1988 PLP 1420 (CLC)

The appraisal of evidence made by the two Courts below has thus to proceed keeping in view the aforesaid principles.

5. I have gone through the record with the assistance of the learned counsel for the parties. The learned trial Court for holding that neither the transaction of sale nor the passing of the consideration was established gave the following reasons:‑ (i) that in a transaction based on mutation, initial onus to show that the transaction had factually and bona fidely taken place is on the party claiming thereunder. In the instant case much room for doubt was left by the statement of Syed Sajjad Shah DW.5, Tehsildar, the Attesting Officer, as he deposed that the vendors or their identifier Shah Muhammad was not known to him personally and he relied largely on the patwari's affirmation of facts. (ii) that the conduct of the Patwari who thus assumed extreme importance stood exposed by the fact that in rapat roznamcha he wrote that Ch. Farzand Ali Lambardar came to lodge the report about the sale of land on 10‑4‑1964 but he forgot to write the name of said Lambardar and recorded it as Muhammad Ismail in column of the relevant mutation No.167 Ex.P

3. Both Farzand Ali PW6 and Muammad Ismail PW5 repudiated this position and denied having reported any such sale to the patwari. (iii) that P.W.7 Shah Muhammad, however, affirmed the correctness of the impugned mutation but he could hardly help resiling from this in view of his signature on the said mutation. Still he stated that a sum of Rs.11,000 had not been paid to the appellants‑plaintiffs in his presence. (iv) that the evidence produced by the respondents‑defendants is self‑contradictory on the point of location and the persons in attendance at the time of alleged payment of earnest money. (v) that it appears too magnanimous on the part of the respondents‑defendants to believe that they hardly bothered for a receipt of no meagre amount of Rs.7,000 at the time when the appellant‑plaintiffs had not even become owners of major portion of the suit land; that there has been inconsistency about the motive for sale on the part of the appellants‑plaintiffs and that the factum of possession of the suit land is of material consequence. (vi) that the respondents‑defendants admitted that the appellants/ plaintiffs remained in possession of the land in question after the sale of the land for two years but it was sought to be explained that it was due to the fact that the land was taken for cultivation on batai basis but this explanation stands contradicted by the entries of the khasra girdawari Ex. D2 produced by them. (vii) that the averment about delivery of possession of the land in dispute in roznamcha waqiati Ex.Pl and mutation Ex.P3 stands contradicted by the admitted factual position that the possession of the land remained even after the alleged sale for two years with the appellants‑plaintiffs. This shows that record was prepared in simple contravention of facts and this serves as an independent evidence showing veracity of plaintiffs contention. The learned trial Court was further of the view that "the simultaneous attestation of mutation No. 166 the validity of which is undisputed, and mutation No.167 does not take the respondents defendants' case any further. Of course it might have afforded an opportunity to the respondents‑defendants to devise a plan conceived in collaboration with the patwari to a juicy piece of estate without parting with any amount".

6. As against the aforesaid reason,, recorded by the learned trial Court, the learned appellate Court accepted the appeal by giving importance to the following factors: (a) that the evidence of Sajjad Hussain read with the evidence of Shah Muhammad Lambardar and the patwari proves beyond any manner of doubt that the plaintiffs appeared before the Revenue Officer and made a statement that they had sold the suit land in favour of the defendants. The aforesaid fact stands supported from the possession of the land which remained with the plaintiffs for two years and then the possession was delivered to the defendants. The plaintiffs say that the defendants worked as tenants on the suit land. 'They have not been recorded as tenants but they have been recorded as owners in the revenue record including the jamabandi. (b) that the transaction took place in April 1964. It was after 5 years of the sale that the plaintiffs brought a suit that they did not make any sale in favour of the defendants. It was not believable that the transaction did not come to light during the period of 5 years. From the aforesaid facts it was concluded by the learned appellate Court that the plaintiffs had made a sale in favour of the defendants. On the question of consideration by referring to the statements of Noor Muhammad DW1, Muhammad Hussain DW2 Shah Muhammad DW3 and Muhammad Hussain (Defendant) DW7 the learned lower appellate Court observed that the sale price of Rs.18,000 was actually paid. This is in all what weighed with the learned appellate Court.

7. The first thing to be noted is that the learned appellate Court while reversing the judgment of the learned trial Court failed to advert to the reasons on the basis of which the learned trial Court had come to the conclusion that neither the sale transaction nor the payment of the consideration was established. Secondly the learned first appellate Court was wrong in observing that the appellants/ plaintiffs had taken 5 years to challenge the sale. The mutation was attested on 29‑4‑1964. It stands admitted by the respondents defendants that the possession remained with the appellants‑plaintiffs for two years even after attestation of the sale mutation. The explanation given by the respondents‑defendants that the appellants had obtained the land for cultivation on batai basis and their possession was in the capacity of tenants stood contradicted by the entries of khasra girdawari Ex/ D2 produced by them as the appellants‑plaintiffs were shown in possession as owners. The names or possession of the respondents‑defendants came to be recorded for the first time in the khasra girdawari for 1967‑

68. The suit was filed on 17‑5‑1969. It will, therefore, be seen that the observation of the learned appellate Court that it was not possible that the transaction had not come to light during the period of 5 years is unwarranted.

8. The case of the respondents‑defendants is based on mutation Ex.P3 and oral evidence of the witnesses produced to establish the sale transaction and payment of sale price The copy of mutation Ex.P3 was relied upon as the presence of the appellants plaintiffs as well as their admissions as regards receipt of sale price and delivery of possession stand recorded therein. The examination of evidence by the learned trial Court proceeded on sound principles and reasons given for not believing the version of the respondents‑defendants are sound and convincing. The factors noted by the learned trial Court are that the mutation was entered on the basis of the report made by Farzand Ali Lambardar in the Roznamcha waqiati EX.P

1. None of the appellants‑plaintiffs admittedly appeared to report the alleged sale. The report allegedly made by Farzand Ali Lambardar also stands belied as in the mutation Ex.P3 the name of the person who had reported the sale was mentioned as Muhammad Ismail Lambardar. Muhammad Ismail and Farzand Ali both appearing as P.Ws. stated that they neither made any report of sale to the patwari nor any sale transaction was agreed to by the parties in their presence. Noor Muhammad DWI., Muhammad Hussain DW2 and Shah Muhammad DW3 are the witnesses of transaction and payment of Rs.7,000 as earnest money. Noor Muhammad DW stated that the transaction was agreed in the house of Muhammad Hussain whereas Muhammad Hussain DW2 and Shah Muhammad DW3 deposed that the transaction took place and the earnest money was paid in the baithak of Allah Bakhsh father of Muhammad Hussain. Muhammad Hussain DW is also related to the respondents‑defendants. All of them further stated that the balance of the sale price amounting to Rs.11,000 was agreed to be paid at the time of attestation of the mutation. Muhammad Hussain (defendant) PW7 stated that the balance of the sale consideration was paid in the presence of Shah Muhammad Lambardar PW7 at the time of the attestation of mutation. He added that mutation was attested at the Dera of aforesaid Shah Muhammad Lambardar. This Shah Muhammad appear in or as PW7, however, stated that neither any bargain was agreed upon before him nor any payment was made in his presence. The falsity of the assertion that the balance of consideration amounting to Rs.11,000 was paid at the time of attestation of mutation stands further belied from the fact that neither Muhammad Hussain nor Muhammad Sadiq respondents‑defendants were present at the time of attestation of the mutation. It stands recorded in the copy of mutation Ex.P3 that Allah Bakhsh appeared on behalf of respondents‑defendants. Had Muhammad Hussain respondent‑defendant been present he would have been marked present and not Allah Bakhsh his father. Learned first appellate Court failed to take notice of the aforenoted factors. In fact on the question of payment of balance price amounting to Rs.11,000 there is no evidence except the bald assertion of Muhammad Hussain. The evidence of the witnesses of the respondents‑defendants on the question of payment of earnest money as noted in one of the paras above does not inspire confidence and was therefore not relied upon by the learned trial Court. Learned trial Court was, therefore, perfectly justified in coming to the conclusion that neither transaction of sale nor payment of consideration stood proved on record. The learned first appellate Court was not justified in setting aside the judgment and decree passed by the learned trial Court.

9. For the reasons given above this appeal is accepted, the judgment and decree dated 29‑11‑1971 of the learned Additional District Judge, Faisalabad, is set aside with the result that the judgment and decree of the learned Civil Judge stand restored. The respondents defendants will also pay costs of the appellants‑plaintiffs throughout. S.Q./A‑246/L Appeal accepted