2002 PLP 1680 (YLR)

ISSUES. (1) Whether the suit is within time? (2) Whether the plaintiff is estopped by his words and conduct to file the present suit? (3) Whether the plaintiff has not come to this Court with clean hands, if so what is its effect? (4) Whether the plaintiff is owner of the suit land, if so, what is its effect? (5) Whether the plaintiff is entitled to the possession of the suit land on the basis of the alleged ownership? (6) Relief.

5. After recording oral and documentary evidence of the parties, the learned trial Court found that the suit was within time. On material Issues Nos.4 and 5, the learned trial Court found the sale was validly made for consideration in favour of the respondents and that the Mutation No. 1032 was validly attested. It was also held that the plaintiffs were estopped to file the suit. As a result, the suit of the appellants was dismissed vide judgment and decree, dated 11‑6‑1989.

6. Aggrieved of the said judgment and decree, the appellants preferred the first appeal. The learned first appellate Court re evaluated the evidence on the record and concurred with the findings of the learned trial Court that the sale in favour of the respondents was proved against valid consideration. Consequently, the appeal was dismissed on 20‑1‑1991.

7. The learned counsel for the appellants in this second appeal has challenged the concurrent findings of both the learned lower Courts on the ground that the impugned judgments are a result of mis reading and non‑reading of evidence. He laid stress upon the evidence of Ghulam Muhammad who appeared as D.W.6, according to which, the payment of sale money was made in the presence of Master Noor Muhammad, Muhammad Hussain and Ch. Ashiq Chattha, Advocate. He contended that Muhammad Hussain and Master Noor Muhammad did not support the payment in their statements while Ch. Ashiq Chattha, Advocate was not produced at all. According to the learned counsel, the sale consideration was thus, not proved. He further contended that the mutation Exh.P.2 was sanctioned without proper inquiry and the proceedings of the mutation were not held in the Ijlas‑e‑Aam of the Mouza where the land was situated. He thus, contended that mutation was attested in violation of section 42 of West Pakistan Land Revenue Act, 1967. It was lastly contended that as the sale was not made through a registered instrument, it was violative of section 54 of the Transfer of Property‑Act, 1982 and did not convey any title in favour of the respondents.

8. In reply to the aforesaid contentions, the learned counsel for the respondents supported the concurrent findings of fact arrived at by both the learned lower Courts. He referred to the statement of Muhammad Rafique, Halqa Patwari who appeared as D.W.2 and deposed that the entries in Roznamcha Waqaitti Exh.D.1 was recorded by him at the instance of Din Muhammad, the predecessor‑in‑interest of the appellants who also thumb‑marked the said document. He further referred to the statements of Ramzan Shah D.W.3 who brought the daily registered of the Patwari to prove report No.109 Exh.D

1. Muhammad Afzal Khan Assistant Collector Grade‑1 who had sanctioned the disputed mutation appeared as D.W.5 and categorically stated to have sanctioned the disputed mutation upon the identification of the vendor by Ch. Muhammad Hussain son of Jalal Din. According to his statement, the vendor admitted the payment of sale consideration whose statement was also recorded by the said witness. Mutations Nos. 1030 and 1031 regarding the redemption of the property were also attested by D.W.5. Besides these witnesses, the respondents produced Allah Bakhsh, Mohabat Khan, Ghulam Muhammad, Muhammad Tufail and Noor Muhammad in support of the sale transaction. Prominent amongst the documentary evidence were Exh.D1 report of Roznamcha Waqaitti, Exh.D3 to Exh.D5 copies of Jamabandies, Exh.D7 copy of plaint in a suit for pre‑emption filed by one Abdul Karim against Muhammad Jamil and Exh.D8 copy of the judgment dated 19‑6‑1973 passed in the pre‑emption suit.

9. The arguments of the learned counsel for the parties have been heard and record perused.

10. The evidence produced by the respondents is cogent and consistent. It comprises of the statements of the Revenue officials who had entered the mutation, had recorded the statements of the vendor and had attested the mutation in question. The mutation has been incorporated in the on going Jamabandies and presumption of correctness shall be attached to the same. The post of the respondents has been proved by the copy of the Khasra Girdawari placed on the record. The respondents have proved through oral evidence that the entire sale consideration was paid and that the delivery of possession was also made under the sale.

11. From a perusal of the evidence on the record, no misreading or non‑reading or any material evidence has been indicated. The concurrent findings of the fact of both the learned lower Courts do not suffer from any material irregularity.

12. The submission of the learned counsel for the appellants that mutation in question was, attested in violation of the provision of section 42,of the West Pakistan Land Revenue Act, 1967 is also fallacious. Firstly, entire proceedings conducted in the course of attestation of mutation is in accordance with law and has been sufficiently established by responsible Revenue officials who deposed in favour of the said mutation. Secondly, the mutation having been incorporated in the subsequent Jamabandies shall carry a presumption or correctness and cannot be dismissed lightly in the absence of any strong evidence in rebuttal. The next contention of the learned counsel for the appellants that the oral sale was violative of section 54 of the Transfer of Property Act, 1882 and thus, is ineffective upon the rights of the appellants, is also devoid of force. When the factum of sale has been proved in all its material detail to have been made by the vendor, the plea of the vendor that the sale was hit by section 54 of the Transfer of Property Act, 1882 is not entertain able as it is hit by the principle of pari delicto. If it is proved that the sale transaction in fact did take place, the mere fact that both the parties violated the provision of section 54 of the Transfer of Property Act, 1882 by not getting the instrument registered, shall not give the errant vendor the benefit or advantage of his own s contributory default.

13. The upshot of the above discussion is that the appellants have not been able to make out any case for interference in this second appeal which is hereby dismissed, leaving the parties to bear their own costs. Appeal dismissed. Q.M.H./M.A.K./M‑1269/L