P L D 1995 Peshawar 138 (PLP)

Pir Mukamil Shah for Respondents. This judgment will dispose of C.R. No.255 of 1992 as both these revision petitions have impugned common judgment of the learned Appellate Court. The petitioners in this revision petition are aggrieved from the judgment and decree of the Appellate Court as by this judgment the judgment and decree of the Trial Court were set aside and consequently, the suit filed by the plaintiff‑petitioners against the respondent in this revision petition as well as Sitara Khan petitioner in the connected revision petition, was dismissed.

2. The relevant factual background of the case is that petitioners instituted a suit for declaration of being owners in possession of Khasra Nos.235, 236 and 237 measuring 47 Kanals, 15 Marlas, that defendants 1 to 11 had no concern with the ownership of this land and that the entries in the name of the defendants showing them as owners‑mortgagors was ineffective over the rights of the plaintiffs and as such Mutation No.6594 attested on 19‑6‑1988 in respect of this land in the names of defendants 1 to 8 was ineffective on the proprietary rights of the plaintiffs and was liable to be corrected. Prayer for perpetual injunction restraining the defendants from interfering and showing themselves to be its owners was also sought. In the alternative possession over the suit land was prayed for. Explaining their claim over the suit land it was averred that before settlement of 1928‑29 the suit Khasra numbers were allotted Khasra No.271 and was owned by Faqir Hussain the predecessor of defendants 1 to

8. In the record of rights pertaining to the settlement of 1928 29 the disputed three Khasra numbers were carved out. The disputed land was mortgaged with possession by the said Faqir Hussain in the year 1897 and 1898 in favour of Ferozuddin the predecessor of plaintiffs 40 to 50 for Rs.80. On 3rd October, 1900 Faqir Hussain sold the suit land in favour of the said Ferozuddin mortgagee and his three brothers Amiruddin, Ghulam Mahboob and Shamsul Haq. On the death of the above vendee the property devolved on the plaintiffs as their legal heirs. The plaintiffs have been continuing in possession of the suit land from the time of their foregoers but now they have come to know that defendants 1 to 11 in collusion with the revenue staff have entered themselves as owners‑mortgagors on account of sale and had shown plaintiffs 40 to 45 as mortgagees. On the basis of this wrong entry defendants 1 to 8 succeeded in getting Mutation No. 6549 attested in their favour on 19‑6‑1988. Defendants 1 to 8 in their joint written statement averred that the property in suit was owned by Faqir Hussain, their predecessor, which was inherited by them as his heirs. They, however, admitted mortgage of the suit land in favour of Ferozuddin, the predecessor of plaintiffs 40 to 45 and stated that the mortgage is intact till now. The alleged sale‑deed was described as collusive and fake besides being unregistered and having never been produced before any authority or acted upon in the revenue record. According to them the concealed and camouflaged nature of the sale deed was a clear proof of it being fictitious. The possession of the plaintiffs at present was denied. Defendant No.9 Sitara Khan (petitioner in the connected revision petition) denied the rights of the plaintiffs as mortgagees and also as owners by purchase. Similarly he also did not admit the ownership of defendants 1 to

8. Defendants 10 and 11 in their separate written statement conceded the claim of the plaintiffs through ownership and defendant No.10 also showed himself as co‑sharer in the suit property while defendant No.11 admitted himself to be tenant under plaintiff No.l.

3. It would be relevant to refer to the evidence examined by the parties in the case as that would facilitate better understanding of it. P.W.1, Muhammad Younas Patwari, brought on file the Jamabandi from the last settlement of 1928‑29 to the year 1985‑86 Exh.P.W.l/1 to Exh.P.W.l/13. He also produced various other documents which would be referred whenever necessary. Muhammad Siddiq, Assistant District Qanungo as P.W.2 stated that the Revenue Record before 1973 in respect of the suit land has been burnt because of the fire which had set in the Record Room. Plaintiff No.l appeared as P.W.3 who supported the contents of his plaint. D.W.1 is Muhammad Umar, Naib Daftar Qanungo who produced the pedigree‑table of Faqir Hussain and Fazal Qadir as Exh.D.W.l/1. He also produced the original disputed Mutation No.6594 dated 19‑6‑1988. Defendant No.l Abdus Salam appeared as D.W.2 for himself as well as for defendants 2 to

8. He stated that the disputed land was owned by Faqir Hussain which was inherited by defendants 1 to 8 through the disputed Mutation No.6594. This mutation was attested on the basis of Shari decision wherein defendants 1 to 8 were held as legal heirs of Faqir Hussain. He admitted the mortgage by Faqir Hussain in favour of Ferozuddin but stated that the mortgage was created in 1926‑2'7 for 53 years. He condemned the plaintiff for non‑production of the original mortgaged deed. He dubbed the sale deed in favour of the plaintiffs as collusive and fictitious. He also did not admit Sitara Khan either as owner of the disputed land or of any other land in the village. D.W.3 Khaliq Shah is a marginal witness to the disputed mutation. Defendant No.l appeared as his own witness and claimed that he was in possession of the suit land for the last 25/26 years and had made it culturable. He did not admit the plaintiffs or the other defendants to be owners of the suit land.

4. The learned trial Judge held the plaintiffs as owners on the strength of the sale‑deed dated 3‑10‑1900 Exh.P.W.3/2 and also on the basis of time barred mortgage. It was held that on account of the sale in favour of the predecessor of the plaintiffs Faqir Hussain was left with no interest in the property, therefore, no mutation of his inheritance in respect of the suit land could be attested. Plaintiffs were declared entitled to possession and the claim of Sitara Khan defendant No.9 regarding ownership and improvement was not accepted. Two appeals were preferred against the judgment of the trial Court one by the plaintiffs and the other by Sitara Khan defendant No.9. The appellate Court reversed the judgment of the trial Court regarding ownership of the plaintiffs on the basis of the sale deed and declared that the sale could not be proved. However, it granted the plaintiffs a decree for possession as mortgagees against Sitara Khan defendant No.9. The appeal of Sitara Khan was dismissed in toto.

5. Mian Muhammad Younas Shah, the learned Advocate, representing the petitioners argued that the judgment of the appellate Court does not say that the sale deed copy Exh.P.W.3/2 was a fake document but all that was said about it was that it needed corroboration. The learned Advocate was of view that there could be no better corroboration than the consistent entry in the revenue record in favour of the plaintiffs for more than 60 years. It was pointed out that in the revenue record the plaintiffs have been entered as `Bila Lagan Bawaja Bai' for the last so many decades. It was also argued, that if the intrinsic value of the deed is kept in view then it appeared to be genuine and particularly the endorsement and the number written thereon by the stamp- vendor would lead to irresistible conclusion of it being genuine. In order to support his contention he referred to 1983 SCMR 626, PLD 1990 SC 629,1991 SCMR 1842, AIR 1926 PC 100, AIR 1930 PC 91; PLD 1968 Peshawar 148, to show that mere non‑attestation of mutation in favour of the petitioner would not be fatal to the claim of the petitioners as it is settled law that Revenue Record neither creates nor extinguishes title as these entries are mere pieces of evidence to be led by the vendee in support of his claim of purchase. There is no denying the well‑settled proposition that the absence of the attestation of mutation in the Revenue Record regarding purchase etc. of certain land is not that much binding so as to hold that no sale has taken place. On the other hand, even if the mutation of sale has been attested and entries in the Revenue Record supports the sale even then that would not be a conclusive proof of sale‑deed rather these would be item of evidence in assertion of the claim of the sale. Keeping in view this principle the allegations of the sale in favour of the plaintiffs not supported by the mutation or entry in the Revenue Record cannot be straightaway brushed aside, but it is to be seen whether the sale has otherwise been established. The contention of the petitioners' counsel that the petitioners have been recorded as owners in the Revenue Record in pursuance of the sale does not appear to be correct. The alleged sale‑deed was executed on 3rd October, 1900 but the Fard Jamabandi from 1900 to the latest settlement of 1927‑28 have not been placed on record which would have shown as to whether the sale‑deed was in fact acted upon in the Revenue Record which could be considered as a piece of evidence in support of the sale. The Jamabandi prepared at the time of settlement of 1928/29 in the column of cultivation records Faqir Hussain mortgagor while Tajjudin etc. sons of Farozuddin as mortgagees in Khasra No.236. The possession has been shown as that of mortgagees while the kind of land is entered as Bunjar Qadeem. The entry in the column of cultivation in the other two Khasra No's. 235 and 237 is the same as above but Shamsul Haq and Ghulam Mahboob sons of Muhammad Saeed have been shown as tenants while the entry in 'Lagan' column is `Bila Lagan Bawaja Bai'. The column of cultivation of the next Jamabandi of 1931‑32 Exh.P.W.l/2 shows same mortgagor and mortgagees in Khasra No.236 but possession of 36 Kanals 6 Marlas has been shown with the mortgagees and this area has been recorded as `Ghair Mazrooa' while Hameedo has been shown as tenant of 7 Kanals of land shown as culturable. The entry in `Lagan' column is `Batai Bahissa Chaharam'. In the other two Khasra numbers Shamsul Haq and Ghulam Mahboob have been shown as tenants in the column of cultivation but in the column of `Lagan' they have been recorded as `Bila Lagan Bawaja Bai'. In the next Jamabandi of 1935‑36 the same entry of mortgagor and mortgagees continues and the land is shown as `Bunjar Qadeem'. In the other two Khasra numbers the entry remained the same as in the last Jamabandi. In the Jamabandi of 1940‑41 Exh.P.W.l/4 mortgagor and mortgagees are the same but in cultivation column Mian Gul has been shown as tenant and in the `Lagan' column he has been shown liable to 1/4th of produce. The entries of the other two Khasra numbers remained the same. In the Jamabandi of 19.15‑46 Khasra No.235 has been shown as `Barani and the tenants recorded in the column of cultivation has been shown as `Bila Lagan Batasawwar Bai' in the column of Lagan. In this Jamabandi Khasra No.235 has been shown as `Bunjar Qadeem' but still the tenants have been shown as `Bila Lagan Batasawwar Bai'. In the next Jamabandi of 1953‑54 Shamsul Haq and Ghulam Mahboob have been recorded as tenant but in the column of `Lagan' the entry is `Bila Lagan Bawaja Bai'. Khasra No.235 has been shown as `Bunjar Oadeem' but still in the `Lagan' column the tenants have been shown as `Bila Lagan Batasawwar Bai'. The same entries appear to the subsequent Jamabandi. In the Khasra Girdawari Exh.P.W.l/D‑1 in the crops of Kharif 1982 to Rabi 1989 Sitara Khan defendant No.9 and others have been shown as tenants but `Bila Lagan Bawaja Bai' on behalf of Faqir Hussain (the original owner). It is thus clear from these Khasra Girdawaris that Sitara Khan occupied the land as tenant in column of cultivation on behalf of Faqir Hussain but has been shown as `Bila Lagan Bawaja Bai'. It is thus to be noted that the above entries are conflicting in nature as sometime the land recorded as Bunjar Oadeem' has been shown in possession of tenants and that too `Bila Lagan Batasawwar Bai' and the entries have also not remained consistent. Therefore, no explicit reliance can be placed on these incorrect and doubtful' entries in the Revenue Record. It is to be noted that excepting the solitary statement of one of the plaintiffs and the inconsistent and conflicting entries in the Revenue Record there is no other evidence to prove the sale in favour of the predecessor of the plaintiffs. It is curious to note that none of those shown as tenants in the column of cultivation as `Bila Lagan Batasawwar Bai' could be examined in Court by the plaintiffs in support of their stand. Although some lease deeds Exh.P.W.3/4 and Exh.P.W.3/5 have been placed on record but that could not be proved. It is admitted by the plaintiff as P.W.1. It has not been shown in his statement as to who was tenant on behalf of the plaintiffs and in what manner the share of produce was paid to them. It is interesting to note that right from the date of the execution of the alleged deed of sale till the institution of the suit for all these 89 years this sale‑deed had never been produced on any occasion even at the time of the preparation of record of rights or at some subsequent stage. Moreover, no effort was made to identify the scribe or the marginal witnesses and to produce them in Court and in case of their death their successors could be produced for identification of the signature etc. Nothing was said about their identity in the examination‑in chief. In these circumstances the learned Appellate Court was justified to hold that it has not been proved. It was next argued that in Explanation II of section 25 of the Contract Act inadequacy of consideration is no ground for rejection of an agreement. This point was raised because the land was shown as mortgaged for Rs.80 and the sale‑deed was executed for the same consideration as the vendee did not realise anything extra for the sale. The plaintiffs were at least required to have shown as to what prompted the mortgagor to sell the, land for the same amount which they had already realised as mortgage money. This at least makes the transaction doubtful but in any case this point would not be relevant when the execution of the sale‑deed has not been proved. It was next argued that although Fazai Qadir one of the vendees has been shown dead in the pedigree‑table of 1894‑95 but that is obviously erroneous and would not effect the sale as the defendants had never alleged that he was dead at the time of the execution of the sale‑deed. It was in this context argued that the sale was brought about by Faqir Hussain the elder brother of Fazal Qadir and under the customary law he was competent to do so. It was also pointed out that under Article 44 of the Limitation Act Fazal Qadir was required to have brought suit for, cancellation of the sale‑deed, within three years of attaining the majority. To support his plea AIR 1951 Madras 817, AIR 1934 PC 208 and PLD 1982 SC 465 were referred. The latter two authorities are not relevant to the above submission, however, in the former i.e. AIR 1951 Madras 817 it is laid down that the rights of the minor would be lost under Article 44 of the Limitation Act if he does not file a suit within three years of attaining the majority. These submissions would have been relevant if the execution and genuineness of the sale‑deed had been proved but in the present case the veracity of the sale‑deed could not be established by cogent evidence and, therefore, the question of minority etc. of one of the vandors and his failure to file a suit within three years would not arise. It was also contended that production of the scribe or marginal witness was not necessary and the document could be proved by any other circumstance. However, even if it is assumed that the scribe or attesting witnesses were not alive then under section 69 of the Evidence Act the plaintiffs were required to have proved that the attestation of one witness was at least in his writing and that the signature of the executant of the deed was also in his handwriting. But excepting the solitary statement of one of the plaintiffs no other witness was examined to prove the above requirement. It was in the end urged that defendants 1 to 8 have not been able to prove their relation with Faqir Hussain, the original owner. This argument does not take into consideration the very fact that it was the plaintiffs who sued defendants 1 to 8 as the successors of Faqir Hussain. Moreover, plaintiff who appeared as P.W.3 has not specifically denied the relationship of the defendants 1 to 8 with Faqir Hussain. It is not the case of the plaintiffs that they were the legal heirs of Faqir Hussain, therefore, if they did not recognise defendants 1 to 8 as the successors of Faqir Hussain then they should have impleaded those persons as defendants whom they admitted to be entitled to the inheritance of Faqir Hussain. . For all the above reasons the judgment of the Appellate Court does not appear to suffer from any legal infirmity. The Appellate Court has rightly not believed the sale and has correctly held the plaintiffs entitled to possession as mortgagees. Obviously according to this finding they would continue as mortgagees unless in a separate proceeding to be initiated by the heirs of Faqir Hussain i.e. defendants Nos.1 to 8 any final decision is given regarding the true import of the mortgage as that issue is not involved in the present proceedings. This revision petition is, therefore, dismissed but with no order as to costs. The connected revision petition filed by Sitara Khan is also without substance as he could not prove by any cogent evidence his ownership over the suit land. He has been recorded as tenant of the land in dispute and, therefore, his claim to ownership was rightly discarded. The revision petition filed by him is also dismissed. Parties would bear their own costs A.A./1793/P Petition dismissed.