2001 PLP 427 (MLD)

On 29‑2‑1984 respondent No. l filed a suit against respondent No.2 and the petitioners. In the plaint it was alleged that the suit‑land was mortgaged by Ghulam Sarwar, the father of respondent No. l vide Mutation No.3534 attested on 29‑8‑1963 for a consideration of Rs.1,000 in favour of Bhag Bhari, the mother of Shah Muhammad, respondent No.2; that Mst. Bhag Bhari sold the mortgagee rights to respondent No.2 vide mutation No.4340 attested on 8‑7‑1970 for the same amount; that on the death of Ghulam Sarwar, the land was mutated in favour of respondent No. l vide Mutation No.4738 attested on 18‑12‑1973. It was then abruptly stated that respondent No.2 got the land transferred in favour of Muhammad Alam, predecessor‑in‑interest of the petitioners vide Mutation No.4797 attested on 29‑5‑1974. His case was that he had not sold the land and was not present at the time of mutation. The suit was contested by the petitioners. They stated that the suit is mala fide; respondent No. l had injured the petitioner No. l and a case was got registered against him, wherein he was challaned and that he had filed the suit as a counter‑blast. On merits the allegations of respondent No. l were denied. Following issues were framed:‑‑ (1) Whether the suit has not been properly instituted in view of preliminary objection, No.9 of the written statement? OPD (2) Whether the suit is not maintainable in its present form? OPD. (3) Whether the suit is time‑barred? OPD. (4) Whether the suit is incorrectly valued for the purposes of court‑fee and jurisdiction? OPD. (5) Whether the suit is based on mala fide and frivolous and the defendants are entitled to special costs under section 35‑A, C.P.C.? OPD.?? (6) Whether Mutation No.4797, dated 29‑5‑1974 is illegal void and ineffective upon the rights of the plaintiff and as such is liable to be set aside? OPD. (7) Relief. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 4‑9‑1985. Respondent No.1 filed a first appeal which was heard by learned Additional District Judge, Gujrat who allowed the same and decreed the suit on 4‑9‑1985.

2. Learned counsel for the petitioners contends that the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction while passing the impugned judgment and decree inasmuch as not only did he misread the evidence on record but also has refused to read the evidence on the grounds which are rather flimsy. Further contends that it is apparent on the face of the impugned judgment that the learned Additional District Judge acted under wrong assumptions. Learned counsel for the respondents has tried to support the impugned judgment and decree of the learned Additional District Judge.

3. I have gone through the record appended with this Civil Revision. The only witness to enter the witness‑box for respondent No. l is he himself. The case set up in the plaint by him was that it was Shah Muhammad, respondent No.2 who fraudulently got his land transferred to Alam Khan. However, in his statement I have found no mention of the said Shah Muhammad. On the other hand, he has stated that for the purpose redemption he tried to obtain the copies he found that the petitioners have got the land transferred in their favour.

4. I may reproduce here his exact words:

5. Now this is not at all his case, in the plaint where he states that Shah Muhammad fraudulently got his land transferred in the name of Alain Khan, the predecessor‑in‑interest of the petitioners.

6. Be that as it may, the petitioners produced Nadir Khan, as D.W.1. He is the Lumbardar who identified respondent No. l at the time of attestation of Mutation No.4797 on 21‑5‑1974 (Exh.P.5). He has stated that respondent No. l had in fact agreed to sell the land to Ghulam Nabi and had taken Rs.1,000 as earnest, Muhammad Alain protested that he has the first right and as such the land was sold to Muhammad Alain and that he identified respondent No.1 and Muhammad Alain at the time of attestation. Willayat Khan is D.W.2. He has stated that he was instrumental in the sale of land by respondent No.1 in favour of Muhammad Alam for a consideration of Rs.16,000 and is a Pattidar. He had attested the mutation and that the amount was paid after it had been counted by him.

7. Now respondent No. l as P.W.1 has admitted that the said two D.Ws. are known to him and that he has no enmity with them. Learned Additional District Judge, however, has proceeded to discard their testimony for the reason that both the witnesses have stated that they consign their names and also they put their thumb‑impressions on the documents. What has been found objectionable by the learned Additional District Judge is as to why the D. Ws. thumb‑marked the mutation when they can sign their names. To my mind this is hardly a ground to reject the testimony of the said witnesses, particularly when they were cross‑examined and it was nobody's case that they had not thumb‑marked the mutation: The other reasons stated by the learned Additinal District Judge is that whereas the mutation narrates that it had been attested in Ijlas Aam. The witness had stated that it was attested in the Tehsil Office. This again to my mind is not any ground for rejection of the testimony, particularly when by now it is settled that the provisions of section 42 of the Punjab Land Revenue Act, 1967 are not mandatory. Reference be made to the case of Muhammad Ishaq and 2 others v: Ghafoor Khan and another (2000 SCMR 519).

8. I am also in agreement with the learned counsel for the petitioners that the learned Additional District Judge had remained under a serious misapprehension while recording his judgment. He has observed in para. 12 of the impugned judgment that the land remained mortgaged. For this he has relied on the statement of D.W.3 Safdar Iqbal. This witness of course has stated in response to a question in cross‑examination that respondent No.1 had got the land redeemed and then sold to his father. To my mind here again the learned Additional District Judge has not made any effort to read the entire evidence on record. This witnesses has stated that his age on 17‑7‑1985 (the date his statement was recorded) was 21 years. He must have been about ten years‑of age when the mutation was attested in 1974. The said admission was in fact wrong and had the learned Additional District Judge examined the document Exh.D.I which is Register Haqdaran Zamin for the year 1980‑81 he would have certainly found that the land stood redeemed. The said document was tendered into evidence on 17‑7‑1985 in the presence of learned counsel for respondent No. l and he stated that he has to produce no evidence in rebuttal. Learned counsel for the respondents has no explanation to offer when confronted with the said document. He, however, states that the land was not got redeemed by his client and the said statement finds support from the statement of respondent No. l as the P.W.1 wherein he says that he came to know about the said mutation when he went to get the document for the purposes of redemption. It is not his case that he got the land redeemed. The only inference to be drawn is that the land was got redeemed by Alam Khan. I may state here that the said admission made by D.W.3 is wrong and negated by document Exh.D.1 and also the fact that respondent No.1 does not claim that he got the land redeemed. Even otherwise, an admission, wrong in fact, is not binding as held by the Supreme Court in the case of Ahmad Khan v. Rasul Shah and others (PLD 1975 SC 311) and Barkhurdar v. Muhammad Razzak (PLD 1989 SC 749).

9. The result of the above discussion is that upon a comparison of the two impugned judgments I find that the judgment of the learned trial Court is based on a proper reading of evidence of the parties on record while the learned Additional District Judge has not properly read the said evidence and the impugned judgment falls` within the mischief of section 115, C.P.C. The result, is that the Civil Revision stands allowed. The judgment and decree, dated 17‑3‑1987 of learned Additional District Judge, Gujrat are set aside while that, dated 4‑9‑1985 of the learned trial Court is restored with hosts, throughout. H.B.T./H‑24/L???????????????????????????????????????????????????????????????????????? Revision allowed.