.A./M‑596/L Revision dismissed