1990 CLC 242 (PLP)

(7) Whether the disputed mutation No.39 was against the provisions of MLR 64? If so, its effect? (8) If the transaction is held to be a sale, what was the market value of the same at the time of transfer to the defendants? (9) Whether the defendants are entitled to get special costs from the plaintiff? If so, to what extent? (10) Relief. In Suit No.515/73 following issues were framed;‑‑ (1) Whether the suit is barred by time? (2) Whether the suit land is evacuee one and forms part of compensation pool and is not pre‑emptible? (3) Whether the Civil Court has got no jurisdiction to try the case? (4) Whether the plaintiff has got a.superior right of pre‑emption as against the defendant? (5) Whether the plaintiff is estopped to file the suit? (6) Whether a sum of Rs.14,000 had been fixed in good faith or actually paid as the sale price of the suit land? (7) If issue No.6 is not proved, what was the market value of the suit land at the time of sale? (8) Relief. Issue No.l of limitation was decided as preliminary issue against the defendants/petitioners. Issues Nos.2 and 3 were not pressed by the defendants/petitioners before the trial Court. Issue No.7 of Suit No.516/73 was decided against the petitioners. In Suit No.516/73, the trial Court came to the conclusion that the transaction was in fact a sale and not a gift. Finding the right of pre‑emption of the respondent superior, the trial Court decreed both the suits on 8‑6‑1980. The petitioners filed separate appeals against the judgments and decrees passed against them in the two suits, which were dismissed by the learned Additional District Judge, Gujranwala on 16‑1‑1982. Hence these revisir'ns Nos. 549/D/82 and 550/D/82. I propose to dispose of them through single judgment.

2. Before me the learned counsel for the petitoners has challenged the findings of the Courts below on issues Nos.4, 5 and 7 in Suit No.516/73 and on issue No.4 in Suit No.515/73. He contended that the findings of the Courts below suffer from misreading/non‑reading of evidence; that Muhammad Hussain DW 4 has stated that the attestation part of mutation No.39 EX.P.1 was not tampered with in any manner; that except statement of Shah Muhammad respondent, there is no proof of his being colleteral of Muhammad Siddique and Muhammad Rafiq vendors; that Atta Muhammad Lambardar DW 1 has stated that Shah Muhammad was not collateral of the vendors and Faqir Mohammad was Yakjaddi of the vendors; that Atta Muhammad DW 1 is Lambardar of the village and hails from village in India where Faqir Muhammad vendee and the vendors, namely, Muhammad Siddique and Muhammad Rafiq lived before partition; that Muhammad Siddique DW 2 and Muhammad lqbal DW 4 have also stated that Faqir Muhammad is Yakjaddi of the vendors; and that since Mst. Nemat Bibi has alienated her entire holding in the Mauza, therefore, mutation No.39 EX.P.1 was not hit by the provisions of Martial Law Regulation No.64. Learned counsel for the respondent has supported the judgments and decrees passed by the Courts below. 3. 1 have considered the submissions made by the learned counsel for the parties with care and have reviewed the entire oral/documentary evidence which has been produced by the parties and the judgments of the Courts below. I do not feel persuaded to agree with the learned counsel for the petitioners. The crucial question for determination is as to whether mutation No.39 was a transaction of sale as alleged by plaintiff/respondent or of a gift as asserted by the petitoners. This issue is almost an issue of fact. The learned Courts below, after applying their conscious mind to the relevant evidence, have concurrently declared the transaction to be a sale and not gift. Learned counsel has not been able to point out any misreading/non‑reading of material evidence relating to this issue, by the Courts below. On my independent assessment of the evidence, I find that there are reasons to doubt that Mst. Nemat Bibi had alienated 12 kanals 18 marlas of A her land by means of gift or she had alienated part thereof as a gift in favour of Faqir Muhammad vide mutation No.39. Muhamamd Iqbal and Faqir Muhammad were not owners in the estate before the attestation of mutation No.39 dated 12‑7‑1972. Mutation No.39 of the gift was entered by the Patwari on 2‑2‑1972 and was attested by the Revenue Officer on 12‑7‑1972. An examination of original mutation No.39 reveals that there are over writings in columns Nos.9 and 15 of the mutation and name of Faqir Muhammad was subsequently added in these columns. Explaining the over writings and addition of the name of Faqir Muhammad, Patwari has stated that when the entry made in column No.15 of mutation was read over to Mst. Nemat Bibi, she stated that she had also alienated the part of her land to Faqir Muhammad as gift. So name of Faqir Muhammad was added in columns Nos.9 and 15 on the same day. Before filing the present Suits, the parties had obtained certified copy of mutation No.39 from the Patwari concerned. P.1 was obtained by Shah Muhammad plaintiff/respondent and D.1 was obtained by the defendants on 7‑2‑1975. Strangely enough, name of Faqir Muhammad does not appear at all in column No.9 which reads as unders:‑‑ In column No.15 of copy Exh.D.A. the words "Faqir Muhammad" seem to have been added subsequently with different ink. The Courts below have taken serious notice of overwriting in mutation No.39. I do not see any reason to disagree with them. Mutation No.39 of alleged gift and the mutation of sale by Muhammad Siddique and Muhammad Rafiq in favour of Fa qir Muhammad were attested on the same day. Abdul Hamid Lambardar had identified the parties before the Revenue Officer. He has categorically stated that the transaction of mutation No. 39 was a sale. Shah Muhammad respondent was owner of estate at the time of sale, at the time of institution of suit and he retained his ownership in the estate till the date of decrees in his favour. No doubt, Muhammad Iqbal defendant in Suit No.516/73 was son of the vendor yet he cannot defeat the B superior pre‑emption right of the respondent for the reasons that he did not own any land in the estate before 12‑7‑1972 and also having joined Faqir Muhammad, a stranger with him, has lost his right to resist the superior pre‑emption right of the respondent. Mst. Nemat Bibi stated that Faqir Muhammad is her grand‑son. She, however, stands belied by Hassan Muhammad D.W.3, who in cross examination, has stated that:‑‑ Be that as it may, the fact remains ,that it has not been proved on record that but for such sale, Faqir Muhammad would be entitled on death of Mst. Nemat Bibi to inherit the land alienated by her vide mutation No.39. Mst. Nemat Bibi had alienated her entire holdings in the estate vide mutation No.39, so the transaction was not hit by the provisions of Martial Law Regulation No.64. The submissions made by the learned counsel are devoid of force and substance. The judgments of the Courts below do not suffer from illegality or material irregularity.

14. Pursuant to the above discussion, the two revisions fail and are hereby dismissed, leaving the parties to bear their own costs. A.A./F‑163/L Revisions dismissed.