2021 PLP 2062 (CLC)

SULTAN TANVIR AHMAD, J.

This civil revision is filed against the judgment and decree dated 27.11.2012 passed by the learned Additional District Judge, Malakwal District Mandi Bahauddin whereby the judgment and the decree dated 28.01.2009 passed by the learned trial Court was upheld and the appeal was dismissed.

2. The facts, necessary for the decision, of the case are that property measuring 02 Kanals in Khata No.120/340, Square No.52, Killa No.21/2 situated in Mouza Bosal Sukha, Tehsil Malakwal, District Mandi Bahauddin ("the suit property") was originally owned by the Petitioner. The Respondent claimed that the suit property was purchased by the Respondent vide oral agreement on 12.04.2002 for Rs.80,000/-. Allegedly Rs.5,000/- was paid as earnest money at the time of the oral agreement and the remaining Rs.75,000/- were paid on 18.04.2002 in the presence of witnesses when mutation No.4035 was entered in the Rapt Roznamcha Waqiati (daily dairy) at Serial No.368. It is contended in the plaint (Paragraph No.5) that the Petitioner, in collusion with the Revenue Department, got the mutation cancelled on 09.05.2002.

3. Allegedly upon refusal to recognize the rights, suit for declaration with alternate prayer of the specific performance of the agreement (bearing No.14 of 2004) was filed by the Respondent before the learned Civil Court Malakwal District Mandi Bahaudin on 24.04.2004. The suit was contested by the Petitioner raising legal as well as factual disputes.

4. Out of the divergent pleadings, the learned trial Court framed the following seven issues on 29.04.2005:

1. Whether the plaintiff has no cause of action? OPD

2. Whether the plaintiff has not come to the court with clean hands and he has filed the suit to harass the defendant and defendant is entitled to get special costs under section 35-A of CPC? OPD

3. Whether the plaintiff is owner in possession of suit property through mutation No.4035 dated 18.04.2002? OPP

4. Whether the mutation No.4035 dated 18.04.2002 is against law, fact and plaintiff got incorporated it in connivance with Revenue Officials? OPD

5. If issue No.4 is proved in positive, whether the plaintiff is entitled to the decree for specific performance in alternative as prayed for? OPP

6. Whether the plaintiff is entitled to the decree for declaration or in alternative decree for specific performance? OPP

7. Relief.

5. The parties produced their respective evidence. The learned trial Court has decreed the suit for declaration and specific performance vide judgment and decree dated 28.01.2009. This judgment and decree was assailed before the learned First Appellate Court by way of the Civil Appeal bearing No.44-2009, which was dismissed vide judgment and decree dated 27.11.2012. Aggrieved from the same, the present revision petition has been filed.

6. Learned counsel for the Petitioner submitted that learned First Appellate Court and the learned trial Court have not applied judicious mind; that the learned Courts below have failed to evaluate the material on the record and have drawn wrong inference; that Respondent-Plaintiff neither impleaded revenue authorities as parties nor produced them as witnesses to prove his contention; that the revenue authorities are necessary parties; that Respondent-Plaintiff has not challenged the cancellation of mutation No.4035 before the revenue authorities; that it is settled law that nobody can sell or purchase a specific Khasra number from un-partitioned and joint Khata; that land only to the extent of share could be sold or purchased. Further submitted that it was a duty of the Respondent to prove the same by producing marginal witnesses; that date, time and name of the witnesses are not written in the plaint. Learned counsel for the Petitioner relied upon case titled Karamdad v. Manzoor Ahmad and 2 others (2015 CLC 157), Bashir Ahmad and others v. Abdul Latif and others (2005 YLR 2655), Mst. Nooran Mai and another v. Ahmad Bukhsh and 3 others (2006 YLR 1039) and Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others (2007 CLC 1372).

7. Conversely, learned counsel for the Respondent relied upon the statement of PW-3 and submitted that although the name of PW-3 is not mentioned in the plaint but the same is given in FIR No.397/2003, dated 06.12.2003 (Ex.D-1). Learned counsel for the Respondent supported the impugned judgment passed by the learned trial Court as well as the judgment and decree of the learned First Appellate Court.

8. I have heard the arguments and with the able assistance of the learned counsel for the parties, record has been perused.

9. Minute perusal of the judgments and decrees passed by the learned Courts below reveals that documents (i) alleged Roznamcha Waqiati No.368 (Ex.P-2) as well as Mutation No.4035 and (ii) FIR No.397/2003, dated 06.12.2003 (Ex.P-3) were particularly relied upon and given utmost importance. Besides the said documents, PW-2 and PW-3 have been taken as truthful witnesses of the agreement of sale. The relevant Part of Section 42 of the Land Revenue Act, 1967 (at the time of the transaction in question i.e. prior to the Punjab Amendment Act, II of 2007) is as follows:- (1) Any person acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a land-owner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall- (a) record such report in the Roznamcha to be maintained in the prescribed manner; (b) furnish a copy of the report so recorded, free of cost to the person making the report; and (c) send a copy of the report, within a week of its receipt by him, to the Union Committee, Town Committee Union Council within which the estate is situated. (2) xxxxx (3) xxxxx (4) xxxxx (5) xxxxx (6) xxxxx (7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court the Revenue Officer shall make the order under sub-section (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or member of Union Committee, Town Committee or Union Council concerned, whose signatures or thumb impressions shall be obtained by the Revenue Officer on the register of mutations. (8) xxxxx (9) xxxxx (10) xxxxx (11) xxxxx Rule 34 sub-rule (5) of West Pakistan Land Revenue Rules, 1968 is as under:- The signature or thumb-impression of the headman or member of the Union Committee, Town Committee or Union Council concerned, shall also be obtained at the time of making the entries, relating to changes in revenue records. (Emphasis supplied)

10. The aforesaid provisions of law clearly reflect that unless the mutation is of inheritance or it is followed by a registered deed or it is under an order of the Court, the same is required to be in presence of that person whose right has been acquired and it is necessary that such person is identified by two responsible persons preferably Lambardar, Member Union Committee, Union Council or Town Committee. The signatures or thumb impressions of the aforesaid two persons should be obtained by the Revenue Officer. In the absence of fulfillment of the aforesaid requirement of law, the factum of entry in the record cannot carry any presumption of truth. Mere entry in the diary or the relevant page of the diary is not a primary evidence especially when the Revenue Officer effecting the entry has not himself produced the daily diary before the Court and has not faced the cross-examination of the rival party. Such unattested 'Pert' or page of diary does not have any significance in the eyes of law. To hold that this entry in Roznamcha Waqiati amounts to sale will result into a very hazardous proposition of law and will be akin to placing the fate of the land holding at the mercy of Patwari.

11. The Honourable Supreme Court of Pakistan in case titled Zulfiqar and others v. Shahdat Khan (PLD 2007 Supreme Court 582) held that although Roznamcha Waqiati is required to be maintained under the West Pakistan Land Rules, 1968 and that it is maintained during the course of performance of the official duty is admissible, yet if the report contains statement of private individual, its correctness is required to be proved. However, when the report is made at the instance of vendor, it becomes doubtful if the same is made in discharge of the said official duty. In case titled Khalil Ahmad v. Abdul Jabbar Khan and others (2005 SCMR 911), the Honourable Supreme Court of Pakistan decided that entering a mutation or reporting the fact of acquisition of any right in an estate by the Patwari is a merely ministerial act which does not confer or extinguish any right in any property and also held that the exercise has to be done by Revenue Officer in accordance with Section 42(7) of Land Revenue Act, 1967. Further reliance in this regard can be placed upon cases titled Muhammad Amjad Wali v. Kareem Khan (2015 MLD 824), Malik Ghulam Akbar Khan through L.Rs. and others v. Al-Haaj Abdul Raziq Khan and another (2011 CLC 1734), Mst. Umri v. Ghulam Rasool and 2 others (1998 CLC 291) and Karam Shah v. Mst. Ghulam Fatima and 3 others (1988 CLC 1812).

12. The Honourable Courts of the Country have already elucidated the importance of mentioning the names of the witnesses of the transaction in the plaint. In the case titled Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300) the Honourable Supreme Court of Pakistan has settled the law that mentioning the witnesses in whose presence the oral agreement to sell was arrived is material.

13. The evidence of these witnesses is also required to be credible and coherent. Further reliance can be placed on cases titled Tariq Javed and 11 others v. Muhammad Sattar (2011 MLD 832) and Noor Muhammad and others v. Mst. Rabia Bibi and others (2019 MLD 1286).

14. Moreover, the transaction has to be proved in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 which require the document to be proved by producing two men or one man and two women in the manners provided therein.

15. In the present case, the name of witnesses are not disclosed in the plaint. In Paragraph No.3 of the plaint, the place of striking the bargain is alleged in the following manner:-

16. In Paragraph No.4 of the plaint, Respondent has sought to rely upon the alleged mutation No.4035 dated 18.04.2002 and Roznamcha Waqiati No.368 dated 18.04.2002 without mentioning name of any witness or stating that any other person was present at that time. The names of the alleged witnesses were disclosed for the first time in an FIR against the Petitioner which was registered almost one year after the transaction. Needless to mention that accused persons of the said FIR were acquitted vide order dated 17.06.2009 on account of failure of the said witnesses to give evidence. This FIR is not substitute of the plaint especially, in the given circumstances of the case.

17. PW-1/Respondent during his examination in chief has not uttered a word regarding the place, time and manners of the oral agreement and he has failed to disclose as to the witnesses of the said transaction(s). During the cross-examination, he introduced a new version that earnest money was paid at the Dera of Mehboob Ahmad Patwari/PW-2 who is living in the same village (this Patwari was not the one who prepared the Roznamcha Waqiati or entered the alleged mutation) and also deposed that no one else apart from the Petitioner, the Respondent and said Mehboob Ahmad Patwari was present. This part of the statement is relevant:-

18. This part is remarkable deviation from the earlier stance taken in the plaint and manifestly contradicts the remaining witnesses of Respondent/Plaintiff. Mehboob Ahmad Patwari/PW-2, during his cross-examination, stated that at the time of payment of the earnest money, besides himself and the parties, 4/5 persons were present. He admitted that he is not witness of Mutation No.4035 or Roznamcha Waqiati No.368 and further admitted that there is no witness of the mutation. There is contradiction as to number of days between the payment of the earnest money and the remaining payment amongst the PWs as well as what is stated in the plaint. The PW-2 could not tell the date of oral agreement in the witness box. The third witness namely Shera son of Khan Muhammad/PW-3 acknowledged that he is not direct witness of the mutation. He claimed to be in the Revenue Office by chance and also confirmed during his cross-examination that he is not witness of the oral agreement or payment of earnest money.

19. Not just that the names of the witnesses were not present in the plaint, but only one witness was produced to prove the oral agreement and one witness was produced to confirm the alleged mutation who never signed it and he was direct witness of the mutation. He could not recall in the witness box the date, month, year or weather when the episode took place.

20. Perusal of the record reveals that not only the case was attempted to be improved after the plaint, in fact none of the statements is in harmony with the others. It was incumbent upon the beneficiary to prove the transaction as already decided by the august Supreme Court of Pakistan in case titled Amjad Ikram v. Mst. Asia Kousar and 2 others (2015 SCMR 1) in the following terms:- "It is an equally settled principle of law that it is the duty and obligation of the beneficiary of a transaction or a document to prove the same. Reference in this behalf may be made from the judgments of this Court, reported as Akhtar Ali v. The University of the Punjab (1979 SCMR 549), Haji Muhammad Khan and others v. Islamic Republic of Pakistan and 2 others (1992 SCMR 2439) and Khan Muhammad v. Muhammad Din through L.Rs. (2010 SCMR 1351)."

21. Ex.P-1 (alleged mutation) and Ex.P-2 (Roznamcha Waqiati) have no value as the same are not attested as required by Section 42(7) of the Land Revenue Act, 1967, the West Pakistan Land Revenue Rules, 1968 as well as the law laid down by the august Supreme Court of Pakistan and this Court.

22. The oral agreement could not be proved by the Petitioner/Plaintiff as per Qanun-e-Shahadat Order, 1984 Articles 17 and

79. Beneficiary of the transaction i.e. Respondent miserably failed to prove the transaction up to the standard settled by the august Supreme Court of Pakistan in case titled Amjad Ikram case (Supra) and case titled Muhammad Nawaz case (Supra).

23. The learned Courts below have misread the evidence and have failed to apply relevant law to facts of case. Resultantly, judgment and decree dated 28.01.2009 passed by the learned Civil Judge, Malakwal as well as judgment and decree dated 27.11.2012 passed by the learned First Appellate Court Malakwal, District Mandi Bahauddin are set-aside and the suit of the Respondent is dismissed.

24. The revision petition is allowed with no order as to costs. SA/A-80/L Petition allowed.