2003 PLP 1710 (MLD)

2. Briefly stated the facts of the case are, that on 6-11-1970, the respondent/Mughli, brought a suit for declaration claiming that the mortgage Mutation No. 2841 dated 11-12-1963, Exh.D.3, 2872 dates 29-10-1963 EXh.D.4 and 2978 dated 23-4-1964 Exh.D.5, in favour or the appellants/defendants, as also the mutation of sale bearing No.3055 dated 26-9-1968 Exh.D.6, 3107 dated 15-6-1968 Exh.8 and 3127 dated 23-8-1968 Exh.D.7, are result of fraud and forgery; he had neither mortgaged the property to the defendants nor trade any sale to them-thus, these mutations be declared null and void. The suit was contested by the appellants/defendants, who took up the plea, that the plaintiff/respondent, had earlier mortgaged the suit property to them and thereafter, through the mutations of sale, transferred the title of ownership for valid consideration. In view of the pleadings of the parties, the learned trial Court, was pleased to frame the following issues:-- (1) Whether the suit is not maintainable in its present form? (2) Whether the suit is incorrectly valued for the purposes of court fee and jurisdiction, if so, what is the correct valuation? (3) Whether the plaintiff sold the land in dispute in favour of the defendants? (4) Whether the plaintiff had mortgaged any part of the land in dispute its favour of the defendants? (5) Whether the Mutations Nos.3055, 3127, 3107 of sale and Mutations Nos.2841 and 2872, of mortgage are the result of fraud misrepresentation and under influence? (6) Whether any of the mutations mentioned in Issue No.5 contravenes the provisions of Martial Law Regulation No.64, if so what effect? (7) Relief. The plaintiff/respondent examined about. seven witnesses including his own statement, while the appellants/defendants also examined nine witnesses. After the trial, the learned Court came to the conclusion that the mutations of mortgage had been admitted in his statement by the plaintiff and also proved on record, therefore, when such mutations have been proved, resultantly, it shall also be presumed that the sale mutations were also got entered and attested by the plaintiff for valid consideration for the sale of the property. Consequently, the suit was dismissed, vide judgment and decree dated 22-5-1976. Aggrieved of the above, the respondent preferred an appeal and the learned Appellate Court, has reversed the finding, though upholding the view/conclusion of the learned trial Court about the first three mutations of mortgage, but for the remaining sale mutations, it has been held that the defendants/appellants, have failed to prove a valid sale; neither the amount of consideration is proved to have been paid by the appellants /defendants to the plaintiffs/respondent, nor the witnesses, who testified about the entry and attestation of the mutations in favour of the respondent, were believed, particularly; on the reasoning that such witnesses are closely related to the defendant.

3. Learned counsel for the appellant states, that the Court of appeal has misread the evidence on record, it is further argued that the plaintiff, though in the suit, challenged both the set of mutations, that is, of the mortgage as also of the sales, but subsequently, had conceded about the valid entry and attestation of the mortgage mutations, resultantly, having deviated from his original stand, it should be presumed, that he is guilty of perjury, and, therefore, such admission by the plaintiff has serious reflection upon his case about the sale mutations, resultantly, it should be presumed that he had validly sold the suit property to the defendants through the disputed mutations. It is also argued that the presumption of correctness is attached to the official proceedings, and as the entry and sanction of mutation proceedings, are officially conducted, therefore, in view of the judgment reported as Hakim Khan v. Nazeer Lughmani and 10 others (1992 SCMR 1832), the mutations should be upheld as valid. It is also argued that the appreciation of the appellants evidence by the Court of appeal, in holding that the witnesses examined by them, are closely related, should not been a reason for disbelieving their statements, because they are natural witnesses, who knew both the parties and witnessed the transactions.

4. Conversely, learned counsel for the respondents has defended the impugned judgment and decree by arguing that none of the mutations in question, has been proved through independent witnesses; all the witnesses examined by the appellants are not the witnesses of the transaction of actual sale taken place between the parties and also none deposed that the consideration, covered by the sale mutations, was paid by the appellants to the respondent in their presence. It is also argued that merely for the reasons that the plaintiff/respondent has accepted the mutations of mortgage, for no valid reason, could have any reflection upon the sale mutations, which were of independent character and the appellants were supposed to prove the transaction of sale through positive and independent evidence.

6. I have heard the learned counsel for the parties. As regards the argument, that any presumption of correctness is attached to the official proceedings, suffice it to say that such presumption is only qua the stepping in the proceedings, which are taken in the discharge of the official duty, but where the question of sale and the validity of the entry and sanction of mutation arises, no conclusive presumption can be attached that such mutation has been validly entered and sanctioned, and the transaction of sale between the parties, which is disputed, did take place. In the instant case, the respondent in clear and unequivocal terms averred in the plaint that he had never sold the property to the appellants, and the sale mutations are that result of fraud and forgery; he never appeared before the Revenue Authorities for that purpose or received any consideration: The onus, to prove that the sales were validly entered into between the parties, the consideration was paid and that the mutations were duly got attested by the respondent himself while appearing before the Revenue Authorities, was on the shoulders of the appellants. The appellants have examined number of witnesses pertaining to various mutations, but as has been discussed in detail by the learned Court of appeal, all the witnesses have a close relationship with the appellants. Some of the witnesses have tried to conceal this relationship, but from the totality of the evidence, on the record, their such denial had been contradicted and the relationship surfaced. The learned Court of appeal, for cogent and valid reasons, disbelieved the statements of such close relatives of the appellants, particularly in the situation, where 'it is alleged by the plaintiff that all of them are party to the fraud, played upon the respondent and a criminal case was also got registered against the appellants, in which, most of the said witnesses have also been interrogated. I do not find any exception to the appreciation of the statements of appellants' witnesses, when there is no misreading and non-reading, only on the ground that the learned Court of appeal has taken a different view, in giving credence to the statements of the witnesses This by itself is not ground for interference in the second appeal. 6A. It may also be pertinent to state here that none of the witnesses produced by the appellants, has been able to depose and testify as to the time, venue, day, date, month or year, where and when the appellants and the respondent negotiated and finalized the sale transaction and the consideration was paid to the respondent. All these witnesses have stated that the consideration was not paid in their presence, rather they deposed that the respondent acknowledged the receipt of the amount. Even otherwise, one of the appellants namely Soni, while appearing had also conceded that when the consideration amount was paid to the respondent no other person was present. The possession of the main part of the property, in pursuance of the said sale mutation has also not shown to have been taken over by the appellants. Resultantly, the findings of the Court of appeal, on the important issue about the validity of the mutations are unexceptionable in nature and cannot be questioned in the scope of second appeal.

7. As far as the question, that the respondent is guilty of any perjury, suffice it to say that claim of the respondent in the suit was with regard to both the sets of mutations i.e., the mortgage and the sale mutations, but if in the trial, the respondent has admitted the mortgage mutation, this by itself would not be sufficient for presuming that the other sale mutations, which have been specifically denied and disputed by him through evidence, also should be considered to have been validly got entered and attested by the respondent. I do not find this to be a case falling within the purview of perjury, having any reflection upon the decision of the Court of appeal with regard to the issue relating to the sale mutations.

8. Learned counsel for the appellants have vehemently submitted that the Court of appeal has misread and ignored to read the evidence on the record, but when required to pinpoint any misreading and non reading, no specific instance has been quoted, which has any material effect upon the decision, rather the trust of his arguments is about the mis-appreciation of the evidence, which is not established. But in any case, the Court of appeal, which is Court of fact, if for valid and cogent reasons, by appreciating the evidence, has differed with the view of the trial Court, such decision cannot be held to be contrary to law or erroneous, calling for interference in second appeal. Dismissed. H.B.T./S-680/L Appeal dismissed.