2022 PLP 1284 (YLR)

ASIM HAFEEZ, J.

This Civil Revision is directed against judgment and decree dated 07.05.2011, handed down by first appellate court, whereby appeal of respondent was allowed and judgment and decree dated 04.03.2010 of learned trial court was set aside, by which judgment suit of the respondent for declaration of invalidity against Mutations Nos. 771 and 772 dated 22.04.1999 (impugned mutations) was dismissed.

2. Facts, essential for adjudication of the matter in issue, are respondent, who owned land subject matter of lis, filed suit seeking declaration against impugned mutations, on the premise that land was provided on lease and petitioners fraudulently started claiming ownership thereof on the pretext of alleged oral sale, transacted against consideration of Rs.380,000/-, recorded through impugned mutations. Petitioners contested the suit and alleged that land owned by the respondent was sold against lawful consideration received and acknowledged, however, respondent unlawfully leased land of his sisters through written lease agreement of 06.07.1999 and when sisters objected qua alleged arrangement, petitioners settled and paid the sisters in the wake of mediation, which prompted respondent to challenge concluded transaction of sale - though having no proximity with leasing arrangement. Issues were framed and evidence led, whereafter learned trial court dismissed the suit, upholding the validity of transaction and execution of impugned mutations. Respondent succeeded and appeal was allowed, and suit was decreed. Hence this Civil Revision against decisions at variance.

3. Learned counsel appearing for petitioner submits that in plaint, fraud was alleged against Revenue Officer, but none of them was made party to the plaint. Adds that learned appellate court decreed the suit solely on the ground that mandate of section 42 of the Land Revenue Act, 1967 ('Act of 1967') was not followed, without appreciating substantial compliance thereof. He referred to the contents of impugned mutations to show that attesting witnesses were identified as Patidar(s) and qualified as village respectables, who had identified the respondent. Adds that any irregularity in compliance of section 42 would not render transaction void in law. Referred to the case of "Muhammad Ishaq and 2 others v. Ghafoor Khan and another" (2000 SCMR 519). Adds that both the attesting witnesses - DW-7 and DW-8 - appeared and endorsed oral sale. Referred to decisions in the cases of "Hafiz Tassaduq Husain v. Lal Khatoon and others" (PLD 2011 SC 296). Further submits that attesting witnesses stated that parties were known to them, which statement was not cross-examined. Submits that Patwari Halqa and revenue officer appeared and proved the factum of recording and sanctioning of impugned mutations. Learned counsel read evidence of DW-4 (Patwari) and Tehsildar (DW-5). Further submits that possession of the petitioner was an admitted fact. Submits that respondent alleged coronary ailment as pretext for avoiding lawfully conducted sale transaction but failed to establish the fact alleged. He referred to the exhibits, showing hospital visits/medical treatment, to substantiate failure on the part of the petitioner to prove plea of alleged ailment.

4. Conversely, learned counsel for respondent read statement of PW-1 and asserted that factum of heart ailment was proved, and details of hospital visits, medical reports/prescriptions were evident from exhibits Exh.P-7 to Exh.P-10. Submits that written statement was deficient in material details, wherein nothing was mentioned regarding the time, date and place of alleged oral transaction, names of attesting witnesses - including alleged identification of Patidar. And improvements made through evidence were beyond the pleadings. Submits that facts which are not alleged cannot be proved. Reliance is placed to the cases of "Moiz Abbas v. Mrs. Latifa and others" (2019 SCMR 74), "Allah Ditta and others v. Manak alias Muhammad Siddique and others" (2017 SCMR 402), "Peer Bakhsh through L.Rs. and others v. Mst. Khanzadi and others" (2016 SCMR 1417), "Muhammad Sarwar v. Mumtaz Bibi and others" (2020SCMR 276). Adds that respondent was neither properly identified, before alleged recording and sanctioning, nor factum of consideration was proved. Learned counsel attacked the statement of DW-8 to allege that factum of possession under tenancy was admitted. Lastly, learned counsel highlighted discrepancies in the statement of attesting witnesses and revenue officer, in the context of evidence of the petitioner - DW-9.

5. Arguments heard. Record perused.

6. Written statement is examined, which is silent regarding any alleged transaction of oral sale on 18.02.1999. No details of persons / witnesses privy to alleged transaction were provided. No convincing evidence was led by the petitioners to prove delivery of possession pursuant to alleged transaction of oral sale. Written statement too is silent. Exh.D-3 copies of register Roznamcha Waqiati depicted that possession was delivered on 18.02.1999, however, no evidence led to prove this fact. And failure would endorse the statement of the respondent that possession of partial land, on lease, was delivered in March 1999 and other parcel through written lease on 06.07.1999. It does not appeal to reason that possession was delivered without receipt of consideration. Muhammad Salah Patwari Halqa - DW-4 - recorded oral sale on register Roznamcha Waqiati, who admitted that no signatures / thumb impression of respondent and the petitioners on Roznamcha Waqiati. It is notable that under subsection (1) of section 42 the acquirer has had to report alleged acquisition of interest in the land. There was no mention that the acquirer of alleged right - petitioners - was even present before DW-4 on 18.02.1999, when allegedly factum of oral sale was recorded. DW-8 - one of the attesting witnesses of the mutation had expressed lack of knowledge of sale transaction and admitted that land was leased to the petitioners by respondent. Petitioners failed to prove that possession was delivered pursuant to oral sale.

7. Another fatal failure is the proof of payment of consideration. Both Patwari Halqa - DW-4 and revenue officer - DW-3 - alleged that payment of consideration was not made before them, yes, they stated that factum of receipt of payment was acknowledged by the respondent. Whether factum of payment of consideration was proved. DW-7 and DW-8 - attesting witnesses alleged that payment was made in the office of Union Council Dhainser Pyian - this fact was not mentioned in the written statement, wherein only composite amount of Rs.380,000/- was mentioned without disclosing that separate consideration was alleged in the Roznamcha Waqiyati and impugned mutations of Rs.190,000/- each. DW-7 alleged that payment was made by Amin and Saif Ullah - later does not appear as a witness and no plausible explanation for his absence was proved. DW-7 alleged that he, Saif Ullah and Amin were present at the time of payment, which statement is negated by DW-8, who said that Rs.300,000/- was paid before me and I had no knowledge of balance payment. DW-7 and DW-8 were material witnesses of payment of consideration, both of whom differs in their statements. Petitioner, alleged purchaser, appeared as DW-9, who alleged that at the time of payment Hafeez Ullah, DW-7, DW-8, respondent and Saif Ullah were present - but DW-7 does not mention Hafeez Ullah. [Hafeez Ullah, Saif Ullah and Muhammad Amin are alleged purchasers. Revenue Officer - DW-3 alleged that during the course of sanctioning of mutation No. 772 Hafeez Ullah did not appear, who allegedly was the purchaser. Respondent has categorically denied receipt of consideration. Findings returned by learned appellate court in para 11 are approved, which are reproduced hereunder for facility of perusal; "Muhammad Ehsan DW-7 and Inayat Ullah DW-8 have been shown as attesting witnesses of the mutations. Muhammad Ehsan DW-7 has deposed that when appellant had appeared before Tehsildar he had admitted that he had received the consideration amount but Inayat Ullah DW-8 has deposed that appellant had not stated anything about the consideration amount before Tehsildar. Inayat Ullah DW-8 had stated that in his presence only Rs.3,00,000/- were paid whereas Muhammad Ehsan DW-7 had deposed that total consideration amount was paid in presence of all the witnesses. From statement of Inayat Ullah DW-1 it appears that the consideration amount in sum of Rs.3,00,000/- was paid in the office of Union Council on the day when Revenue Officer had allegedly attested the mutation but Muhammad Saleh Patwari DW-4 had deposed that when Muhammad Rafiq had appeared before him on 18.02.1999, appellant had admitted that he had already received the consideration amount:- (i). As per statement of Muhammad Saleh Patwari DW-4 appellant had already received the consideration amount (as per his admission) prior to 18.02.1999. (ii). As per statement of Inayat Ullah DW-8 an amount of Rs. 3,00,000/- was paid to the appellant in the Office of Union Council and thereafter they had appeared before Tehsildar. Appearance of appellant and witnesses has been shown before Tehsildar on 22.04.1999. (iii).As per statement of Muhammad Ameen respondent No.1 DW-9 the consideration amount was paid to the appellant in the office of Union Council prior to their appearance before Tehsildar i.e. on 22.04.1999 when they had appeared before Tehsildar."

8. There is another aspect of matter. Contents of the impugned mutations contained reference to earlier statements dated 05.04.1999 - and mutations were sanctioned on 22.04.1999. DW-1 - Naksh Muhammad, record keeper - stated that no record of statements on 05.04.1999 were available. DW-4, Muhammad Salah Patwari Halqa failed to give record of said statements, who stated in his examination in chief that he was Patwari Halqa at Dhainser Pyian on 22.04.1999 - no details of earlier statements were made, none of the witnesses explained this critical fact. DW-2 - Patwari Halqa with record - alleged that copy of Part-Patwar mutations Nos. 771 and 772 did not contain order of revenue officer dated 05.04.1999. He further stated that on Part-Patwar mutations Nos. 771 and 772 presence of the parties was not reflected in the order of the revenue officer, and further stated that he was not aware that whether attendance of the parties was reflected in the order of revenue officer in Part-Sarkar, which discrepancy remained irreconciled and substantially affected the credence of alleged transaction. Submissions that alleged identification of respondent by the DW-7 and DW-8, being Patidar(s) constitute substantial compliance of the requirements of section 42 of the Act of 1967 are misconceived. Both the witnesses and Patwari Halqa had not even pleaded their status as Patidar(s). Mere mentioning of status of Patidar(s) in the mutations and at the footnote of the signatures of said DW-7 and DW-8, in view of facts of the case, when respondent is not the cultivator of the land and had alleged leasing of land to the petitioner, does not meet the requirement of section 42 of the Act of 1967. DW-4 author Patwari mentioned only DW-7 as identifier and had not alleged or affirmed the status of DW-7 as Patidar. Petitioners had not alleged anything in the written statement that respondent was identified by DW-7 and DW-8 - who were neither the witnesses of oral sale nor had alleged any knowledge / privity to conduct of such transaction on 18.02.1999. And conversely, evidence led by the respondent - PW-3 and his daughter - PW-2 - cannot be overlooked, which evidence remained unshaken. Hence, no compelling evidence is available to believe that respondent was present and properly identified for the purposes of meeting statutory requirements.

9. Mutation by itself did not create or destroy an existing right but mere reflection of the revenue record, authenticity and validity thereof has had to be essentially ascertained qua the underlying transaction. Mutation merely records transfer, alleged to have taken place, which per se has no evidentiary value - See "Mst. Kalsoom Begum v. Rizwan Shah and others" (2020 SCMR 2029) and "Member Board of Revenue/Chief Settlement Commissioner, Lahore and 2 others v. Mst. Sajida Parveen and others" (2010 SCMR 1942). Petitioners are required to prove the underlying transaction, no refuge can be taken behind impugned mutations on the premise of presumption of correctness, petitioners failed to prove it. Reference is made to the dicta laid in the cases of "Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others" (PLD 2003 Supreme Court 849), "Muhammad Akram and another v. Altaf Ahmad" (PLD 2003 Supreme Court 688) and "Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs" (2008 SCMR 855).

10. In view of the above, it is established that evidence led by the petitioners, to prove alleged oral transaction, payment of consideration, execution of impugned mutations and factum of possession under arrangement of oral sale is deficient and unconvincing. The case law cited by learned counsel for the petitioners is distinguishable and not attracted in the context of the facts of this case and evidence available. Reference to the case of Muhammad Ishaq and 2 others (supra) is misplaced, the genuineness of mutation is otherwise not proved in this case. The principle laid down in case of "Sikandar Hayat and another v. Saughran Bibi and 6 others" (2020 SCMR 214) is not attracted to the facts of this case. No case of alleged illegality, misreading-cum-non-reading of evidence or irregularity in exercise of jurisdiction is made out. Learned appellate court has rightly set-aside the judgment and decree dated 04.03.2010, which decision was inconclusive, devoid of reasoning and otherwise suffering from gross misreading of evidence and legal defects.

11. The petition is devoid of merits and same is, hereby, dismissed. No order as to costs. ZH/M-21/L Revision dismisse