2005 PLP 1013 (MLD)

‑‑‑‑S.42‑‑‑Mutation‑‑‑Evidentiary value‑‑‑Mutation whether attested or unattested, would not create any title and was not even evidence of title‑‑‑Important thing was to find out whether transaction recorded in the mutation had taken place or not. (b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.I, R.10‑‑‑Impleading of party‑‑‑While considering an application under O.I, R.10, C.P.C., a tentative decision was to be taken as to whether or not party was necessary or proper and for that purpose only allegations in the plaint were to be looked into which were of course subject to proof as once a party was impleaded, then result of suit was dependent upon evidence on record and the law applicable. Malik Javed Akhtar Vains for Petitioner. On 22‑3‑2004, the petitioner filed a suit against his sister Mst. Shamim Akhtar respondent No.2. In the plaint it was stated that she is the owner of the suit‑land, described in the plaint and by means of an oral agreement she agreed to sell the same to the petitioner for a consideration of Rs.4,00,000 and the witnesses were inter alia, the real brother and nephew of the said parties. It was then abruptly stated that he is ready to pay the balance amount of Rs.2,54,000 but the husband of the said respondent No.2 has started negotiations with third parties. On 3‑6‑2004, the said respondent No.2 filed a written statement conceding the suit. Meanwhile, on 3‑4‑2004 the respondent No.3 (Risal Din) filed an application under Order 1, rule 10, C.P.C. stating that he had acquired the land from the said owner vide Mutations Nos.2491, 2492 and 2493 and that the suit has beets filed by the brother and sister in collusion with each other to cause wrongful harm to the respondent No.3. He, therefore, prayed that he be impleaded as a party. The plea taken in the written reply was that since the mutations have not so far been attested the said applicant has no title and cannot be impleaded as a party. The learned trial Court dismissed the application on 21‑10‑2004 stating that the mutations having not been attested not title has been created. The said respondent No.3 filed Civil Revision which was allowed by a learned ADJ, Kehrorpakka, District Lodhran on 4‑12‑2004.

2. Learned counsel for the petitioner reiterates the same plea as noted by me above.

3. The plea is baseless. It is by now well‑settled that a mutation whether attested or unattested does not create any title. In fact it is not even evidence of title. What is important is that as to whether transaction recorded in the mutation had taken place or not. The case of respondent No.3 is that he has acquired the suit‑land from respondent No.2 and mutations have been entered on her statement. This being so, upon proof of the said fact that he has validly acquired the suit‑land from the respondent lady, he will of course be vested with a valid title and as such necessary party to the suit. Learned ADJ has very correctly stated the legal position in his judgment and proceeded to exercise the revisional power in this case. I may observe here that at the time of considering an I application under Order 1, rule 10, C.P.C. a tentative decision is to be taken as to whether or not the party is necessary or proper and for that only the allegations are to be looked into which are of course subject to H proof, as once a party is impleaded then the result of the suit is dependent upon the evidence on record and the law applicable. With these observations, the writ petition is accordingly dismissed, in limine. H.B.T./R‑114/L Petition dismissed