2003 PLP 456 (CLC)

Date of hearing: 16th September, 2002. SAYED ZAHID HUSSAIN, J.‑‑‑Mst. Satto the appellant herein had instituted a suit for joint possession of land measuring 715 Kanals, 15 Marlas, (description whereof has been given in the plaint), which suit was tried by the learned trial Court. Necessary issues arising out of the pleadings of the parties were framed, whereafter evidence was led by the parties in support of their respective pleas. On consideration of the evidence the learned trial Judge has dismissed the suit vide judgment and decree dated 23‑11‑1992. This is first appeal by her against the same.

1. The learned counsel for the appellant has criticized the judgment of the trial Court that issue No.3 about limitation has been left undecided, whereas issue No. 1 has not been correctly comprehended and decided. It is contended that findings recorded by the learned trial Judge while dealing with issues Nos. 1, 2 and 4 jointly, are not borne out by the evidence on the record. It is contended that neither the sale by appellant in favour of Gaman and Bahadur deceased was proved nor Mutation No. 1111 dated 30‑8‑1967 was attested by following the procedure prescribed in section 42 of the Land Revenue Act, 1967. According to him, the judgment rendered by the learned Senior Civil Judge, Mianwali dismissing the suit of the appellant is liable to be set aside. Reference is made by him to Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642, Mst. Amir Bibi v. Ata Muhammad Khan and 14 others 1992 SCMR 553 to support his contention.

2. The learned counsel for the contesting respondents has referred to the evidence on the record to show that the appellant had sold the suit land and Mutation No. 1111 was entered and attested in her presence on the identification of Muhammad Ramzan Lumberdar (D.W.3). It is contended that Patwari namely Sher Khan who had entered the mutation had also appeared as D.W.2. According to him the suit was instituted by the appellant belatedly, as an afterthought, at the instance of her husband to retrieve the property already sold by the appellant, which suit was time‑barred. It is contended that the transaction of sale stood proved through overwhelming evidence on the record, such as that the transaction was sought to be pre‑empted through a suit and a partition proceedings had also been taken out by her sister after the sale by the appellant. It is contended that the provisions of section 42 of Land Revenue Act, 1967 are directory in nature and any irregularity or omission to follow the procedure does not invalidates the transaction itself. Reference has been made to Muhammad Ishaq and 2 others v. Ghafoor Khan and another 2000 SGMR 519, Muhammad Ishaq and others v. Ghafoor Khan and others 1999 YLR 1956 and Mst. Balqis, Begum v. Ali Sher 1986 MLD

608. It is contended that the learned trial Court has clearly returned the finding that the suit was time‑barred and mere non‑mention of issue No.3 specifically was of no effect.

3. The mutation of sale Exh.P.8 sought to be overcome by the appellant was entered on 16‑8‑1967, which was attested on 30‑8‑1967 by the Revenue Officer in Jalsa Aam (common assembly), marking the presence of the appellant before him, who was identified by Muhammad Ramzan, Lumberdar. The suit out of which present appeal has arisen was filed on 2‑10‑1988. The case set up in the plaint precisely was that on the death of her father, she alongwith her sister Mst. Sawai and Mst. Wasso (sister of her father) had succeeded to the estate left by Ghulam Muhammad. It was her case that she and her sister being minors at that time were brought up by Bahadur, the predecessor‑in‑interest of respondents Nos.2 to 9, who was their close relation. It was pleaded that she was in no need of selling the land and the whole transaction was a false and fabricated affair conceived by Gaman and Bahadur in collusion with each other and the Revenue officials. It was pleaded that she learnt of the alleged transaction six years prior to the filing of the suit. The suit was contested by Gaman respondent/defendant No.1, whereas the successors of Bahadur deceased filed conceding written statement. The following six issues were settled by the learned trial Court:‑‑ (1) Whether the impugned mutation of sale No. 1111 dated 30‑8‑1967 is illegal, void, based upon fraud, without consideration and as such inoperative against the rights of the plaintiff for the reasons mentioned in the plaint? (2) Whether the plaintiff is entitled to the possession of the suit land? (3) Whether the plaintiff has brought this suit within 12 years of her dispossession from the suit‑land? (4) Whether the suit is Benami and has been brought by the plaintiff in collusion with and for the benefit of her husband Gul Sher? If so to what effect? (5) Whether the contesting defendant No. 1 is entitled to special costs? (6) Relief. Issues Nos. 1, 2 and 4 were considered by the learned trial Court jointly. It may be stated at the outset that the appellant had been married with Gul Sher son of Bahadur deceased. Thus, the rationale for concession made by the successors of Bahadur is not difficult to comprehend. The appellant while appearing as P.W.1 had tried to support her assertion. She asserted that she was an illiterate woman living in the rural area and denied of having appeared before any Revenue Officer. It was stated that she had been receiving the share of produce uptil 5/6 years before the filing of suit. According to her the land used to be cultivated by the tenants till it was partitioned. Though she mentioned the names of the tenants but none was produced to substantiate her assertion. The only other witness produced by her was P.W.2 Gul Sher son of Bahadur, her husband, `who admitted the factum of partition proceedings commenced in the year 1970 and concluded in 1980. It was also admitted by him that they had a joint family system living all brothers and sisters together and that his father used to attend those partition proceedings. From the respondents' side, Moharrir Office of the Saddar Qanungo, Mianwali was produced as D. W.1 who produced original record of the impugned mutation. Sher Khan, Patwari D.W.2 deposed that lie was Patwari Halqa when Mutation No. 1111 was entered. It was stated by him that I the appellant had appeared at the time of mutation. Muhammad Ramzan, Lumberdar D.W.3 who had identified her, had affirmed the identification made by him before the Revenue Officer. Besides Ghulam Muhammad D. W.4, Muhammad Afzal one of the defendants ,appeared as D.W.4. The depositions of all the witnesses produced by the parties received due consideration by the learned trial Judge, who analyzed the plea advanced by the appellant and her deposition as P.W.1 and has not believed her version even of receipt of produce by her, as no cogent evidence was produced. The conclusion drawn by the trial Court was that the mutation did not suffer from illegality and the appellant was not entitled to seek possession and her suit was time‑barred, which was ill motivated.

4. In order to judge the correctness of the findings and the conclusions of the learned trial Judge, we have considered the evidence, analyzed and appreciated the same. It may be observed that the plea advanced in the plaint undoubtedly prima facie evokes compassion, but when the evidence as a whole is taken into consideration, she is, found to have failed in proving the same by producing any convincing evidence. The law is well‑settled that averments made in the pleadings had to be proved by producing supportive evidence in accordance with law. We find that lot many developments and events took place after the appellant had attained majority and the attestation of the mutation. In the first instance, a suit for pre‑emption qua the same transaction, Exh.D.12 was brought by Ghulam Muhammad etc. collateral and Khatadars of the vendor (the appellant), against the vendees, Gaman and Bahadur. That was a suit brought in the year 1968. Secondly partition proceedings were instituted by sister of the appellant Mst. Sawai and Mst. Wasso (sister of her father). These proceedings were with Gaman and Bahadur, the vendees (vide Mutation No.1111 of 1967), evidenced by Exh.D.4 and Exh.D.5. How could it be possibly believed that the appellant had no knowledge (as was asserted by her) about the disputed sale. It is in her deposition that the family members of her husband Gul Sher were living together in one house and that Bahadur had been in possession of the half of the land. It was also stated by her that Gul Sher her husband had not informed her till 1970 about the sale of this land. It implies, in any case, an admission that in the year 1970 she was aware of the sale. Her sole testimony in support of her case set up in the plaint was of considerable importance, as testimony of Gul Sher P.W.2, her husband and son of Bahadur was of not much credibility. She failed to substantiate her plea by producing the evidence of any credible quality. The preponderance of the evidence available on the record whet, considered in its totality belies her assertion. Insofar as her assertion about having remained in possession and being paid the share of the produce by the tenants is concerned, that has also remained unsubstantiated and none of the said tenants was produced in Court. It may be noted that it was simply suit for possession on the basis of assumed title but the sale of the land by her, as evidenced from Mutation No.1111 of 30‑8‑1967 stood in her way. No proceedings at any stage, I right up to the filing of the present suit were taken by her against the said mutation in the statutory hierarchy or before the Civil Court well in time. It has already been discussed above that she was not ignorant of the mutation and it was established from the facts and. circumstances that she was fully aware of the same. Her suit. brought in the year 1988 for possession without having declared herself as owner was clearly out of time. Some irregularities pointed out in the proceedings of the Revenue Authorities m sanctioning the mutation were of no material effect, particularly in view of the conduct and long silence of the appellant, in assailing the same. The reliance of her learned counsel upon Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (supra), Janat Bibi v. Sikandar Ali and others (supra) and Mst. Amir Bibi v. Ata Muhammad Khan and 14 others (supra), is misplaced, inasmuch as in the precedent cases the right/entitlement was established by producing credible evidence whereas in the instant case the appellant had failed to produce evidence of a cogent nature, in support of her pleas.

5. The contention of the learned counsel for the appellant that issue No.3 was not attended to by the learned trial Judge, is not tenable, inasmuch as although he did not make a specific reference to issue No.3 yet the discussion in the judgment proceeds on the premises that he was conscious of the said issue and found the suit as barred by time. Paragraph No.17 of the judgment of the trial Court clearly states that "the plaintiff is not entitled to possession of that piece of land, that his suit is barred by time and that suit is ill‑motivated and with the collusion of Gul Sher". No material difference would result in non‑mentioning of the number of the issue. The judgment of the learned trial Judge is fully supported by the evidence on the record. No misreading of any material piece of evidence has been found in recording the findings and conclusions. As a result of the above, the appeal has no merit. It is dismissed accordingly. No order as to costs. Q.M.H./S‑526/L Appeal dismissed.