P L D 2020 Peshawar 148 (PLP)

AHMAD ALI, J.

Petitioner through this Civil Revision has called in question the vires of Judgment and Decree dated 12.11.2019 passed by the learned Addl. District Judge-II Haripur, whereby his appeal against Judgment and Decree dated 25.01.2019 of the learned Senior Civil Judge Haripur, stood dismissed.

2. A brief background of this civil revision is that the respondent No.1, Mst. Naseem Akhtar, filed a suit seeking recovery of Rs.830,000/- with profit @ 21% w.e.f. 15.10.2011 till the final payment on account of agreement bearing No.422 dated 03.05.2011 or in alternate cancellation of Mutation No.2247 dated 24.06.2011 and its subsequent registered that she deeds. Respondent No.1/plaintiff asserted in the plaint that the petitioner/defendant No.1 purchased a chunk of land, detailed in the plaint, against a sale amount of Rs.930,000/- out of which Rs.100,000/- were paid and the remaining amount of Rs.830,0001- was agreed to be paid on 15.10.2011 and in this regard an agreement No.422 dated 03.05.2011 was executed between parties; however in the mutation No.2247 dated 26.05.2011 the petitioner/ defendant No.1 got entered Rs.12 lac as sale consideration and subsequently the property was further transferred to defendants Nos. 2 to 5 through registered deeds. Thereafter, defendant No.1 i.e. the petitioner failed to pay the outstanding sale consideration, therefore, she filed a suit. Defendants filed a joint written statement wherein they denied the averments of plaint. The learned trial court after framing issues and having recorded the evidence of parties decreed the suit of respondent No. 1/plaintiff vide judgment/decree dated 25.01.2019. Discontented with the said decree passed by the learned trial court, the petitioner/ defendant filed an appeal which was dismissed by the learned Addl. District Judge-II, Haripur, vide judgment/decree dated 12.11.2019 hence, this civil revision by the petitioner/defendant No.1.

3. I have heard arguments of the learned counsel for parties and have gone through the record with their valuable assistance.

4. Perusal of the record reveals that the respondent No.1 alleged the non-payment of sale consideration and in this regard relied on an agreement bearing No.422 dated 03.05.2011; however, there is no specific denial of the said agreement in the written statement. The respondent No.1 not only exhibited the agreement bearing No.422 as Ex.P.W.1/1 but also produced its scribe, marginal witnesses, the notary public and the stamp vendor. As against this, the petitioner/defendant No.1 alleged the payment of sale consideration. Being a beneficiary, the petitioner was required to prove the payment of entire sale consideration but he failed to produce any witness in this regard; and even, his statement with regard to the venue of payment is self-contradictory. In his written statement, the petitioner did not mention the name of any witness of the alleged payment of sale consideration; however, in his cross-examination he stated that he had made the payment before one Kamran. Then he stated that he had made the payment before sub-Registrar and again stated that the payment was made underneath a tree and vendor admitted the said payment before the sub-Registrar. He then took another stance that Kamran and Hasrat were present at the time of payment. Petitioner is not fair and impartial in his claim and has not come to the court with clean hands. The petition is taking multiple versions together and according to the maxim, "Allegans suam turpitudinem non est audiendus" i.e. a person alleges/boasts of his own depraved conduct should not be heard.

5. The defendant in his examination in chief recorded as DW-3 did not deny the filing of written statement, whereas, during the course of cross-examination he was not able to stand firm. Initially he denied the filing of written statement by Sheraz Ahmad Khan Yousufzai Advocate and claimed that he had engaged Imran Maqbool Advocate as his counsel. He then stated that he had filed his written statement which is available on file; but on the record there was no other written statement except the one filed by all the defendants jointly. Then he expressed his ignorance about the fact that his written statement was filed by Sheraz Ahmad Advocate. The denial then admission and lastly expressing of ignorance by the petitioner/defendant with regard to filing of written statement make a thing clear that petitioner is not speaking truth. He admitted the suggestion that he had not taken any legal action against Mr. Sheraz Ahmad Advocate if he wrongly filed written statement on behalf of petitioner.

6. Besides, petitioner in his cross-examination as DW2 admitted that he used to get scribed all his documents etc. from Qasim Qayyum petition writer, who is also the scribe of Ex.P.W.1/1. Petitioner in his cross-examination further admitted that he had not launched any action against the petition writer if Ex.P.W.1/1 according to him was a fake and fraudulent document.

7. It is an admitted fact that the possession of property is still with the respondent No. 1/plaintiff and she also denied the payment of sale transaction. In order to see as to whether handing over of possession of the property and payment of sale consideration are the part of sale and, in this regard, I would refer to section 54 of the Transfer of Property Act which defines sale and reads as under:

54. Sale defined. 'Sale' is a transfer of ownership in exchange for a price paid or promised or part paid part promised. Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

8. The august Supreme Court in the case of Ali Muhammad v. Chief Settlement and Rehabilitation Commissioner (1984 SCMR 94) laid down the essential elements of sale as (i) the parties, (ii) the subject matter, (iii) the transfer or conveyance and (iv) price or consideration. The Hon'ble Apex Court reiterated the said dictum in the case of Muhammad Moizuddin and another v. Mansoor Khalil and another (2017 SCMR 178 and 2017 CLD 1459 Supreme Court).

9. As stated earlier, the possession was not delivered to petitioner and he failed to prove the payment of sale consideration therefore, missing of these two essential ingredients, there is no sale in the eye of law. Guidance in this regard is derived from the case titled Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 SC 519). In that context, this Court in the cases titled Shafi-ur-Rehman v. Aziz-ur-Rehman and others (2019 CLC 1710) and Mst. Farukh Sultan v. Haji Muhammad Younas and 6 others (2019 YLR 1578) had also held that the sale consideration is an essential component of a valid sale.

10. Now, as far as the transfer of property in favour of petitioner by the respondent No.1 through the mutation No.2247 and other registered deeds is concerned, it is by now well-settled that mutation is not a title deed, neither it confers any title nor can it take away any right. While rendering this view, I am fortified by the following dictum laid down by the august Supreme Court of Pakistan: a. Arshad Khan v. Mst. Resham Jan and others (2005 SCMR 1859), wherein it was held: "Mutation itself does not confer or extinguish any right or title and if the mutation on the basis of which right in the property is claimed, is disputed, the onus of proving the correctness of mutation and genuineness of the transaction contained therein would be on the party claiming right on the basis of such mutation." b. Mst. Suban v. Allah Ditta and others (2007 SCMR 635), where it was held: "Record of rights

Mutation a proof of title

Scope

Mutation does not confer on anyone any right in any property as revenue record is maintained only for realization of land revenue and does not by itself confer any title on anyone." c. Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417), wherein it was held: "Mutation was not a proof of title and a beneficiary thereunder must prove the original transaction."

11. It is also settled that when the basic order is without lawful authority then all the super structure, built on it shall fall on the ground as laid down by the august Supreme Court of Pakistan in the cases titled, Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others (2007 SCMR 818) and Maulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others (PLD 2008 Supreme Court 663).

12. In view of the foregoing as the ingredients to constitute a valid sale i.e. possession and payment of sale consideration are missing therefore, the transfer of property in favour of the petitioner and on the basis of impugned mutation as well as registered deeds has automatically become null and void and liable to be cancelled. It is however, important to mention that the learned trial Court decreed the outstanding amount of Rs.850,000/- and also declared the sale mutation No.2247 as null and void despite the fact that she was entitled to any one of the two reliefs, therefore, there is no need to issue notice to respondent No.1 to choose any of the two reliefs. Instead, in view of the dictum laid down by the august Supreme Court the mutation being void one cannot be sustained legally. Hence, this civil revision is partially allowed and decree to the extent of recovery of Rs.850,000/- is hereby set aside; whereas, concurrent findings of both the learned Courts below with regard to the declaration of mutation No.2247 as null and void are hereby maintained; and civil revision of petitioner to this extent stands dismissed in limine with pending CM. Cost shall follow the events. ZC/181/P Order accordingly.