1985 PLP 1574 (MLD)

(10) Whether Miran Bakhsh predecessor-in-interest of the plaintiffs had acquired proprietary rights of the disputed land. If not its effect? O.P.P. (11) Whether plaintiff No.8 has no locus standi to bring the action?

0. P. D . (onus objected to). (12) Whether defendants Nos. 1 and 2 are estopped to set up their title?

0. P. P. (13) Whether impugned Mutations No. 16, dated 29-5-1958 and No.48, dated 26-7-1962 are genuine and for consideration? O.P.D. (onus objected. Overruled in view of P L D 1965 Lah. 472). (14) Whether the impugned Mutation No. 109, dated 27-11-1963 was sanctioned without jurisdiction and noticed to the plaintiffs? O.P.P. (onus objected to). (15) Whether the half share in the land (of defendant No.3) has been exchanged with other State land in Chak No. 303/G.B. If so, with what effect? O.P.D. (16) Relief.

9. The suit was originally instituted in the Court of the Civil Judge, First Class, Toba Tek Singh. The learned Judge decided issue No.8 in the affirmative whereupon the plaintiffs amended their plaint and impleaded the Government of West Pakistan also as a party to the suit. As a consequence, as required by section 24(2), West Pakistan Civil Courts Ordinance, the suit was transferred to the Court of the Senior Civil Judge, Lyallpur. During the pendency of the suit, Mr. Cheema was appointed a Judge of the High Court of West Pakistan. In order to avoid embarrassment the subordinate Courts, a learned Single Judge by an order, dated 30-6-1969 withdrew the suit to the High Court to be tried on its original side.

10. Nawabzada Asghar Ali has since died. His regal representatives have been impleaded as plaintiffs Nos. 8 to 18 in the suit. Fateh Muhammad is also dead. He stands substituted by his legal representatives, namely, defendants Nos. 2 to ,8

11. Issues Nos. 2, 3 and 4 were tried .as preliminary issues and decided in favour of the plaintiffs by Muhammad Akram, J. by his order, dated 26-9-1972. Issues Nos. 9 and 12 were not pressed during the course of arguments. It appears that after the death of Nawabzada Asghar Ali, his family left the land in dispute. That being so, issue No.11 is also no longer relevant. ISSUE NO. 1.

12. There is ample evidence on the record showing that at the time of institution of the suit, Nawabzada Asghar Ali, plaintiff No. 8, was in actual physical possession of the land in dispute. It is unnecessary to refer to all the evidence in this regard for this fact was admitted by the defendants themselves. Thus, Mr. Cheemas when examined on commission did not dispute the possession of the plaintiffs although his version was that he had obtained an order of ejectment against Nawabzada Asghar Ali and had it executed, but a week before the institution of the suit Nawabzada Asghar Ali forcibly re-occupied the land. It may also be mentioned that while the suit was pending before the Civil Judge at Toba Tek Singh Fateh Muhammad as well as Mr. Cheema had applied for the appointment of a receiver. In their application they admitted that it were the plaintffs who were in possession. This application remained pending till the suit was transferred to the High Court. In the High Court the application was allowed by Nasim Hasan Shah, J. and a receiver was appointed. Later, on a Letter Patent Appeal filed by the plaintiffs, the order of the appointment of receiver was set aside with the mutual consent of the parties and instead the plaintiffs were asked to furnish security for mesne profits. This being the position I have no hesitation in holding that on the day the suit was instituted the heirs of Miran Bakhsh through Nawabzada Asghar Ali were in actual physical possession of the land in dispute. This issue is decided in favour of the plaintiffs. ISSUE NO. 5.

13. I have already found that on the date of the institution of the suit the plaintiffs were in possession of the land in dispute. Now when a plaintiff in possession sues for a declaration of his title to immovable property, it is Article 120 of the Limitation Act which governs his case. This Article prescribes a period of six years and the starting A point of limitation is the date when the right to sue accrues. It goes without saying that a plaintiff in possession is not bound to sue every, time there is a threat to his title unless the said threat is serious enough that if allowed to remain unchallenged it will lead to his ouster or extinguishment of his right in the property.

14. It was contended on behalf of the defendants that the present suit was governed by Article 91 of the Limitation Act as the plaintiffs were seeking cancellation of three documents of mutations. This contention is clearly misconceived. Instruments referred to in Article 91 are those which have been executed by the plaintiff or his predecessor-in-interest and create legal rights or establish legal relationship. A mut7tion .is not that type of an instrument for in essence it is part of the process B adopted by the revenue authorities to make the revenue record conform to the position existing in fact on the spot. It is not a document executed by a plaintiff or his predecessor-in-interest nor does it create any legal rights or relationship; on the other hand it is merely a piece of evidence indicating that a particular transaction has taken place. Thus Article 91 is clearly not attracted here.

15. In this case the earliest threat to the title of Miran Bakhsh that may possibly be said to have been perceived by him was on 29-5-1958 when a mutation of sale purporting to have been effected by him was sanctioned by the revenue authorities. The suit having been brought on 27-5-1964, that is, within six years of the said date, must be held to be within time, for as already stated Article 120 of the Limitation Act governs this case. This issue is decided in favour of the plaintiffs.

16. The onus of proving this issue was on the defendants. To discharge their onus they relied upon two documents, One was the application (Exh.P.2) made by Miran Bakhsh to the Collector for permission to sell the land. The second was the mutation (Exh.P.10) attested on 29-5-1958 whereby the land in dispute was mutated in favour of Abdur Rehman and Fateh Muhammad in equal shares. So far as the application (Exh.P.2) to the Collector is concerned, it is merely an indication of the intention of Miran Bakhsh to sell the land in favour of Abdur Rehman and Fateh Muhammad. It does not contain any declaration by MIran Bakhah that he had actually sold the land. For obvious reason this application cannot prevent Miran Bakhsh or his successors-in-interest from pleading that no sale had actually taken place. So far as the mutation is concerned, it was attested on 29-5-1958 in the absence of Miran Bakhsh. He was, therefore, not bound by the recitals contained therein. It can hardly form the foundation of estoppel as pleaded by the defendants. This. issue is decided against the defendants. ISSUE NO. 10.

17. It is common ground between the parties that Miran Bakhsh had deposited the price of land after obtaining permission from the Collector but that no sale-deed had been executed in his favour by the Collector. There is authority of the view that the proprietary rights become vested in a tenant as soon as the purchase money is deposited in Government Treasury. In this context I would refer to the majority F view of the Supreme Court in [lam Din v. Muhammad Din P L D 1964 SC 842, two decisions of the Lahore High Court in Faiz Ali v. Rafia Jan P L D 1956 Lah. 94 and Malap Kaur v. Hakim Singh P.R. 8, 1915 and two decisions of the Board of Revenue reported as Rehmat Ullah v. Muhammad Ismail P L D 1958 Rev. 77 and Muzafar Hussain v. Nur Ahmad P L D 1959 Rev. 17. 1 would therefore, decide this issue in the affirmative. ISSUE NO. 15:

18. It is no longer in dispute that after purchasing the share of Abdur Rehman, Mr. Cheema exchanged it with the State land situate in Chak No. 303/J. B. The letter of the Government allowing the exchange I is Exh.D/1 on .the record. This exchange cannot possibly affect the rights of the plaintiffs in the land in dispute as they were not party to the exchange This issue is decided accordingly ISSUE N0.14:

19. The impugned mutation is Exh.P.9 on the record. This relates to a change in the cultivation column. By this mutation, in place of Nawabzada Asghar Ali two other persons, namely, Allah Ditta and Allah Bakhsh; defendants Nos. 10 and 11, were recorded to be in cultivating possession of the land in dispute. This issue has now become irrelevant as the Commissioner had later cancelled the said mutation. The order of the Commissioner was given effect by another mutation (Exh.P.4) attested on 12-3-1965. This issue is decided accordingly. ISSUE N0.13:

20. As already mentioned, on 9-7-1958 Miran Bakhsh and Abdur Rehman had jointly executed a document. This document is Exh.P.13 on the record. Both parties have relied upon this document to show the nature of the transaction which had been agreed upon between Miran Bakhsh and Abdur Rehman. It has been produced by the plaintiffs and its recitals have not been disputed by either party. A perusal of this document indicates:- (1) Miran Bakhsh had agreed to sell the land in dispute to Haji Abdur Rehman sometimes prior to February, 1958; (2) the price of the land was fixed at Rs.30,000; (3) till the date of the execution of this document, that is, 9-7-1958, Miran Bakhsh had already received Rs.23,500 towards the price of the land; (4) the remaining amount of the consideration, that is, Rs.6,500 was to be paid before 15-11-1958; (5) till the remaining amount was paid Abdur Rehman was to be treated as lessee of the land; (6) on payment of the remaining amount Abdur Rehman was to become full owner of the land in dispute; and (7) if the remaining amount was not paid before 15-11-1958 the money already paid to Miran Bakhsh was to stand forfeited and Abdur Rehman was to be treated as the lessee of the land on an annual rent of Rs.1,500.

21. Now, according to the defendants, Abdur Rehman and Fateh Muhammad, they had paid the rest of the sale price, that is, Rs.6,500, in the following manner:- (a) two or four months after the execution of the agreement (Exh.P.13) Abdur Rehman visited Miran Bakhsh in Narowali and paid 86.4,300 to him; and (b) the remaining amount of Rs.2,200 was paid to Miran Bakhsh in cash, enclosed in two letters sent by registered post in February and April, 1959. With regard to (a) the defendants relied upon the testimony of Abdur Rehman (D .W .7) and Faiz Muhammad (D.W.6). They both stated that they had gone to the village of Miran Bakhsh where Abdur Rehman paid Rs.4,300 to Miran Bakhsh. It may be mentioned that no receipt evidencing this payment was produced by the defendants. The explanation of Abdur Rehman in this regard was that Miran Bakhsh was ailing at the relevant time; when he asked for a receipt Miran Bakhsh stated that he would give a consolidated receipt after the whole of the amount had been paid to him. This explanation cannot be rejected out of hand for apparently the parties had been taking each other on trust. Besides, considering that the vendees were already in possession the non-taking of receipt could hardly be regarded as an unusual circumstance. Apart from that, the story of Abdur Rehman finds corroboration from the testimony of Faiz Muhammad (D.W.6). It may be mentioned that Fair Muhammad was the son of Ghulam Muhammad who was an attesting witness to the document of 15-2-1958. He was also present at the time when the agreement to sell was entered into by the parties. It was, therefore, not unnatural for Abdur Rehman to have taken him along when he went to Narowali to pay part of the sale price to Miran Bakhsh. It is also to be noticed that the plaintiffs have not cared to rebut the testimony of Abdur Rehman (D.W.7) and Fiaz Muhammad (D.W.6). The only person examined by them in this regard was Zafarullah Khan P.W.6 who was one of the sons of Miran Bakhsh. His statement in the witness-box gives the impression that either he was suppressing the truth or was entirely ignorant of the dealings between his father and the defendants in respect of the land in dispute. Thus he stated:- "I do not know about any agreement entered into by him. My father told me that Abdur Rehman had cancelled the agreement on the ground that the land was under Sem and Thohr." Now this statement can hardly be taken seriously, for after having paid the bulk of the consideration it is incredible that Abdur Rehman would cancel the transaction on the ground the land suffered from salinity and waterlogging, particularly when he knew the nature of the land even before the bargain for the sale of land was struck by the parties. It need hardly be added that before the said bargain was agreed upon by the parties Abdur Rehman was admittedly in cultivating possession of the land. It is also unbelievable that he would back out from the agreement when only a small amount of consideration remained to be paid and thus suffer forfeiture of a very large sum which he had already paid to the vendor. In view of this position taken by Zafarullah Khan (P.W.6). I am of the view that this testimony does not offer a satisfactory rebuttal to the assertion of Abdur Rehman (D.W.7) as supported by Faiz Muhammad (P.W.6) that a sum of Rs.4,300 was paid to Miran Bakhsh in his village I should, therefore, think that the said payment stands established.

22. The photostat copies of the postal receipts for the letters by which the remaining amount of Rs.2,200 was sent to Miran Bakhsh are on the record as Exh. D.2 and Exh. D.3. It was not specifically denied by the plaintiffs that these letters were actually received by Miran Bakhsh. However, their case was that the money contained in them was to be credited towards the lease money and that it was not part of the consideration of the sale which stood already cancelled. In support of the assertion reliance was placed upon the statement of Atta Muhammad D.W.3, brother of Fateh Muhammad vendee. It was he who had posted these letters on behalf of the vendees. According to his statement the first letter which contained a sum of Rs.1,000 was posted on 9-2-1959 and the second letter enclosing a sum of Rs.1,200 was posted on 14-4-1959. He admitted in his cross-examination that defendants Nos. 1 and 2 (Abdur Rehman and Fateh Muhammad) were the lessees of the land in dispute under Miran Bakhsh and he had sent money on account of the lease amount due to Miran Bakhsh from defendants Nos.l and

2. It was contended on behalf of the plaintiffs that the above-mentioned admission, coming as it did from the brother of one of the defendants, was strong enough evidence to prove that the agreement to sell had broken down and the land was being occupied by Abdur Rehman in his status as lessee; further the amount contained in the two letters was never intended to be credited towards the sale price of the land. I find little merit in this contention for there are circumstances appearing from the record which indicate that Atta Muhammad (P.W.3) was mistaken with regard to the purpose for which the money had been sent by him. To begin with, it is highly unlikely that after having paid the bulk of the consideration, Abdur Rehman and Fateh Muhammad would permit the agreement to collapse and timely accept the status of lessees in the land in dispute. I have already commented upon and rejected the story that the vendees were no longer interested in the land on the ground that it was waterlogged or saline affected. It is also to be noticed that the amount contained in the two letters was in excess of the lease moneys due under the agreement of 9-7-1958. It is incredible that even though the vendees were unable to pay the remaining part of the consideration yet they would send rent in exercise of that which had become due. It may also be mentioned that after the payment of Rs.4,300 to Miran Bakhsh only an amount of Rs.2,200 was left. The amount sent by the two letters tallied with the remaining part of the consideration. Taking all these circumstances into consideration, I am unable to place any reliance upon the above-mentioned admission of Atta Muhammad (P.W.3) that the amounts contained in the letters posted by him represented lease money and not a part of the price of the land. On the other hand I am satisfied that the said amounts did represent the remaining part of the sale consideration. It is true that the two letters were sent to Miran Bakhsh after the expiry of the date mentioned in the agreement (Exh.P.13), but, then, this delay is of no significance for it does not appear that Miran Bakhsh had at any time repudiated the agreement on the ground that the vendees had not adhered to the date-mentioned in the agreement (Exh.P.13) of 9-7-1958 for clearing the outstanding amount of the consideration.

23. The agreement (Exh.P.13) of 9-7-1958 did not provide for any particular steps to be taken for the transfer of the vendor's rights in the land in dispute to the vendees. On the other hand it stated Consequently as soon as Miran Bakhsh received the amount contained in the second of the two letters without any protest the sale between the parties became complete and effective.

24. As already mentioned the Revenue authorities sanctioned the mutation, dated 29-5-1958 in the absence of the parties in the beliefs that the sale had been completed. There is little doubt that they were entirely mistaken in this regard. The deed (Exh.P.13) which was executed about two months after the attestation of the mutation leaves no room for doubt that the rights in the property 'were to be transferred to the vendees only on the payment of the entire consideration and that still a part of the consideration remained owing from the vendees. Thus the mutation of 29-5-1958 which evidenced a non-existent sale must be held to be of no legal effect.

25. The mutation of 27-7-1962 is on a different footing.. As already found, with the payment of the whole of considerations the vendees became owners of the land in dispute by virtue of the agreement (Exh.P.13) of 9-7-1958. Accordingly, when Abdur Rehman sold his 1 share in the land in dispute to Mr. Cheema he was already the full owner thereof. Thus the mutation of 26-7-1962 does not suffer from any legal defect. This issue is decided accordingly. ISSUE N0. 7:

26. It is not in dispute that Mr. Cheema had paid the entire amount of the sale price at the time of purchasing the share of Abdur Rehman. Thus, he was a purchaser for consideration. The next question for consideration is whether he was a bona fide purchaser. In support of his case in this regard Mr. Cheema stated that before purchasing the share of Abdur Rehman he had fully satisfied himself in respect of the latter's title over the land in dispute. He elaborated his assertion by saying that before entering into the transaction of sale with Abdur Rehman, he inspected the agreements of 6-3-1957, 15-2-1958 (Exh.P.12) and 9-7-1958 (Exh.P.13) as well as the application which Miran Bakhsh had made to the Collector for selling the land to Abdur Rehman and Fateh Muhammad, the statement made by Miran Bakhsh before the Collector, and the order of the Collector; further, he also saw the postal receipts with regard to the despatch of the remaining amount of the consideration sent to Miran Bakhsh. I have already found that the entire consideration had been paid by the vendees to Miran Bakhsh and they had become the owners of the suit land in April, 1959. If after examining the documents to which Mr. Cheema has referred, as well as the representations made to him by Abdur Rehman he came to the same conclusion he was justified in doing so. I should, therefore, hold that he was a bona fide purchaser of the land in dispute. This issue is decided accordingly. ISSUE N0.16.

27. I have found above that Miran Bakhsh had sold the land during his lifetime and received full consideration thereof. The plaintiffs had therefore, no right whatsoever in the land in dispute. The fact that the mutation of sale, dated 29-5-1958 was prematurely attested in the absence of the parties loses significance in view of the subsequent completion of the sale. I am not prepared to grant any declaration to the plaintiffs in respect of this mutation.

28. For the reasons stated above, this suit is dismissed with costs. A. A. Suit dismissed.