2014 PLP 2520 (YLR)

YAHYA AFRIDI, J.

Through this single judgment, this Court shall dispose of the following three Civil Revision Petitions, as common questions of law and facts are involved therein. The particulars of the three petitions are as follows:-- (1) Civil Revision No.477-P/2012, (Mst.Hameeda Bibi v. Inayatullah and 8 others). (2) Civil Revision No.478-P/2012 (Mst.Hameeda Bibi v. Inayatullah and 8 others). (3) Civil Revision No.479-P/2012, (Mst. Hameeda Bibi v. Inayatullah and 8 others).

2. Brief and essential events, leading to filing of the present petitions, in chronological order are as follows:-- 25-2-2003 Suit No.105/1, (Mst.Hamida Bibi v. Inavatullah and others). Mst.Hameeda Bibi brought a suit for possession of house measuring 4 marlas, bearing Khasra No.230, situated in Mohallah Gulshan Street Gulbarg No.2 Peshawar Saddar ("House"); that the plaintiff and her husband Javed Iqbal (defendant No.2) had cordial relations; that Inayatullah, the father-in-law of Mst. Hameeda Bibi (defendant No.1), desired to sell the House; that it was privately decided between the parties that the plaintiff would pay rupees one lac and in consequence whereof mutation would be attested in favour of the plaintiff; that the plaintiff paid rupees one lac to Inayatullah (defendant No.1) on 20-8-2002 and Mutation No.6978 ("Mutation") was attested in her favour on the same date and since then she is in possession of the House; that the marriage of plaintiff and defendant No.2 was solemnized and after marriage they were living in the House; that with the collusion of defendants 2 to 5, the defendant No.1 had stolen the jewelry, dowry articles and other valuables and ousted her from the House; that defendants 2 to 5 were also living in the same house along with defendant No.1, therefore, they were also arrayed as defendants in the suit; that the defendants were issued a legal notice to hand over the possession of the House, but in vain. Hence, the said suit. 13-3-2003. SuitNo.106/1 (Inayat-ullah v. Mst.Hameed Bibi) Inayatullah (plaintiff) had instituted the suit against his daughter-in-law, Mst. Hameeda Bibi for declaration and perpetual injunction to the effect that the plaintiff had not sold the House to Mst. Hameeda Bibi and that she is not owner in possession of the House and Mutation is liable to be cancelled and revenue record be corrected; that permanent injunction was sought to the effect that be restrained from posing herself to be owner of the House and alienate the same to any other. Inayatullah is reported to have now expired. 15-3-2003. Suit No.107/1 (Mst.Tahira Yasmeen and others v. Mst. Hameeda Bibi and others Mst.Tahira Yasmeen and other daughter-in-laws of Inayatullah ("Set of Daughters-in-law") instituted this suit against Mst.Hameeda Bibi and others for declaration to the effect that they are the owners of the House through "qibalajaat/hibanamas' dated 14-5-1984, 20-4-1994 and 23-12-2000 on behalf of Inayatullah in their favour and after completion of the said 'qibalajaats' , all others have no concern with the ownership of the House none has the right to transfer the House to Mst. Hameeda Bibi and Mutation on behalf of Inayatullah in favour of Mst. Hameeda Bibi was bogus and fictitious and is ineffective upon the rights of the Set of Daughters-in-law and Mst.Hameeda Bibi had no right to show herself as owner of the House and the revenue record needs to be corrected; that permanent injunction was also sought, 'inter alia', for transfer the House to any one. It is important to note that Inayatullah had filed a 'cognovit' in favour of the Set of Daughters-in-law. 2-12-2006. The three suits were contested and consolidated. The defendants in each of the three suits filed their written statements, raising legal and factual objections, which were reduced into the following consolidated issues:- (1) Which of the plaintiffs have got a cause of action in the above titled cases? (2) Whether the plaintiffs in the above titled cases are estopped to sue by their own conduct? (3) Whether the suits are bad in its present form? (4) Whether the suits are properly valued for the purpose of court-fee and jurisdiction? (5) Whether the Court has jurisdiction (Hameeda Bibi v. Inayatullah)? (6) Whether the suit is liable to be rejected under Order VII Rule 11? (Hameeda Bibi v. Inayatullah). (7) Whether the suits titled as Inayatullah v. Hameeda Bibi and Hameeda Bibi v. Inayatullah are bad for non-joinder of necessary parties? (8) Which of the defendants are entitled to special cost? (9) Whether Mutation No. 6978 is forged, bogus and without jurisdiction? So its effect (Hameeda Bibi v. Inayatullah Suit No. 48/1). (10) Whether the plaintiff namely Tahira Yasmeen (Tahira Yasmeen v. Inayatullah) Suit No.42/1, is the owner of the house measuring 4 marlas as mentioned in the heading of the plaint on the basis of dower deed, through Qabalajat/ Gift deeds dated 14-5-1984, 20-4-1994 and 23-12-2000? (11) Whether the Mutation No. 6978 dated 20-8-2002 is forged, bogus and have no legal effect upon the rights of the plaintiffs and liable to cancellation? (Tahira Yasmeen v. Inayatullah, Suit No. 42/1). (12) Which of the plaintiffs are entitled to the decree for declaration, possession and permanent injunction, as prayed for? (13) Relief. 18-6-2011. After hearing arguments of the learned counsel for the parties and perusal of the record, the learned Civil Judge-XXVII, Peshawar, vide consolidated judgment and decree dated 18-6-2011, passed the following order:-- "In nutshell of my above discussion, it is held that in Suits Nos.106/1 & 107/1, plaintiffs have got a cause of action, hence suits Nos.106/1 & 107/1 are hereby decreed in favour of plaintiffs. While in Suit No.105/1 plaintiff Hameeda Bibi failed to prove her cause of action. So suit is hereby dismissed with no order as to costs." 14-2-2012. Feeling aggrieved, Mst.Hameeda Bibi, the present petitioner, in all the three cases, filed appeals before learned Additional District Judge-II, Peshawar, who vide consolidated judgment and decree dated 14-2-2012, dismissed all the appeals, observing:- "I am of the view that Mst.Hameeda Bibi has no right or locus standi to challenge the said documents as incorrect, therefore, in the light of above, I see no mis-reading or non-reading of evidence and no other ground for interference in the findings of the trial Court. Hence the instant appeal is dismissed with no order as to costs." Hence, the revision petitions in hand.

3. Valuable arguments of the learned counsel for the parties heard and the record perused.

4. From the record it reveals that the matter in dispute relates to the House, a residential dwelling, which is being claimed by all the daughter-in-laws of Inayatullah. On the one hand, we have the Set of Daughter-in-laws, who claimed the same as dower, duly supported by dower deeds, while the lone petitioner, Mst.Hameeda Bibi, the second wife of Javed Iqbal, claims the same on the basis of sale duly supported by an attested Mutation.

5. The present petitioner, when confronted to establish the sale, emphasized that the attested Mutation No.6978 (Ex.PW.1/1) was produced in evidence through a competent person, and being an official document, had a presumption of truth attached thereto. It was further asserted that any person challenging the said mutation had the burden to prove otherwise. As far as petitioner was concerned, the learned counsel finally contended that she had proved her case to the hilt.

6. This Court is not convinced to accept the line of argument adopted by the worthy counsel for the petitioner on the following legal premise:-- Firstly, it is an established principle of civil dispensation of justice that generally, the initial burden to prove a claim, is on the party seeking the aid of the Court, but this 'onus of proof' shifts and oscillates. Once the parties have adduced their respective evidence in support of their claims, then it is 'preponderance of evidence', which rules the scale of relief. It is only when the Court deciding the Lis is unable to decide the matter on the evidence produced by the parties, that the significance of onus of proof would be revived and govern the decision. In this regard, the august Supreme Court of Pakistan in the case titled Mst.Oaisar Khatoon v. Molvi Abdul Khaliq (PLD 1971 SC 334) has explained the principle in terms that:-- "In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Manaka v. Madha Rao) (2). The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion (Vide PLD 1948 PC 171). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not case here, for, the evidence is, by no means, evenly balanced." In the present case, the petitioner has only produced the Mutation, without proving the transaction reflected therein, while the Set of Daughters-in-law have based their claim through dower deeds, proved by its two witnesses and scribe thereof. Thus, preponderance of evidence tilted in favour of the Set of Daughter-in-laws and not the petitioner, Mst.Hameeda Bibi. Secondly, as far as the veracity, authenticity and the legal value of the attested mutation is concerned, there is no doubt that a mutation can never be considered as a document of title of a person over an immovable property. However, at the same time, an attested mutation duly proved and consistently reflected for a long period of time in the Revenue Record would have a presumption of truth attached thereto. In such a situation, any person challenging the same would have to rebut the said presumption by adducing cogent and reliable evidence. In the present case, the Mutation of 20-8-2002 in favour of the petitioner was immediately thereafter challenged by the respondents, which lead to the suit of 25-2-2003. Hence, the Mutation could not mature into an aged long standing entry in the Revenue Record to earn the status of having strong presumptive value. Thirdly, the reference made by the worthy counsel for the petitioner to the judgment of the apex Court in Haji Ghulam Rasool Kokhar's case (1990 SCMR 725), wherein it was stated that:-- "entries mentioned in the revenue record regarding ownership are presumptive evidence of title, which shift the burden on the person who challenges their correctness to establish otherwise. No evidence was pointed out to us detracting from the truth of the evidence of the entries" In the present case, this Court finds that the facts and circumstances of the present case are totally distinguishable from the aforementioned judgment of the apex Court. It is noted that the sale transaction reflecting in the Mutation has been countered by the Set of Daughter-in-laws by producing the dower deeds duly proved by its two witnesses and the scribe thereof. Hence, even if there was a presumption value in favour of the Mutation, the same has been duly rebutted by the respondents by producing reliable and cogent evidence. Moreover, recently the apex Court has cast the burden of proof upon the 'beneficiary' of the Mutation to prove the transaction, when the genuineness of the same is challenged. The most recent and authoritative judgment in this regard is noted in Muhammad Iqbal's case (2008 SCMR 855), wherein it was held:-- "Before entering into appreciation of evidence, we may recall that this Court on numerous occasions has categorically held that the mutation proceedings are not judicial proceedings and mutations do not at all happen to confer title. That, therefore, whenever the genuineness of any such mutation is challenged, the burden squarely lies on the parties relying upon the mutation, to prove the actual transaction. Hakim Khan v. Altaf Ahmad Lughmani 1992 SCMR 1832 can be referred to in this behalf. This Court in a recent judgment rendered in Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688 has categorically declared that mutation confers no title and once a mutation is challenged, the party relying thereon is bound to revert to the original transaction and to prove such original transaction and to prove such original transaction which resulted into the entry of attestation of any such mutation." The 'Ratio decidendi' of the aforementioned judgment finds its source in various earlier decisions of the apex Court noted in Nasrullah Khan's case (2001 SCMR 1156), Mst.Suban's case (2007 SCMR 635), and Fida Hussain's case (2004 SCMR 1043). Similarly, in regard to a challenge made to a transaction reflected in a mutation by a 'Parda Nashin' lady, alleging the same to be based on fraud, the onus of proof has been cast upon the 'beneficiary' to prove the genuineness of the actual transaction, reflected in the said challenged mutation, as laid down in Arshad Khan's case (2005 SCMR 1859). Fourthly, the petitioner had during the final arguments restricted his claim to possession of the House on the basis of the sale recorded through the attested Mutation, which was produced in evidence as Ex.PW.1/1. It is striking to note that the petitioner was unable to prove the two essential ingredients of a valid legal sale, namely:-- (i) payment of consideration or receipt thereof by the seller, her father-in-law/Inayatullah, and (ii) the transfer of possession of the House to her. Hence, the categorical stands taken by the petitioner claiming the House to have been purchased through a sale was rightly rejected by the two Courts below. Fifthly, as far as the legal value of the Mutation in favour of the petitioner being challenged on the touchstone of the condition precedent provided under section 42 of the Land Revenue Act, 1967 ("Act") is concerned, this Court finds that spirit behind the said provision of the Act is to ensure transparency and avoid fraud and thus the transaction reflected in the mutation is to be carried out in a public gathering. In fact, where the parties to the transaction are to confirm in the said public gathering the terms thereof and that too in presence of the Revenue Officer of the same revenue Estate. In the present case, the Mutation was produced in evidence by the petitioner through a competent public functionary, being the custodian of the said record, namely, Muhammad Younas, ADK (PW-4). However, the transaction could not be proved by the petitioner. Daud (PW.3), a Revenue Officer, produced by the petitioner in support of the Mutation was admittedly from a different Revenue Estate than where the House was situated. This issue has been dilated upon in Muhammad Iqbal's case supra, wherein it was held:-- " .. we would now revert to the evidence on record to see as to how far Mukhtar Ahmad defendant has discharged his burden. The only witness produced by the defendant was Khan Muhammad Lumberdar. It is admitted by the Lumberdar that he belonged to Thatta whereas the property in dispute is undisputedly situated in village Chaddar. This fact by itself was sufficient for the Courts to hold that the attestation was violative of section 42 of Land Revenue Act, 1967. This aspect has also been dealt with by this Court in Muhammad Akram's case (supra), holding that a Lumberdar in such cases must belonged to the same village in which the property is located. Even the association of Lumberdar belonging to the same Patwar Circle was not accepted to be genuine." Accordingly, the Mutation lacks the essentials required under section 42 of the Act and the same could not be of any support to the claim of the petitioner. Finally, this Court is adjudicating the present petition in its revisional jurisdiction, the scope thereof as provided under section 115 of the Code of Civil Procedure, 1908 ("C.P.C.") has been dilated upon by the august Supreme Court in Muhammad Idrees v. Muhammad Parvez (2010 SCMR 5), which reads:-- "The High Court in exercise of its revisional jurisdiction under section 115, C.P. C. unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC

26. With regard to section 115, C.P.C. it is observed by the Privy Council as under:-- (i) This section empowers the High Court to satisfy itself upon three matters:-- (a) That the order of the subordinate Court is within its jurisdiction. (b) That the case is one in which the Court ought to exercise jurisdiction. (c) That in exercising jurisdiction, the Court has not acted illegally, that is breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law. "

7. Keeping in view the above guiding principle regarding exercise of revisional jurisdiction, this Court considers that the two Courts below, while exercising the jurisdiction has rendered its finding in accordance with law and the rights of the petitioner have been protected.

8. Even if this Court comes to a different conclusion then that arrived at by the Courts below, it cannot interfere in the findings, so arrived therein, unless the same is arbitrary, capricious or out rightly absurd, which is not the case in the present matter. For what has been discussed above, while upholding the judgment and decree of the learned two Court below, these civil revision petitions, being devoid of any merits, do not call for interference by this Court in its revisional jurisdiction, are hereby dismissed, with no order as to costs. ARK/211/P Petitions dismissed.