2004 PLP 1536 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

The above titled two appeals involving common question of law and facts are proposed to be disposed of through this single judgment.

2. Leave was granted in these appeals vide order, dated 26-11-1999 as under:

"On 28-4-1975, Mst. Maryam Bibi etc. filed a suit against Ashraf Ali etc., the petitioners in C.P. 1239-L of 1999 seeking declaration to the effect that they were the owners of the land in dispute on the ground that they were the legal heirs of Ismail, deceased. They claimed that Ismail deceased had only leased out the land in favour of the petitioners for five years and the Mutation No. 17 having been attested by the Revenue Authorities was illegal, against facts, collusive, without consideration, based upon fraud and ineffective upon the rights of the respondents. They claimed the possessions of the suit-land. It was prayed that the petitioners be restrained from alienating the land in any manner whatsoever. The petitioners contested the suit by filing written statement on 8-5-1975. The respondents filed another suit on 2-5-1975 in the Court of Civil Judge 1st Class, Nankana Sahib against Muhammad Ramzan etc., the petitioners in C.P. No. 1240/L of 1999 asking for a declaration to the effect that they were the owners of the land in dispute being legal heirs of Ismail deceased and their predecessor never sold the land to the petitioners. It was further prayed that Mutation No.27 sanctioned in favour of the petitioners was illegal, against facts, collusive, without consideration, based upon 'fraud and ineffective upon the rights of the respondents. It was prayed that the petitioners might be restrained from alienating the suit-land in any manner or effecting any improvement upon it. The petitioners contested the suit. The trial Court after framing issues arising out of the divergent pleadings of the parties and recording evidence, decreed both the suits vide separate judgments, dated 27-11-1976. The petitioners filed appeals against the decision of the Civil Judge. An Additional District Judge, Sheikhupura vide two separate judgments, dated 31-5-1977 accepted both the appeals and in consequences, dismissed the suits of the respondents. The respondents filed two Regular Second Appeals Nos.516 and 535 of 1977 before the Lahore High Court which were accepted vide separate impugned judgments, dated 28-6-1999 and in the result, the judgments and decrees of the learned Additional District Judge, dated 31-5-1977 were set aside and those of the trial Court, dated 27-11-1976 were restored. These petitions for leave to appeal have been instituted against the above judgments. Learned counsel for the petitioners has submitted that a finding of fact has been recorded by the Appellate Court after assessing/perusing the entire evidence on record. This being so, there was no justification with the High Court to accept the appeals without giving cogent reasons. He added that this was a case of misreading/non-reading of evidence of the parties. An injustice has been done to the petitioners. He argued that possession of the suit property was passed on to the petitioners on 12-2-1969, there is an entry about possession of the petitioners in the Revenue Record. He continued to argue that the vendor, Muhammad Ismail remained alive' for three years after its sale and he did not raise .any objection to the transaction. Finally, it is submitted that this is a fit case for reappraisal of the evidence on record: to do justice between the parties. The points raised by the learned counsel, inter alia, need consideration. Leave to appeal is, accordingly granted.

3. The dispute in Civil Appeal No. 1521 .of 1999 relates to land measuring 71 Kanals 1 Marla owned by Muhammad Ismail, predecessor in-interest of respondents. The claim of the appellants was that Muhammad Ismail executed an agreement of sale of the land in their favour on 8-2-1969 for a consideration of Rs.27,000, out of which a sum of Rs.7,000 was paid as earnest money and subsequently on payment of balance sale price of Rs.20,000 the land with possession was transferred in their name vide Mutation bearing No. 17, dated 12-2-1969. The dispute in the Civil Appeal No. 5122 of 1999 relates to the land measuring 4 Kanals and the claim of the appellants namely Muhammad Ramzan and another was that Muhammad Ismail, predecessor-in-interest of respondents sold this land to them .for a consideration of Rs.4,000 vide Mutation No.27, dated 16-3-1969.

4. The respondents who are predecessor-in-interest of Muhammad Ismail, vendor filed civil suits seeking declarations that the sales in question were fake and ineffective to their right. The suits were decreed by the Court of first instance but same were dismissed by the Appellate Court in appeals. The High Court in the second appeals filed by the respondents held that in absence of any other evidence in proof or genuineness of transaction of sale, the mutation alone would neither create nor extinguish the title and allowed the appeals through separate judgments under challenge in the present appeals.

5. Learned counsel for the appellants has contended that mutations of sale were sanctioned in the open meeting held in the premises of the office of union council on the identification of vendor by the members of the union council and in absence of a very strong evidence to the contrary, the bare denial to the genuineness of the transaction of sale would not be sufficient to challenge the title of appellants.

6. We having heard the learned counsel for the parties and gone through the record find that witnesses have said nothing in their statements about the date of sanction of mutations and the presence of vendor at the time of sanction of mutations. Their evidence is also silent about the date and place of payment of the balance price before Tehsildar. The learned counsel for the appellants when confronted that in the present case, the essential elements to constitute a valid sale through, mutation were found missing, he submitted that since the mutations were sanctioned in the open meeting at a public place in presence of independent persons, therefore, a legitimate presumption would be raised in favour of validity of sales and the finding of fact was wrongly reversed by the High Court in second appeal. There is no cavil to the proposition that the High Court is not supposed to disturb the findings of facts based on evidence through reappraisal of-evidence in second appeal but if an issue of fact has not been properly determined by the lower Courts by reason of any substantial error or defect of drawing a wrong inference about the correct legal position which materially effected the decision on merits, the High Court in second appeal could correct such error to the interest of substantial justice. The controversy as to whether mutation by itself is a sufficient proof of the sale and would create a, valid title being a mixed question of law and-facts, could conveniently be gone into by the High Court in second appeal if the inference drawn was contrary to law in the given facts. The learned Judge in the High Court in the present case having come to the conclusion that no valid sale was in existence between the parties to create title, reversed the finding of First Appellate Court on the relevant issue and we in the light of legal position emerging from the facts of the case would take no exception to the conclusion drawn by the High Court.

7. For the foregoing reasons, both these appeals fail and are accordingly dismissed. There will be no order as to costs. M.H./A-369/S Appeal dismissed.