1998 PLP 2006 (CLC)

(b) As an issue in respect of adverse possession was formulated, it was submitted that a co‑sharer with possession cannot claim adverse possession against another co‑sharer. As such there is no flaw, in the plaint; ' (c) It was argued that the impugned mutation deals with right if any accrued to Zardad petitioner, and a reference to Fard Jamabandi of the year 1965‑66 indicates petitioner to be a co‑owner of the suit land. Meaning thereby, that, if any, sale transactions were entered into by the petitioner in favour of some other vendees, namely, Yousaf, Haroon etc. that would be either out of the property he was in possession as co -owner in the unpartitioned Khata or at best property which he purchased through Mutation No.3524 from Sardar Gul Zaman which stands admitted by the parties; (d) Where a party takes the stand of 'negative' assertion, i.e., she has claimed that she has never sold the property in dispute it cannot be proved by leading 'positive' evidence by the same party; (e) Reference was made to the written statement originally filed as well as the amended written statement wherein the petitioner had at no stage taken the stand that he has purchased property both from the husband and the wife and that the husband Gul Zaman executed the sale mutations on his behalf as well on behalf of his wife. No power of attorney was ever asked for by the petitioner from Gul Zaman to make him legally entitled to sell the property of his wife, section 42 of Land Revenue Act lays out detailed procedure as to how mutations are attested and the impugned mutation being not attested in manner provided therein no presumption in favour of petitioner could be drawn; (f) The petitioner was claiming proprietary rights on the basis of impugned mutation, therefore, the burden was shifted on him to discharge to prove that the mutation was lawfully executed by or on behalf of the vendor; (g) Sardar Gul Zaman (husband of the respondent) was produced as defendant's witness who has totally destroyed the case of the petitioner and if it is presumed that the said witness was won‑over he could have been declared hostile and cross‑examined; (h) The change in Khasras numbers as from original numbers to new one will not affect the execution of decree as crucial date would be the one on which the suit was filed. Even otherwise keeping in view the report of local commission it is very easy to compare the old Khasra numbers viz. the present one; (i) As to the period of limitation that the challenge to attestation of mutation could have been made within period as prescribed under Article 14 of the Limitation Act it was submitted that the proposition so advanced is not correct and instead Article 120 of the Act would apply; (j) The respondent being a ' Pardanashin' lady, the onus was heavy on the petitioner to prove the execution of sale transaction through impugned mutation in his favour; (k) The concurrent finding of the fact both on law and facts could not be interfered with by this Court in exercise of revisional jurisdiction.

8. Learned counsel in support of his submissions that burden to prove the validity of mutation is on the person who claims title/proprietary right is on the plaintiff. Reference was made to 1995 CLC p.1906, PLD 1968 Pesh. p.169, PLD 1969 Pesh. p.85, 1993 SCMR p.618 and 1996 MLD p.377. 1990 CLC p.164 was referred to in support of the contention that plaintiff can take an alternate plea in the plaint. To support the contention that where the Court has got jurisdiction to adjudicate upon a matter it can mould a relief according to the circumstances of the case and the evidence led if ‑‑ justice so demands, notwithstanding the fact that such relief was not expressly asked for. Reliance was placed on PLD 1989 Kar. p.404. To make the petitioner stand by his own evidence particularly with reference to Sardar Gul Zaman reliance was placed on 1989 CLC p.157 and 1979 CLC p.62. As to the possession of one co‑sharer under the law is possession of all the co‑sharers. Reliance was placed on 1992 CLC p.1117 and 1990 CLC p.164. It was also submitted that where a co‑sharer constructs/improves on piece of land under his possession he would remain in possession of said part of the land until partition takes place and after partition the area under house should be kept in the lot of the said co‑owner so far it is practicable. Reference was made to 1993 SCMR p.1463.

9. As to invalidity or irregularity in the judgment of both the Courts below and in particular judgment of the Appellate Court, reliance was placed on 1997 MLD p.3075 and 1992 MLD p.2515. Dealing with the last contention as to the exercise of revisional jurisdiction reference was made to PLD 1993 Pesh. p.36 and 181, PLD 1995 Pesh. 135, PLD 1994 SC p.291 and lastly 1996 SCMR p.813.

10. Before giving my finding on points as agitated before this Court touching upon the merits of the case either on facts or on law. I would first deal with the proposition to determine the scope of jurisdiction vested in this Court while exercising powers under section 115 of C.P.C. A Court exercising revisional jurisdiction 'is to first see if the case before it stands decided and that such decision is by a Court subordinate to it. Further, that no appeal under the law lies against such decision. Having seen the aforesaid three aspects the next stage for the exercise of revisional jurisdiction comes into play where the revisional Court would again determine its powers by testing the order impugned on the yardstick of (a) has the Court adjudicated on the matter, has exercised jurisdiction not vested in it; (b) the Court was having the jurisdiction but has failed to exercise; (c) the Court has exercised jurisdiction vested in it but in illegal manner 'and/or has committed material irregularities.

11. In the instant case facts have been elaborately described in the preceding paras. Two transactions are said to have taken place through two mutations; one bearing No.3523 and the other 3524. The amount of sale consideration in both the mutations is Rs.8,000 whereas area subject‑matter of the two mutations though falling within same Khasra numbers is not equal. Mutation No.3523 which is said to have been attested on 9‑6‑1972 alleged to have been entered on behalf of the respondent through Sardar Gul Zaman her husband. It is an admitted fact that no one can alienate any property unless the same is either owned by him or he/she is duly authorised through a power of attorney for any such transaction mentioned/described in the power of attorney. In this case the relationship of husband and wife does exist between the respondent and D.W.5 but there is no evidence that D.W.5 had any lawful authority to sell the property owned by Mst. Safia Begum in her own right.

12. The exercise of revisional jurisdiction when seen within the compass that I have observed in an earlier para. and as held by superior Courts time and again is not only supervisory in its nature but discretionary and an equitable exercise of powers. This would mean that the revisional Court beside looking into legal intricacies/technicalities would also decipher and analyse the conduct of either of the party reflected through their respective evidence. In that, it strikes to one's judicial mind that if the two mutations were to be attested on the same day in respect of the same Khasra numbers and on the authority of Sardar Gul Zaman then why not a single mutation was entered which was well permissible under the law. In this respect one can make reference to the evidence and in particular to the statement of petitioner according to which at the time of attestation of the two mutations beside Sardar Gul Zaman the respondent was personally present. If it was so, why the attestation was not made on the basis of statement of respondent who, according to the petitioner, is an educated lady and cannot be considered a rustic and uneducated ' Pardanashin' lady. It is in the statement of Muhammad Yousaf produced by the petitioner that at the time of attestation of the impugned mutation the sale consideration was paid to the respondent in his presence. The evidence so led was with a view to establish that the respondent was personally present and had consented to the attestation of impugned mutation. As the petitioner is claiming title in the suit property on the basis of impugned mutation the burden is and was on him to establish that the mutation was lawfully attested with free consent of the respondent and in her presence. Any mutation which has created a right, though acted upon does not become legal unless, the same is tested on the basis of other surrounding circumstances particularly when the alleged executant disowns its existence and challenges the same on the grounds of collusion and fraud.

13. Section 42 of Land Revenue Act, 1967 specifies the procedure for making the records. The relevant portion of section 42 of the Act is reproduced below:‑‑ "

42. Makin of that art of periodical records which relates to land.‑‑‑ (1) Any person acquiring by inheritance, purchase, mortgage, gift or otherwise, any right in an estate as a landowner; or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of estate, who shall‑‑ ' (a) record such report in the Roznamcha to be maintained in the prescribed manner; (b) furnish a copy of the report so recorded, free of cost, to the person making the report; and (c) send a copy of the report, within a week of its receipt by him, to the Union Committee, Town Committee or Union Council within which the estate is situated. (2) ................................................................................ (3) The Patwari shall enter in his register of mutations every report made to him under subsection (1) or subsection (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those subsections and has not been so made. (4) The report made to the Patwari under subsection (1) or subsection (2) or recorded by him under subsection (3) shall be displayed in such manner as may be prescribed. (5) If the Patwari fails to record or to display a report made to him under subsection (1) or subsection (2), the person making the report may make the report, in writing, to the Revenue Officer concerned and the Chairman of the Union Committee, Town Committee of Union Council in which the estate is situated, by registered post acknowledgement due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations. (6) A Revenue Officer shall, from time to time, enquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired. (7) Except in cases of inheritance or where the acquisition of the right is, by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Town Committee or Union Council concerned, whose signatures or thumb‑impressions shall be obtained by the Revenue Officer, on the register of mutations. " This mandatory provision of law requires strict proof and under subsection (7) the entry is to be recorded in the presence of person whose right has been acquired that‑too if such person has been identified by two respectable persons and that the signatures/thumb‑impressions of such identifying witnesses shall be obtained by the Revenue Officer on the register of the mutations. In this case, there is not an iota of evidence to show that the procedure was as such adopted. It has come in evidence that the record of the Tehsil was destroyed due to fire and the copy of the mutation on which the right is claimed is "Part Musanna" prepared from "Punt Patwar". Purt Patwar does not contain the details of the witnesses who have identified the vendor. It does not contain the place where the mutation was attested. Therefore, the petitioner's evidence is deficient as to the genuineness of the mutation notwithstanding the fact that Patwari Halqa appeared. It is to be noted that Patwari Halqa made statement on the basis of "Punt Patwar" from which the required details could not be taken, therefore, I hold that the petitioner could not claim proprietary right on the basis of such mutation in the absence of other cogent evidence. The statement of petitioner and the identifying witness, namely, Yousaf is not acceptable as both of them have stated that the respondent was present when the mutation was attested but either of them could not say as to when and where it was so attested. There is yet another aspect of the case discernible from the statement of Muhammad Yousaf who has alleged that the respondent and her husband were known to him and it were they who took him along for their identification for attestation of the mutation. In the cross -examination he has stated that (Urdu version is translated by me in English) "the name of the person who identified me and the other Yousaf in presence of Tehsildar is not known to me. I also did not know that man. It is not in my knowledge as to who brought that person but he was present on the spot. I did not ask Zardad (petitioner) that as to who that person was". If this view of the evidence is taken and read with the statement of the petitioner once again one is put into doubt as to the execution of valid mutation between the parties.

14. Now coming to the statement of Sardar Gul Zaman who appeared as witness of the petitioner one wonders as to why he was inducted in the list of witnesses by the petitioner and having been so placed, why was examined at the trial. According to the record the list of witnesses was submitted with the plaint. Later on, on 3‑10‑1982 and 15‑11‑1982 the petitioner requested the trial Court for amendment of list of witnesses which was so granted, still, he never bothered to ask for the deletion of the name of Sardar Gul Zaman. The contention of the learned counsel for the petitioner that the induction of Sardar Gul Zaman was only for the purpose of cross‑examination appears to be a lame excuse though so recorded in the list of witnesses. His contention appears to be absonant because no one will take the risk of producing the witness who is none else but husband of the respondent. It appears that the petitioner under some impression which might have been created in him took upon to produce Gul Zaman as his own witness. ' Where a party voluntarily takes into the witness‑box a person who makes deposition against such party, then, under no legal or moral norms the party producing such witness can take an adverse stand by disowning him to be his witness and asking for exclusion of his evidence from consideration. The law secures the interest of such party by allowing him to declare such witness hostile and expose him through cross‑examination. '

15. As question of limitation has also been raised as against the respondent and it was contended that the subject suit could be filed within one year as provided under Article 14 of the Limitation Act. I hold that Article 14 of the Act ibid deals with setting aside any act or order of the Officer of the Government done by him in his official capacity and for which no other provision has expressly been provided in the Act itself. The attestation of mutation by the Revenue Officer undoubtedly is an official act but cannot be termed to be one which falls under Article 1.4 of the Act. Where, a declaration is sought dealing with the proprietary rights in the property the provision of Article 120 would come into play, i.e., suit is to be filed within 6 years from the date when the right to sue accrues. Therefore, the suit was well within time as the mutation was alleged to have been attested on 9‑6‑1972 and the present suit was filed on 13‑3‑1976. Taking up the point of presumption in favour of the petitioner by virtue of entries in his favour in record of rights, there is no cavil with the proposition that under section 52 of the West Pakistan Land Revenue Act there is a presumption of truth but the same is subject to rebuttal. A party has got every right to prove the contrary by producing/adducing evidence that entries recorded were as a result of fraud, collusion, against facts and without the knowledge of the persons whose rights through such entries stand transferred.

16. The submissions of the learned counsel for the petitioner that mutation has been acted upon and not that it has only created vested right in the petitioner but subsequent thereto he has alienated through different transactions the suit property to some other vendees is also not sustainable on the rule of lis pendens. The rule referred to above does not create any right in the party allegedly acquired/obtained during the pendency of the litigation. The evidence on the point of construction as far the house of petitioner is concerned indicates that the map was approved by the Municipal Authorities in the year 1977, i.e., after the institution of the suit. As to the construction carried out by Yousaf, Haroon and some others, suffice it is to say that the petitioner was a co‑sharer in the joint Khata including some Khasra numbers in dispute. Therefore, a co‑sharer under the law can alienate‑‑‑part of his property to a stranger provided he is in possession of that land and such possession shall remain intact until partition takes place between the co‑sharers. In the same breath one can say non‑inclusion of Yousaf and Haroon as defendants in the main suit will not affect the challenge to the impugned mutation.

17. Reverting to the submissions that the judgment of the Appellate Court be set aside as the same is not in accordance with Order 20, Rule 5 read with Order 41, Rule 31, C. P. C. No doubt that a Court of law whether at the trial or the Appellate Court are to give their finding on each and every issue and the Appellate Court shall give points for determination and shall refer all the important questions involved in the case. These orders and rules are directory and not mandatory. My approach to the above stand is based on the proposition that neither of the order or rule provides that if there is any omission of such details as required under Order 20, Rule 5 or Order 41, Rule 31, C.P.C. the judgment and decree will become a nullity. If the Appellate Court after having given due consideration to the facts of the case has reached the conclusion and more particularly where it is concurring with the finding of fact as arrived at by the Trial Court in its judgment, where each and every issue was discussed in detail and that where no prejudice has been caused to the cause of the petitioner, the judgment of the Appellate Court should not be set aside on any technicality.

18. Where the questions of law and facts both have been dealt with in details by the two Courts below and there is concurrent finding of facts and law, and the petitioner could not point out any legal infirmity, i.e., lack of jurisdiction or illegal exercise of jurisdiction or material irregularity the revisional jurisdiction cannot be exercised in favour of the petitioner. For the above reasons I am of the view that there is no substance in this revision petition, the same alongwith Civil Miscellaneous is dismissed. Judgments and decrees of the‑ two Courts below are upheld. A.A./124/P Revision dismissed.