2000 PLP 814 (CLC)

Date of hearing: 17th November, 1999. Judgment of the learned Additional ' District Judge, Okara, dated 19‑11‑1995 whereby the appeal filed by the respondents was accepted by him and the judgment and decree of the learned trial Court was set aside has been challenged in this revision petition. It has the following background.

2. Ghulam Muhammad (now represented by his legal heirs) owned agricultural land measuring 64 Kanals which he purports to have sold to Muhammad Ali, Muhammad Latif and Muhammad Rafique vide Mutation No.1397. dated 12‑1‑1974. the petitioners herein. He filed a suit for declaration that the said mutation was illegal, based on fraud and the result of collusion with the Halqa Patwari (who was defendant No.4 to the suit) and that he was owner of the same. He also prayed for possession of the suit land. The suit was contested by the petitioners. It was their case that the challenge to the mutation of sale was on account of the increase in the value of the land which had taken place with the passage of time. It was also pleaded that the suit was time‑barred. After the death of Ghulam Muhammad amended plaint was filed to which an amended written statement was filed. In the amended written statement it was pleaded that Ghulam Muhammad had sold the suit land through his son Taj Din who was his special attorney. The learned trial Court framed necessary issues emerging from the pleadings of the parties . After receiving the evidence produced by the parties before him he dismissed the suit vide judgment, dated 19‑12‑1990. The learned trial Court while recording findings on Issues Nos. 1,. 2, 7‑A and 7‑B which were dealt with by him together was of the view that the possession of the petitioners/defendants for a long time over the suit land was a strong proof in their favour, and thus, concluded that the sale was made by Ghulam Muhammad. The plea of Ghulam Muhammad that throughout in the month of January, 1974 when the sale is reported to have taken place he was on duty at Renala Khurd was not accepted. An appeal was filed by the respondents. A learned Additional District Judge accepted the same, that although the sale is claimed to have been made on receipt of Rs.24,000 as price of the land yet no receipt had been produced. He did not believe the oral testimony as to the payment of the price, and thus, set aside the findings of the learned trial Court. This is a revision against the same.

3. It is contended by the learned counsel for the petitioners that the possession of the suit land was with the petitioners which was a strong proof in favour of the petitioners/defendants and it was for the respondents/plaintiffs to prove under what circumstances the possession was transferred. It is contended that Taj Din his son had been looking after his affairs who had been authorized to sell the land. The transaction, therefore, was absolutely legal which was challenged after a long time of 10 years.

4. As against this the learned counsel for the respondents contends that Ghulam Muhammad never sold the land to the petitioners/defendants and they were given the same only to develop and cultivate the same. It is contended that it was for the first time in the amended written statement that the petitioners/ defendants claimed the sale to have been made through Tai Din his son which was not their case in the first written statement. He made reference to the statements of Muhammad Ali P.W.3 and Khushi Muhammad P.WA wherein they had stated that they had not indemnified Taj Din at the time of the alleged mutation, as also the cross‑examination of Iqbal Hussain that the sum of Rs.24,000 claimed to have been paid as price of the land was not paid before him. It is contended that there was no proof whatsoever as to the payment of the price of the land or sale by Ghulam Muhammad. He placed reliance on Naja and 2 others v. Sahamand and 4 others PLD 1985 Lah. 607, Hakim Ali and 3 others v. Sh. Muhammad Mazhar Ali 1997 CLC 1645, Hakim Khan v. Nazeer Ahmad Lughamani and others 1990 MLD

89. Hakim Khan v. Nazeer Ahmad Lpghmani and 10 others 1992 SCMR 1832 and Inayat Ali Shah v. Anwar Hussain 1995 CLC 1906 S, As the, findings of the two Courts below are at variance, therefore, I considered it proper to go through the evidence myself.

6. An oral dale :was claimed to have taken place in favour of the petitioners on the basis of which Mutation No. 1397 of 12‑1‑1974 was attested (Exh.D.l). Taj Din son of Ghulam Muhammad respondent was as per mutation identified by Muhammad Ali Patidar and Khushi Muhammad Patidar. Muhammad Ali Patidar was produced as witness (P.W.3) when he stated that he had not identified the plaintiffs regarding any sale of land at the time of mutation. Khushi Muhammad appeared as P.W.4. He also denied the identification attributed to him at the time of mutation. Ghulam Muhammad plaintiff appeared as P.W.5 and stated that he was employed with Town Committee Renala Khurd at the time of the alleged transaction and denied the sale of the land by him. It was stated by him that he had given the land to the defendants for cultivation as the same was uncultivated and that no price whatsoever had been received by him. It was his case that he had been the victim of fraud. He denied that he had given any power of attorney to his son Taj Din or that he received the money from the defendants. Muhammad Sharif P.W.1 Clerk of Town Committee and Muhammad Azeem, Sanitary Inspector, Renala Khurd, were produced to prove that Ghulam Muhammad at that time was employed with the Town Committee, Renala Khurd and that in the month of January, 1974 he had remained on duty. Muhammad Hanif P.W.6 stated that Muhammad Ali defendant had admitted before him that he had not paid Batai on account of leveling and developing the land. Taj Din appeared as P.W.7 who denied the sale of land or receipt of any price, therefore, or appearance before the Tehsildar as shown in the mutation.

7. On the petitioners/defendants' side Muhammad Bashir D.W.1 was produced in order to prove Exh.D.l the mutation but he stated that neither he entered the mutation nor sanctioned the same. D.W.2 Mudai was produced for cross‑examination as he had already sworn an affidavit but he disowned the contents of the said affidavit and stated that he did not know Ghulam Muhammad plaintiff/respondent. Iqbal Hussain D.W.3 Lambardar was also produced for cross‑examination in view of his affidavit already having been sworn. In his cross‑examination he stated that Rs.24,000 were not paid to the plaintiff in his presence. D. W.4 Yasin was produced to prove the payment of Rs.24,

000. Muhammad Latif defendant/petitioner appeared as D.W.5 who stated to have purchased the land from Ghulam Muhammad on payment of Rs.24,

000. He stated that at the time of mutation Taj Din son of Ghulam Muhammad was identified by Khushi Muhammad and Muhammad Ali Patidar who had died. In cross‑examination he admitted that Khushi Muhammad who had identified Taj his father's name was Ahmed Din (the parentage of P.WA Khushi Muhammad is Ahmed Din). It was further stated by him that it was not considered proper to execute the agreement or receipt.

8. The undisputed fact is that the transaction of sale claimed by the petitioners/defendants is Rot written nor there is any receipt for the payment of the sale consideration. It is, thus, to be seen from the oral evidence referred to above as to whether the sale stands proved and the authenticity of Mutation No. 1397. It is now settled principle of law that a person who claimed a title through a mutation the burden of proving the transaction embodied in the mutation is upon him. In view of the said principle it is to be seen whether the respondents produced satisfactory evidence to prove the sale in their favour as reflected in the mutation. The respondents/plaintiffs who had challenged the said mutation had clearly denied the sale or the mutation relied upon by the petitioners/defendants. The persons who were mentioned to have identified Taj Din son of Ghulam Muhammad while appearing before the trial Court as P.W.3 and P.W.4 Muhammad Ali and Khushi Muhammad denied their presence or identification attributed to them at the time of mutation. Iqbal Hussain Lambardar stated that no consideration money was paid in his presence. To me it is clear that the respondent/plaintiff did produce evidence to shift the onus on the petitioners/defendants who had then to prove the factum of sale. The other evidence produced by the petitioner/defendant Mudai disowned the contents of the affidavit alleged to have been sworn by him. There was, thus, no evidence worth relying upon in support of the sale. Even the authenticity of the mutation in view of the above evidence was not proved beyond doubt as the Patwari Girdawar or Tehsildar who purported to have entered and attested the mutation were not produced. There then remains only the statement of Muhammad Latif D.W.5 who claimed that the suit land was sold by Ghulam Muhammad for Rs.24,000 to them. It was a statement in one's own favour, which required corroboration. The reliance on oral evidence of the nature it was produced by the petitioners/defendants was not safe as was done by the learned trial Court.

9. In matters of transactions of sale involving substantial piece of land and money in the absence of any agreement or receipt the quality of evidence had to be of convincing nature, free of inconsistencies and discrepancies. In Naja and 2 others v. Shamand and 4 others PLD 1985 Lah. 607 it was observed that mutation simply incorporates a transaction which has already taken place it could be regarded only a piece of evidence but would not take the place, of the transaction itself which was to be proved independent of the same like any other fact. It was, thus, observed that "the proof of payment of consideration cannot be deemed to have been provided by the mutation Exh.D.7. The learned counsel has not been able to point out any documentary evidence in the form of receipt, to bear out the payment alleged to have been made by the petitioner". In Hakim Khan v. Nazeer Ahmad Lughamani and others 1990 MLD 89 it was observed that the Courts must insist on evidence other than mutation proceedings in support of the sale and any person who relies solely on mutation proceedings without obtaining anything in black and white besides it would do so at his own peril. In the instant case there .is no explanation as to why the transaction was not reduced to writing or receipt was not obtained from Ghulam Muhammad for the alleged payment of Rs.24,

000. The objection and the production of a receipt as to the payment of price at least could furnish a basis of mutation of sale. There is no such evidence brought forth by the petitioners/defendants in support of the sale. There had to be a clear convincing and satisfactory evidence if the transaction of sale had to be proved by the petitioners/defendants. The preponderance of the evidence available on record does not inspire confidence to come to a conclusion that such a sale deed indeed take place. It has come on record that the possession of the petitioners/defendants was that of lessee on Bhatai basis. Their possession, therefore, cannot be regarded in pursuance of any transaction of sale. The fact that in the written statement filed by the petitioners/defendants, at the initial stage, there was no mention in paragraph Nu.2 of the same that the transaction was completed through Taj Din the son of the attorney of Ghulam Muhammad and was taken up in the latter written statement also cannot be ignored particularly in view of the depositions of Muhammad Ali P.W.3 and Khushi Muhammad P.W.4 who are mentioned in the mutation to have identified him, but they denied the same in the Court. In view of the above state of evidence on record the approach of the learned appellate Court is more convincing and supported by the facts and circumstances of the case which is upheld. As a result of the above, this petition is dismissed. No order as to costs Q.M.H./M.A.K./M‑1262/L Revision dismissed