2004 PLP 1043 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Muhammad Taqi Khan and six others, the legal heirs of Fida Hussain, defendant in original suit, have filed this petition for leave to appeal against the judgment, dated 8-6-1999 rendered by an Hon'ble Single Judge of Lahore High Court in Regular Second Appeal No. 435 of 1975, whereby the decision given by the First Appellate Court on 6-5-1975 was upheld and the decree granted thereby in favour of Mst. Fateh Mai was maintained.

2. Mst. Fateh Mai had acquired 9 Kanals 19 Marlas of land in village Shahani, Tehsil Bhakhar, District Mianwali through an exchange with one Abdullah Khan son of Ghulam Haider Khan vide Mutation No.3128 attested on 19-1-1958. About two years prior to her filing civil suit on 13-6-1972, it is alleged, that she was forcibly dispossessed by Fida Hussain. She, accordingly, brought a suit for possession, which was contested by Fida Hussain on the ground that Mst. Fateh Mai had sold the same in his favour through Mutation No.3358 attested on 21-12-1961. After close of the evidence of the parties, the learned trial Judge dismissed the suit vide his judgment, dated 23-4-1974 but the same was set aside by the learned Additional District Judge on 6-5-1975. Regular Second Appeal before the High Court was also dismissed as aforesaid and hence this petition.

3. It is a known principle of law that a mutation is not a deed of title and is merely indicative of some previous oral sale between the parties. This principle being in view, whenever any mutation is challenged, the burden squarely lies on the beneficiary of the mutation to prove not only the mutation but also the original transaction which he is required to fall back upon.

4. Keeping in view the incidence of burden of proof, when one adverts to the evidence of the petitioner, it becomes clear that he had failed miserably to prove either the original transaction or the valid attestation of mutation. No original record of the mutation proceedings was brought before the Court. No Revenue Officer was examined as a witness, so much so that even the identifying witness who had allegedly identified the lady before the Revenue Officer, was not produced. Both the Courts below had therefore rightly concurred in holding the mutation) as fictitious.

5. Reverting to the original transaction, Fida Hussain petitioner while appearing in the witness-box had not stated as to what was the amount of consideration and as to whether it was paid to the lady or not. On the other hand, the lady appeared in Court and expressed her total denial about the sale. No suggestion at all was made to her about any amount of consideration. Neither the petitioner has proved the valid attestation of mutation nor has he proved any original transaction of sale.

6. It has been brought to our notice that on the same date of mutation, Fida Hussain had acquired some property as mortgage from his real paternal aunt whose name also happened to be Fateh Mai. It appears that by producing his own paternal aunt named Fateh Mai, he got the mutation of mortgage on her behalf and also the disputed mutation of sale on behalf of the present plaintiff attested by falsely impersonating his paternal aunt for the plaintiff before the Revenue Officer. It is also extremely important to observe that the Tehsildar/Revenue Officer happened to be the brother-in-law of Fida Hussain.

7. Taking all these circumstances collectively, it stands proved on record that the impugned mutation of sale was fictitious and the lady plaintiff was deprived of her property by Fida Hussain fraudulently. It was a case of special costs but as Fida Hussain is now dead, we would better avoid the same. There being no force in the petition, it is hereby dismissed and leave to appeal is refused. S.A.K./F-79/S Leave refused.