1994 PLP 1188 (SCMR)

WALI MUHAMMAD KHAN, J.‑‑‑Hayat Muhammad and others, appellants herein, through leave of the Court, have called in question the judgment dated 22‑9‑1987 passed by a learned Single Judge of the Lahore High Court, whereby Regular Second Appeal No.797 of 1972 filed by Tajuddin and others, respondents herein, was accepted and the judgments and decrees dated 13‑12‑1972 passed by the Additional District Judge, Gujranwala and that of the trial Court dated 6‑5‑1971 were set aside resulting in the dismissal of the suit filed by the appellants. The leave granting order is as follows:‑ "In support of this petition it is stated that in second appeal it was not' open to the High Court to interfere with the concurrent findings of the Courts below on the question of sale, particularly when recording their conclusions they had considered the entire evidence on record. It is also contended. That the sale set up by the respondents was in any event void as it was in contravention of the provisions of section 24, Consolidation of Holdings Ordinance. The contentions raised in support of this petition need further examination. Leave to appeal is granted."

2. The facts of the case briefly stated, are that the plaintiffs/appellants are owners of the suit property. It is alleged that they never alienated the same in favour of the defendants/ respondents; that Tajuddin defendant /respondent No.1, who is a dismissed Patwari, fraudulently and collusively got entered and attested Mutations Nos.2789, 2790 and 2791 on behalf of the plaintiffs in his favour; that they came to know of it about a month prior to the institution of the suit; that they never entered into any transaction of sale with defendants/respondents nor received any sale consideration, nor appeared before the Revenue or Consolidation Officers for entry and attestation of the. aforementioned mutations; that the mutations are forged, fictitious, based on fraud and collusion, without consideration and in violation of the mandatory provision of Consolidation of Holdings Ordinance and, as such, ineffective on the rights of the appellants, and prayed for possession of the suit land on the annulment of these mutations. The defendants/ respondents contested the suit and in their written statement controverted the allegations of the plaintiffs/appellants in toto. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Judge, vide his judgment and decree dated 6‑5‑1971, decreed the suit of the plaintiffs/appellants and the appeal filed against it was dismissed vide order of the Additional District Judge dated 13‑12‑1972. However, the Regular Second Appeal filed by the defendants/respondents was accepted through the impugned judgment of the High Court. Hence the instant appeal through leave of the Court.

3. We have heard Mr. Tanvir Ahmed, Advocate, for the appellants; Ch. Muzammal Khan, Advocate, for the respondents; and have perused the record of the case with their assistance.

4. As is apparent from the leave granting order the trial Court as well as the first appellate Court had concurrently held that the alleged sale on behalf of the plaintiffs/appellants in favour of the defendants/respondents had not been established according to law, besides being in contravention of section 24 of the Consolidation of Holdings Ordinance, 1960. As such the High Court could not legally interfere with the concurrent findings of facts of the two Courts below in the second appeal unless there was misreading or non‑reading of material evidence. We have been taken through the judgments of the trial ‑Court as well as the first appellate Court. Both the Courts on the proper appraisal of the evidence arrived at the conclusion that the alleged sale in favour of the defendants/respondents on behalf of the appellants had not taken place. The learned High Court relying on the agreement to sell (Exh. DW.7/1) presumed that all the plaintiffs/appellants acknowledged the sale at the time of the attestation of the impugned mutations before Ch. Wali Muhammad, A.C.O. D.W.3, ignoring his admission in the cross‑examination that he did not know the vendors personally. In support of the sale the defendants/respondents relied on the deed of agreement to sell referred to above, the evidence regarding the payment of consideration through a receipt which the defendants could not produce due to its loss in the commotion of 1965 War and the impugned mutations. The impugned agreement to sell apparently bear the thumb‑impression of Hayat Muhammad and Ghani Muhammad appellants only and the other appellants are neither signatory to it, nor on their behalf any power of attorney has been produced to bind them for the enforcement of the same. Needless to emphasise, that the agreements to sell do not create title in themselves and so long as regular sale‑deed is not executed between the parties or decree for specific performance not obtained, the title vests in the transferor. This document, in consequence, is of no help to the respondents to confer title on them. The secondary evidence produced in support of the payment of consideration through a receipt is not convincing. The only documents which could be of some help to the respondents are the mutations but they too, do not create title by themselves and the defendants/respondents had to produce convincing evidence of unimpeachable character that the transferors appeared before the Revenue Officers and acknowledged the transfer of title in favour of the transferees. The only witness produced in support of these mutations is Muhammad Hussain Lumberdar D.W.4 but curiously enough, he conceded under cross‑examination that he did not know the names of the owners/transferors, that no other mutation was attested on that day, and that the mutation was attested in Gunna, a different estate than the one where the suit land is situated. Moreover, Muhammad Hussain Lumberdar is resident of a different village than that of the appellants and he had not positively stated that he knew the appellants particularly the ladies. Consequently, the defendants/respondents failed to discharge the onus of proving the sale transaction and the trial Court as well as the appellate Court had to decide the issue against them. The learned High Court has not C adverted to this aspect of the case at all.

5. Resultantly, the instant appeal is allowed, the impugned judgment of the High Court is set aside and that of the first appellate Court as well as the trial Court restored with the result that the suit of the plaintiffs/appellants stands decreed. There is no order as to costs. A.A/H‑189/S Appeal accepted.