1996 SCMR 78 (PLP)

The main contention on which leave to appeal is prayed for is as to whether the learned High Court was legally justified on facts of the present case, io reverse the finding of fact recorded by the trial Court, not interfered with by the first Appellate Court, and that the transaction was that of sale and. not gift. In order to appreciate the contention, salient feature of the case has to be looked into and in depth appraisal of the evidence would be necessary specially that part of the evidence which prevailed with the learned High Court in setting aside the concurrent finding. Mian Shakirullah Jan, the learned Judge in Chamber, who was seized of the matter, on re‑appraisal of the evidence has observed that the Courts below have misconceived the facts of the case, misread the evidence and misconstrued the law which has resulted in gross injustice in the case.

5. It is an admitted fact that apart from the impugned Mutations Nos.10084, 10089, 10090, 10091 and 10092 several other mutations i.e. Iv4utation Nos.10078, 10079, 10080, 10081,' 10082, 10083, 10085, 10086 and 10087 were entered by the Patwari Halqa on one and the same day 9th April, 1988. All these were between the same set of parties, namely, Mubarak Din, Mir Sakam Din, Gul Qamar Din sons of Amal Din, their sons, and other close relatives and family members in favour of one another in respect of different Khasra numbers which they jointly owned. It was the case of the respondents‑defendants that these mutations were entered by way of family settlement with an object that each of the family member shall become an exclusive owner of specific Khasra number, to the exclusion of other share holders of the joint holding, so that the land could be effectively managed which was otherwise difficult as a joint holding. As a result of such settlement, the gift mutations were entered with the Patwari excepting mutation No.10085 which was that of redemption, and the entries in the relevant column dated 9‑4‑1988 are as under:‑‑ Mutations Nos.10078 to 10082, 10085 to 10088 were attested on 24‑4‑1988 as of gift while the remaining mutations i.e. the mutation under pre‑emption, for no reason whatsoever, were left out and not attested and these were subsequently attested on 29‑5‑1988. In these mutations the words `Hibba' and 'Wahiban', referred to above, in the relevant column of the mutation, were cut and over‑written as `Bai' and,Rs.1,000 was inserted as the sale consideration for the land in each of these mutations though the area covered by these mutations greatly varied. It was, therefore, rightly observed by the learned High Court that if the parties to the transaction had changed their mind the revenue authorities were required to reject the gift mutations and to order the entry of fresh mutations of sale after recording such report in `Roznamcha Waqiati', as required under section 42(1) of the West Pakistan Land Revenue ,P Act, 1967, at the instance of the owners and then all formalities required for completion of a transaction of sale should have been completed before attestation of the sale mutation. It is evident from the record that neither such report was made to Patwari nor any entry was made in the `Roznamcha' wherefrom it can be gathered that both the parties had changed their mind and agreed to convert the gift transactions into that of sale.

6. Baitullah, Patwari Halqa (P.W.1) who was examined in Court has stated that he entered all these mutations at the instance of the parties and these were duly verified by the Girdawar Circle as such and there is nothing in his record to show that the parties to the transaction had changed their mind or that they had reported that the transaction in question were of sale and not of gift. Similar is the statement of Haji Muhammad Ali Khan, Office Qanungo who produced the original mutations, copies Exh.PW‑1/2, and has sated that these mutations were duly verified by the Girdawar but subsequently the word `Hiba', has been cut down and that these cuttings do not bear the date and signatures. There is nothing in black and white on behalf of the donors to show that the gift mutations were converted into that of sale.

7. The learned High Court in setting aside the finding of the Courts below found the following informities in the case of which no notice had been taken and which have been ignored while giving their findings:‑‑ (i) entering of the mutations in dispute as gift mutations on 9‑4‑1988 alongwith other mutations, (ii) the attestation of some of the mutations on 24‑4‑1988 while leaving the mutations in question unattested without cancellation and without passing any order on them even without writing any note on the same on the said date i.e. 24‑4‑1988 when other mutations were attested and they were already entered in the mutation register, (iii) by converting the gift mutation into sale without compliance of the mandatory provisions for entering and attesting of the mutations, (iv) the holding of the assembly where the mutations were attested in the place of Gul Ayub, close relative of the contesting defendants who bore the expenses of the common assembly, (v) the presence of Bahadar Ali in the assembly and his meeting with the Patwari without any job of his own, (vi) the subsequent institution of pre‑emption suits by the contesting defendants, (vii) the mentioning of Rs.1,000 as value of the property ranging from 1 Kanal 10 Marlas to 9 Kanals 18 Marlas i.e. a nominal price. (viii) without any solid reason or cause with the donor or the donee for asking the Revenue Officer for changing the mutations from gift to sale. Learned High Court further observed that: all these facts enumerated above `speak of volumes of mala fide, ulterior motive and fraud" on the part of the revenue officials in collusion with the contesting defendants. The learned High Court has rightly observed that it is the endeavour of the Court to get the correct understanding of the parties' mind in order to deduct correct result therefrom.

9. In the present case what actually was the purpose behind these mutations, was to get the suit' land partitioned in a manner that each one of them shall become the owner of a specific Khasra number, to the exclusion of others, for, that the gift mutations were resorted to as a device to achieve that end.

10. Regarding bar of jurisdiction of the Civil Court under section 172, 1 subsection (2), clause VI of the,‑West Pakistan Land Revenue Act, 1967 it may be pointed out that exclusion of jurisdiction of Civil Court relates to the correction of the entries made by the Revenue Officer in performance of his duty without touching the right of the persons in the land, but whenever such entries interferes with the rights of a person in the land record in the Record of Rights, and such person feels aggrieved, for correction of such entries he has to B approach Civil Court for declaration under section 53 of the Act or in other words under section 42 of the Specific Relief Act both the re4ef available being of the same nature and identical. The dispute herein pertained to the nature of the transactions in the suits for pre‑emption based on the impugned mutation. The suits were therefore rightly held triable by the Civil Court. For the reasons given above we find no infirmity in the judgment of the learned High Court and refuse to grant leave to appeal in all the five petitions. AA./R‑269/S Leave refused.