TABLE FOR AMJAD 137 (PLP)

HAMOODURR RAHMAN, J.‑

This certificated appeal arises out of the judgment of a Division Bench of the Nigh Court of West Pakistan at Lahore, in a second appeal. The Certificate was granted, on the 5th June 1961, as the value of the subject‑matter of the appeal was found, on enquiry by the Senior Civil Judge, Lyallpur, to be more than 75 thousand rupees. The said second appeal itself arose out of a suit filed by one Imam Din, the predecessor‑in‑interest of the appellants herein, for a declaration that he is the sole owner of 2 squares Of land and an Ihata, situated in Chak No. 291/G.B., Tehsil Toba Tek Singh and that two mutations, sanctioned on the 19th April 1955, regarding gifts alleged to have been made by the Said Imam Din in favour of the respondents herein, of a half share in the two squares and the entire residential Ihata, were fictitious, void and against the law. Consequential relief in the form of a permanent injunction was also prayed for in this suit. There is no dispute that the above‑mentioned properties belonged to Imam Din and that the respondent, Mohammad Aslam, is the son of Siraj Uin, a pre‑deceased son of Imam Din, and the present appellants are the surviving son and daughter of the said Imam Din. The pedigree‑table of the parties if; as follows: IMAM DIN= Mst. Chiragh Bibi (wife) Malik Din Siraj Din Mst. Zainah Bibi Afst. Suehran Bibi I Muhammad Aslam Mst. Kalsoom Bibi (Minor) (Minor) (defendant) Siraj Din died doting the life time of his father sometime after the Muslim Personal Law (Shariat) Application Act (IX of 1948), came into force, leaving him surviving a minor son and a daughter. Imam Din was then nearly 100 years old and as under the new Law, the son of a pre‑deceased son could not succeed to any part of the estate of the paternal grandfather, he felt concerned about the welfare of his grandson. Accordingly, on the 10th May 1954, he made an oral gift of a half share of his agricultural lands to his grandson and got an entry made to that effect in the register of mutations on the 18th May 1954. But three days later, when he appeared before the Naib Tehsildar for the attestation of the mutation, it was found that he had not cleared his agricultural income‑tax dues. The mutation case was, therefore, referred to the Tehsildar for disposal. It came up before the latter on the 24th July 1954, at a public assembly. Imam Din who was present at the assembly with his son Malik Din denied that be had made any such gift and stated that he intended only to make a will in favour of his grandson. The mutation was accordingly rejected and the matter rested there as the respondent was then living with his grandfather. On the 17th April 1955, however, Imam Din again made an oral gift in respect of the same area of land and a residential Ihata, in favour of his grandson. This was got entered on the 18th April 1955, as two separate mutations, namely, Nos. 234 and

397. These entries were made by the Patwari himself and were verified by the Lambardar who signed the same in token of their correctness. They were then put up before the Naib Tehsildar for attestation on the 19th April 1955, at the Tehsil Headquarter and were duly attested in a public assembly at which the donor, the local Lambardar and the maternal grandfather of the donee, were present. Before the assembly, Imam Din acknowledged the gift and proclaimed that he had already transferred possession of the subject‑matter thereof. On the basis of this statement the mutations were attested by the Naib Tahsildar. Malik Din who was not present at this assembly, filed an appeal on the 1lth May 1955, against this before the Collector, making both his father and the donee respondents. In this appeal, he did not challenge the factum of the mutation but merely alleged that the gift had been illegally made and was invalid because Imam Din was of unsound mind at that time and a similar mutation in respect of the agricultural lands had been rejected on the 20th July 1954. The Collector on the 30th April 1956, dismissed the appeal holding: (i) that there was no authoritative evidence on the record about the unsoundness of mind of Imam Din, (ii) that the earlier mutation was not sanctioned as Imam Din had stated that he had not made over possession and that he did not wish to make a gift but only a will, (iii) that there were no instructions from the department that a mutation could not be made for a second time, (iv) that the second mutation was in no way clandestine, (v) that it was not correct that possession had not been delivered to the donee, for, the same was amply proved from the Khasra Girdawaris for Kharif 1955 and Rabi 1956, (vi) that the objector, Malik Din, had no locus standi in the matter, as his interest in the property would arise only on the death of Imam Din. In or about May 1956, during the pendency of the aforesaid appeal, it appears that Imam Din had come to Lahore and got a deed of gift written out and registered there in respect of one square of land gifted to his other son Malik Din and it was only after this gift that the present suit was instituted. Imam Din was the plaintiff in this suit and the donee Muhammad Aslam was the sole defendant. The cause of action as laid in the plaint was that the gift was fictitiously and clandestinely got entered, without the knowledge or consent of Imam Din who on coming to know of the same had immediately submitted applications to the Revenue Authorities supported by sworn affidavits and his son Malik Din, who is also his special attorney, had actually filed an appeal before the Collector to have these mutations cancelled. It was also his case that he had never appeared at any public assembly to admit the alleged gift to his grandson. In fact no such gift had been made nor was possession of the properties alleged to have been gifted ever made over to the donee or any one else. Before any written statement could be filed in this suit an application was made on the 24th July 1956, for having the statement of Imam Din recorded de bene esse under Order XVIII, rule 16 of the Code of Civil Procedure, as it was apprehended that Imam Din may die at any moment. In this statement, which was recorded on the 31st July 1956, he maintained that he had not made any gift of any property to his grandson and that, in fact, he did not want to transfer any of his properties to any one in his life time. It appears from this statement that the respondent's father and the appellant Malik Din were the sons of Imam Din from different wives. Siraj Din's mother was Chiragh Bibi whom Imam Din claimed to have divorced in 1955. It is interesting to note, however, that in cross-examination he admitted that he had no enmity with the Lambardar, who had testified to the correctness of the impugned mutation entries and that he would gift some property to Muhammad Aslam when he was near his death. He also admitted that he was then living with his son Malik Din. Imam Din actually died on the 28th September 1956 and in his place Malik Din applied to substitute only himself and his sister Mst. Zainab Bibi, leaving out the widows. Objection was accordingly taken to this application and the Court fixed it for trial on two issues namely; (i) as to whether the right to sue had survived, and (ii) if so, who are Imam Din's legal representatives. But when those issues came up for trial the learned counsel for Malik Din conceded that Mst. Chiragh Bibi was a widow of the deceased. Hence notice was directed to issue to her also. Ultimately the substitutions prayed for were made on the defendant waiving his objection. The written statement was ultimately filed on the 19th February 1957, and it was averred therein that the real plaintiff in the suit was Malik Din who had coerced his father to file this false and baseless suit out of selfishness and ill will. Imam Din was in full possession of his senses when he made the gift and admitted it before a public assembly in the presence of the Naib Tehsildar and thereafter made over possession of the gifted land to the donee, as is evidenced by the Khasra Girdawaris for Kharif 1955 and Rabi 1956. The suit, it was further pleaded, was defective for want of a necessary party, namely, Mst. Chiragh Bibi, the mother of Siraj Din. On these pleadings the following issues were struck on the 19th March 1957: (i) Can the suit proceed in its present form? (ii) Whether Imam Din deceased transferred the land and the house in dispute to tile defendant by means of a gift? (iii) Whether the gift is void due to non‑delivery of the possession? (iv) Whether the gift is void because of the fact that the property gifted was an undivided share in the joint property? (v) Whether the gift is void because it is against the provisions of the Agricultural Income‑tax Act, 1951? (vi) Whether the mutation of gift cannot be sanctioned because the previous mutation of gift had been rejected? (vii) Relief. The plaintiff's in support of their case examined both the Patwari who had entered the disputed mutation and the Lambardar who had testified to its correctness. The Patwari stated that at first he had refused to make the entry, as Imam Din had resiled from his earlier gift, but later, on the complaint of Ahmad Din and Imam Din to the Naib Tehsildar, he was sent for and ordered to enter the mutation. He did so without talking to Imam Din at all. The signature of the Lambardar was obtained on the entry after taking it to Chak. No.

291. Then the mutation was put up before the sub Tehsildar. Imam Din was not present at that time so the Naib Tehsildar ordered him to leave the mutation register there. When he took back the mutation register on the next morning, he found that the order had been made in his absence. In cross‑examination, however, he admitted that the entire entry was in his handwriting and that Muhammad Din Lambardar had signed this entry in his presence. The entry was, as first also admitted by him to have been recorded correctly but‑ in the next breath he resiled from this admission and stated that what he had said in his examina tion‑in‑chief, was correct. The Lambardar also deposed to the effect that he never appeared before the Naib Tehsildar with Imam Din when the mutation was sanctioned but he admitted his signature in column No. 15 of the mutation register. He however, would have us believe that he had signed without reading it. Malik Din also examined himself in support of his case and called another witness, named Taj Din, to establish that imam Din had been ill for the last three years and that he could not move about. It was, nevertheless, admitted that about a year or a year and a half ago, Imam Din had made a gift in favour of Malik Din by means of a deed of gift written out, executed and registered at Lahore. On behalf of the respondent, the Naib Tehsildar who had sanctioned the mutation, was examined. He maintained that the mutation was put before him by Raider Ali, Patwari, in the presence of Imam Din and Ahmad Din, the maternal grandfather of the donee who were both then identified before him by Muhammad Din, Lambardar. He accepted the identification, because; he knew Mohammad Din, Lambardar, personally. In his presence Imam Din admitted having made the gift and stated that he paid agricultural income‑tax and would continue paying it during his lifetime. On this admission he attested the mutation. He belied the statements of Haider Ali, Patwari; and Muhammad Din, Lambardar, that they were not present before him at the time the mutation was sanctioned. According to him Imam Din was also in a fit physical condition at the time he appeared before him. His evidence was not materially shaken in cross‑examination and all that the plaintiffs could suggest was that he had sanctioned the mutation on getting a bribe, but he denied this categorically. No further attempt was made to establish this allegation. Ahmad Din, the maternal grandfather of the minor donee also gave evidence and supported the version of the Naib Tehsildar. He also proved that after the gift he took over possession on behalf of the minor donee and had been collecting the produce of the land ever since the death of Imam Din. He also denied the suggestion that he had bribed the Naib Tehsildar. According to him, he had met the Naib Tehsildar for the first time when he appeared before him for the attestation of the mutation. In addition to these two only one other witness was examined by the defence, namely; Ilam Din who, it was said, had been cultivating 3/4th of the square gifted to the minor for the last 5 or 6 years. He supported Ahmad Din and stated that since the death of Imam Din he had been paying Batai to Ahmad Din and Malik Din had never been given any share of the produce by him. A suggestion was made to him that Imam Din had, during his lifetime, given him a notice to quit but he denied this suggestion. No copy of any, notice was, however, produced to contradict him nor did the plaintiff file any document to show that Imam Din had, during his lifetime, ever made any representation to the Revenue authorities against the impugned mutations. The defendant, in addition to the oral evidence, also relied upon the order of the Collector in the appeal filed by Malik Din and on extracts from Khasra Girdawaris relating to this Mouza. On this evidence the trial Court found that the suit was maintainable, but found all other issues in favour of the defendant. He believed the evidence of the Naib Tehsildar and Ahmad Din, the maternal grandfather of the donee and held that "Imam Din did transfer the land by way of gift in favour of the defendant by making the report to the Patwari and by admitting the gift before the Revenue Officer." The trial Court also came to the conclusion that "the reason why Imam Din got the first mutation rejected and challenged the second mutation in the present suit appears to be that, being an old man, he was playing in the hands of his son Malik Din and whenever he got a mutation entered in implementation of his desire to benefit the grandson, Malik Din would prevail upon him and would try to get undone what already had been done in this connection." Hence the suit was dismissed with costs. On appeal the learned Additional District Judge of Lyallpur came to the conclusion that the mutation No. 234 was not sanctioned either at the instance of or with the consent of Imam Din. The reasons upon which he based his decision may be briefly summarised as follows: (1) The mutation was not reliable as no corresponding entry in respect thereof had been made in the Roznamcha by the Patwari. (2) A similar mutation entry made on the 18th May 1954, (No. 230), had not been attested, as Imam Din had resiled there from when he appeared before the A. R. C. on the 20th July 1954. (3) If, in spite of this, Imam Din wanted to change his mind and make a gift in favour of his grandson, he would have done so by executing a regular deed of gift as he had done in the case of the gift in favour of Malik Din. (4) The fact that the Naib Tehsildar sanctioned the mutation at the Tehsil Headquarter on the very next day after the entry was made and that was the only mutation which was sanctioned on that date, was by itself a very suspicious circumstance and showed that the "Naib Tehsildar sanctioned the mutation under some special influence, otherwise it is rare to sanction a mutation in such a short time and specially at the Tehsil Headquarters". (5) The fact that it was necessary to get the mutation entry verified by the Lambardar was also an unusual circumstance. If it was necessary to get the signature of the Lambardar, why was not the signature of Imam Din as well obtained in the mutation register. In any event, since the Lambardar had denied in his evidence that he had identified Imam Din at the time of the attestation of the mutation before the Naib Tehsildar, the attestation should not be accepted.

6. The fact that two of the defendant's witnesses had admitted that as long as Imam Din was alive the Batai was paid to him confirmed that the gift was never made, (7) The subsequent gift of one square of land in favour of Malik Din, by a registered deed, showed that Imam Din knew that such a document was more efficacious. If he minded to make a gift to his grandson, he would have followed the same procedure. (8) The order of the Collector in the appeal, filed by Malik Din, could only be utilised for the purpose of showing that the mutation in dispute was immediately challenged and that no sooner the appeal failed, the present suit was instituted. In any event neither the order nor the contents of the order were admissible in evidence. The order had not been properly proved and even otherwise it could not prove as to what was alleged in that appeal by Malik Din. On these findings, the learned Judge purported to reverse the decision of the trial Court and to pass a decree, declaring that the mutation order No. 234, made on the 19th April 1955, was not‑binding on the plaintiffs. Nothing was, however, said as to Mutation No. 397, relating to the residential Ihata which was also sanctioned on the same date. It appears that the learned Judge was totally oblivious of the fact that the latter mutation was also being challenged in this suit. But for this the learned Additional District Judge was clearly of the view that if Imam Din had, in fact, made the gift, it was a valid gift and the objections which had been raised against its validity; were without any foundation. It follows from this that the learned Additional District Judge was in agreement with the conclusions of the trial Court with regard to issues Nos. 1 and 3 to 6 and not as wrongly stated by the High Court that he had affirmed the findings "on issues Nos. 2 to 6", for, he had in fact, disagreed with its findings as to issue No.

2. Dissatisfied with this decision, the respondent went up in second appeal to the High Court. The High Court took the view that since the learned Additional District Judge had erroneously excluded from consideration the order of the Collector (Exh. D. I.), he had illegally ignored a material piece of documentary evidence on record and such non‑con sideration of material evidence constituted a sufficient ground for interference in second appeal. In the view of the High Court, the recitals in this order amounted not only to an admission by Malik Din of a fact which went to the root of his case, namely, that before the Collector he had not denied the factum of the disputed gift, but also furnished cogent circumstantial evidence of the truth of the defendant's case. This fact, it was further held, clearly indicated that Malik Din wad aware that Imam pin had gone to the Patwari and made the report relating to the gifts, on the basis of which the mutations, were duly attested by the Naib Tehsildar in the presence of Imam Din. If this had not been so, he would, even in the said appeal, have asserted that Imam Din had' never appeared before the Naib Tehsildar and that the mutation was a fictitious one. The recitals in the order were, in the view of the High Court, admissible in evidence and should not have been excluded. The High Court, having thus found a valid ground for interference in second appeal with the decision of the first appellate Court, proceeded to review the evidence in the case and came to the conclusion that the evidence of the Naib Tehsildar had been wrongly disbelieved by the learned Additional District Judge, who had also wrongly ignored the Khasra Girdawaris, which clearly showed that delivery of possession had in fact been effected in pursuance of the mutation, on the ground that these related to a period after the death of Imam Din. This view was clearly based on a misreading of the evidence for Imam Din actually died on the 28th September 1956. The mutation register itself was also misread for the entries relating to the impugned mutations showed that apart from the Lambardar and Patwari the Girdawar had also checked the same after making detailed calculations had certified the correctness of the supplement before it was put up before the Naib Tehsildar. The significance of the entries in these documents and of the fact that a year or a year and a half, later Imam Din had actually made another gift by a registered deed, in favour of Malik Din was also misappreciated and wrong conclusion drawn merely upon surmises and conjectures. It is obvious that when Imam Din had made a gift of half his lands to his grandson, Malik Din was anxious to secure for himself as much as he could. Otherwise, on the death of Imam Din, his sister, Zainab Bibi and the surviving widows of Imam Din would also have become the heirs of Imam Din under the Shariat Law. The gift in his favour was thus to deprive the female heirs of their share and to give to Malik Din as touch as hail been given to the respondent. Apart from this if Imam Din was well enough to travel to Lahore and to have a deed written out and registered there, could it be suggested that a year or more earlier, he was not well enough to go even to the Tehsil Headquarter to get the impugned mutation attested? As rightly pointed out by the High Court, the registration of the deed of gift in favour of Malik Din, at Lahore "was not a normal transaction on the basis of which an adverse inference could have been drawn against the gift in favour of the respondent." The High Court, on these grounds, set aside the decree of the learned Additional District Judge and restored that of the trial Court. The learned counsel for the appellants has, however, strenuously contended that the High Court was wrong in admitting the order of the Collector and the recitals therein into evidence, firstly, on the ground that the order had not been formally proved by calling for the original thereof and secondly, on the ground that the recital of the substance of the pleadings therein was, in no event, admissible. With regard to the first contention, it will be sufficient to state that the objection regarding the defect, if any, in the method of proof of the document, cannot be raised at this stage. For, the document was admitted into evidence, without any objection, in the trial Court. It is now well settled that an objection, as to the formality of proof, must be taken at the earliest stage and if it has not been taken then, it cannot be allowed to be taken at the appellate stage. In support of the next contention, the learned counsel has placed reliance on a judgment of the Privy Council in the case of Ram Parkash Das v. Anand Das and others (43 1 A 73) where it was pointed out that a note of an alleged admission by one of the parties to a civil litigation in an earlier criminal case was not admissible in evidence. It has to be pointed out, however, that in that case the dispute related to a Mahantship and one of the disqualifications relied upon to invalidate the claimant's right to that office was that he had entered into a tie of marriage. It was to prove this fact that reliance was sought to be placed on an admission, alleged to have been made before a Magistrate in the criminal case, of this marriage. The judicial Committee held that the note of such an admission in the criminal case was not, by itself, evidence of the fact recorded therein. Learned counsel has also referred to a decision of the Patna High Court in the case of Sirdar Bahadur Sirdur Indra Singh v. Commissioner of Income‑tax, Bihar and Orissa (A I R 1943 Pat. 169) where, relying on the above‑mentioned observation of the Privy Council it was held that "the recitals in judgment are no evidence whatsoever to prove the exact admission made by a party or a witness, unless the whole of the Statement is recited therein." These decisions are clearly distinguishable. In these cases attempt was made to prove a certain state of facts on the basis of the alleged recitals. This is not the case here. What was sought to be proved in the present case was that Malik Din had, in the grounds of appeal filed before the Collector, not challenged the factum of the mutation. For this limited purpose, we think, that the High Court was right in holding that the recital, in the order of the Collector, of the substance of the pleadings was admissible to show, as to what was the ground of attack there. Judgments, whether inter parties or not, are conclusive evidence for and against all persons whether parties, privies, or strangers of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered. In other words, the law attributes unerring verity to the substantive as opposed to the judicial portions of the record. But where the judgment is inter partes, even recitals in such a judgment are admissible. A previous judgment is admissible also to prove a statement or admission or an acknowledgment made by a party or the predecessor‑in‑interest of a party, in his pleadings in a previous litigation. Similarly, a judgment narrating the substance of the pleadings of the parties to a litigation i. admissible to establish the allegations made by them on that occasion. The error into which the‑learned Additional District Judge fell and into which the learned counsel has fallen in putting forward this contention, is that the purpose for which the recital in the order of the Collector was admitted was to prove the truth of the recital. It was admitted merely to prove the grounds upon which Malik Din had on the previous occasion, sought to challenge the mutation and for this limited purpose the recital was certainly admissible at any rate, as secondly evidence of the substance of his pleadings, i.e. his memorandum of appeal. It is unnecessary to cite decisions in support of this view, for, the decisions relied upon by the High Court fully support this proposition. There is no substance, therefore, in this contention of the learned counsel. Learned Counsel also forgets that Malik Din is now himself a party to the present litigation and was, in any event, both before the Collector and in the present suit, claiming in his capacity of an heir of Imam Din. 7 he previous proceedings therefore, may also be regarded as being inter partes. The next contention of the learned counsel is that in any event, the recital could not be used against Malik Din, without confronting him with it,, as required by section 145 of the Evidence Act. This argument is again misconceived, as such confrontation is necessary only for the purposes of contradiction. In the present case, however, the purpose for which the recital was sought to be utilised was to induce the Court to draw the inference that the present case sought to be made out through the plaintiff. Imam Din, was an after thought, for, on the previous occasion, no such case was made out. No confrontation was, therefore, necessary. In the circumstances, we have come to the conclusion that the High Court was right in interfering with the judgment of the learned Additional District Judge, who had neither applied the law correctly nor, in reversing the decision of the trial Court, taken into account either the reason given by the trial Court or the relevant evidence relied upon by it. The learned Additional District Judge had based his conclusions mainly upon surmises and conjectures for which no basis was laid in the evidence. We see no reason also to disagree, either with the High Court, or the trial Court, that the Naib‑Tehsildar gave true evidence. There was no justification for disbelieving him. 'The evidence of the Patwari and the Lambardar was, on the other hand, clearly self‑contradictory and unconvincing and had rightly been rejected by the trial Court. They had tried to wriggle out of their written endorsements in the mutation register upon excuses which on the face of them could not be accepted to be true. They were both patently lying. For these reasons, we see no substance in this appeal which is hereby dismissed with costs. K. B. A. Appeal dismissed.