1990 PLP 2111 (MLD)

(1) Whether the suit is not maintainable in its present form? OPD. (2) Whether the plaintiffs are estopped to sue? OPD (3) Whether the plaintiffs have got a cause of action? OPP. (4) Whether the suit is within time? OPP. (5) Whether the suit is bad on account of being non‑joinder and misjoinder of the parties, and hence is liable to be dismissed? OPD. (6) Whether the suit land has been sold by the father of defendant No.1 and by rest of defendants to the plaintiffs vide Mutation No. 7574 dated 9‑9‑1958 and hence plaintiffs have become the owners of the suit land? (7) Whether Mutation No. 7574 dated 9‑9‑1958 is that of sale and not of mortgage? OPP. (8) Whether the entries in the revenue record are wrong and are liable to be rectified accordingly? OPP. (9) Whether the plaintiffs are entitled to the decree as prayed for? (10) Relief. After recording evidence as produced by the parties the learned Civil Judge decreed both the suits by two separate judgments dated 15‑1‑1986. The defendants of both the suits challenged the aforesaid judgments in two separate appeals before the learned District Judge Kohat which were accepted on 4‑10‑1987 and both the suits of the petitioners were dismissed. Aggrieved by the aforesaid judgments in appeal, the plaintiffs of both the suits have come up to this Court with two separate civil revision petitions bearing No.531/87 (connected with Suit No.328/1) and No.532/87 (connected with Suit No.329/1).

4. Although the defendants and the lands in dispute are different in both the aforesaid suits but since the petitioners are the same and the matter in dispute is also the same in both the suits and the issues were also the same in both of them, judgment in the Civil Revision No. 531/87 will also dispose of Civil Revision No.532/87.

5. I have heard both the learned counsel for the parties who also led me through the record of the case.

6. No doubt the note of the Patwari on both the Mutations Nos.7574 and 7572 shows that the parties thereto had entered into a transaction of sale of lands of both the suits and they had reported the transaction of sale to the Patwari which he had recorded in his daily diary at S. Nos. 560 and 559 respectively and had entered both the mutations as mutations of sale but the note of attestation of the Revenue Officer on both the mutations shows that after the report of the transaction to the Patwari the parties had changed the nature of transaction from sale to that of mortgage. The attesting note of the Revenue Officer on both the mutations discloses that the parties had realised that outright sale would invite suits of pre‑emption and in order to avoid that situation instead of sale they got the mutations attested as mortgage mutations.

7. It shall thus be seen that although the parties of both the suits had entered into transactions of sale of both the lands in dispute but subsequently they voluntarily and of their own free will change the transaction of sale into that of mortgage and as such both the mutations Nos.7574 and 7572 were attested as mortgage mutations. The parties had themselves changed the nature of the transaction of their own free consent and they had done that to avoid the transaction being pre‑empted by third party. The parties in both the suits had not only voluntarily changed the nature of transaction but had in a way played fraud upon the law of pre‑emption in order to avoid claims of pre‑emption by other persons. Mir Zali Khan one of the vendees appearing as a defence witness stated that the transaction was of sale and not mortgage and that whatever transaction was entered into by the parties was reported to the Patwari but since the parties had themselves willingly changed the nature of that transaction, oral evidence in this regard would not cut much ice.

8. The plaintiffs of both the suits, who were petitioners in both the revision petitions in hand, kept silent for more than 20 years after the attestation of both the mutations and did not challenge the nature of the transaction which came into existence after the attestation of both the mutations. They woke up only when the respondents of both the revision petitions, who were defendants of both the suits respectively, filed proceedings before the Revenue Officer for restitution of the mortgage. The attesting note of the Revenue Officer on both the mutations marks the presence of Mir Zali Khan one of the vendees and records his R admission as well about the mortgage. The learned counsel for the petitioners has contended that no presumption of truth is attached to the entries in the Revenue Record except the entries in the record of rights and as such real intention of parties had to be seen which was that of sale and not mortgage but the later part of this contention is devoid of any force for the reason that the real intention of the parties was that of mortgage and not sale. All this will show that the petitioners were in the knowledge of the nature of the transaction created by both the mutations and their long silence to challenge the correctness thereof operates as estoppel on their part. The petitioners were clearly estopped to challenge the nature of the transaction.

9. Since the petitioners have remained in possession of land in dispute in both the suits from the very beginning, they could bring a suit for declaration simpliciter and the suits would not be time‑barred as held by the learned District Judge, although the same would be barred on account of estoppel of the petitioners. They could not be allowed to play fraud upon the statute and then to take advantage therefrom.

10. Subject to observations made above I will uphold both the appellate judgments of the learned District Judge and finding no merit in both the revision petitions, I will dismiss them with no order as to costs. A.A./1101/P Revisions dismissed.