2003 SCMR 810 (PLP)

ABDUL HAMEED DOGAR, J.-Petitioners seek leave to appeal against impugned judgment dated 23-6-2000 passed by a learned Single Judge in Chamber of the Lahore High Court, Lahore in R.S.A. No.872 of 1977 whereby the same was issued.

2. Briefly stated, the facts are that agricultural land measuring 201 Kanals, situated in Village Marey, Tehsil Bhalwal, District Sargodha originally belonged to respondents Nos. 1 to 6 namely Sultan Bibi widow of Akhtar Hayat, Mst. Ahmad Bibi, Mushtaq Fatima and Manzoor Fatima daughters of Fazal Elahi. The aforesaid land was orally sold by them to the petitioners for a consideration of Rs.17,000 vide Mutation No.488/1 (Exh.P.4) dated 27-9-1959. It was further stated in the plaint that respondents Nos.2 to 6 were involved in a murder case and were convicted, as such, the, above said mutation could not be attested and was thus cancelled on 15-2-1961. Thereafter the aforesaid respondents sold the disputed land to respondents Nos.7 to 10 and 11 to 15 vide two separate registered sale-deeds, dated 10-8-1965 and 29-9-1968. The petitioners irrespective-of claiming title in the suit-land had also sought perpetual injunction with regards to his possession. The respondents Nos.7 to 15 filed joint written statement and claimed to be bona fide purchaser of the land.

3. The above-mentioned suit was decreed vide judgment, dated 29-4-1976 by the learned trial Court. Respondents Nos.7 to 15 brought appeal against the same before the learned Additional District Judge, Sargodha which was allowed on 6-11-1977 and the suit was dismissed. The said order was challenged in RSA No.872 of. 1977 before the learned Lahore High -Court, Lahore which' too was dismissed by the learned Single Judge in Chamber on 23-6-2000.

4. We have heard Ch. Mushtaq Ahmad Khan, learned Senior Advocate Supreme Court on behalf of the petitioners and Ch. Abdul Wahid Ali, learned Advocate Supreme Court on behalf of respondents Nos.7 .to 11, 13 and 14 and have gone through impugned judgment as well as record and proceedings of the case in minute particulars.

5. The learned counsel for the petitioner mainly contended that the oral sale entered vide Mutation No.488/1 on 23-11-1959 accompanied by possession would take precedence over a subsequent Sale executed through sale-deeds, dated 10-8-1965 and 29-9-1968. It could not be brushed aside simply for 'the reasons that mutation was not attested, which too was not for the fault on the part 'of the petitioners as they were arrested in the murder case and were convicted. He asserted that the judgment of trial Court based on well-founded reasonings declaring the petitioners as owners in possession of the suit-land and the subsequent sale-deeds and mutations effected 'thereupon as ineffective and void, has been erroneously varied by the learned Appellate Courts. According to him, both the Appellate Courts have not only misread the evidence but have non-appraised the same. The findings of the trial Court were set aside basing the conclusions on the surmises and variance in the evidence of the P. Ws. of petitioners and did not dilate upon the documentary evidence produced by the petitioners.

6. On the other side, the learned counsel for respondents controverted the above contentions and stated that learned Appellate Courts had rightly concurred after appraisal of the evidence that the oral sale made in favour of the petitioners was not proved on record.

7. The reasonings advanced by the two Appellate Courts below on Issue No.3 of which onus lied upon the petitioners to prove, in our opinion are convincing. Both Courts below have elaborately discussed the aspect of oral sale and passing of consideration to respondents Nos. l to 6 in view of the evidence furnished by P.W.3, Ali P.W.4, Sardara P.W.5, Gaman, P.W.6, Khushi, P.W.7 Sabo and P.W.8, Muhammad Din and rightly came to the conclusion that they had made discrepant and inconsistent statements worth disbelievable. The oral sale and an unattested mutation effected in. lieu of the same when taking into consideration just in opposition to registered sale-deeds and subsequent attested mutations; the later in our view would prevail and get precedence.. ' .

8. The petitioners admittedly did not choose to challenge the Mutations Nos.579 and 580 dated 29-9-1965 before the Revenue hierarchy which was the legal course available to them according to law. In any case we do not find any misreading or non-appraisal of the evidence in the concurrent findings of two lower Appellate Courts v,A t below: Irrespective of the above, the learned counsel for the petitioners could not refer to any illegality in the impugned judgment, as such. the same is maintained. In the result, the instant petition is dismissed and leave to appeal is refused. Q.M.H./S-198/S Petition dismissed.