2009 PLP 1663 (YLR)

MUHAMMAD ALAM KHAN, J.

The facts of the case are that Mst. Zarmar Jana respondent No.1 filed a suit against Faqir Muhammad Ismail for declaration to the effect that she is owner in possession of land measuring 7 Kanals 2 Marlas equivalent to 142/284 shares situated in the area of village Landidak Bazidkhel, Tehsil and District Bannu through sale along with all rights appurtenance to the suit-land. The sale has been effected for the last one year and the revenue record is liable to be correct. She had also prayed for decree of permanent mandatory injunction restraining the defendants-petitioners from interference in the suit-land and alienation of the same. She had also prayed for specific performance of agreement regarding land measuring 7, Kanals 2 Marlas against Faqir Muhammad Ismail, predecessor-in-interest of the petitioners in amended plaint dated 21-9-2004 with special reference to mutation No.215 attested on 6-8-2001 in favour of defendants-petitioners with prayer for cancellation of the same.

2. The defendants were summoned who appeared and contested the suit of the plaintiff-respondent and asserted that he had effected sale of 7 Kanals 2 Marlas for sale consideration of Rs.6000 per Kanal with the plaintiff-respondent and in this respect Mutation No.203 was entered on 31-7-1999 but subsequently it came to light through Patwari Helga that the suit-land is situated in the column of cultivation and thus, dismissed the suit mutation on 23-10-1999. It was also asserted that the plaintiff-respondent has not paid any sale consideration and the suit is liable to be dismissed. The learned trial Court framed the following issues out of the divergent pleadings of the parties:- (1) Whether plaintiff has got a cause of action? (2) Whether suit of the plaintiff is based on mala fide? (3) Whether plaintiff is estopped by his own conduct to bring the present suit? (4) Whether defendant is entitled to special costs under section 35-A C.P.C? (5) Whether plaintiff is bona fide purchaser of the suit property? (6) Whether plaintiff is entitled to the decree as prayed for?

7. Relief.

3. The parties then produced their respective evidence as they wished to adduce and the learned trial Court, after hearing the arguments of learned counsel for the parties and perusing the data available on record, vide Suit No.28/1 decided on 23-12-2004, came to the conclusion that Mutation No. 215 dated 6-8-2001 has been wrongly attested by Faqir Muhammad Ismail in favour of defendants Nos.9 and 10 and declared the said mutation as illegal and granted decree in favour of the plaintiff as prayed for. Faqir Riaz etc., defendants-petitioners being aggrieved from the judgment and decree of the learned civil Judge, filed an appeal which came for hearing before Additional District Judge-IV, Bannu who, vide Civil Appeal No.17/13 of 2005 decided on 5-1-2006, dismissed the appeal and maintained the judgment and decree of the learned trial Court with a slight modification and direction to respondent No.1 that the remaining sale consideration of 26,600 will be deposited by her in Court within two months from the date of announcement of the judgment for onward payment to the legal heirs of Faqir Muhammad Ismail. Thus, the legal heirs of Faqir Muhammad Ismail namely Faqir Riaz and others have challenged the concurrent findings of the two Courts below through the instant revision petition.

4. Learned counsel for the petitioners argued that the suit of the respondents was time barred as the alleged mutation pertains to the year 1889 which was not backed by possession and in the meantime the suit-land had been gifted by Faqir Ismail defendant in favour of his sons the present petitioners vide mutation No.205 and thus, he was not the owner of the suit-land and nothing could be transferred to the plaintiff-respondent.

5. Muhammad Ayaz Khan Qasuria Advocate appearing on behalf of Mst. Zar Marjana on pre-admission notice submitted that the vendee has admitted the sale in the written statement but had averred that as there was defect in the title of the vendee namely Faqir Muhammad Ismail, thus, the mutation could not be attested and in order to deprive the plaintiff-respondent, in the meantime the suit-land was transferred by said Faqir Muhammad Ismail in the name of his son which was collusive transfer not binding on the plaintiff-respondent.

6. I have given my anxious consideration to the facts of the case in view of the valuable arguments of learned counsel for the parties.

7. Perusal of the record reveals that while submitting the written statement Faqir Muhammad Ismail has admitted the factum of sale, but denied the receipt of the sale consideration. Patwari Halqa appeared and placed on record daily diary Exh.P.W. 2/3 which clearly bears the endorsement with respect to the sale on behalf of the vendor in favour of the respondent attested by the witnesses. This being a public document to which the presumption of correctness is attached and the same was brought on record without any objection. Once a document is exhibited and brought on record without reservation, no subsequent objection can be raised with respect to its admissibility as held in the dictum handed down in the case of National Bank of Pakistan, Bannu Branch through its Manager v. Sayed Mir (1987 CLC 1103 Pesh.).

8. Besides the admission of Faqir Muhammad Ismail, the respondent has led overwhelming evidence on record to prove the suit sale transaction. One aspect of the case is astonishing that Mutation No.203 in favour of the respondent was rejected by the revenue authorities without showing any reasons and on the other hand, Mutation No.215 was attested in favour of the petitioner on behalf of the same vendor. The intention was manifest to deprive the respondent of the suit-land. In rebuttal, no convincing and cogent evidence has been led by the petitioner. The suit Mutation No.215 in favour of the petitioner was attested during the pendency of the suit which is hit by the doctrine of lis pendens as held in Muhammad Sharif and others v. Mst. Fateh Bano and others (2004 SCMR 813) and is not binding on the rights of the respondent.

9. The two Courts below have recorded concurrent findings against the petitioner-defendants. No misreading or non-reading of evidence has been pointed out which findings are strictly in accordance with the established principles of appreciation of evidence, which cannot be interfered with in the revisional jurisdiction as held in the dicta handed down in the cases of Abdur Rahim and another. v. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rasheed Ahmad v. Muhammad Siddique (PLD 2002 SC 293).

10. In view of the facts and circumstances of the case narrated above, there is no force in the revision petition which is dismissed in limine along with C. M. No.40/2006. H.B.T./93/P Petition dismissed.