1995 PLP 744 (CLC)

Additional issue: (1) Whether the sale covered by Mutation No. 105 was in reality in favour of Muhammad‑Suleman against whom the right of pre‑emption could not be claimed? OPD. (2) Relief

9. The learned Civil Judge then recorded the evidence which the parties wished to produce and after hearing the learned counsel granted a decree to Noor Muhammad plaintiff/respondent No.1 as prayed for, excepting Khasra No. 407 against Muhammad Afsar defendant Nod and Suleman defendant No.2 (predecessor‑in‑interest of petitioners Nos. 2 to 8) on payment of Rs.8,667.65 by his judgment dated 26‑i1‑1989.

10. Not contented with the said judgment of the Civil Judge, Muhammad Afsar defendant No.1 etc. challenged the validity of the same before the Additional District Judge‑I Haripur, who vide his judgment dated 10‑6‑1991 dismissed the appeal with costs. Hence this revision petition has been filed by Muhammad Afsar defendant No.1 and petitioners Nos. 2 to 8 who are the successors‑in‑interest of Muhammad Suliman defendant No. 2 for the redress of their grievance.

11. I have heard the learned counsel for the parties and have also gone through the record of the case minutely.

12. The crucial point which was to be determined by the trial Court, after the remand of the case by the Hon'ble Supreme Court of Pakistan, was as to whether the property, fully detailed in the heading of the plaint, was in fact sold by Gulzaman defendant No.3 respondent No. 2 to Suleman defendant No. 2 (predecessor‑in‑interest of petitioners Nos. 2 to 8) and not to Muhammad Afsar defendant No.1/petitioner No.1. Sale Mutation No. 105 was attested on 8‑3‑1974 in favour of petitioner No.1/defendant No.1 and not in favour of Suleman defendant No. 2 (predecessor‑in‑interest of petitioners Nos. 2 to 8). It was, therefore, incumbent upon the petitioner to show by cogent evidence that the land in question was in fact sold by Gulzaman defendant No.3/respondent No. 2 to Suleman defendant No. 2 and not to Muhammad Afsar defendant No.1 petitioner No.1. The onus of proving the additional issue which was framed after the remand was on the petitioners. In order to prove the additional issue as framed the petitioners produced the following witnesses in the trial Court:‑‑ R‑D.W.1 Muhammad Akram Patwari Circle Mang, R‑D.W.2 Rusta,'m Khan S.O.K. Abbottabad, R‑D.W.3 Muhammad Suleman defendant No. 2 (predecessor‑in -interest of petitioners Nos. 2 to 8), R‑D.W.4 Sher s/o Chaudhary Sardar (the statement of this witness could not be recorded because he refused to take oath), R‑D.W.5 Muhammad Afsar defendant No.1/ petitioner No.1, R‑D.W.6 Muhammad Ismail s/o Fazal Khan.

13. Respondent No.1 plaintiff produced Mr. Muhammad Anwar Khan, EA.C. Mansehra as R‑P.W.1 and closed his evidence.

14. Muhammad Akram Patwari (R‑D. W.1) when examined produced the extract of the Jamabandis from 1967‑68 to 1983‑

84. This witness did not state anything in his, examination‑in‑chief, to show that the suit land was in fact purchased by Suleman defendant No. 2 (predecessor‑in‑interest of petitioners Nos. 2 to 8). On the other hand in his cross‑examination he admitted:‑‑ "Mutation No.105 was entered at the instance of Muhammad Afsar vendee on the basis of report of daily diary No. 207 dated 17‑2‑1974.1 produce the copy of the report which is correctly prepared according to the original and in Exh. P‑D.W.1/P‑1."

15. R‑D.W.2, Rustam Khan, S.OX: Abbottabad, stated in the witness‑box that the certified copies of Mutations Nos. 105 and 106 were correct according to the original. He too did not utter a single word regarding the factum of sale in favour of Suleman defendant No. 2.

16. Muhammad Suleman defendant No. 2 (predecessor‑in‑interest of petitioners Nos. 2 to 8) appeared as R‑D.W.3. He in his examination‑in‑chief, stated that he had purchased the suit property from Gulzaman on payment of Rs.30,000 and that he had paid the sale consideration to him in the presence of one Sher s/o Sardar resident of village Jagal. He stated that the mutation was wrongly attested in the name of Muhammad Afsar defendant No.1/petitioner No. 1 and, therefore, it was wrong, illegal and without consideration and as such the same was liable to be cancelled and the area was to be transferred in his name. When cross‑examined, Muhammad Suleman defendant No. 2 (predecessor‑in‑interest of petitioners Nos. 2 to 8), admitted that he was examined as D.W. 2 in the trial Court on 7‑5‑1978. The previous statement was read over to him and he admitted the same to be correct. However, when further cross‑examined he stated as under:‑‑ "It is incorrectly recorded in my previous statement that no other person was present at the time of payment of sale consideration. I paid the sale consideration in the month of February 1974 but I do not know the date or the day of payment. No receipt of payment of sale consideration was made in the parlour of verandah at about noon .... Two sale mutations were entered and attested. One was attested in my favour and one in the name of Muhammad Afsar. It is correct that mutations were attested in village Mang. It is correct that I was not present at the time of attestation of sale mutations. Muhammad Ayub and Sher Zaman were the identifying witnesses of the suit mutations. After the institution of the pre‑emotion suit of plaintiff I brought a suit against Muhammad Afsar which was decided on the basis of compromise. The defendant No.l is in possession of entire suit property. It is incorrect that I have entered and attested the suit mutation in my name in order to save defendant No.l from pre emption."

17. Muhammad Afsar defendant No.l/petitioner No.l was examined as R‑D.W.5 who stated that it was he who had struck the suit bargain and that, in fact, Suleman had purchased the suit land for Rs.30,000 in the presence of Ismail and Sher. He further stated that he was cultivating the suit land on behalf of Suleman. According to him he did not know as to who had got entered and attested the suit Mutation (No. 105) in his name. In cross- examination he admitted that he was in possession of the suit land for the last 15/16 years. He further stated that it was incorrect to suggest that it was at his instance that Suleman had instituted the suit against him in order to deprive the plaintiff from exercising his right of pre‑emotion. He refuted the suggestion that he had purchased the suit land. From the statement of Muhammad Afsar (R‑D.W.5) defendant No.1/petitioner No.l and Muhammad Suleman (R.D.W.3), the predecessor‑in‑interest of petitioners Nos. 2 to 8) one thing has become crystal clear i.e., that the bargain in respect of the suit land was struck in the presence of one Sher s/o Chaudhary Sardar, resident of Village Jagal. 18: Sher being the most important and the star witness, in this case, was produced in the Court by the petitioner defendants. He was to be examined as R.D.W.

4. However, when he entered the witness‑box and was asked to depose on oath, he refused to take the oath and thus his statement was not recorded by the trial Court. This fact alone is sufficient to shatter the defendants/petitioners' case and to establish, beyond doubt that the stand taken up by them is absolutely false and concocted. This clearly shows that the suit property was not purchased by defendant No. 2 Suleman (predecessor‑in -interest of petitioners Nos: 2 to 8) but by Muhammad Afsar defendant No.l/petitioner No.l.

19. In the circumstances, therefore, there is no need to scrutinize the evidence any further. However, to settle the case once and for all, I would also like to discuss the evidence of Muhammad Anwar Khan, EA.C. Mansebra, who was produced by Noor Muhammad plaintiff/respondent No.l, as his sole witness after the remand of the case by the Supreme Court. Muhammad Anwar EA.C., Mansehra, stated on oath that it was he who had attested the impugned Mutation No.105 on .8‑3‑1974 when he was posted as a Revenue Officer, Haripur. He further ‑stated that the said mutation was attested in the "Jalsa‑e‑Aam" where the vendor was identified by Muhammad Ayub and Sher Zarnan, Lumberdars, that since these persons had identified the vendor, therefore, their signatures were also obtained on the original mutation. He further stated that the contents of the mutation were duly explained to the vendor who admitted the same to be correct and that thereafter he, being the Revenue Officer, attested the mutation. This witness was thoroughly cross- examined by the learned counsel for the petitioners but nothing could be extracted from him to the benefit of the petitioners. On the contrary, in his cross‑examination, it was brought on record, that it was not necessary for the Revenue Officer to inquire from the vendee about the transaction in question i.e., sale or purchase of the property. The witness further alleged that even the presence of the vendee is not required in connection with the attestation of a mutation.

20. It may be mentioned here that if the contention of the petitioners was really correct then in that case they could have easily produce Gul Zaman (defendant No.3/respondent No. 2) to support their contention that the land was sold by him to Suleman (defendant No. 2) and not to Muhammad Afsar petitioner No.l/defendant No.1. This was not done purposely intentionally by the petitioners for reasons best known to them alone.

21. After discussing the evidence of the parties in detail, which they had produced after the remand of the case by the Supreme Court of Pakistan, I am constrained to remark that Muhammad Afsar petitioner No.l/defendant No.l and Suleman defendant No. 2 (predecessor‑in‑interest of petitioners Nos. 2 to 8) have miserably failed to prove their contention that the suit land was in fact purchased by Suleman defendant No. 2 and not by Muhammad Afsar defendant No.l/petitioner No.l.

22. To the same effect are the findings of the learned trial Court and the learned lower appellate Court.,

23. Beside this, it may be stated here that the factum of sale as primarily a question of fact and in this respect the concurrent findings, arrived at by the learned lower Courts, cannot be interfered with in the exercise of revisional jurisdiction because the learned counsel for the petitioners has not been able to pin point that the impugned judgments suffer from any jurisdictional error or that the learned lower Courts have acted in the exercise of their jurisdiction illegally or with material irregularity. The impugned judgments of the Courts below do not violate the provisions of section 115, C.P.C. anti resultantly I hold that this revision petition is without any substance and thus liable to be dismissed with costs. Order accordingly. AA./1685/P Revision dismissed.