1999 PLP 2783 (MLD)
ABDUL MAJID KHAN and another — Petitioners Versus Mst. ANWAR BEGUM — Respondent
| Citation | 1999 PLP 2783 (MLD) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | ABDUL MAJID KHAN and another — Petitioners Versus Mst. ANWAR BEGUM — Respondent |
| Primary Law | (c) West Pakistan Land Revenue Act (XVII of 1967), (b) Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 1999 PLP 2783 (MLD)?
This judgment primarily cites: (c) West Pakistan Land Revenue Act (XVII of 1967), (b) Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1999 PLP 2783 (MLD)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1999 PLP 2783 (MLD) (ABDUL MAJID KHAN and another — Petitioners Versus Mst. ANWAR BEGUM — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Malik Noor Muhammad Awan for Petitioners.
- Ch. Khurshid Ahmad for Respondent.
Headnotes / Summary
O.XXIII, Rr. 1, 2 & S.115
Consent decree was obtained by respondent in year 1972 regarding agricultural land
Mutation of that land was attested in year 1977
Such decree was assailed, as to be fictitious, collusive and without consideration, by petitioner in a subsequent suit and the same was decreed in favour of petitioner whereas findings of Trial Court were reversed by the Appellate Court and the suit was dismissed
Suit land was owned by predecessor of both the parties
Respondent, the widow, had ousted petitioners of their right in the suit land by way of said consent decree
No evidence was available on record to suggest that respondent had ever enjoyed the fruits of said sale of land, forming subject-matter of dispute
Nobody came forward to say that respondent had shared the produce and no tenant had deposed that so-called vendor attorned him about respondent
Late execution of that decree passed in 1972 or its implementation in the year 1977 in Revenue Record and then constant refusal of occupants had unmasked the real intention of the last owner/the alleged vendor
Prolonged conspicuous silence, deep slumber or indifferent attitude was not expected of a real vendee --Findings of Appellate Court were not tenable in law for fallacious interpretation of law and evidence had caused material irregularity and miscarriage of justice and the same had resulted in illegal exercise of jurisdiction for acceptance of appeal of respondent
Such action of Appellate Court was open to grave exceptions and vividly unsustainable
Judgment and decree of Appellate Court was set aside by High Court in revision.
O.XXIII, Rr.l, 2 & 5.115
Consent decree in favour of respondent was challenged by petitioners in a subsequent suit
Respondent had neither examined the counsel who represented the alleged vendor, before the Civil Court, nor any evidence was produced to prove that respondent had ever tasted/enjoyed fruition of said sale
No report, in terms of relevant provisions of West Pakistan Land Revenue Act, 1967 was made to Patwari for not less than five years about change of ownership and possession
Civil matters are decided by preponderance of evidence and the evidence led by petitioners had already out-weighed the evidence of respondent
Appellate Court was not justified in reversing the findings of Trial Court
Judgment of Trial Court was restored and revision was allowed by High Court in- circumstances.
S.42
Evidentiary value
Mere attestation of mutation was not sufficient to bestow title
Such attestation of mutation could be treated as an important piece of evidence, provided same had been prepared with bona fides.
Judgment & Decree
(7) Relief.
6. After recording, oral as well as documentary evidence of the patties, wished to be adduced and, of-course, affording due chance and opportunity of being heard to them, learned trial Court adjudged the matter and resolved the controversy reduced into issues Nos. l and 2 in favour of petitioners/plaintiffs, by holding the decree dated 6-3-1972 and mutation No.3, dated 21-1-1977, as to be null and void in the eye of law. Likewise, issues Nos.3 and 4, were found and determined, in their favour. Issues Nos.5 and 6 were, however, disposed of as having not been "pressed" by learned Counsel for the respondent/defendant.
7. Resultantly, suit was decreed, impugned decree dated 6-3-1972 was set aside and the petitioners/plaintiffs were declared to be co-owners in possession of the land in dispute.
8. Appeal, against such judgment and decree dated 1-6-1982, was accepted, findings of learned trial Court were reversed and the suit of petitioners/plaintiffs was dismissed.
9. Feeling aggrieved and dissatisfied, the petitioners/plaintiffs have resorted to instant "Revision Petition" wherein inferences drawn and gathered by learned Additional District Judge have been assailed, challenged and called in question.
10. Factors, points and grounds enumerated in the petitioner have been re?iterated to impress that:-- (i) Consent decree is just and merely an agreement and transfer contemplated therein has to be proved. (ii) Amir Abdullah Khan had never come to Piplan or Mianwali during the year 1972 as testified by P.W. 5 Sher Muhammad Attorney. (iii) Respondent/defendant failed to appear or adduce scintilla of evidence to substantiate oral sale or prove payment of consideration to the tune of Rs.65,000 and as such she cannot be taken to be bona fide purchaser. (iv) Surreptitious approach of respondent/defendant is, by itself, a proof of fakeness of the transaction. (v) Decision of Federal Land Commission, asked for, by the respondent/defendant, herself, having attained finality, debars and denudes her from harping the same tune and precludes her from taking the somersault to contend otherwise. (vi) Transaction, being fake, was never acted upon during the lifetime of Amir Abdullah Khan. (vii) Decree and mutation in favour of respondent/defendant had, lost its sanctity altogether in terms of paras. Nos.3, 7, 29 and M.L.R. 115. (viii) Tenants had attorned to the petitioners/plaintiffs and falsified the claim of respondent/defendant. (ix) Even entries of Khasra Girdawar Exh. P5 were ignored and kept out of consideration by learned Additional District Judge. (x) Conclusions findings and inferences patently suffer not only from mis?reading of evidence but also, non-consideration of vital material on record. (xi) In any event same are based on conjectures and surmises.
11. On these premises, acceptance of revision petition has been urged. In support of the contentions reliance has been placed on Habib and 8 others v. Haji Muhammad and 3 others (PLD 1970 Kar. 495), Ghulam Akbar v. Haji Sher Jan etc. (1989 CLC 1789), Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832), Tooti Gul and 2 others v. Irfanuddin (1996 SCMR 1386), Mst. Ghulam Sughran and others v. Sahibazada Ijaz Hussain and others (PLD 1986 Lah. 194), Naja and 2 others v. Shamand and 4 others (PLD 1985 Lah. 607), Inayat Ali Shah v. Anwar Hussain (1995 CLC 1906), Muhammad Yousaf through his LRs. and others v. Noor Din and others (1993 MLD 763), Haq Nawaz Khan and others v. Rab Nawaz and others (1992 SCMR 993), Mst. Zahiran v. Mst. Rehmati (1987 SCMR 66), Allah Wasaya and 3 others v. Rahim Bakhsh and another (1991 SCMR 1369 and 1985 CLC 2605).
12. Conversely, judgment and decree, now sought to be impeached and set at naught, have been acclaimed to be correct in all respects and in consonance with law.
13. Salient features of the case, have been enumerated to lay stress that initial presumption enshrined by Article 129(e) of the Qanun-e-Shahadat Order of 1984 has not been rebutted any way. Nargis Shaheen v. Federation of Pakistan and 5 others (PLD 1993 Lah. 732), Muhammad Ali and 25 others v. Hassan Muhammad and 6 others (PLD 1994 SC 245) and Munshi Raghubir Singh and others v. Rani Rajeshwari (AIR 1933 Oudh 466) have been quoted on the point. With reference to Malik Khan Muhammad v. Haji Sikandar Khan (1989 CLC 2412), Arbab Jamshed Ahmad and another v. Ghazan Khan and others (1995 CLC 695), Muhammad Aslam v. Muhammad Tufail and 2 others (1995 CLC 1061) and Suhbat Ulah Khan v. Pirzada Noorul Baseer and others (PLD 1993 Pesh. 9), it has been remarked that the facts stated in the mutation proceedings are to be deemed to be correct unless, rebutted by the other side.
14. On the strength of Mst. Raj Babi and 4 others v. Additional Chief Land Commissioner, Punjab, Lahore (PLD 1975 Lah. 408), Muhammad Aslam Khan and others v. Federal Land Commissioner and others PLD 1976 Pesh. 66 and 1968 SCMR 699 and Mst. Hajiani etc. v. West Pakistan Land Commissioner, Lahore (OLD 1966 SC 114), it has been maintained that there is no reason as to why the alienations, which, are hit either by clause (a) or clause (b) of sub-para. (i) of paragraph 7 should not be held to be void only for the purposes of the Regulation, but, valid and effective as between the parties to pass the interests, if they, do not otherwise suffer from any invalidity.
15. Elaborating scope of "Revision", learned Counsel for the respondent/defendant has stressed that section 115, C.P.C. applies to cases involving illegal assumption, non-exercise or irregular exercise of jurisdiction only. According to him, no interference is called for unless the findings are based on "no evidence" at all. Gul Wali Khan v. Safdar Salim and 10 others (1997 MLD 3075) and Muhammad Bux v. Muhammad Ali (1984 SCMR 504) have beets referred in this context. On the basis of PLD 1956 SC (Pak.) 389 and 1988- Law Notes (Lahore) 689, presumption of correctness attached to entries of Khasra Girdawari has been asserted.
16. Seemingly faux-pas was committed while analysing data and material on record. Learned Appellate Court seems to have fallen in noratio elenci by treating the claim of respondent/defendant as apodictic as if she spoke as an oracle. The petitioners/plaintiffs also deserved same solemnity and their-claims should have been juxta-posed in its true persepective.
17. Marital bonds are generally nurtured and manured by gifts and net conditioned by transactions of sale and that; too, without possession. Not an iota of evidence is available on record to suggest that Mst. Anwar Begun had ever enjoyed the fruits of so-called sale of land, forming the subject-matter of dispute. Nobody came forward to say that she shared the produce and no tenant deposed that so-called vendor attorned him about the respondent/defendant Late A execution of the decree passed in 1972 or so to say its implementation in the year 1977 in revenue record and then constant refusal of occupants unmasks real intention of last owner so-called vendor. "status quo" after 1972 or 1977, upto institution of suit or initiating proceedings for getting produce just before Civil suit speaks volumes that the respondent/defendant well-knew the mischief from very inception, otherwise, such prolonged conspicuous silence, deep slumber or indifferent attitude was not expected of a real vendee.
18. Apart from the exercise of Federal Land Commissioner, Amir Abdullah Khan deceased never relinquished his claim or owned the respondent/defendant as his substitution relating to land in dispute. Even at the time of filing declaration before Land Commission, he was quite alive to his title of the suit land. The petitioners/plaintiffs discharged their onus by examining P.W.1 to P.W.4 to establish fraud and fakeness. P.W.5 shifted onus to respondent/defendant to prove sale and its fructuation. She, however, utterly failed to discharge onus and felt contended by examining Liaqat Hussain as D.W.1, who, being special attorney, was bound to be "His Master's voice." She failed to examine even Counsel, who, represented alleged vendor, before the Civil Court. She also did not produce a bit of evidence to prove that she ever tasted/enjoyed fruition of sale. About change of ownership and possession no report, in terms of relevant provisions of Land Revenue Act, was made to Patwari for not less than five years. Everything was clandestinely done and this in camera exercise exposes the respondent's plea to a trial of criticism.
19. Mere attestation of mutation is not sufficient to bestow title upon the respondent/defendant. It can be treated as an important piece of evidence as C observed in Malik Khan Muhammad v. Haji Sikandar Khan (1989 CLC 2412) provided it had been prepared with bona fides. Its basis/origin is not fair, rather, shrouded in mystery. Hence super-structure raised thereon is liable to crumble down like "house of Cards". Similarly only those transactions are protected/immune from the mischief of clauses (a) and (b) of sub-para. (1) of paragraph 7, which, do not contain a scintilla of fraud and the parties own its validity.
20. While delivering the verdict dated 27-4-1988, lambasted with clarion voice, learned Additional District Judge did not attend and advert to above aspects, remained oblivious of the same and rather traversed on the periphery. Hence, I am not inclined to expouse his inferences, which, cannot be countenanced under any canon of law.
21. Since civil matters are decided by preponderance of evidence and the evidence led by the petitioners/plaintiffs clearly outweighs the evidence of the respondent/defendant, learned Additional District Judge was not justified in reversing the findings of learned trial Court. His findings and conclusions on issues Nos. 1 to 4 are, therefore, reversed and those of trial Court restored. I am fortified in this belief by illuminating observations 'made in Malik Khan Muhammad v. Haji Sikandar Khan (1979 CLC 2412).
22. Upshot of above discussion is that the findings of learned Appellate Court and dismissal of suit are not tenable in law. Fallacious interpretation of law and evidence has caused material irregularity and miscarriage of justice, which, resulted in illegal exercise of jurisdiction for acceptance of appeal of respondent-defendant. Such action is open to grave exceptions and vividly unsustainable.
23. Concomitantly, revision petition is allowed, judgment and decree dated 27-4-1988 passed by learned Appellate Court are set aside and that of learned trial Court are hereby restored. However, I refrain from making any order as to costs. Q.M.H./M.A.K./A-29/L????????????????????????????????????????????????????????????????????? Revision allowed