2012 PLP 699 (CLC)

AMIN-UD-DIN KHAN J.

Through this civil revision the petitioners have challenged .the judgment and decree dated 12-5-2001 passed by the learned Additional District Judge, Rahimyarkhan whereby appeal filed by the petitioners was dismissed against the judgment and decree dated 8-2-1996, consequently suit filed by the petitioners was dismissed.

2. Brief facts of the case are that on 8-7-1982 the predecessor-in-interest of the petitioners instituted the suit for declaration to the effect that Karim Bux son of Summa predecessor-in-interest of petitioners/ plaintiffs Nos.1 to 4 and Qadir Bux predecessor-in-interest of petitioners Nos.13 to 38 and other petitioners are owners in possession of agricultural land measuring 410 kanals 2 marlas in Khata No.15/15 situated in Mauza Dunya Pur Ghanga, Tehsil Rahimyarkhan fully described in the head note of the plaint as well as to the effect that Karim Bux son of Summa and predecessor of petitioners Nos.13 to 38 are owners in possession of 100 kanals of land in above mentioned Mauza in Khata No.16, the detail of which has also been given in the plaint. The plaintiff challenged the validity of Mutations Nos.377 and 378 in favour of predecessor-in-interest of respondents Nos.1, 2 and 3, allegedly sanctioned in the year 1946-47. The plaintiffs challenged the mutations on the basis that these are forged, collusive and against the facts therefore, they prayed that these mutations be declared as such having no adverse effect on the rights of the petitioners. The defendants appeared and filed their written statement. As per defence of the respondents /defendants that a decree of pre-emption with regard to the suit property was passed in favour of their predecessors in the year 1926,therefore these mutations have been passed on the basis of that decree. The learned trial court on the divergent pleadings of the parties framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence which are fully noted in the judgment of trial court ,therefore, needs not to be mentioned in detail in this judgment.

3. The learned trial court vide its judgment and decree dated 8-2-1996 recorded findings on Issues Nos.2 to 7 and 9 in favour of the defendants and against the plaintiffs and dismissed the suit. The learned first appellate court upheld the judgment and decree passed by the learned trial court hence this civil revision.

4. Learned counsel for the petitioners contends that from scrutiny of Mutations Nos.377 Ex.P-6 and 378 Exh.P-7 it depicts that these mutations are self-contradictory. Firstly, these were incorporated as Qabiz, Ghair Qabiz on 19-1-1944, whereas according to him these mutations were never attested in favour of predecessor-in-interest of defendants/respondents. Further contends that these are in violation of Land Record Manual. Further contends that defendants would have the best evidence which could be in their favour i.e. pre-emption decree passed as alleged by defendants in the year 1926. Further contends that the statement of PW.2 Barkat Patwari which was relied, is not much helpful by the respondents rather it goes against them. Further contends that if there is any difference of entry of Parat Sarkar and Parat Patwar to the impugned mutations, it was the duty of the defendants/respondents to prove the same because they are the beneficiary of the impugned mutations. Further contends that defendants in their evidence have admitted possession of the plaintiffs/petitioners over some portion of land. Further contends that Mutation No.543 Exh.P-3 clearly proves the case of the petitioners that fraud was committed with them as according to him through registered Tamleeqnama some portion of land was transferred in favour of the predecessor-petitioners that could not be in any way the subject-matter of pre- emption decree as this transfer was done through registered Tamleeqnama. This fact shows that the fraud has been committed by the respondents. Further contends that respondents were bound to prove that on which sale the suit for pre-emption was filed and further that about which and decree was passed. Further contends that at the time of submission of written statement the defendants admitted that one portion, final page of these mutations is missing from that record.

5. Conversely, learned counsel for the respondents/defendants states that there are concurrent findings of fact recorded by both the courts below, therefore, the petitioners have no case before this Court. Further contends that the plaintiffs failed to prove their case, therefore both the courts below rightly refused the relief prayed by them and rightly dismissed their suit. Further contends that mutations are incorporated in Jamabandi therefore, presumption of correctness under the law is attached. Further contends that the original owner died and suit was filed in the year 1982, therefore, it was not maintainable. Further contends that the impugned mutations were passed on the basis of decree passed by the Civil Court, therefore, the suit is not maintainable.

6. I have heard the arguments of the learned counsel for the parties and have examined the record.

7. The total case of the parties revolves around Mutations Nos.377 and 378 impugned in the suit. First of all, the mutations by itself do not create title and a person deriving title thereunder has to prove that the mutation was duly entered and attested. It is also well-settled law that any person who is acquiring title through mutation the burden of proving transaction embodied in the mutation is upon him. I am fortified by the judgment of the august Supreme Court of Pakistan reported as Hakim Khan v. Nazeer Ahmed Lughmani and 10 others (1992 SCMR 1832). Further mutation is not a part of record of rights, no presumption of correctness is attached to the mutations and entries, till the time these entries are proved through independent and cogent evidence. Further that entries in violation of section 42 of the Land Revenue Act, 1967 are void and nullity in the eyes of law. Further that mutations by itself do not create or confer title. It is an entry in the Revenue Record on the basis of any instrument or decree etc. The person claiming a title through mutation, burden of proving the transaction embodied in the mutation is upon such person. In this regard, I have taken light from the judgment of this court reported as Muhammad Ali and 2 others v. Barkat Ali and 5 others (2000 CLC 814). It is clear that the pre-emption decree passed in the year 1926 on the basis of which alleged impugned mutations have been claimed is not on the surface of the file. There is no direct or indirect evidence with regard to the existence of any pre-emption decree in the year 1926. Further originally these mutations were not entered on the basis of any pre- emption decree, therefore, these mutations are even self- contradictory. It not proved from the record on which mutation of sale the suit was filed. The defendants who are beneficiary of the impugned mutations were bound under the law to prove these mutations with cogent and independent reliable evidence but there is no such evidence available on the record produced by the defendants. No doubt the plaintiffs have to prove their case on the basis of their own evidence. The beneficiary of the mutation is bound to prove the transaction and valid attestation of the mutation which the defendants/respondents miserably failed to do so. Even the possession of the plaintiffs has not been denied by the other side. The mutation proceedings are not judicial proceedings, therefore, they do not provide starting point of limitation. Even otherwise, for wrong mutation there is no bar of limitation against co-sharers or co-owners in the suit in hand. It is not denied by the defendants that the plaintiffs are owners in the suit Khata. In this regard the judgment of august Supreme Court of Pakistan reported as Moolchand and 9 others v. Muhammad Yousaf (udhamdas) and 3 others (PLD 1994 SC 462) gives the light. In a case of declaratory suit the limitation starts from the date of threat to the title of the plaintiff. Reliance can be placed upon Haji v. Shuka Yar (PLD 1987 SC 453), Every entry in the succeeding Jarnartardi gives fresh cause of action and will be presumed a last attack on the plaintiff's right or denial thereof. When the plaintiffs are co-sharers in the Khata, they cannot be knocked out in the light of case titled Wali and 10 others v. Akbar and 5 others (1995 SCMR 284). No doubt Jamabandi has attached presumption of correctness but it is rebutable presumption. Furthermore it can also be scrutinized how that entry came into Jamabandi. In the case in hand when mutations are not valid one, therefore, presumption of correctness is not available in this case. The contention of the learned counsel for the respondents that concurrent findings of fact cannot be interfered in the revisional jurisdiction, I find that it is not hard and fast rule. This Court has jurisdiction to see that how concurrent findings have been recorded by both the courts below. This court has power under section 115, C.P.C. even to scrutinize full evidence of the parties and to see how the findings have been recorded. This court cannot blindly endorse concurrent findings. 'Learned counsel relying upon Faqir Muhammad Khurshid and others v. Chief Administrator of Auqaf PLD 1987 SC 60 contended that entry of mutation be presumed to be true. I am afraid that this is not a general rule. The facts reported by the judgment of the August Supreme Court are absolutely different from the case in hand. Further that if a void order is to be challenged by a person that must be challenged within a reasonable time. No doubt a void order has to be challenged within reasonable time but in the case-law as submitted above all proceedings are coram non judice and every fresh entry gives a fresh threat and cause of action, therefore, bar of limitation is not available to the defendants. For what has been discussed above, I set aside the findings recorded by both the courts below on Issues Nos.2 to 7 and 9 and set aside the judgments and decrees passed by both the courts below. Resultantly, this civil revision is allowed and suit filed by the petitioners/plaintiffs stands decreed in their favour. H.B.T./B-24/L Revision allowed.