2004 PLP 1188 (YLR)

Rana Ghaffar Ahmed for Petitioners. Ch. Manzoor Hussain for Respondents. Date of hearing: 4th December, 2003. This civil revision assails the judgment and decree dated 24-6-1999 passed by the Additional District Judge, Sialkot, whereby appeal of the respondents was accepted and suit of the petitioners was dismissed.

2. A short factual background of the case is that the petitioners filed a suit for declaration with permanent injunction that their predecessor Sultan Ali had purchased the land described in the plaint, for a consideration of Rs.20,000 from Muhammad Sharif and Muhammad Ramzan. Sale was reported to the Patwari and Mutation No.85 on the basis of it, was entered in the Revenue Record but could not be attested for non-deposit of District Council Fee etc. They claimed that they are in possession of the land subject of mutation whereover they intended to raise constructions and on account of objection by the respondents they carne to know that successors of their vendor executed a sale deed dated 22-8-1988 on the basis of which Mutation 198 was also sanctioned by the Revenue Authorities in favour of respondents Nos.7 to 11 and consequently they approached the Circle Patwari who told that their Mutation No.85 was cancelled and according to them, this necessitated filing of suit by them.

3. Respondents Nos. 7 to 11 are subsequent transferees through sale-deed dated 22-8-1988, who being defendants in the suit controverted the allegations of the petitioners through their written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Trial Court, on the basis of its appraisal of evidence, vide judgment and decree dated 16-2-1994 decreed the suit of the petitioners declaring them owners of the land in question and adjudged the sale-deed dated 22-8-1988 and Mutation No. 198, on the basis thereof.

4. Respondents aggrieved of the decision of the trial Court dated 16-2-1994 filed an appeal before the learned Additional District Judge where they succeeded as their appeal was accepted and the suit of the petitioners was dismissed. Petitioners/plaintiffs have now come up in revisional jurisdiction of this Court, for annulment of appellate judgment and decree, impugned herein.

5. Learned counsel for the petitioners submits that no doubt stilt against the respondents Nos.7, 9 and 11 who were defendants Nos.3, 4 and 6 before the trial Court, was dismissed for non-deposit of process fee by the petitioners but other respondents had been contesting the suit on behalf of the defendants against whom, the suit had been dismissed, and they did not appeal against the judgment and decree of the trial Court and as such, the Appellate Court was not justified in saying that the suit could not be proceeded/decreed. He also contends that `Rapat Roznamcha' of Patwari, entrance of mutation and recording of statements of vendors selling their land in favour of the petitioners, was enough proof that sale in favour of the petitioners stood concluded and thus stood transferred in their favour on 15-2-1980, whereafter their vendors were left with no title with regard to the land subject of suit to re transfer it, in favour of the vendees under the sale-deed dated 22-8-1988. According to him, sale under law becomes complete when consideration of same is received by the vendor and possession is taken over by the vendee. He submits that both the conditions of a complete sale, i.e. payment of consideration and transfer of possession under the sale, were mentioned in the Mutation No.85 which was illegally cancelled but ownership rights, independent it, stood transferred to the petitioners.

6. Conversely, the learned counsel for the respondents seriously refuted the submissions of the petitioners, denying the ale in their favour, supported the appellate judgment and decree and argued that the petitioners could not prove transaction of sale and the mutation itself, as such their suit, on the basis of vague statement of only one witness P.W.1 could not have been decreed. He also contended that respondents Nos.7, 9 and 11 were necessary parties as sale in their favour was to be adjudged on the suit of the petitioners, and in their absence, no effective decree could be passed in favour of the petitioners. He also contends that though respondents Nos. 7, 9 and 11 did not appeal against the judgment and decree of the trial Court yet, being respondents in appeal, were transposed as appellants by the Appellate Court and defect, if any, stood removed. He in this behalf relied on the case of Muhammad Saqib and others v. Shakily Jamil 1983 CLC 1705.

7. I have anxiously considered the respective arguments of the learned counsel for the parties and have gone through the record, appended herewith. The parties did not dispute the fact of dismissal of suit against the respondents Nos.7, 9 and 11 due to non-deposit of process fee, on 11-6-1989. After dismissal of suit against these respondents, the suit against the other respondents could not proceed hence on an application by the petitioners, this order was recalled and suit was restored by the trial Court on 2-1-1991 but it was set aside by the revisional order dated 3-11-1992 passed by the Additional District Judge and has attained finality. In absence of these respondents who were transferees through joint sale-deed, for valuable consideration and claimed that they had no notice of the mutation in question, suit of the petitioners, could not have been decreed. Arguments or the learned counsel for the petitioners that since these respondents did not appeal against the judgment and decree passed by the trial Court, the Appellate Court could not reverse it, is without any substance because after earlier dismissal of suit against them, they were not needed to appeal against subsequent decree which was not passed against them and if at all, any such adjudication was needed, they were transposed by the Appellate Court and in this manner, after transposition, they were to be considered as appellants like other respondents. Reliance by the learned counsel for the respondents on the judgment of Muhammad Saqib and others (supra) which is a complete answer to the arguments of the learned counsel for they petitioner, is quite relevant.

8. The alleged sale by Muhammad Sharif and Muhammad Ramzan sons of Allah Ditta, original owners in favour of the petitioners, was claimed to have been reported to Patwari concerned vide `Rapat Rozenamcha' No.211 dated 15-2-1980 does not carry any presumption of correctness, contents of which were not proved by examining the Patwari who entered it. Like wise entry of Mutation No.85 was not proved by examining the Revenue Officer, Patwari, or Abdul Ghafoor Patti Dar who appeared to have signed/thumb-marked this mutation. This mutation was cancelled, on whatever ground, on 29-9-1980. This mutation shows that Revenue Officer claimed to have recorded statements of Muhammad Sharif and Muhammad Ramzan did not get their signatures/thumb impressions on the mutation. Though the mutation in question was not attested in favour of the petitioners yet it is not a document of title and is sanctioned under the revenue law, only for fiscal purposes. No title on the basis of an unattested mutation could have been based by the petitioners. In the case of Muhammad Ishaq and another v. Mst. Ghazala Riaz and another 1997 SCMR 974, the Honourable Supreme Court has graciously held that mutation is not a document of title and thus sale transaction, independent of it, should be proved by reliable evidence. In this case petitioners in order to prove sale transaction in their favour produced only one witness which is P.W.1, Muhammad Yousaf, who simply deposed that he appeared before the Revenue Officer, where vendors had stated that they have sold their land. This witness did not utter a word regarding the transaction itself passing on of the considerations, transfer or possession under the sale. Mahmood Ali one of the plaintiffs appeared as his own witness as P.W.2 though deposed that they paid the sale price while appearing before Patwari yet there is no corroboration on the file, in form of evidence that sale price was in fact paid to the owners. As regards possession under the sale, respondents produced Khasra Girdawari Exh.D.2 which relates to Crops of Kharif 1987 to Kharif 1988 and shows that Muhammad Sharif son of Allah Ditta etc. are in possession of Khasra No.52 which is the land in dispute. It means that the original owners of the land were in possession and did not deliver it to the alleged vendees. Petitioners have produced no evidence, documentary or oral to prove transfer of possession under the claimed sale, consequently transfer of possession, payment of consideration and the transaction of sale itself, are not proved on the file. Mere reliance on an unattested mutation is not proof of transfer of title in favour of the petitioners. They as observed, were to prove the transaction of sale, as a fact. My this view is fortified by the alighted judgments of the Honourable Supreme Court or Pakistan in the case of Amir Zada Khan and another v. Itbar Khan and others 2001 SCMR 609.

9. For what has been discussed above, scan of evidence and the law applicable, leads me to the view that findings returned by the Appellate Court, are absolutely in consonance with the evidence on the file and the law applicable. No misreading or non-reading of evidence is proved and the Appellate Court is not shown to have acted illegally or with material irregularity, in absence of which no interference, is permissible in revisional jurisdiction of this Court. This revision petition has no merit in it, and is consequently dismissed with no order as to costs. M.A.W./M-24/L Petition dismissed.