1993 PLP 1374 (CLC)

4. The suit was resisted by the respondents. In addition to denial of factual allegations embodied in plaint, number of legal objections regarding the maintainability of the suit, valuation for purposes of court‑fee and jurisdiction and estoppel were also raised. On the divergent pleadings of the parties, learned Senior Civil Judge, Bahawalnagar, framed nine issues which are as follows: (1) Whether the Mutations Nos.60 and 61 dated 31‑10‑1962 concerning the redemption of mortgage, and the sale of the property in dispute respectively were got sanctioned by defendants Nos.l and 2 fraudulently and with the collusion of the Revenue Department for which the same are illegal, void and inoperative against the plaintiff? OPP (as amended by order dated 30‑4‑1966). (2) Whether the defendants Nos.l and 2 had paid the amount of Rs.94,000 regarding the alleged sale? OPD (3) Whether on account of section 54 of the T.P. Act the alienation of the property could have been effected only through a registered deed? If so with what effects? OPP. (4) Whether the defendants Nos.l and 2 would stand protected by the provisions of the section 53‑A of the T.P. Act and the transaction of sale etc. would be valid? OPD. (5) Whether Mutation No.76 concerning the sale effected in favour of defendant No.3 and the gift effected in favour of defendant No.4 are illegal and inoperative against the plaintiff9 OPP (6) Whether the suit m its present form is maintainable? OPP (7) , Whether the valuation of the suit for the purpose of court‑fee; ;s correct? OPP. (8) If not, what should be the valuation? OPD (8‑A) Whether the Civil Court has no jurisdiction to try the case :' (Added vide order dated 18‑3‑1965 passed on the original Chittha

1. OPD. (9) Relief.

5. The parties led their oral as well as documentary evidence. After the consideration of the evidence, so adduced by the parties, the learned trial Court on issues Nos.l and 2 found that the appellant in fact had made the sate of land in favour of respondent No.1., had received the consideration anti delivered the possession of suit land to Muhammad Din. On issue No.3, it was, held that since the appellant had come to Court with soiled hand, was therefore, ‑not entitled to claim relief only on the premises that transaction of sale was violative of section 54 of the Transfer of Property Act. On issues No t) and 7 it was observed that as respondents Nos.l, 2 and 3 were in possession of the suit land, as such the suit for declaration was not competent in view of bar contained in proviso to section 42 of the Specific Relief Act. On these conclusions the suit was dismissed. This happened vide judgment and decree dated 9‑5‑1966. On appeal, the learned Additional District Judge did not fine force in the same and dismissed it by upholding the findings of the trial Court on all the issues. Feeling dissatisfied with the above decisions. the appellant has filed this second appeal under section 100 of the C.P.C.

6. While challenging the impugned decisions of the two forums below, learned counsel for the appellant raised the following contentions: Firstly: That the learned Additional District Judge has rendered the decision without application of his mind to the facts, circumstances of the case and grounds enumerated in the memorandum of appeal. According to the learned counsel the decision of the appellate Court is, thus mechanical in nature and cannot be termed as judgment within the meaning of Order XLI, Rule 33, C.P.C. which requires the: appellate Court in mandatory terms to give its finding on each issue separately after consideration of all the material on record. This being, not done, the impugned decision of the first appellate Court cannot be sustained. Secondly: That the Court of first instance had framed issues Nos.6 an:! 7 incorrectly and had wrongly, allocated the onus of proof to the appellant. According to the learned counsel it was bounden duty of respondent No.1. to prove the entries of Mutation No.61 which embodied the statement of the appellant regarding the factum kit, having made the sale in favour of respondent No.1.. According to the learned counsel, the approach of the learned Court of trial from commencement was illegal and caused prejudice to whole of the case. The learned appellate Court had not adverted to this question at all. On the strength of this circumstance it was canvassed that the decisions of the two Courts below were plainly illegal and suffered from error of law apparent on the face of it. Reliance was placed on Nageshar Bakhsh Singh v. Mt. Ganesha (AIR 1920 P.C. 46), Nirman Singh v. Thakur Lal Rudra Partab (AIR 1926 PC 100), Wali Muhammad v. Muhammad Bakhsh (AIR 1930 PG 91) and Gurunath Radhaswami v.lBhimappa (PLD 1948 PC 123). Thirdly: That the perusal of Exhs.P/1 and P/2 clearly demonstrates that these were fake proceedings carried out by the Revenue Officer in collusion with defendant No. t as these were carried in the Baithak of Muhammad Din and not in an open assembly; that the two respectable witnesses of the locality did not identify the appellant; that the mutation of lease and mutation of sale were reported and attested contemporaneously on the same date: that Exh.P/2 (mutation of sale) totally belied the contents of Exh.P/2 (mutation of cancellation of lease). In view of these circumstances, it was asserted' that respondent No.1. had failed to prove the impugned sale. Fourthly: That the transaction of sale being oral in nature was hit by the provision of section 54 of the Transfer of Property Act, which ordnance immovable property worth more than Rs.100 can be sold of only through a registered instrument and not otherwise. Reliance was placed on Abdul Karim v. Fazal Muhammad Shah (PLD 1967 SC 411), Habibur Rehman and another v. Mst. Wahdania and others (PLD 1984 SC 424), Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan (PLD 1986 Kar. 74) and Muhammad Bakhsh v. Ziaullah and others (1983 SCMR 988). Fifthly: That the appellant was an illiterate old person and was entitled to protection under section 16 of the Contract Act. Relying on this principle, it was suggested that it was the duty of the defendants to establish that the transaction of sale embodied in Mutation No.61 was in fact entered into by full understanding and independent application of mind by the appellant.. Reference was made to Mst. Hawa v. Muhammad Yousuf and others (PLD 1969 Kar. 324), National Bank of Pakistan, Karachi v. Dawood Yousuf Mithani and 2 others (PLD 1978 Kar. 42) and National Bank of Pakistan v. Mst. Hajra Bai and 2 others (PLD 1985 Kar.'431). Sixthly and lastly: That the two Courts below have misread the plaint while holding that the appellant had filed a suit for declaration simpliciter. According to the learned counsel a plain look at the plaint shows that the suit was filed for declaration alongwith consequential relief of recovery of possession. Continuing, learned counsel submitted that the approach of the learned two Courts below Iron, commencement to finish was steeped into illegal exercise authority.

7. On the contrary the learned counsel for the respondents vigorously supported the impugned decision by raising the following points: that the approach of the learned two Courts below from commencement to finish was steeped into illegal exercise of authority.

7. On the contrary the learned counsel for the respondents vigorously supported the impugned decision by raising the following points: (i) That the two Courts below had concurrently held that the appellant had made the sale of the suit land in favour of Muhammad Din that the appellant had received the consideration and got mutation of sale attested. According to the learned counsel, these are inferences of facts and cannot be disturbed by this Court under section 100 of C.P.C. Reliance was placed on Karamat Ali and another v. Muhmnmad Younus rlaji and others (PLD 1963 SC 19), Abdul Majid and w hers v. Khaki Ahrr. ad I PLD 1955 FC 38), Pathana v. Mst. Wasai and another (PLD 1065 SC; 134), Sikandar v. Sultan Muhammad (PLD 1974 SC 11), Khera Din and 6 others v. Taza Din and 46 others (1968 SCMR 1027, The Province of West Pakistan through the Deputy Commissioner, Khairpur v. Imam Bukhsh (1970 SCMR 465), Muhammad Hussain and another v. Ahmad Khan and another (1971 SCMR 296) and Azhar Saleem v. Muhammad Anwar Khan etc. (1974 SCMR 484). (ii) That the appellant had come to the Court with unclean hands. It was clear from the statement of Ghulam Rasool P.W.3 that the appellant was present at the 13aithak of Muhammad‑ Din on the date of attestation of mutation. This alone: fully corroborated the version of defendant No.1.. As such the appellant was not entitled to seek the help of the Court on the ground of contrariety under section 54 of the Transfer of Property Act. For this principle, the learned counsel placed reliance upon Haji Noor Muhammad v. Ghulam Masih Gill (PLD 1965 BJ 1) and Muhammad Amin etc. v. Mian Muhammad (PLD 1970 BJ 5.).

8. I have heard the learned counsel for the parties at considerable length and perused the record with their capable assistance. Before I proceed to determine the contentions of the parties, it is expedient to restate two well settled as well as the well‑known principles of law dealing with oral transfer of immovable property evidenced by mutation. Firstly, that the entries in duly sanctioned mutations which are not still incorporated in the record‑of‑rights, do not carry presumption of truth. The nature of mutation proceedings is summary in nature and intended to keep record of collection of land revenue. These are made under section 42 of the Land Revenue Act and are admissible under section 35 of Evidence Act/Article 49 of Qanun‑e‑Shahadat, 1984. The nature and evidential value of these entries had engaged the attention of superior judiciary as back in 1920, the Privy Council in Nagheshar Bakhsh Singh v. Mst. Ganesha (AIR 1920 PC 46) held as under: "Records of that character take their place as part of the evidence in the case. They do no more. Their importance may vary with circumstances, and it is not any part of law of India that they are by themselves conclusive evidence of the facts which they purport to record. It may turn out that they are in accord with the general bulk of evidence in the case; they may supply gaps in it; and they may, in short, form a not unimportant part of testimony as to fact which is available. But to give them any higher weight than that, might open the way for much injustice and afford temptation to the manipulation of records or even of the materials in the first entry Birdword, J. in the Bombay case Bhagoji v. Bapuji (1888) 13 Bom. 75 said as follows: `At the rehearing the lower appellate Court should have its attention directed to the ruling in Fatima v. Darya Sahib in which it was held that the Collector's Book is kept for the purposes of revenue, not for the purposes of title. The fact of a person's name being entered in the Collector's Book as occupant of land does not necessarily of itself establish that person's title or defeat the title of any other person."' The above classic statement of law was reiterated in Gangabai v. Fakirgowadda (AIR 1930 P.C. 93), Gurunath Radhagwami v. Bhimappa (PLD 1948 PC 123), Mst. Aisha Bibi and others v. Muhammad and others (PLD 1957 Lah. 371), Muhammad and others v. Sardul (PLD 1965 Lah. 472) and Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832).

9. From the above ratio deducible is that the entries in mutation are admissible as evidence in a case. These are entitled to weight dependent upon circumstances of each case. It is for the party who relies upon these entries, to prove the admission in consonance with the principles of Evidence Act which are applicable to prove admissions. The initial onus of proof of a transaction embodied in mutation is essentially upon the beneficiary of the mutation.

10. Secondly, wherever section 54 of the Transfer of Property Act, is applicable, immovable property worth Rs.100 or more, can be only transferred by a registered instrument of transfer. An oral transaction incorporated in mutation neither transfers the title in favour of vendee nor can establish the same. The suit filed by the vendor may be dismissed on the grounds of estoppel or acquiescence. This law is so settled that it is needless to cite any case‑law in support of the proposition. In any way, if any judicial authority is needed these are Arif v. Jadunath Majumdar (AIR 1958 Cal.1235), Pir Bux v. Muhammad Tahir (AIR 1958 Bom. 650), Habibur Rehman and another v. Mst. Wahdania and others (PLD 1984 SC 424) and Mst. Akhtar Begum v. Mian Aziz and others (1985 SCMR 1617).

11. Coming now to merits of the case it appears that the above‑noted principles of law have been overlooked by the two Courts below. The perusal of the record shows that the matter regarding sale was put in issues Nos.1 and 2; the onus of proof of these issues was placed upon the appellant. As already remarked that defendant No.1 had claimed title in the suit land on the basis of so‑called admissions of appellant recorded by the Revenue Officer in mutations Nos.60 and

61. Clearly it was defendant No.1 who was required under the law to ‑prove this transaction of sale. This being not done I am constrained to say that the learned Court of first u instance proceeded to try the issue of safe with error patent on the face of the record. The question is whether in such a situation this Court, without expressing its mind should remand the case to the Court of trial or decide the controversy on the basis of evidence furnished by the parties. There is no dispute that the sale of the suit land was matter directly and substantialy in this litigation; that both the parties were fully aware of this dispute from inception to finish; that both the parties had led their evidence on this issue. In the context of these circumstances this Court is fully competent to review the evidence adduced by the parties and decide the controversy in order to obviate the necessity of remand and to put parties in vortex of litigation afresh. If any authority is needed in support of this proposition, reference be made to Abdul Salam alias Abdul Khair and another v. Allah Miah Serang and another (PLD 1971 SC 189) and Nazar Muhammad and another v. h1st. Shahada Begum and another (PLD 1974 SC 22).

12. Having concluded that the two forums have decided the controversy on the basis of wrong assumption and legal approach. 1, herein, proceed to evaluate the evidence of the parties. In addition to himself respondent No.1. produced Mustafa Akram D.W.1, Abdul Majid D.W.2, Muhammad A7az D.W.3 and Allah Ditta D.W.4. He relied upon the copies of Roznamcha Waqiati which are Exhs.D/1 and Exh.D/2. The perusal of Mutation No.60 indicates that Muhammad Din and Muhammad Sharif made a report to one Ghulam Muhammad Patwari of revenue estate Gulab Ali stating therein that Muhammad Ali had cancelled the lease; that they had received Rs.20,000 advanced to him, and had reconveyed the possession of leased land to Muhammad Ali. Mutation No.61 shows that on the same. date Muhammad Ali had appeared before one Abdul Majid Patwari of revenue estate Gulab Ali and made a statement regarding the sale. The report of the Patwari recites that Muhammad Ali had made a statement to him that he had made the sale of the suit land in consideration of Rs.94,000, will receive the consideration before the Revenue Officer at the time of attestation of the mutation. Another feature of this mutation is that the order of the revenue officer shows that Muhammad Ali had received Rs.68,000 and made admission to the effect that the remaining price was paid to him by way of adjustment. D.W.1 Mustafa Akram, who was the Revenue Officer at the relevant time, stated that he attested Mutation No.60 as well as No.61 on the same date on the basis of admission made by Muhammad Ali; that Muhammad Ali way identified by Muhammad Aziz D.W.3; that he passed these orders in the Baithak of Muhammad Din D.W.2. Abdul Majid gave the testimony to the same effect. In cross- examination both these witnesses stated that the parties were known to them; that there was no necessity for identification of the parties. D.W.3 Muhammad Aziz, who identified Muhammad Ali, supported the entitles of impugned mutation. As against it, the appellant relied upon the testimony of Subedar Muhammad Malak P.W.1 and Ali Sher P.W.2 in addition to himself. He firmly stated that he neither appeared before the Revenue Officer nor made the statement on the basis of which the impugned mutations were attested. The question for decision is as to whether defendant No.1. had proved the sale transaction. From the analysis of the evidence it becomes clear that D.W.I and D.W.2 have almost supported the case of vendee with over zealousness which is reflected by the apparent contents of mutation proceedings. To begin with the Revenue Officer was required to attest the mutation in open assembly and. get the identification of vendor from two respectable locals of the relevant estate, in which the land was situated. Not only he contravened the express provision's of section 42 of the Land Revenue Act, rather he proceeded to attest these mutations in the Baithak of vendee. He even stated that he was not in the need of identification as required by section 42 ibid. This aspect of the matter renders D.W.1 as biased and interested witness. To the similar effect is the testimony of D.W.2. The examination of Mutations Nos.60 and 61, reveals a glaring feature which had gone unnoticed by the two Courts below. Mutation No.60 indicates that at the relevant time the Patwari of the revenue estate was one Ghulam Muhammad. He recorded the report of Muhammad Din and Muhammad Sharif in respect of cancellation of the lease. The report recites that Muhammad Ali had paid back the lease money advanced by Muhammad Din and Muhammad Sharif. While Mutation No.61 shows that Muhammad Ali had made a report of sale transaction to one Abdul Majid Patwari who was the Patwari of revenue estate at the relevant time. On the face of mutation first name of Ghulam Muhammad is recorded which is later scored and there underneath the name of Abdul Majid is written. The notable thing of this report is that Muhammad Ali stated that he will receive Rs.94,000 at the time of attestation of mutation before the Revenue Officer. The contents of the order passed by the Revenue Officer on the same date show a different position. According to the order, as already noted above, Muhammad Ali received Rs.68,000 in cash and made admission regarding the receipt of remaining consideration by way of adjustment. From the examination of the aforesaid feature of the case I have no hesitation to hold that the two Courts below have not decided the case by taking into consideration these circumstances of vital importance. Therefore, the concurrent findings of fact on Issues Nos.l and 2 cannot be maintained and can be interfered with by this Court under section 100 of C.P.C. Reference be made to Zamiruddin Ahmad v. Mst. Aisha Abbas and 6 others 1979 SCMR 516 and Ghazan and others v. Hayat Ali and another 1981 SCMR

492. The statement of Muhammad Aziz D.W.3 does not improve the case of defendant No.1.. He was neither Lumberdar. nor respectable of the revenue estate in which the suit land was situated. On the survey of the evidence noted above I have, therefore, no hesitation in coming to the conclusion that no reliance can be placed upon D.Ws. The evidence of vendee respondent is not only shaky, dependent and tainted but also destructive of sale transaction. It is very much clear to me that either Ghulam Muhammad or Abdul Majid must have been Patwari of the revenue estate. Furthermore either of statements made in the Mutations Nos.60 and 61 can be correct only, but respondent No.1. had made no endeavour to explain these irreconcilable positions. Hence in my considered opinion the evidence adduced by respondent No.1. is destructive of his case and cannot be made basis for coming to the conclusion that he had proved the transaction of sale. As against it the appellant appeared before the Court, stated clearly and emphatically that neither he appeared before the Revenue. Officer nor he made the sale he received consideration and that Muhammad Din and Muhammad Sharif were his lessees who after the efflux of term of lease had become tenant‑at‑will. Accordingly I have no hesitation in reaching the conclusion that the finding of the two Courts below on issues Nos.l and 2 is wholly incorrect and is in defiance of legal principle noted above. 1, accordingly, set aside the findings of two Courts below on issues Nos.l and 2 and hold that respondent No.1. failed to discharge the onus of proof of proving the transaction of sale in his favour.

13. Having reached the conclusion that respondent No.1. had not proved the sale in his favour it is needless to dilate upon the remaining questions excepting that on issues Nos.6 and

7. Both the learned counsel agreed that the finding of the two Courts below was not correct as the appellant has claimed the relief of possession in the plaint. Even otherwise it is apparent from the bare reading of the plaint that the appellant had filed the suit for declaration alongwith the grant of consequential relief of possession. The findings of the two Courts below on issues Nos.6 and 7 are, therefore, clearly erroneous on the face of the record and are accordingly set aside.

14. The precedents of Haji Noor Muhammad v. Ghulam Masih Gill (PLD 1965 BJ.1) and Muhammad Amin etc.'v. Mian Muhammad (PLD 1970 B.J.5) proceed on distinguishable facts and dissimilar situation. As such are not attracted to the instant case.

15. As a result of above discussion I accept this regular second appeal, set aside the judgments and decrees passed by the two Courts below and decree the suit of the plaintiff‑appellant with requested relief. However, there shall be no order as to costs. AA./N‑141/L Appeal accepted.