P L D 1993 Lahore 254 (PLP)

Briefly stated facts of the case out of which this civil revision has arisen, are that Wali Muhammad, predecessor-in-interest of the respondents, owned land. measuring 31 Kanals 16 Marlas situate in the revenue estate of muaza Warts Wahan, Tehsil Mailsi, District Vehari, which was being cultivated by the petitioner No.1 as a tenant. This land was shown to have been sold in the name of the petitioner No.1 vide mutation of sale No.40 dated 10-2-1967 for an alleged sale price of Rs.10,

000. Subsequently, this land was gifted by petitioner No. 1 in favour of petitioner No. 2 vide registered gift deed dated 5-4-1977. Wali Muhammad did not challenge these alienation during his lifetime and died in the year 1980. The respondents who are the legal heirs of Wali Muhammad deceased, after his death, filed a suit seeking declaration to the effect that they are owners of the land in question and that mutation of sale as well as the deed of gift are illegal and are based upon fraud, .and, therefore, are inoperative against their ownership rights. This suit was filed on 9-2-1983. It is contended in the plaint that it was three months prior to the flung of the suit that the respondents came to know about the transactions in question. Hence the suit.

2. Above-referred suit has been contested by the petitioners. Initially, petitioner No.2 was not added as. a defendant but subsequently, he was added as defendant No.2 on 12-10-1985, after some of the evidence of the plaintiffs had been recorded.

3. On the basis of the pleadings of the parties, learned trial. Court settled following issues:-- (1) Whether the plaintiffs have no cause of action? OPD (2) Whether the suit is barred by time? OPD (3) Whether the suit is not maintainable in its present form? OPD (4) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction? If so, to what effect? OPD (5) Whether the suit is bad for non joinder of parties? OPD (6) Whether the suit property has not been correctly described? If so, to what effect? OPD (7) Whether the defendant is a bona fide purchaser for consideration? OPD (8) Whether the Mutation No.40 dated 10-2-1967 is illegal, based on fraud, void and ineffective qua the rights of the plaintiffs? OPD (9) Relief and vide judgment and decree dated 17-11-1987 passed a decree in favour of the respondents. This judgment and decree passed by the learned trial Court was challenged by the petitioners in appeal before' the learned District Judge, Vehari. This appeal has been dismissed on 24-7-1989. Aggrieved by both the judgments and decree the defendants have filed this civil revision.

4. Learned counsel for the petitioners has argued that the two learned Courts below have misread the evidence and failed to take into consideration material pieces of evidence while recording findings of fact on the question of validity and legality of the sale. Elaborating his arguments, learned counsel for the petitioners has contended that neither any particulars of fraud have been mentioned in the plaint nor proved in evidence and as Wali Muhammad did not challenge the sale transaction during his lifetime, it stands established that a valid sale had taken place. I have asked the learned counsel as to whether there is any document evidencing receipt of consideration, the learned counsel has frankly conceded that there is none. I have asked the learned counsel as to whether the Assistant Collector who had attested the mutation was produced as a witness, the learned counsel has answered in the negative. I have asked the learned counsel as to whether the Lumberdar, who identified the vendor is related to the petitioners, learned counsel has answered in affirmative. Learned counsel has also admitted that before the alleged sale petitioner No.1 cultivated the land as a tenant under Wali Muhammad deceased. The next argument raised by the learned counsel for the petitioner is that gift in favour of petitioner No.2 has not been specifically challenged in the suit and evidence had been recorded in his absence, prior to the date when he was impleaded as a party, hence on the basis of that evidence no decree could have been passed against him. Learned counsel has further argued that the suit is barred by time as the sale transaction relating to year 1967, and registered deed of gift dated 6-4-1977 have been challenged in the year 1983 after a period of about 16 to 6 years respectively. According to learned counsel suit could, at the most, have been filed within six years from the date of first transaction. Learned counsel has also contended that the suit is not maintainable in its present form, as the respondents being out of possession, cannot file a suit for declaration of title simpliciter.

5. Learned counsel for the respondents on the other hand has controverted the arguments addressed by the learned counsel for the petitioners and has contended that the concurrent findings of fact recorded by the two Courts below cannot be interfered with in this second appeal in view of the law laid down in case of Abdul Majeed and others v. Khalil Ahmad PLD 1955 k 38 as it is not a case of misreading or non-reading of evidence. It has further been contended that petitioner No.1 was in possession of the land as tenant therefore, the suit is maintainable in its present form and that bar of limitation will also not be applicable in the case in hand, which is a title suit and has been filed within a period of six years of acquisition of knowledge of fraud committed by petitioners. Learned counsel has further argued that the subsequent gift in favour of petitioner No.2 has also been challenged in the suit and in case the original sale transaction is held to be void, the transaction of gift will automatically fall through, as the person who' does not possess title in the property cannot transfer better title to another. Even otherwise according to learned counsel alleged gift is sham transaction. It has further been contended that the form of the suit is correct, inasmuch as, the declaratory suit is competent and in case the declaratory decree is upheld, the respondents can be granted a decree for possession as a consequential relief in view of disclaimer of title of the owners by the tenant-petitioner and hence this suit cannot be dismissed merely for the reason that the petitioners are in possession thereof and the suit is for a declaration of title simpliciter. 6. 1 have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. The transaction in question in this case has been effected through a mutation on the basis of oral sale. There is no document to evidence the passing of the consideration. The Attesting Officer, who is A.C. II has not been produced as a witness. Lumberdar, who identified the vendor at the time of sanctioning of the mutation is admittedly a relative of petitioner No.l. The land in question was in possession of the petitioner No.1, at the time of sanctioning of the mutation, as a tenant. No independent witness of the transaction in question has been produced by petitioner No.l. There are serious discrepancies in the statements of D.Ws. who are stated to be the witnesses of sale which have been taken note of in the judgment rendered by the learned first appellate Court. Report Roznmacha which allegedly bears the thumb-impression of the deceased has not been produced in evidence. Mutation in question does noi bear the thumb-impression of Wali Muhammad although so alleged by D.Ws. Sale in question has been challenged on the basis of fraud, and the allegations on the basis whereof the suit has been filed are that the We was never made by Wali Muhammad deceased and he did not appear before' the revenue authorities. There is no evidence on record of this case to prove that Wali Muhammad had the knowledge about the transaction in question or about the adverse entries in the revenue record regarding his title during his lifetime. Positive is always to be proved by a person who alleges that the transaction has taken place. There being no cogent evidence of the transaction of sale as well as passing of the consideration the two Courts below after scanning of whole evidence produced on record of the case have rendered a concurrent finding of fact to the effect that the land in question was never sold by Wali Muhammau deceased. Merely because during his lifetime, he did not object or file any proceedings seeking setting aside of the sale in question is rot sufficient to prove that the transaction was genuine in nature, in absence of cogent evidence of his knowledge of the sale mutation. The respondents have filed a title suit on the basis of their own independent title which they have acquired through inheritance on the death of Wali Muhammad. It has been alleged by them that they acquired the knowledge of transaction three months prior to the suit. Learned counsel for the petitioners has argued that the documents Exhs.P.1 and P2 prove that the respondents acquired knowledge of transaction in the year 1980. Even if, the date of knowledge is presumed to be in 1980, it cannot be said that the suit has been filed after an inordinate delay keeping in view the fact that some of the respondents are ladies and minors. It is an established principle of law that in second appeal, a finding on a question of fact recorded concurrently by the two Courts below cannot be interfered with unless and until it is a case of misreading, omission to take into consideration material pieces of evidence and misinterpretation of the documentary evidence on record. It has been held in caw of Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38 at page 41, as under:-- -it is obvious that what the learned Judges intended to say was that for the reasons stated by them the Courts below should not have accepted the evidence which they did, and they seem to have assumed that a fallacious method of approaching the evidence, is, in second appeal, a good ground for upsetting a finding of fact based on such evidence. With great respect, I am unable to agree with this view, because a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. I had the occasion to examine this question recently in the Lahore High Court in Nadir Shah v. Lal Shah and others PLR (1954) 595 = PLD 1954 Lah. 447 where referring to the leading authorities of the Privy Council on this subject I held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. I adhere to that opinion which was based on the Privy Council ,decisions in Durga Chowdhrani v. Jewahir Singh Chowdhri ILR 18 Cal. 23 and Wali Muhammad v. Muhammad Bakhsh ILR 11 Lah. 199 which lay down this proposition in clear and unmistakable terms. It is not suggested that there was in the present case any 'error in the procedure provided by law' nor that there is any rule of law prescribing the manner in which evidence in such cases has to be judged which was contravened by the Court of First appeal which is the final judge of facts. The circumstances that the sale-deeds contained no recital as to necessity, that the alienation were old sales, that the alienee was dead at the time of the suit and that the vendor was leading the fife of a country gentleman and not that of a debauch or wastrel, had all been duly considered by the Courts below in arriving at their conclusions, and assuming that the High Court did not agree with the lower Courts' appreciation of the evidence, that could not be a ground for it to reverse the concurrent findings of fact of the lower Courts. In my opinion, the High Court had no jurisdiction to entertain the second appeal on this ground, and it exceeded its functions in interfering with those findings." In the case in hand, learned counsel for the petitioners has not been able to point out any misreading/non-reading of evidence and misinterpretation of documentary evidence.

7. In the similar circumstances in case of Bibi Mukhtar. v. Amrezan and another PLD 1968 Pesh. 169, an alleged oral sale evidenced by a mutation was not upheld. At pages 170, 171 of the report, their Lordships have discussed salient features of the case and held as under:-- "(4) The learned counsel has read out the statement of Munawar Din Lumberdar from the certified copy to show that the learned a appellate Court had misread his evidence. The criticism, in my view, is justified in that the learned appellate Court stated that 'he ' did not know Mst. Amrezan from before. He does not know her whereabouts'. This part of the statement is not to be found in the certified copy. Be that as it is, I feel inclined to hold that Mst. Bibi Mukhtiar has signally failed to make out the facturn of sale in her favour. The following reasons may be listed in support of my view

(1) As already stated, if asmuch as Rs.5,000 are paid, one is bound to insist on a receipt evidencing the payment. No receipt is forthcoming or alleged. (2) The factum of the sale was reported to the Patwari on 3-6-1966 by Haji Akbar, husband of Mst. Amrezan. If Mst. Amrezan was present on that day, what prevented her from reporting the facturq of sale and fixing her thumb-impression. It appears that she was not present on 3-6-1966 and that some other lady appeared in a Burqa before the mutation officer. -The thumb-impression of Mst. Amrezan on the report before the Patwari was not resorted to, because the falsity of this could very esaily be proved by having it compared with the admitted thumb-impressions of Mst. Amrezan. (3) In this materialistic world,--cannot easily be persuaded to believe that people of the status of the parties before me while parting with a large amount of Rs.5,000 should do so without obtaining a receipt. (5) It is indeed gravely 'disquieting to note large number of cases coming before the Courts in which mutations have been attested by the revenue officer on the strength of admission of the alienors when in fact the alienors had no knowledge of the transactions at all, or of cases where some other persons have personated the real alicnors or of cases where the vendors had agreed to sell a small area of the land, but as a reulst of collusion of the vendees with the revenue officers much larger area that the one agreed to be sold is entered and the mutation officers without disclosing the true facts have attested the mutations. I am aware of the presumption which is attested to official acts under section 35 of the Evidence Act to the mutation proceedings but would venture to say that the evidence of the mutation officers should be accepted with very great caution in view of large number of cases coming before the Courts in which the revenue officers have colluded with the parties and falsely come forward to depose about the transaction. This being the situation, the Courts must insist on some evidence other than the mutation proceedings in support of the sale and any person who relies solely on the mutation proceedings without obtaining anything in black and white evidencing, the transaction would do so at his risk."

8. In the light of the above discussion and in view of the law laid down in the above cases there is no ground to interfere with the concurrent findings of fact recorded by the two Courts below which arc to the effect that, the sale had never taken place and no consideration has passed. Hence the findings recorded by the two Courts below on the issue are upheld. Argument of the learned counsel for the petitioners to the effect that as the gift in favour of petitioner No.2 had not specifically been challenged, therefore, no decree can be passed against him is also misconceived and is based upon non-reading of the plaint. Gift has been challenged in the suit as is clear from the narration of the title of the suit which is as follows:- No person can transfer title which he himself does not . possess. As the original sale in favour of petitioner No. 1 has been held to have not been proved, petitioner No. 1 himself had no title in the property to transfer the same by way of gift and therefore, gift in favour of petitioner No.2 also falls through and it is held that the alleged transaction of gift is also invalid, void and inoperative against the ownership rights of the respondents. Argument of the learned counsel for the petitioners to the effect that since the evidence had already been recorded when the petitioner, No.2 was impleaded as a party to the suit and, therefore, the whole trial stands vitiated. inasmuch as the evidence so recorded could not have been used against him, is also misconceived . As held earlier, the dispute relates to the transaction of sale in favour of respondent No-1, which has been held to be non-existent. Consequently, it was not at all necessary to record the evidence afresh after impleading petitioner No.2 as a party to the suit, inasmuch as, he claimed title through petitioner No. I who had fully contested- the suit and in whose presence evidence of the petitioners was recorded. Even otherwise.'! petitioner No.2 never agitated, the point before lower Courts and never demanded that the evidence in the case should be recorded afresh. Therefore no fault can be found with the judgments of the learned Counts below on this Court. Argument of the learned counsel for the petitioners to the effect that the suit is barred by time is also misconceived. Petitioner No.1 was in possession of the ' land as a tenant at the - time of sanctioning of the alleged mutation of the sale. He having been inducted as a tenant, cannot claim adverse to what was acquired by him in a lawful manner. As the transaction has been held to have been proved, no period of limitation can stand against the owners to seek a declaration of title against a person whose possession was as that of a tenant and against a person who claims title from the tenant. It is an established principle of law that once a tenant is always a tenant. The petitioners had not claimed adverse possession i nor they could plead the same in the light of their pleadings and in view of the law laid down in the case of Ghularn Oadir v. Alunad Yar and others PLD 1990 SC 1049, wherein their Lordships of the Supreme Court have held as under:-- "A judgment has also been cited from foreign jurisdiction that even in case of adverse possession reliance on a valid source of title would not debar the party concerned from pleading adverse possession... it is Luvar Popat Kala, appellant v. Luvar Bachu Rugnath and others, respondents AIR 1958 Bomaby 152 (V. 45 C 44). The facts of that case are distinguishable. The question regarding inconsistent pleas involving one of adverse possession had come up for examination in connection with the plea of res judicate. The earlier view taken up for the same High Court that the pleas, as in the present case would be inconsistent and would not be permissible, was however not disapproved. Moreover the question as to how in such circumstances if the pleas were not treated as inter se contradictory, the party relying on adverse possession would be , able to satisfy the condition of possession being hostile and open against the owner, was not squarely answered. The said judgment, therefore, is of no help to the petitioner. In our view when a party pleads that it had a valid title, as in the present case, through purchase and subsequent inheritance as stated by learned counsel it would become impossible for such a party .to succeed in the alternative on the plea that the possession being open and hostile, title had matured otherwise on account of influx of time through adverse possession. We, accordingly, do not find any force in the contention raised by the learned counsel. Other technical points also have been urged by the learned counsel but the equity is against the petitioner and we do not consider it a fit case for grant of leave to appeal on any technical consideration. The same, therefore, is refused." Hence it cannot be said that a title suit is barred by time in "the case in hand. Even otherwise, the suit has been filed within six years from the date of acquisition of the knowledge of fraudulent transaction and, therefore, it has rightly been held to be within time. Argument of the learned counsel for the petitioners to the effect that the form of the. suit is not Correct is also misconceived. Admittedly, the petitioner was in possession' of the land in question as a tenant. In case, the. sale is set aside, his possession will be that of a tenant and an owner need not ask for possession in a title wherein a cloud on his title is to be got removed by filing of a suit in the Civil Court, therefore there is no formal defect in this declaratory suit which has been filed by the respondents and the findings of the two learned Courts below on the issue of form of the suit are correct, even otherwise due to defect of form the suit cannot be dismissed. It has been held in case of Ahmad Din v. Muhammad Shali and others PLD 1971 SC 762 that a declaratory suit on the basis of title cannot be dismissed in case possession is not claimed in the suit. Proper course for the Court in such cases is to pass decree for possession in favour of the plaintiff with a direction to pay court-fee on the relief of possession. At page 766 of the import, it has been held as under:-- "The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fee's and then to grant him relief even though he had not specifically asked for it." Hence argument of the learned counsel for the petitioners with regard to the form of the suit is also repelled. No other point has been argued by the learned counsel for the petitioners, hence I see no force in this civil revision, the same is, dismissed with costs throughout.

9. However, in view of the fact that petitioner No.1 who possessed the land in question as a tenant has set up an adverse title against the lawful owners of the land in question he has forfeited his right of tenancy. The petitioner No.2 claiming himself a transferee in interest from petitioner No.1, both the petitioners are not entitled to claim and retain possession of the land in question. Resultantly, in exercise of my powers under section 115 read with the provisions of Order 41, Rule 33, C.P.C. and in the light of law laid down in case of Allah Ditta v. Barkat Ali and 3.others 1992 SCMR 1974, wherein it has been held as under:-- "As long as 1963 it was laid down by this Court in the classic statement of law in Imtiaz Ahmed v. Ghulam Ali etc. PLD 1963 SC 382 at 340 as follows:-- ........ . the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his'." I hold that besides a declaratory decree already granted, the respondents are also entitled to the grant of decree for possession of the land in question as a consequential relief. Resultantly, judgments and decree passed by the two learned Courts below having been maintained as - consequential relief, plaintiffs-respondents are granted a decree for possession of the suit land. The decree-sheet shall, therefore, be amended accordingly. AA./A-334/L Decree modified.