2021 PLP 608 (MLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Undisputedly, in Khewat No.156, the appellant was co-sharer to the extent of 65 Kanals 18-1/2 Marlas falling in Kattey Phakni, Ghauspur Gujran, Tehsil Dipalpur as per Record of Rights pertaining to years 1992-93 (Exh.P1). One Muhammad Ameen was the concerned patwari of this revenue estate, whereas Muhammad Sharif, respondent was his father-in-law. Out of that very share of the appellant more than 40 Kanals was transferred to Muhammad Sharif vide disputed mutations Nos.1738, 1786, 1794, 1815 and 2006 (Exh.D1 to Exh.D5) during equidistant period of 15.11.1995 and 30.06.1998. These mutations were entered and sanctioned when Muhammad Amin, was officiating as patwari halqa of the concerned revenue estate. Having its notice, the appellant on 25.11.2000 instituted declaratory suit along with consequential relief aiming cancellation of Exh.D1 to Exh.D5 asserting that neither any transaction of sale settled nor consideration received, rather Muhammad Amin patwari while playing active role deprived the appellant of his land while mutating the same in favour of his father-in-law. The respondent/ beneficiary obviously contested the suit through his written statement while pleading that on five distinct occasions, the suit area had been purchased by him after making payment before the witnesses. The learned Civil/Trial Court having faced controversial pleadings materialized different issues, out of which, Issues Nos.1 and 5A being pivotal for brevity sake are reproduced hereunder:-

1. Whether the sale mutation No.1738 dated 15.11.1995, sale mutation No.1815 dated 14.10.96, mutation No.1794 dated 30.6.1996 and mutation No.1786 dated 30.5.1995 are against facts, law, based on fraud, void, without consideration and ineffective qua the rights of the plaintiff? OPP 5-A Whether the defendant purchased the suit property through alleged mutations bonafidely and with free consent? OPD The parties to prove their respective stances produced evidence in pros and cons. The appellant/plaintiff examined as many as four witnesses and tendered documents ranging from Exh.P1 to Exh. P

10. In contra, the respondent/beneficiary also adduced voluminous evidence in the shape of DW1 to DW10 and documents including Exh.D1 to Exh.D

13. As a result of appreciation thereof, the subject mutations were cancelled by the learned Trial Court, while decreeing the suit of the appellant vide judgment of 02.07.2010, but the learned lower Appellate Court after analyzing the available material with different angle set aside the said decree and dismissed the suit through impugned judgment of 10.03.2011. Thus, this second appeal was preferred.

2. At the very outset, the learned counsel for the appellant submitted that his client moved C.M.No.1-C of 2017 for the examination of additional evidence, but opted not to press it, thus dismissed accordingly.

3. M/s Ch. Akbar Ali Tahir and Azhar Siddique, learned counsel for the appellant then on main case emphasized that disputed mutations of sale were not sanctioned by Revenue Officer as per legal requirement. They further submitted that it was duty and obligation of the defendant/beneficiary not only to prove that the mutations were genuinely sanctioned besides to establish that transaction reflected therein was honestly/truly settled. It was further argued that proceedings qua attestation of mutations were not proved by examining both the marginal witnesses of each mutation and that sufficient evidence was not produced by beneficiary to establish that original deal of sale had been effected and appellant/vendor received consideration. It was also contended that the mutation itself could not create right in favour of defendant until and unless it stood proved that sale ever offered, accepted and consideration paid. M/s. Tahir and Azhar further accentuated with great vehemence that sine qua non for the respondent/beneficiary to produce both the marginal witnesses of each disputed mutation, but he not only failed, rather one out of those was produced by appellant/plaintiff, who specifically deposed that neither sale effected nor the disputed mutations were genuinely sanctioned, therefore, beneficiary miserably remained unsuccessful to fulfil the legal requirement, but the learned lower Appellate Court without considering the said aspects erred in law to reverse the decree passed by the learned Trial Court. In contra, Mr. Arshad Nazir Mirza, Advocate/learned counsel for the respondent/beneficiary supported the impugned judgment while submitting that it was not a single transaction that fraud could be played, rather within the span spreading over two years, on five occasions, his client had purchased suit property from the appellant/plaintiff after making consideration. He further maintained that Muhammad Aslam, one of the marginal witnesses of the disputed mutations as well as the Revenue Officers, who sanctioned subject mutations in different eras, appeared in the witness-box to prove that not only transaction of sale settled, but mutations were also attested in due process of law. Mr. Mirza, further contended that contradictory versions were introduced by the plaintiff at different stages of the case, therefore, onus was never shifted towards the defendant/beneficiary and that in absence of solid evidence on the side of plaintiff, the learned lower Appellate Court rightly returned its findings on vital issues. It was argued as well that plaintiff did not plead or expose any allegation in his averments/evidence that Revenue Officers played any negative role in sanctioning the disputed mutation, thus their act could not be annulled. It was next argued that presumption of regularity and truth is attached to the proceedings of mutations initiated/culminated by the government officials in the discharge of their obligation, which could only be rebutted through reliable evidence and in absence thereof, the learned Appellate Court below was perfect in dismissing the suit.

4. Arguments heard and record perused.

5. Before adverting to the salient features of the case, it is to be added that the mutation proceedings are initiated primarily for fiscal purposes to collect the land revenue and is only meant for maintaining the record. It is again not disputed that the revenue official/officer enters and attests the mutation during summary proceedings, which by no stretch of imagination can be considered a judicial proceedings wherein right/title qua immoveable property is determined. Although these proceedings made under section 42 of the Land Revenue Act, 1967 are admissible under Article 49 of the Qanun-e-Shahadat Order, 1984 and some presumption is also attached thereto, but it is always rebuttable. It is also well established by now that mutation per se is not deed of title and the party relying upon its entries is always bound to prove the transaction reflected therein. In holding so, I am fortified by the law laid down in Gangabai and others v. Fakirgowda Somaypagowda Desai and others (AIR 1930 PC 93), Durga Prasad and another v. Ghanshiam Das and others (AIR (35) 1948 PC 210), Muhammad and others v. Sardul (PLD 1965 Lahore 472), and Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832). Whereas this Court defined the 'sale' in the judgment reported as M. Malik v. Mst. Razia (PLD 1988 Lahore 45) as under:- "Sale means transfer of ownership in exchange for a price paid or promised or part paid and part promised where sale was made orally and reported Patwari by parties thereto who had admitted payment of the consideration and delivery of possession on the basis whereof mutation was entered. Sale would be effected and completed on that day and not when mutation in respect thereof was sanctioned." The august Supreme Court further defined the paramount ingredients of the sale in Ali Muhammad and others v. Chief Settlement and Rehabilitation Commissioner and others (1984 SCMR 94) in the following terms:- "Sale is defined as being a transfer of ownership for sale price is an absolute transfer of rights in property sold and no rights are left in transferor. Essential elements of sale are (i) the parties; (ii) subject matter; (iii) transfer or conveyance and (iv) price or consideration." Whereas, according to section 54 of the Transfer of Property Act, 1882, it is to be established on record that the sale price has been passed on to the vendor and in default thereof, sale is not completed.

6. While keeping in mind aforesaid features, when case of the parties consulted, the appellant/plaintiff in paras 3 and 4 of the plaint narrated the detail of the alleged malpractices, misrepresentation and fraud played upon him to usurp his land. The respondent/defendant denied the said allegations while asserting that genuine transaction of sale was effected and after making payment of the consideration, the disputed mutations were properly attested. The subject mutations were tendered as Exh.D1 to Exh.D5, reappraisal whereof confirmed that out of these, Exh.D1, Exh.D2 and Exh.D4, were sanctioned on the attestation of Muhammad Azam (PW2) and Muhammad Aslam (DW3), whereas Exh.D3 was attested on the verification of Muhammad Azam and Muhammad Yahya (PW2 and PW3 respectively). However, the last mutation (Exh.D5) was attested by Muhammad Aslam (DW3) and Lal Din (DW4). As per available record, Muhammad Azam and Muhammad Yahya, out of afore-referred witnesses were produced by the appellant/plaintiff, who explicitly worded that transactions of sale were never struck and that they did not put their signatures over any mutation to acknowledge the transaction reflected therein. Although they were subjected to cross-examination, but withstood their credibility, thus their evidence was enough to slip the onus to the defendant/beneficiary. The latter to discharge/rebut it though examined DW3 and DW4, the attesting witnesses of mutations Exh.D1 to Exh.D5 besides the Revenue Officers (DW6, DW8, DW9 and DW10), but none of them expressed in their statement-in-chief that offer of sale was extended, accepted and price paid before him. They all, indeed, just tried to prove the attestation of impugned mutations. As a matter of law, subject mutations containing sale transactions were documents pertaining to financial liability, thus required to be proved as per yardstick laid down in Article 79 of the Qanun-e-Shahadat Order, 1984. The examination of only one marginal witness, by the beneficiary was not enough to meet with the legal requirement. As such, the impugned mutations (Exh.D1 to Exh.D5) were not liable to be taken as evidence, what to talk that its attestation was established or the sale transaction embodied therein proved, especially, when the other marginal witness while appearing on behalf of the plaintiff created serious doubts in the veracity of disputed mutations. See Islam-ud-Din through L.Rs and others v. Mst. Noor Jahan through L.Rs. and others (2016 SCMR 986), wherein it was held that:- "The attesting witnesses of all the three mutations are Muhammad Rashid son of Maula and Akbar Jan son of Mehr Jan, however, only one witness (Muhammad Rashid) was produced and no any reason was given for the non-production of Akbar Jan. Article 79 of the Qanun-e-Shahadat Order, 1984 stipulates that a document "shall not be used in evidence until two attesting witnesses at least had been called for the purpose of proving its execution".

7. Mr. Arshad Nazir Mirza, Advocate for the respondent submitted that apart from mutations, the vendor himself reported the transaction to the patwari, who recorded it in Register Roznamcha Waqiati and it was also signed by the vendor as well as marginal witnesses, therefore, mutations duly supported by unchallenged reports recorded in Daily Diary could not be annulled. Suffice it to say that no doubt rapats Roznamcha Waqiati (Exh.D6 to Exh.D9) were brought on record, but through the statement of counsel, the contents whereof were neither proved by summoning its maker nor custodian of the record. Moreover, these entries were also not confronted to the plaintiff/alleged vendor (PW1), when he appeared in the witness-box. There is no hesitation to hold that rapat Roznamcha Waqiati is not per se admissible, whereas exhibition of document as well as proof of contents are two different aspects and the latter to me is more relevant and important, which to the extent of Exh.D6 to Exh.D9 was lacking here. Moreover, in judgment reported as Zulfiqar and others v. Shahdat Khan (PLD 2007 SC 582) the apex Court while dealing with a rapat Roznamcha Waqiati recorded on behalf of vendor had already held it to be against intention of relevant provision of law. The pertinent conclusion detailed therein is as under:- "Although Roznamcha Waqiati is required to be maintained under the West Pakistan Land Revenue Rules, 1968 and entry made during the course of performance of official duty is admissible yet if the report contains the statement of a private individual, it is required to be proved to establish its correctness. It may also be noted here that under section 42 of the West Pakistan Land Revenue Act, 1967 it is the person acquiring a right in the land who has to make such a report to the Patwari Halqa. However, in the case in hand the report was made by the vendor and, therefore, within the scope of section 42, it is even doubtful whether such a report, at the instance of vendor (a person alienating his right) could be said to have been recorded by the Patwari in the discharge of his official duty." In addition thereto Roznamcha itself is not a document to confer title in view of bar contained in section 49 of the Registration Act, 1908, but the respondent/beneficiary was required not only to lead solid evidence that the appellant had sold out the suit land to him and also received its price as a whole or in part. This view finds support from the judgment of the august Supreme Court reported as Tooti Gul and 2 others v. Irfanuddin (1996 SCMR 1386).

8. The next emphasis of Mr. Mirza that the Revenue Officers (DW6 to DW10) in their depositions explicitly deposed that vendor admitted before them that he had already received the sale proceed, thus their statements duly supported by the entry recorded during sanction of mutations was enough to prove that sale price was received by the vendor/plaintiff, was again not well founded. The august Supreme Court even in a case wherein registered sale instrument was under question held that mere an admission as to receipt of sale consideration before Attesting Officer could not be taken as conclusive proof. See Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 SC 519).

9. The other argument of learned counsel for respondent that during test of cross-examination, the plaintiff (PW1) admitted his signatures over the impugned mutations, which was enough to believe that he voluntarily appeared before the Revenue Officer to acknowledge the transaction reflected therein. Suffice it to add that PW1 though admitted his signatures over there, but while clarifying that those were procured by Patwari for some other defined purpose, therefore, his said admission was not a proof of settlement of alleged transaction or solemn sanction of the subject mutations. In the case in hand, the basic attack of the plaintiff was upon said Patwari that he by practicing fraud maneuvered disputed mutations, therefore, mere admission of putting signatures could not be given due weight. Admittedly Muhammad Amin Patwari halqa was son-in-law of the beneficiary/defendant. Had there been a genuine sale, vendee/ respondent might have insisted for the execution of sale deed to eliminate the role of his close relative, who might be the ultimate beneficiary being husband of the daughter of the vendee. If for certain reasons the registration of instrument was not possible, then the respondent might have prepared some supporting documents like agreement to sell or receipt besides making sale price through cheque or some other such source, but the said course was not resorted, compelling the Court to draw adverse inference against respondent.

10. As far as, the submission of learned counsel for the respondent that suit for simple declaration without seeking relief of possession was not maintainable is concerned, suffice it to add that in his statement, the plaintiff (PW1) explicitly worded that during pendency of suit, the possession was forcefully snatched. Moreover, the respondent/defendant (DW2) during his cross-examination conceded that possession was taken over during trial proceedings, therefore, the suit might not be defective in its form at the time of institution. It is well established principle by now that any action/development caused during pendency of trial proceedings being hit by rule of lis pendens has to fall on the ground in case the affected party ultimately succeeds. Furthermore, through the impugned mutations, the respondent stepped in the suit property as a co-sharer, whereas rest of partake still rested with the appellant/plaintiff. There is no cavil to affirm that every sharer is deemed to be owner in possession of every inch of the joint holding, thus analysis of the raised issue with this angle again provided shield to the appellant/plaintiff to maintain his suit for simple declaration. Above all, while dealing with relevant provision/Order VII, Rule 7 of the Code, 1908 reproduced here:-

7. Relief to be specifically stated

Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. the superior Courts in cases reported as Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678), Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another (1991 SCMR 2114), Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others (2003 SCMR 318), Altaf Hussain alias Mushtaq Ahmed v. Muhammad Din and others(2010 CLC 1646), Sardara and Allah Ditta through legal heirs and others v. Mst. Bashir Begum and another (PLD 2016 Lahore 587) and Muhammad Riaz and others v. Qaim Ali and others (PLD 2019 Lahore 97), have already held that for mere technicalities a suit cannot be defeated due to its bad form. It was further observed that a Court in aid of justice vests with unfettered powers to provide, mould and grant adequate relief even if not claimed through the contents of the plaint. The superior Courts through their cited judgments while dealing with identical situation granted relief of possession, even not sought by the plaintiff. In the case in hand when it is strongly proved that alleged transactions never happened and impugned mutations were maneuvered through collusiveness, therefore the subject mutations cannot be perpetuated/protected for such error, if any.

11. For the reasons discussed hereinabove, this Court has come to the conclusion that the learned Appellate Court below misconstrued the available evidence and law on the subject, which being tainted with misreading/non-reading of evidence and suffering from jurisdictional defect fully calls for interference by applying the exceptions provided under section 100 of the Code, 1908. Thus, this appeal is allowed, judgment impugned herein is set aside and that of learned Trial Court by virtue of which suit of the appellant was decreed, is not only restored, rather the latter is additionally equipped with decree for possession, subject to affixation of Court fees of Rs.15,000/-on the plaint as well as memo of this appeal within two months positively, otherwise his suit and instant appeal will deem to be dismissed. No order as to costs. MH/ I-4/ L Appeal allowe