P L D 1995 Peshawar 27 (PLP)

14. As stated above, about 15 mutations were entered on 9‑4‑1988, some of which were attested on 24‑4‑1988 while the mutations in question were left on the said date though they were on the mutation register and left unattested, uncancelled and without any note on it. Furthermore after the cutting of the words gift and donor. then same process from the beginning including of making entries in Daily diary should have been adopted by Patwari if not by him then a written application by registered post A/D should have been required by the Revenue Officer which was not done and even the thumb impression or signature of transferor, some of whom are "Parda Nasheen" ladies, have not been obtained on the mutation which, in practice, is done, and thus the mutations were attested in flagrant violation of the mandatory provisions of the Land Revenue Act and the provisions of other relevant laws. 15: The plaintiffs have pleaded a fraud on the part of the Revenue Officials by attesting the gift mutations as sale mutations in collusion with the defendants 4 and 5 who later on instituted a pre‑emption suit in respect of the same property and claiming that these mutations were really gift mutations but have wrongly been attested as sale mutations. The plea of the plaintiffs has got support from the evidence and circumstances of the case. According to Baitullah Khan, Patwari Halqa, P.W: "The mutation stated above was entered as gift, the same was verified by a Girdawar. The Revenue Record does not bear the conversion of ‑ gift into sale by the donor nor is anything regarding the cancellation." According to P.W.2 Office Kanungo, in his own words: "The said gift is cut down but the cutting does not bear the ' date

There is nothing in writing on behalf of the owners cancelling the gift mutation and converting the same into a sale:' P.W.3 Haji Mubarik in addition to the fraudulent attestation of mutation at the behest of the contesting defendants 4 and 5 stated: "The land is measuring about 13 Kanals. It is correct that 13 Kanals of land were transferred through the mutation which I have challenged today. Voluntarily stated‑that we had transferred 80 Kanals of land to each other by way of gift." Attaullah Patwari Halqa was examined as P.W.1 and according to him that the common assembly was held in the Rice Mills of Gul Ayub who is the cousin‑ of Bahadar Ali attorney of Rastamal Khan and the expenses of the said common assembly were borne by Gul Ayub. It may be stated that Bahadar Ali and Rastamal Khan, as evident from the addresses given in the plaint are brothers. According to this witness i.e. Attaullah Patwari: "I have seen Mutations Nos.10078, 10079, 10080, 10081, 10082, 10086 and 10087 which were entered by Gohar Zaman, the then Patwari Halqa and the same mutations also pertain to parties inter se and were attested on 24‑4‑1988" These mutations have been entered on 9‑4‑1988 as the mutations in the present case. He further stated, "It is correct that the Special Attorney of the defendants is the first cousin of Gul Ayub. It is also correct that Bahadar Ali stated above and Gul Ayub were present at the time of attestation of impugned mutations." Bahadar Ali who is defendant No.5 and also attorney of defendant No.4 Rastamal Khan was examined as D.W.3 who stated: "I have gone to the place of gathering and met Patwari Halqa over there namely Attaullah and thereafter I departured to Bannu City. The Patwari Halqa told me that he had come to the said place for attestation of mutations of our village." All the abovementioned facts i.e.‑‑ (i) entering of the mutations in dispute as gift ,mutations on 9‑4‑1988 alongwith other mutations, (ii) the attestation of some of the mutations on 24‑4‑1988 while leaving the mutations in question unattested without cancellation and without passing any order on them even without writing any note in the same on the said date i.e. 24‑4‑1988 when other mutations were attested and they were already entered in the mutation register, (iii) by converting the gift mutation into sale without compliance of the mandatory provisions for entering and attesting of th8 mutations, . (iv) the holding of the assembly where the mutations were attested in the place of Gul Ayub, close relative of the contesting defendants who borne the expenses of the common assembly, (v) the presence of Bahadar Ali in the assembly and his meeting with the Patwari without any job of his own, (vi) the subsequent institution of pre‑emption suits by the contesting defendants, (vii) the mentioning of Rs.1,000 as value of the property ranging from 1 Kanal 10 Marlas to 9 Kanals 18 Marlas i.e. a nominal price, (viii) without any solid reason or cause with the donor or the donee for asking the Revenue Officer for changing the mutations from gift to sale, all speak volume of mala fide ulterior motive and fraud on the part of the Revenue Officials in collusion with the contesting defendants. 16.' Now after holding the attestation of mutations in flagrant violation of the law and rules and the result of fraud and collusion with the contesting defendants, the question which poses itself for consideration is the jurisdiction of the Civil Court in the matter and this was necessitated by the findings of the learned appellate Court which, of its own considered the suit under section 42 of the Specific Relief Act by observing that the plaintiffs

"want to get the correction of mutations which does not come within the purview of section 42 of the Specific Relief Act because the correction of mutation can only be sought through its review before the Revenue Authorities under the Land Revenue Act, and so, for the mere correction of mutations the provisions of section 42 of the Specific Relief Act does not attract at all and consequently such like suits are barred by the provisions of section 42 of the Specific Relief Act." While commenting upon the pre‑emption suit the learned Appellate Court observed: "As such, the instant suits of appellants being instituted after the earlier suits of pre‑emption, are also barred by law. The same are neither competent nor maintainable and were rightly dismissed by the learned trial Court." While the learned trial Court on Issue No.4 with regard to the competency of the suit, Issue No.5 for misjoinder of the parties, Issue No.7 for compensatory cause, Issue No.8 with regard to the jurisdiction of the Court and Issue No.9, observed‑‑ "these issues were neither pressed nor proved, hence are decided in negative." The learned appellate Court has misconstrued the facts of "the case by holding it that the case is for the correction of the mutations but what the plaintiffs' case is that the mutations in dispute have been made immune from the pre‑emption while in case of sale it gives rise to the right of pre‑emption the moment it took place. So, keeping in view these facts into mind then it cannot be said that it is mistake which requires correction but it signifies the very intention of the parties that under what consideration they want to transfer the property to another. It is not a clerical error or a patent fact simplicitor which requires a correction. If the learned appellate Court while treating the suit only under section 42 of the Specific Relief Act why it could not be treated alongwith that section, under section 31 of the Act ibid which provides for the rectification of the instrument as when through a fraud or mutual mistake of the parties an instrument in writing does not truly express their intention, then either party may institute a suit to have the instrument rectified and the Court on arriving at a conclusion that the fraud or mistake has been committed and the real intention of the parties was somewhat else, then the Court, in its discretion, rectifies the instrument to bring it in accord with the intention of the parties.

17. The endeavour of a Court is to get at the true understanding of the parties to give effect as the object of the parties was to produce a certain legal result yet the contract as framed is not calculated to produce it. Here the desire of the parties was to transfer the property through gift which was conformable continuously in the minds of all the parties down to the time of its execution. Though the powers of rectification of the instrument has been subjected to a condition that the rights acquired by third person in good faith and for value be safeguarded which in the instant case is also lacking as no party has acquired any right in good faith and for value except the filing of the pre‑emption suit by the defendants which cannot be considered as such. In the section ibid the word instrument in writing has been used and which word has not been defined in the Act itself, to which the general meaning will be given, as a formal legal writing such as deed, will, agreement which include every document by which any right of liability is, or purports to be, created, extinguished or transferred. Even a compromise decree may also be considered as an instrument on the ground that it is a contract between the parties. In this case all the conditions of section 31 are satisfied and if otherwise the substance of the suit leads to a conclusion that the instrument involved requires ratification and in which respect sufficient material has been brought on record, then the Court under the equitable jurisdiction ought to grant such. a relief irrespective of the procedural omission if that causes no prejudice to any one.

18. According to section 172 of the Land Revenue Act, the jurisdiction of the Civil Court is barred and under 4(2)(vi) of the said section, the jurisdiction of the Civil Court has been ousted in matter of correction of register of irritations. But as held above, herein the case in hand, the correction of the mutations is not involved but it is the rectification of the instrument which is to be done and which was the result of fraudulent act of the Revenue officials and which requires a thorough probe, recording of the evidence for arriving to a conclusion that the intention of the parties for the transfer of the property was through gift and not through sale and which could not be done without a proper regular suit as the procedure before the Revenue Officer under the Land Revenue Act is in the nature of the summary inquiry and even otherwise too, wherever there are some acts of the statutory functionary, which is not in accordance with the law and rules prescribed for the same and their acts are in violation of the relevant provisions of law, then the Civil Court has got the jurisdiction. As a result of the above discussion, on acceptance of the revision petitions, the suit of the plaintiffs is decreed by rectifying the mutations as gift instead of sale. Parties are left to bear their own costs. A.A./1649/P Revision accepted.