2019 PLP 626 (CLC)

ATIR MAHMOOD, J.

Brief facts of the case are that on 15.10.2005, the petitioner filed a suit for declaration and permanent injunction alleging that he sold land measuring 4 kanals and 5 marlas from Khewat No.9 to predecessor of the respondents namely Sohawa through Mutation No.538 dated 26.07.1994 but the vendee in connivance with the revenue staff managed further land measuring 7 kanals and 15 marlas in the said mutation. He prayed that the said mutation as well as entries made in pursuance thereof be corrected in the revenue record and the defendants be restrained from interfering in the possession of the petitioner over the suit property.

2. The defendants filed contesting written statement. Out of divergent pleadings of the parties, following issues were framed: ISSUES i. Whether plaintiff is owner in possession over suit land? OPP ii. Whether oral sale mutation No.538 dated 26.07.1994 and subsequent entries in Jamabandi are against law/facts, null and void on rights of plaintiff? OPP iii. If above issues are proved in affirmative, plaintiff is entitled to decree for declaration along with consequential relief for perpetual injunction? OPP iv. Whether plaintiff has no cause of action? OPD v. Whether suit is wrongly valued regarding court fee and jurisdiction? OPD vi. Whether suit is barred by time? OPD vii. Whether plaintiff is estopped to sue on ground of word and conduct? OPD viii. Whether description of suit property in plaint is not correct? OPD ix Whether suit is frivolous, be dismissed with special costs under section 35-A, C.P.C. x. Relief. The evidence of the parties was recorded and then suit of the petitioner was dismissed by learned trial court vide judgment and decree dated 15.09.2011. Feeling dissatisfied, the petitioner filed appeal which also met with the same fate vide judgment and decree dated 15.02.2012 passed by learned Additional District Judge, Chiniot. Hence this civil revision has been preferred.

3. Learned counsel for the petitioner inter alia contends that the petitioner-plaintiff categorically alleged that a fraud has been committed with him, as such, the onus to prove the mutation shifted upon the defendants, being beneficiaries of the same, but they badly failed to prove the same as required by law; that the petitioner sold 4 kanals and 5 marlas land to the predecessor of the defendants and not 12 kanals of land, as mentioned in the disputed mutation; that the petitioner never appeared before the revenue officer to sign or thumb mark the mutation; that since it was a case of fraud, the limitation was to start from the date of knowledge, as such, the suit was within time, therefore, this civil revision be allowed, the impugned judgments and decrees be set aside and the suit of the petitioner be decreed as prayed for.

4. On the other hand, learned counsel for the respondents has vehemently opposed this civil revision and fully supported the impugned judgments and decrees.

5. Arguments heard. Record perused.

6. The moot point in this case is as to what quantum of land was sold by the petitioner-plaintiff to the predecessor of the defendants through the disputed mutation - whether it was 4 kanals 5 marlas or 12 kanals.

7. The case of the petitioner is that he sold only 4 kanals and 5 marlas land to the predecessor of the defendants but the defendants managed the sale mutation of 12 kanals of land by adding 7 kanals 15 marlas therein unauthorizedly and fraudulently. On the other hand, the defendants have taken plea that the plaintiff sold 12 kanals of land to their predecessor but after his death, he backed out from his words and filed the instant suit with mala fide intention.

8. In order to prove his case, the petitioner appeared before the court as PW.1 to reiterate the averments made in the plaint. He stated that he sold only 4 kanals and 5 marlas of land to the predecessor of the defendants but the defendants got managed the sale mutation of 12 kanals of land, by getting added 7 kanals and 15 marlas land therein fraudulently. He categorically stated that he neither appeared before the revenue officer nor thumb marked or signed the mutation in question. The petitioner also claims possession of the suit property till date. After this allegation, the onus to prove the valid and lawful execution of the sale mutation shifted upon the defendants.

9. On behalf of the defendants, Younas son of Sohawa (son of the vendee) appeared before the court as DW.1 and deposed in his examination-in-chief that the plaintiff sold 12 kanals land to them. He deposed that the plaintiff appeared before the Patwari Halqa and got entered the mutation. He further deposed that the plaintiff also appeared before the Tehsildar when he admitted receipt of sale consideration from and delivery of possession to the defendants. In cross-examination, he stated that the deal took place in the house of the plaintiff when he, Ibrahim, Ismail, Sharif, Gaman, and his father were present. He deposed that 15/16 years before, they made the payment to the plaintiff on 6th and the mutation was entered on 7th which was attested on 26th. In cross-examination, he states that none of relatives of the plaintiff was present on the occasion. Regarding market price of the land, he states that at the time of deal, the price of land was Rs.30,000/- per acre. He denied the suggestion that the land price per acre was more than Rs.100,000/- at that time. He also denied that the plaintiff only sold 4 kanals and 5 marlas of land to them and entry of 7 kanals 15 marlas land in the mutation was result of connivance of the defendants with the Patwari.

10. Sharif son of Sher appeared as DW.2 to depose that the land measuring 12 kanals was sold by the plaintiff to the predecessor of the defendants namely Sohawa and possession was also handed over to him and the plaintiff also made such statement, in his (DW.2) presence, before Tehsildar who attested the mutation. During cross-examination, he states that at the time of the deal, the market price per acre was Rs.25,000/- to Rs.30,000/-. He states that the mutation was attested in the Chak at the Dera of Lumberdar but neither the Lumberdar nor the Chowkidar put their signatures/thumb impressions on the mutation.

11. D.W.3 Ibrahim son of Sher deposed in line with D.W.2. In cross-examination, he deposed that he is witness of the mutation; that he singed the mutation and was also present at the time of the deal. He further deposed that the deal took place in the house of the plaintiff when all his relatives were present. He stated that the sale money was paid in the house of the plaintiff and after one day of the payment, they went to Chiniot where the Patwari entered the mutation and got their thumb impressions. He stated that none of Lumberdar, Imam or Chowkidar was present at the time of attestation of the mutation. He deposed that the price of land was less than Rs.100,000/- per acre at the time of the deal. He could not tell as to when the mutation was attested. He denied fraudulent insertion of 7 kanals and 15 marlas in the disputed mutation.

12. D.W.4 is Ahmed Khan, Patwari from office of Qanungo, Jhang who merely produced the register of mutations for the year 1994-95. In cross-examination, he admitted that neither the mutation was entered nor attested in his presence.

13. D.W.5 is Patwari namely Nazir Husain who entered the mutation in question. In his examination-in-chief, he deposed that he entered the mutation at the instance of the plaintiff Muhammad Ali. He stated that price of 12 kanals was written thereover as Rs.45,000/- which was attested by the Revenue Officer after getting confirmation from the plaintiff that he had received the sale money. In cross-examination, he admitted that at the time of the deal, the market price of the land was from Rs.80,000/- to Rs.100,000/- per acre. He admitted that no deal between the parties took place before him. He further admitted that no payment was made in his presence. He further admitted that the mutation carries thumb impressions of the witnesses but the signature of the vendor-plaintiff were not present thereover. He further admitted that the mutation was attested at the dera of Lumbedar but no identification of the vendor was made by anybody at that time. He denied the suggestion that the mutation was got entered to the extent of 4 kanals and 5 marlas pertaining to khewat No.9 by the plaintiff and land of khewat No.8 has collusively been entered in the mutation by him at the behest of the defendants. He expressed his ignorance about as to why the plaintiff sold land from two khatas.

14. Perusal of evidence given in the preceding paragraphs reveals that none of the witnesses states that the sale money was paid in his presence. When the payment of sale money is not established, the case of the defendants cannot be said to have been proved but to the extent admitted by the plaintiff himself. D.W.1, who is son of the vendee, states that no relative of the plaintiff was present at the time of the deal whereas D.W.3 deposes that all the relatives of the plaintiff were present at that time which is a material contradiction in their statements. None of the witnesses could tell the exact dates of the deal. None of the witnesses of the mutation has been brought in witness box. Though it has come on record that Ahmed son of Fateh Muhammad, one of the witnesses of the mutation, had died prior to recording of evidence yet no application under Article 80 of Qanun-e-Shahadat Order, 1984 (the Order, 1984) was moved to prove by other means that the document in question was lawfully executed. Even otherwise, the other witness of the disputed mutation namely Ismail son of Samand was not produced in the witness box, as such, the provisions of Article 79 of the Order, 1984 are fully attracted. There are also contradictions between the statements of the DWs regarding market price of the land at the time of the deal. DW.1 states the market price per acre as Rs.30,000/-. DW.2 tells it as Rs.25,000/- to Rs.30,000/-. According to D.W.3, per acre market price was less than Rs.100,000/- whereas the Patwari deposes that the market price at the time of the deal was Rs.80,000/- to Rs.100,000/- per acre. These contradictions in the statements of the D.Ws. lead me to an inference that D.Ws. 1 and 2 deposed before the court as they were tutored. D.W.3, however, admitted the price less than Rs.100,000/- which reflects the land price slightly less than Rs.100,000/- which is close to the value disclosed by the Patwari, D.W.5. In view of the afore said, I am of the opinion that the land price per acre was about Rs.80,000/- per acre which, when looked in juxta position with statement of plaintiff regarding price of land measuring 4 kanals 5 marlas, leads me to a definite conclusion that Rs.45,000/- was the price of the land measuring 4 kanals and 5 marlas which was paid to the plaintiff by predecessor of the defendants and the rest of the land, i.e. 7 kanals and 15 marlas has fraudulently and collusively been entered in the disputed mutation. The defendants have badly failed to prove the lawful execution of the mutation as well as the original transaction, i.e. the deal of sale of the property between the parties in pursuance of which the mutation was attested, therefore, the suit of the plaintiff was liable to be decreed.

15. I have gone through the sale mutation (Exh.D.1) carefully. Bare reading of this document shows that the writing thereover is in two parts. First part of the writing clearly suggests that the vendor sold out land measuring 4 kanals 5 marlas to predecessor of the defendants for consideration of Rs.45,000/-. The second part of the document reads that further 7 kanals 15 marlas of land was sold by the petitioner to the predecessor of the defendants for consideration of Rs.45,000/-. Meaning thereby, there were two transactions between the parties, i.e. sale of 4 kanals 5 marlas for consideration of Rs.45,000/- and sale of 7 kanals 5 marlas for consideration of Rs.45,000/-. In this eventuality, there should have been made payments of Rs.45,000/- twice but the case of the petitioner is that he received a sum of Rs.45,000/- for land of 4 kanals 5 marlas whereas the defendants also claim that a sum of Rs.45,000/- only was paid to the petitioner-plaintiff though they assert that the said price was for land measuring 12 kanals of land. This version of the defendants contradicts the contents of the mutation which clearly and unambiguously suggests two sale transactions with two different payments of Rs.45,000/- each between the parties but both the parties are persistent and inflexible on the point that a sum of Rs.45,000/- was only once paid to the plaintiff by the predecessor of the defendants. Meaning thereby only one transaction regarding land measuring 4 kanal 5 marla, which is admitted by the petitioner-plaintiff, took place between the parties and the other land was got included by the defendants fraudulently at the back of the vendor which was neither permissible nor can be protected. When the sale mutation itself reveals two transactions between the parties entailing two payments which is neither case of the plaintiff nor that of the defendants, it can safely be concluded that one out of the two transaction did not take place. It is settled law that documentary evidence overrides the oral evidence. In this view of the matter, the oral evidence if led in contradiction to the contents of the sale mutation is of no consequence and cannot be relied upon. Reliance is placed on the law laid down in case Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 SC 519). The petitioner despite knowing that his signature/thumb impressions do not exist on the mutation has not denied the sale of his land mearuing 4 kanals and 5 marlas, he seems to be true. The aforesaid leads me to the conclusion that the petitioner sold land measuring 4 kanals and 5 marla (reflected in first part of the mutation as noted above) whereas the other land mentioned in the mutation, i.e. 7 kanals and 5 marlas (reflected in second part of the mutation) was added afterwards without consent and agreement of the plaintiff, as such, the mutation to the latter extent was liable to be struck down.

16. Subsection (7) of section 42 of the Land Revenue Act, 1967 binds the Revenue Officer, who is going to attest the mutation, to ensure the presence of a person whose right is going to be acquired by such transaction. The said provision of law also requires the identification of such person by two respectable persons. But the disputed sale mutation neither carries signatures or thumb impressions of the vendor nor the vendor was identified at the time of attestation of the mutation which establishes his non-appearance and non-identification at the time of attestation of the sale mutation. As such, the sale mutation was attested in violation of Subsection (7) of section 42 of the Act ibid.

17. Learned counsel for the respondents has contended that the suit was barred by time. The plaintiff has taken plea in the plaint that few days prior to institution of the suit, he came to know that the suit property was got included in the disputed mutation by the defendants in connivance with the revenue staff. Article 95 of the Limitation Act, 1908 provides that where while seeking some relief, fraud has been alleged, the period of limitation will be three years which will commence to be computed from the date of knowledge. The date of knowledge is, as per version of the plaintiff, few days prior to institution of the suit which could not be rebutted by the other side by any solid evidence, as such, the suit was, in light of Article 95 of the Limitation Act, 1908, instituted within time.

18. Reading of impugned judgments reveals that following line of the statement of the plaintiff led the learned courts below to pass decrees against the plaintiff: In my view, there is a categorical stance of the plaintiff that he got entered the mutation with Patwari for land measuring 4 kanal 5 marla and he has no objection to the attestation of mutation to that extent whereas his land measuring 7 kanals 15 marlas has fraudulently been included in the mutation. Meaning thereby he has no objection upon attestation of mutation to the extent of land measuring 4 kanals and 5 marlas, sold by him. In my view, the above noted single line from the statement of the plaintiff cannot be read in isolation of his whole statement and stance taken by him in his plaint as well as evidence. Learned courts below appeared to have been misled from the above line to reach an incorrect conclusion that the disputed mutation was attested with consent of the petitioner-plaintiff. This incorrect finding cannot sustain in the given circumstances.

19. For what has been discussed above, the impugned judgments and decrees are against the law, facts and evidence available on record, as such, these cannot sustain. Accordingly, this civil revision is allowed, the impugned judgments and decrees passed by both the learned courts below are set aside and the suit of the petitioner is decree as prayed for. ZC/M-195/L Revision allowed.