2016 PLP 2 (CLCN)

ABDUL LATIF KHAN, J.

Through the instant petition, the petitioners have called in question the judgments and decrees dated 19.9.2006 and 07.11.2008 of the learned Civil Judge-I, D.I. Khan and Additional District Judge-III, D.I. Khan, whereby the suit of the petitioner was concurrently dismissed.

2. Brief facts leading to the instant revision petition are that petitioners/plaintiffs filed a suit for issuance of mandatory injunction against the respondents/defendants in respect of suit property measuring 63 kanals, 8 marlas as detailed in the heading of the plaint with prayer for recovery of Rs.8,00,000/- in alternative. It was alleged in the plaint that the petitioners became owners of the suit property by virtue of mutation No. 395 attested on 25.5.1971, whereby they purchased property measuring 127 kanals, 10 marlas from the respondents/defendants Nos.1 to

5. The complete entries with regard to this mutation was made in the jamabandi of 1977 - 78 and just an area measuring 63 kanals, 15 marlas were entered therein shown to have been transferred by way of sale. These lesser entries wrongly incorporated in the aforesaid jambandi has been repeated in the jamabandi of the year 1985-86 and in this respect recourse was made to the civil courts in institution of declaratory suit on 01.10.1991. After completion of evidence it was revealed that due to wrong entries in the revenue record respondents were shown to be the owners of just 63 kanals, 15 marlas instead of land measuring 127 kanals, 10 marlas in khata No.58 of the year 1971. The respondents by misrepresentation had entered and attested an area in excess of their due share through mutation No.395 attested on 25.5.1971 although they were not empowered to do so, therefore, wrong entries with respect to the area in question was made in the revenue record in their names due to substantial defect and that declaratory suit captioned Kamaluddin etc. v. Surrya Begum etc., they have to withdraw the same with permission to file afresh suit vide order of learned Civil Judge dated 20.6.1997. Respondents are no longer in khata No.58, therefore, the area an excess of due share formally alienated by way of sale in favour of the petitioners may be deducted from khata Nos.3 and

110. Accordingly they asked for transfer of property measuring 63 kanals, 8 marlas from the aforesaid khatajat. The demand in this respect was made to the respondents but they denied the same. The respondents/defendants appeared before the trial court and submitted their written statement. The trial court after framing issues, recorded the evidence of the parties, heard the arguments of the counsel for the parties and vide judgment and decree dated 19.9.2006, dismissed the suit of the petitioner/plaintiff. The petitioner/plaintiff aggrieved from the judgment and decree of the trial court, preferred an appeal before the appellate court, which was also dismissed on 07.11.2008, hence the instant revision petition.

3. Learned counsel for the petitioner argued that a sale mutation No.395 dated 25.5.1971 on behalf of respondent was attested in favour of the petitioner for landed property measuring 127 kanals, 10 marlas out of khata No.58 jamabandi for the year 1970-71 Ex:PW1/1 and the courts below have wrongly dismissed the suit of the petitioner concurrently without deep probe into the matter. He contended that the suit property transferred in the name of the petitioners was consisted upon 64 shares and the share of the alleged minor, if at all considered the claim of the petitioners as gospel truth, comes out 14/64 share and only to that extent mutation if allegedly attested against the interest of minor, ought to have been cancelled but the cancellation of the entire mutation was not in consonance with provision of law. He contended that the mutation was taken to the revenue authority for making entry on its basis, it revealed that the property was not available for sale and the respondents had committed fraud with the petitioner, however, only to the extent of 63 kanals, 15 marlas available in the name of respondent was got incorporated on the basis of disputed mutation in the name of the petitioner. He contended that to the extent of half of the mutation the entries were made while for the remaining half of the mutation i.e. 63 kanals, 15 marlas, the respondents had left with no title in khata No.58, therefore, suit filed by the petitioner against the purchaser, which was later on withdrawn with permission to bring fresh suit and as such the instant suit was filed regarding other khata No.110, from the same Muaza, with the prayer that 63 kanals, 10 marlas be given to the petitioner from khata No.110, wherein respondents were shown owner of 63 kanals, 8 marlas. In consequential relief recovery of Rs.8,00,000/- was also sought. He contended that both the courts below, have wrongly appreciated the evidence and non-suited the petitioner on the ground that one of the vendor was minor at the time of attestation of mutation No.395.

4. As against that, learned counsel appearing on behalf of the respondents contended that the revenue officials were not made party nor those owners, who are shown as co-sharer in khata No.110 or arrayed a party. He contended that the petitioner had never remained in possession of the property. He argued that there is no proof on record in respect of permission of court to bring fresh suit and as such the suit is not maintainable. He referred to the written statement and contended that the respondents have claimed annulment of mutation in toto, in the written statement.

5. I have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.

6. The impugned mutation No.395 dated 25.5.1971 was attested on behalf of the respondents in favour of the petitioner, has not been assailed till date by the respondents. The perusal of mutation reveals that respondent No.4 namely Ghulam Sarwar, was not shown as minor and as per claim of the petitioner, he was not stated to be minor by his mother, sister and other co-vendor at the relevant time, however, from his appearance he appeared to be major. The mutation was not even challenged after institution of present suit, rather the respondents confined themselves to claim set off, to the claim of the petitioner for the annulment of mutation. The plea taken by the respondents in the instant suit (Ghulam Sarwar) was minor, prior to that, no suit was filed against disputed mutation by the respondents. Leaving side this aspect, the entries made in the revenue record to the extent of the property measuring 63 kanals, 15 marlas, in khata No.58, way back in the year 1971, substituted the respondents by petitioner by dint of disputed mutation, ought to have been challenged through a separate suit, but the record does not speak any such proceedings initiated by the respondents. The plea of the learned counsel for the respondents that in case of set off claimed in the written statement to the instant suit, amounts to separate suit and there was no need of filing separate suit. I do not find myself in the agreement with learned counsel for the respondents for the reason that certain conditions are to be fulfilled in order to claim set off and those are:- (i) The suit must be for recovery of money. (ii) The money must be recoverable from plaintiff or all the plaintiff by the defendant or all the defendant. (iii) Both the parties must fill the same character in the defendant claim to set off as they fill in plaintiff's suit. (iv) The defendant claim, must be for an ascertained sum of money. (v) The claim of set off should not exceed the pecuniary limits of the jurisdiction of the court. (vi) The claim must be made at the first hearing.

7. The status of the defendant in such cases would be that of plaintiff in case the amount claimed as set off and a decree can also be granted in his favour and in such eventuality suit of the plaintiff cannot be dismissed in default nor can ex parte, be made. In case, the plaintiff withdraws the suit, a decree can be granted in favour of defendant, who has claimed the set off. Order VIII, rule 6, C.P.C. is reproduced below:- "

6. Particulars of set-off to be in written statement

(1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff not exceeding the pecuniary limits of the jurisdiction of the, court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the court, present a written statement containing the particulars of the debt sought to be set-off. Effect of set-off.

(2) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off."

8. In such senioro, the set off, allegedly claimed would not amount a separate suit as it is confined specifically with suit for recoveries, even otherwise no evidence, whatsoever, available on file suggest that the plea of set off has been proved by the defendant through positive evidence. DW-2, was the person, allegedly minor at the relevant time, deposed on his behalf and as attorney of the others, has made omnibus statement that mutation if attested, was bogus. No details of fraud given by this witness, as required under the law even the written statement is silent about the particulars of fraud which are specifically to be stated as per Order VI, rule 4, C.P.C., which is reproduced as under:- "

4. Particulars to be given where necessary.

In all cases in which the party pleading relies on any misrepresentation, fraud,. breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading".

9. The long standing entry in favour of the plaintiff in the jamabandi has got presumption of truth, correctness attached to it, though rebuttal, but convincing and corroborative evidence was required to annul those entries, which are lacking in the instant case. There is no cavil with the proposition that beneficiary of mutation has to prove the contents of mutation by producing the marginal witnesses and the attesting officer including patwari hlaqa, who are important entities during the course of attestation of mutation but once the entries of the mutation incorporated in jamabandi that becomes part and parcel of the jamabandi which has got presumption of correctness and burden of proof of mutation which rest on the beneficiary would shift to the defendant to rebut the entries made in the jamabnadi. The legislature has specifically provided limitation to question a document including mutation within a prescribed period and the logic behind the same is to eliminate fraud, to be committed through elapse of time, by the parties to the document. The entries made in the name of petitioner, in the jamabandi in the year 1971, has not challenged by the defendant till date, and contended upon the alleged claim of set off in the suit filed by plaintiff in the year 1997. The evidence is silent about the knowledge of defendant regarding the entries made in the jamabandi but one thing is clear that after institution of suit by the plaintiff, the defendant was under bounded duty to challenge the entry in the jamabandi made way back in the year 1971. Had mutation been challenged at the proper time in the year 1971, the marginal witnesses and the attesting officer apart from patwari halqa, would have been produced by the plaintiff but after a lapse of half century the production of required evidence becomes difficult, rather impossible and beneficiary cannot be held responsible for this deficiency. In this case even today the mutation has not been challenged. So the contention of learned counsel for the respondents, that burden to prove the mutation lies upon the plaintiff, holds no water, as the mutation has, not since been challenged till date, rather the plaintiff has knocked the door of the court for implementation of rest of half of the mutation, and in such eventuality this objection cannot be considered a valid one, on behalf of defendant. Even otherwise the Honourable Supreme Court in Mst. Zainab's case reported in 1993 SCMR 356 which is reproduced as below:- "It is true that a plaintiff is to succeed on the basis of his own evidence and not on the basis of weakness of the evidence of the defence, but at the same time it is also a well-settled proposition of law that a civil matter is to be decided on the basis of preponderance of evidence and the court is to consider the entire evidence on record, whether it is of the plaintiff or of both in order to arrive at the correct conclusion. Once the evidence is brought on record, the question of burden of proof loses its significance."

10. The principle annunciated by their lordship of Honourable Supreme Court of Pakistan, is that after the production of evidence, the burden of proof loses it significance in like cases. As this is not the case of challenge of mutation and the principle of proof of contents of mutation does not apply to the instant case; therefore, the plea that beneficiary has to prove the document has no force, as for as the facts of this case are concerned.

11. The extract from jamabandi for the year 1985-86, Ex:PW2/3 and Ex:PW2/D-4 available on file regarding khata No.110 shows that the defendants are owners in this khata number. As they have sold the property in favour of the petitioner concealing the facts that property out of khata No.58 was also sold by them and when the plaintiff approached to the revenue authorities for incorporation of mutation, only to the extent of half of the property was available to be incorporated in his name as he was entitled under the law to be compensated through other property owned by defendants i.e. khata No.110 for which the instant suit has been filed by the plaintiff and sufficient evidence is available on file for grant of decree in favour of the plaintiff. The only ground prevailed with the courts below that Ghulam Sarwar one of the vendor was minor at that time and the defendants produced the evidence through DW-1, who has produced the record of GHS, Mahra and posted the relevant entry at S.No.286 as Ex:DW1/1 although subject to objection by the learned counsel for the plaintiff. DW-2, Ghulam Sarwar alleged minor, DW-3 Karim Khan claimed the minority of said Ghulam Sarwar at the time of attestation of mutation. Apart from Ghulam Sarwar (minor) his father and major sister and another close relative was also vendors of the mutation. Though the plaintiff alleged that minor appeared to be grown up person at that time even then in the light of school record produced by official/clerk of GHS, Mahra I am of the view that the share of minor to the extent of 14/64 out of suit property mutated during disability of the minor, shall be deducted from the mutation as well as the revenue record to meet the ends of justice, and rest of the mutation shall remain intact plaintiffs are entitled for the decree to the extent of their share excluding l4/64 share of minor in khata No.110 and suit to this effect is hereby decreed.

12. For the forgoing reason, I accept the instant revision petition, set aside both the judgments and decrees of courts below and decree the suit of the plaintiff in above terms with no order as to costs. ZC/497/P Revision accepted.