P L D 1988 Peshawar 48 (PLP)

2. The defendant No.1 confessed judgment in favour of the plaintiff. The defendants Nos.2 to 4 contested the suit on many grounds, giving rise to the following issues:‑ (1) Whether the plaintiff has got a cause of action? OPP (2) Whether the suit is within time? OPP (3) Whether the suit is, not competent in its present form? OPD (4) Whether the plaintiff is estopped by his own conduct to bring the present suit? OPD (5) Whether the suit is bad for non‑joinder of necessary parties OPD (6) Whether defendants 2 to 4 are bona fide purchasers for valuable consideration and hence their rights are protected under section 41'of the T.P. Act? OPD (7) Whether the plaintiff is entitled to the declaration and injunction as prayed for? OPP

3. The learned trial Judge found that the benefit of section 41 of the T.P. Act was available to the defendants Nos.2 to

4. He also held that since the transaction of sale between the plaintiff and the defendant No.1 related to Khasra No.2038, the plaintiff was not entitled to make good his loss in the area from the remaining land of the defendant No.1. He, however, came to the finding that the plaintiff was entitled to receive back the excess amount paid by him as sale consideration, which was held to be Rs.1,250 and consequently, by the judgment and the decree dated 29‑1‑1977, he decreed the suit for the recovery of this amount in favour of the plaintiff against the defendants Nos.5 to 7, who were the successors of the defendant No. 1.

4. Dissatisfied with the decree passed by the learned trial Judge, Hussain plaintiff preferred appeal from it to the learned District Judge, Abbottabad, and so did the legal representatives of the defendant No.1. The learned District Judge disposed of both the appeals by a single order dated 21‑4‑1979, holding that the defendants Nos. 2 to 4 were not entitled to the protection cinder section 41 of the T.P. Act and that Hussain plaintiff having purchased 10 kanals of land out of the disputed Khasra was owner in possession thereof and that the sale of the suit land, by mutation No.2301, attested on 19‑4‑1971, in favour of the defendants Nos.2 to 4 to that extent was void, ineffective and inoperative against the plaintiff rights.

5. The contesting defendants Sattar Muhammad and others, dissatisfied with the decree passed by the learned District Judge, have preferred this second appeal against the said decree, which on the request of the learned counsel for the appellants has been heard as a revision petition.

6. Mr. Muhammad Younas Tanoli, Advocate, appearing for the petitioners, contended that the learned lower appellate Court based its decision on two‑fold grounds, one that the entry in Roznamcha Waqiati in respect of the sale effected by Abdul Khaliq defendant related to an area of 10 Kanals out of the disputed Khasra and the other that Abdul Khaliq defendant in his written statement submitted in Court admitted to had in fact sold 10 Kanals of land out of the suit Khasra in favour of the plaintiff. These grounds, the learned counsel argued, did not constitute legal and sufficient evidence to warrant a decree in favour of the plaintiff. The decision made by the learned lower appellate Court, he argued, was, therefore, illegal and merited to be set aside. While further elaborating his arguments, the learned counsel for the petitioners contended that the written statement filed in Court by Abdul Khaliq after he had transferred his entire ownership in the suit land in favour of others could not bind the petitioners who were purchasers from him of the suit land. In this regard, he relied on the Supreme Court authority in Saleem and another's Case (P L D 1982 Supreme Court 457). He further argued that Abdul Khaliq having not appeared in evidence was not subjected to cross‑examination in respect of the fact‑in‑issue and the written statement alone filed by him, in the circumstances, could not be used as evidence so as to bind the petitioners in so far as their interest in the suit land is concerned. He also argued that the Roznamcha Waqiati does not form part of the record of rights and no presumption of correctness, in law, is attached there to and the entry made therein having not been proved in this case did not constitute legal evidence on which finding in favour of Hussain plaintiff could be based by the Court. Same was his argument in respect of the sale mutation attested in favour of Hussain plaintiff, which, according to the learned counsel, went against the plaintiff instead of favouring him. The learned counsel further contended that the entries made in the jamabandi, to which the presumption of truth is attached, wherein the sale mutation in favour of Hussain plaintiff was incorporated were against him. His other contention was that the learned lower appellate Court wrongly denied the protection of section 41 of the T. P. Act to the petitioners who in the circumstances were entitled to the same.

7. The learned counsel appearing for Hussain, the respondent No.1, however, argued that the entry made by the patwari in Roznamcha Waqiati, in the ordinary course of his business, in respect of the sale of 10 Kanals of land out of the disputed khasra in favour of Hussain plaintiff constituted good evidence to provide basis for a finding in his favour, especially when in the sale mutation the transferred land was shown to be 10 Kanals, which fact was further confirmed by Abdul Khaliq in his written statement filed in the Court. His contention was that in the transaction between the respondent NO.1 and Abdul Khaliq no other person figured as a party, and between them the entry in Roznamcha Waqiati coupled with the admission in the written statement by Abdul Khaliq in support of that entry constituted good legal evidence on which the learned lower appellate Judge could conveniently base his finding in favour of Hussain plaintiff, which he rightly did. He also contended that since from the evidence brought on record it does not appear that before purchasing the suit land from Abdul Khaliq the petitioners did take reasonable care in ascertaining whether Abdul Khaliq had a title in the land which he was transferring in their favour, and for that reason and because there was no express or implied consent of Hussain plaintiff to the transfer by Abdul Khaliq in their favour the protection of section 41 of the T.P. Act was rightly refused to the petitioners by the learned District Judge.

8. In regard to the judgment of the learned trial Judge it may be observed that the finding reached by him in an indirect manner in respect of the sale of 10 kanals of land by Abdul Khaliq in favour of Hussain plaintiff was arrived at without discussing the evidence brought on record. For this reason alone, such a finding, which is no finding in law, shall have to be kept out of consideration. In the circumstance, therefore, the rule of concurrent finding on the question of fact is not attracted to this case. It is true that the learned District Judge, while deciding the appeal, did advert to the material brought on record. In doing so he referred to and relied on the report recorded by Patwari Halqa in the Roznamcha Waqiati in respect of the transfer by Abdul Khaliq of 10 kanals of land out of the disputed khasra in favour of Hussain plaintiff. He has also placed reliance on the entries made in the sale mutation attested in favour of Hussain plaintiff in respect of the suit land, and so has he relied upon the written statement filed by Abdul Khaliq before the trial Court. It is undisputable that no presumption of correctness attaches i to the entry made in Roznamcha Waqiati, as the same does not form, part of the record of rights. Such an entry is, therefore, to be proved, especially when the same is to be used against the subsequent purchaser, in the same manner as any other fact is proved. The vendor Abdul Khaliq did not appear in the witness‑box as witness for the plaintiff, and the petitioners were, therefore, deprived of the right of cross‑examining him in order to bring to light the true facts. The mere filing of written statement by him after he had totally divested himself of the ownership in the suit land, and in the circumstances when he had transferred it for consideration in favour of the petitioners, could not be regarded as an admission which would favour Hussain plaintiff against the petitioner, and could also therefore, not be taken as corroborating the entries made in the Roznamcha Waqiati. Supreme Court's decision in Saleem and another's case, already noted, is an authority in support of the view, which I am taking. The Patwari Halqa who had made entry in the Roznamcha Waqiati and also in the sale mutation, attested in favour of Hussain plaintiff, was not produced in evidence, who alone could tell, after being subjected to cross‑examination, whether the report recorded was of Abdul Khaliq and whether while reporting the sale Abdul Khaliq did say that he had contracted to sell 10 kanals of land out of the disputed khasra in favour of Hussain plaintiff. No reason is available on the record as to why he has not been produced. His having been withheld from evidence raises in law a presumption adverse to Hussain plaintiff. As it is, the relevant entry made in the Roznamcha Waqiati stood not proved.

9. Coming to the sale mutation No.184g attested in favour of Hussain plaintiff on 15‑12‑1965, the entries made in columns Nos.3, 8, 9 and 10 of this mutation show a sale of 100/1825 shares in the disputed Khasra made by Abdul Khaliq in favour of Hussain plaintiff. The order recorded on this mutation by the Circle Revenue officer also shows that 100/1825 shares out of this khasra were sold in favour of Hussain plaintiff. Evidently, therefore, all material entries in this mutation are against Hussain plaintiff in so far as his prayer in this suit is concerned. The only fact which favours him is that while entering the transferred area the Patwari Halqa mentioned it to be 10 kanals, and not 5 kanals which was equal to 100/1825 shares. This entry of area made by Patwari Halqa in the sale mutation, which obviously appears to be a wrong calculation, could not be taken as sufficient proof of the fact that 10 kanals of land had been sold by Abdul Khaliq in favour of Hussain plaintiff, when all other material entries, including the order of the Revenue Officer, were against him. Further, in the subsequent jamabandi the sale in favour of Hussain plaintiff was given effect to for only 5 kanals of land ands not for 10 kanals.

10. As to the written statement filed by Abdul Khaliq before the learned trial Judge, wherein he mentioned to have sold 10 kanals of land to Hussain plaintiff, suffice it to say that on the authority of the Supreme Court in Saleem and another's case this written statement I could not be used against the petitioners because at the time when it was filed in Court the writer thereof (Abdul Khaliq) had already transferred all his ownership in the suit land in favour of the petitioners. This written statement could not, therefore, bind the petitioners, and was of no help to the case of Hussain plaintiff set up in Court.

11. No other oral evidence in this respect was led by the plaintiff at the trial and the statement of PW Gul Din in this respect being a hearsay could not be taken into consideration as a legal piece of evidence.

12. For the foregoing reasons, I am of the view that the evidence relied upon by the learned lower appellate Judge for recording finding in favour of Hussain plaintiff was not legal and sufficient evidence to lend basis for resting finding thereon.

13. I am in full agreement with the learned lower appellate Judge that on the basis of the evidence tendered by the petitioners at the trial the principles contained in section 41 of the T.P. Act could not be invoked in their favour, as the taking of reasonable care on their part before purchasing the suit land from Abdul Khaliq was conspicuously missing on the record. The finding of the learned lower appellate Judge on this issue is, therefore, confirmed.

14. In the light of the evidence brought on record and for the reasons recorded by the learned trial Judge, which I need not repeat here, the plaintiff was entitled to recover the excess amount paid by him to Abdul Khaliq, for the recovery of which a decree was passed by the learned trial Judge in his favour.

15. As a net result of the discussion above, I accept this revision petition, set aside the decree passed by the learned lower appellate Judge and restore the one passed by the learned trial Judge, with a slight modification that it shall be deemed to have been passed against the property left by Abdul Khaliq in the hands of his legal heirs, who are defendants in this case. In the circumstances of the case, I make no orders as to costs. A.A. /595/P Order accordingly.