2007 PLP 1713 (MLD)

MUHAMMAD RAZA KHAN, J.

Through this judgment recorded in Civil Revision No.998 of 2006, I also propose to decide the connected Civil Revision No. 999 of 2006 between the same parties and relating to same property.

2. The facts in the background of these revision petitions, relate to the dispute over certain khasra numbers in village Daulat Pura Tehsil and District Charsadda. The first suit was instituted by Mst. Bibi Roza on 21-11-2002 claiming therein that she was the owner in possession of the said property as described in the head note of the plaint and that the defendants Jan Said and Khan Badshah have no concern therewith but they intend to cut the trees in the said property. Hence, the suit-for declaration and injunction was instituted with the prayer for possession in the alternative. After a month of the institution of the suit the said Jan Said and Khan Badshah instituted a counter suit-claiming that the suit property was originally owned by Abdul Qudoos who sold it, through a sale-deed registered on 18-6-1970, to defendants Nos. 2 to 6 and they in turn sold the property to Muhammad Said vide sale-deed, dated 13-3-1972. It was claimed therein that the plaintiffs Jan Said and Khan Badshah were the nephews of Muhammad Said who had in fact purchased the said property for the benefit of the plaintiffs and that the plaintiffs were in possession of the said property from the very beginning, and that there was an acknowledgement, dated 14-9-2002 in this behalf. It was further added that defendants Nos.2 to 6 have erroneously sold the property to .the defendant No. 1 Mst. Bibi Roza vide Mutation No. 5198, dated 24-3-1997 and thus the prayer for the cancellation of the said mutation was made along with the relief of declaration and perpetual injunction with the prayer for possession in the alternative. Both the suits were consolidated and after recording evidence, the learned Civil Judge vide judgment and decree, dated 25-1-2006 dismissed the suit of Mst. Bibi Roza whereas the suit of Jan Said etc. was decreed. The appeal filed by the Mst. Bibi Roza was dismissed by the learned Additional District Judge-III, Charsadda on 22-7-2006. Hence the said Mst. Bibi Roza challenged the decree in favour of Jan Said etc. through this revision petition and challenged the dismissal of her suit through the connected Civil Revision No. 999 of 2006.

3. I have listened to the arguments of both the parties at pre-admission stage and examined the record.

4. In brief, on the one hand, there is mutation attested in favour of the petitioner Mst. Bibi Roza in the year, 1997 whereas in the counter-claim, there is an allegation by Jan Said and his brother that the property was purchased by their uncle for their benefit and that they had been in possession of the property constantly. Both the Courts have concurred that the respondents (herein) are in possession of the property and therefore the unregistered document was given preference over the mutation. Para.11 of the judgment of the learned appellate Court (being the summary of the grounds on which the controversy was decided in favour of the respondents) is reproduced:-- "(11). No doubt, attestation of mutation may be taken as proof, however, mere attestation of mutation without any other evidence does not confer any title on the appellant as mutations are normally maintained for fiscal purposes. In the case in hand the agreement deed, dated 13-3-1972 (Exh.P.W.7/3) executed by respondents Nos.3 to 7 is prior in time to the attestation of Mutation No.5195, which is further supported by long standing possession in favour of respondents Nos. 1 and

2. In these circumstances, it can easily be held that in order to deprive respondents Nos. 1 and 2 from the suit property the appellant and respondents Nos.3 to 7 with connivance of each other have fraudulently attested the mutation in question. In this respect reference can be made to the judgments of honourable Peshawar High Court in. cases of "Rehmat Shah and two others v. Sarwar and another" (PLD 1971 Peshawar 205) and Hakim Khan v. Nazeer Ahmad Lughmani (1990 MLD 89)". Thus, both the Courts were of the view that the respondents have proved the unregistered agreement of 13-3-1972 in favour of Muhammad Said and that the subsequent acknowledgment, dated 14-9-2002 coupled with the admission of respondents Nos. 8 to 17 by cognovits establishes that their predecessor had purchased the property for the benefit of respondents Nos. 1 and 2.

5. There are certain ambiguities which could not be resolved despite comprehensive arguments and the thorough scrutiny of the record and the evidence. Firstly, Muhammad Said is the father of the respondents Nos. 8 to

17. Respondents Nos. 1 and 2 are the sons of Bacha Said. No relationship has been established between the Bacha Said and Muhammad Said. If Muhammad Said had purchased the property in 1972, his legal heirs i.e. respondents Nos. 8 to 17 should inherit the same. If he had subsequently sold the property to respondents Nos. 1 and 2, there should be documentary evidence in this regard. Merely by claiming that he had purchased the property for the benefit of respondents Nos. 1 and 2 shall not be sufficient for a decree in favour of the respondents Nos. 1 and 2 by superseding the mutation in favour of the petitioner. The second ambiguity in the case is that the respondents Nos. 3 to 7 have sold the property to the petitioner in 1997 .and a mutation was attested. If the contesting respondents were in possession of the entire property right from 1972, they should have got themselves incorporated in the revenue record. Mutation is certainly a document for fiscal purposes and it shall not confer title but this principle is applicable when a mutation is examined vis-a-vis the registered sale-deed. However, if a mutation is compared with an unregistered deed, the mutation will certainly have additional value unless the constant physical possession of the adversary is proved, as owned or under the belief of ownership. If without considering this distinction, the mutations are nullified, I am afraid, more of the 50% of the land holders shall be deprived of their title by some manipulating entrepreneur. Lastly, the major factor prevailed upon both the Courts was related to the .constant physical possession of the property by the respondents Nos. 1 and

2. I have scanned the available revenue record. The respondents Nos. 1 and 2 do not appear to have been recorded as owners or in possession in the entire property rather they do not figure at all anywhere in the Revenue Record. In 1976, one Noor Said was recorded to be the tenant. He is respondent No.9 Muhammad Saeed was said to be having the possession of another part of the land but he is the owner in his own right to the extent of 6/48 shares and this does not indicate the purchase by unregistered deed in 1972 because the share of the vendor is recorded as intact. In another jamabandi for the year, 1988-89, a small portion of the property was shown to be cultivated by Bacha Said, the father of respondents Nos. 1 and 2 but that entry was also not continued in the subsequent years.

6. The only point on which the case has been decided in favour of respondents Nos. 1 and 2 is their constant possession over the entire property but the supporting Revenue Record has not been placed on file and some of the extracts available with the learned counsel for the parties particularly the learned counsel for respondents Nos. 1 and 2 do not support their possession as such.

7. Therefore, I am constrained to accept these civil revisions, set aside the impugned judgments and decrees and remand the matters to the learned trial Court for recording additional evidence with regard to the physical possession the property from 1970 till 2002 and thereafter the cases be decided in the light of the above said observations. Parties are directed to appear before the learned trial Court on 30-7-2007. H.B.T./146/P Revision accepted.