Sale mutation

2024 SCMR 202 SUPREME-COURT Judicial Precedent

S. 54Sale mutationProofBurden of proof

Petitioners claimed that their predecessor (defendant) had purchased land through a sale mutation attested on 13 June 1994

Respondent-lady (plaintiff) filed a suit for declaration on 6 November 2008 to challenge the said sale mutation

Petitioners' contended that the suit of respondent was hopelessly time barred, and that the respondent had simply denied her thumb impression on the said mutation and the report of the Provincial Finger Print Bureau was in itself not sufficient for disproving that the sale mutation bore her thumb impression

Validity

Burden to establish the purported sale lay upon the beneficiary of the sale (i.e. predecessor of the petitioners) but this was not discharged

Respondent was not required to disprove the sale yet she undertook to do so; she came forward and had her purported thumb impression was sent for forensic determination by the Provincial Finger Print Bureau, which submitted a comprehensive report and the witness from Finger Print Bureau was also produced as a witness

It was conclusively established that the thumb impression on the sale mutation was not hers

No evidence was produced to show that the respondent-plaintiff was aware about the sale mutation much before then

Trial Judge had correctly noted that the onus to prove it lay upon the defendant (predecessor of the petitioners)

In attending to the issue of limitation the trial Judge determined that the defendant had not been able to establish prior knowledge

Fifteen years had passed since the suit was filed by the respondent, and at three different forums she succeeded and the petitioners lost

Possession of the subject land remained with the petitioners, who had disregarded all three decisions of the courts and continues to retain the illegal possession of the land

As the petitioners had remained in illegal possession of the said land the Supreme Court imposed compensatory cost in the sum of one hundred thousand rupees

Supreme Court directed that the petitioners shall immediately hand over the subject land to the respondent, and if they failed to do so the concerned revenue officer/official shall ensure that its possession was delivered to the respondent immediately

Petition was dismissed with costs throughout.

2022 YLR 2383 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 30Sale mutationAdmission before Revenue Officer as to receipt of priceScope

Mere admission as to receipt of sale price before Attesting Officer could not be taken as conclusive proof.

2022 YLR 2383 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Arts. 30, 49, 59, 79, 117 & 118Punjab Land Revenue Act (XVII of 1967), S. 42Suit for declarationSale mutationThumb-impression, denial of

Petitioner / plaintiff (allegedly folk/illiterate lady) claimed that she leased out the suit land to respondents but they managed to transfer the same in their favour vide oral sale mutation; that neither she sold nor received any consideration

Respondents/defendants contested the suit on ground that petitioner along with her husband and attesting witnesses appeared before Revenue Officer who recorded their statements and petitioner affixed her thumb-impressions and sanctioned the subject mutation

Trial Court decreed the suit but Appellate Court reversed the judgment of Trial Court

Validity

Mutation proceedings were initiated primarily for fiscal purposes to collect the land revenue and was only meant for maintaining the record

Such proceedings were conducted summarily which could not be considered as judicial proceedings to determine right/title qua immovable property

Petitioner's witnesses including her husband explicitly supported her version and one of the witnesses stated that Lumberdar prior to his death told him that Patwari had managed his thumb-impression while cheating him and that petitioner according to his knowledge never sold out the subject land

Mutation contained sale transaction and as such being the document pertaining to financial liability required to be strictly proved

Examination of Tehsildar out of its signatories by the beneficiary was not enough to meet with the legal requirement

Marginal witnesses appeared as witnesses and created serious doubts in veracity of disputed mutation

Father of respondents/ beneficiaries while appearing as witness stated during cross-examination that petitioner/lady was about 15/16 years old when she was paid in 1981 consideration of currency notes valuing rupees 500/1000

Roznamcha Waqiati was not having recorded statement of its maker

Expert opined the similarity of thumb-impression but also endorsed that by putting another thumb-impression over the already existed thumb-mark available on the subject mutation, it was tried to be impaired, thus made the report doubt-ful

Suit was within time

Revision petition was allowed accordingly.

2021 MLD 275 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.42Sale mutationNature of mutation

Mutation per se was not a document of title and was meant for fiscal purpose only.

2020 MLD 491 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 42Limitation Act (IX of 1908), S. 3 & Art. 120Civil Procedure Code (V of 1908), O. VII, R. 11Suit for declarationLimitationSale mutationProof ofContention of plaintiff was that impugned mutation was based on fraud and misrepresentationSuit was dismissed concurrentlyValidityPlaintiff had challenged impugned mutation after lapse of more than thirty four yearsDeclaratory suit could be filed within a period of six yearsDefendants were in possession of the suit property since the impugned mutationSuit was barred by time, in circumstancesIf suit was filed beyond the period of limitation then each day's delay had to be explainedNo explanation had been given in the present suit by the plaintiff

Plaintiff had neither specified the date when she came to know with regard to impugned mutation nor any explanation had been given to justify her contention

Mutation entries were made on behalf of predecessor-in-interest of plaintiff who had died

Predecessor-in-interest of plaintiff had not filed any suit to challenge the impugned mutation in his life time

Plaintiff had filed present suit after the death of her predecessor-in-interest and no fraud had been committed by the defendants

Court was to decide the question of limitation first and thereafter proceed to decide the matter on merits

Suit barred by time was to be dismissed even if nobody had raised question of limitation

If proceedings brought before the Court were barred by time, Court could not assume jurisdiction and had no jurisdiction in the matter unless delay was condoned

Disposal of suit on merits alone was not sufficient for a presumption that delay had been condoned

Suit/ plaint should be rejected forthwith even without resorting to the evidence or framing of any issue if same was barred by limitation

Nothing was on record that impugned mutation was collusive and fictitious

No illegality, irregularity, mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Courts below

Revision was dismissed, in circumstances.

2019 SCMR 567 SUPREME-COURT Judicial Precedent

S.42Qanun-e-Shahadat (10 of 1984), PreambleSale mutationScopeMutation per se was not a document of title and was meant for fiscal purpose only

To prove a transaction appearing/embodied in a mutation, some strong piece of evidence was required under the Qanun-e-Shahadat, 1984.

2019 CLC 138 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

O. XLI, R. 31Constitution of Pakistan, Art. 10-ASuit for declaration and cancellation of revenue entriesSale mutationJudgment in appealPoints for determination, non-framing ofEffectRight of fair trialScopeContention of plaintiff was that impugned sale mutation was based on fraud and collusion with the revenue officerSuit was dismissed concurrentlyValidityIssues framed, evidence recorded and written statement filed by the defendants had not been taken into consideration

Neither deposition of witnesses had been discussed nor findings on issues had been recorded in accordance with law on its true perspective

Appellate Court had recorded its findings in a cursory manner

Impugned judgment passed by the Appellate Court was non-speaking in circumstances

Appellate Court had failed to decide appeal as per provisions of O. XLI, R. 31, C.P.C., 1908

Documents available on record were not considered properly by the Courts below

Parties to the suit had not been afforded fair opportunity by the Trial Court

No one could be condemned unheard

Impugned judgments and decrees passed by the Courts below were result of mis-reading and non-reading of evidence which were set aside

Matter was remanded to the Trial Court with the direction to provide full and fair opportunity to the parties to defend their claim and decide the same afresh in accordance with law

Revision was allowed accordingly.

2019 YLR 1578 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 42 & 54Transfer of Property Act (IV of 1882), S. 54Suit for declaration and permanent injunctionLimitationSale mutationProof ofProcedureContention of plaintiff was that impugned mutation was based on fraud and mala fideSuit was dismissed concurrentlyValidity

Defendants had produced only Part Patwar of impugned mutation which did not bear the signatures and thumb impression of the vendor, attesting witnesses as well as order of Revenue Officer

Defendants had not examined Patwari Halqa who entered the impugned mutation nor Revenue Officer who attested the same

Defendants could neither establish through cogent, reliable and confidence inspiring evidence the attestation of mutation nor payment of sale consideration to the vendor

Defendants were not in possession of the suit property and they could not get any benefit of impugned mutation

Defendants were bound to establish through evidence the payment of sale consideration to the vendor but they had failed to prove the same through cogent, reliable and confidence inspiring evidence

Requirements of S. 54 of Transfer of Property Act, 1882 had not been fulfilled in the present case

If sale consideration was missing in the sale transaction then sale was not complete

Plaintiff had possession over the suit property

Repetition of every wrong entry in the subsequent Jamabandi would create fresh cause of action

Present suit had been filed within the period of limitation

Findings recorded by the Courts below were not based on correct appreciation of evidence and material available on record

Suit filed by the plaintiff was decreed, in circumstances

Revision was allowed accordingly.

2019 YLR 1523 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 24 & 26Civil Procedure Code (V of 1908), S. 9Specific Relief Act (I of 1877), Ss. 42 & 54Suit for declaration and permanent injunctionTransfer of land during consolidation proceedings without permission of Consolidation OfficerEffectSale mutationProof ofProcedureAllegation of fraud in sanctioning of mutationBar on the jurisdiction of Civil CourtScopeContention of plaintiffs was that impugned mutations were based on fraud and were without considerationTrial Court dismissed the suit but Appellate Court decreed the sameValidityLand during consolidation proceedings without permission/sanction of Consolidation Officer could not be transferred

Court below had rightly held that attestation of impugned mutations during consolidation proceedings without seeking permission of Consolidation Officer was invalid

Impugned mutations did not have thumb impression nor signature of vendor or marginal witnesses

Mutation did not confer title and it did indicate previous sale between the parties

Whenever mutation was impugned then beneficiary of the same was bound not only to prove its validity but also the transaction which had been incorporated in the same

Defendants had failed to prove the attestation of impugned mutations and transaction incorporated therein

Defendants had even failed to prove the payment of sale price to the vendor

Defendants-vendees neither produced Patwari who entered the impugned mutations nor the Revenue Officer who attested the same

Defendants were not in possession of the suit property but plaintiffs were in possession of the same

Findings recorded by the Court below were correct and did not need interference in the same

Matter with regard to adjustment of land or share distribution in consolidation operation did fall within the exclusive jurisdiction of consolidation authorities and Civil Court could not sit in appeal on them

Plaintiffs, in the present case, had not challenged the consolidation proceedings but they had pleaded that impugned mutations were attested by practicing fraud during consolidation proceedings

Civil Court being Court of plenary jurisdiction was competent to inquire into the question whether impugned mutations were attested by practicing fraud and if it was so then it had jurisdiction to declare the same to be void

Impugned mutations were attested by practicing fraud and provision of S.26 of Kyber Pakhtunkhwa Consolidation of Holdings Ordinance, 1960 was not attracted to the present case

No mis-reading or non-reading of evidence or illegality or irregularity had been pointed out in the impugned judgment passed by the Appellate Court

Revision was dismissed in circumstances.

2019 MLD 1371 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 42 & 54Suit for declaration and permanent injunctionLimitationSale mutationAllegation of fraudProof ofContention of plaintiff was that impugned mutation was based on fraud and misrepresentationSuit was decreed by the Trial Court but same was dismissed by the Appellate CourtValidityVendor in her lifetime did not challenge the mutation in questionBurden of proof was on the beneficiary to prove the mutation attested in his favourDefendant had discharged the said burden by producing the entire documentary record with regard to impugned mutationPerson who had alleged fraud was bound to prove the sameImpugned mutation was attested on 15-12-1976 whereas present suit was filed on 23-05-2001Present suit was time-barred, in circumstances

No mis-reading or non-reading of evidence had been pointed out in the impugned judgment and decree passed by the Appellate Court

Plaintiff had failed to establish his case through cogent, reliable and confidence inspiring evidence

Findings recorded by the Appellate Court were based on proper appreciation of evidence and material available on record

Revision was dismissed, in circumstances.

2019 MLD 496 PESHAWAR-HIGH-COURT Judicial Precedent

S. 42Qanun-e-Shahadat (10 of 1984), Art. 114Suit for declarationSale mutationAgreement between partiesComparison of thumb impression of vendorBinding effectEstoppel, principle ofApplicability

Parties filed suit against each other wherein plaintiff moved application for comparison of thumb impression on the impugned sale mutation and volunteered that if same proved to be identical of vendor then his suit be dismissed and suit of defendant be decreed

Trial Court got compared the thumb impression of vendor on the mutation in question and it was reported that same was identical to the vendor

Suit filed by the plaintiff was dismissed whereas that of defendant decreed

Appellate Court reversed the findings of Trial Court on the ground that Expert evidence was non-conclusive on the fact in issue

Validity

Particular mode was adopted by the parties to settle the issue by referring the disputed mutation for Expert opinion

Parties agreed that if Expert confirmed the thumb impression of vendor on the mutation in question then suit of plaintiff should have been dismissed and that of defendant decreed

Parties with their mutual consent had adopted a procedure for decision of their suits by referring the matter to the opinion of Expert and had agreed that his opinion would be binding on them

Procedure agreed by the parties, in the present case, did not offend any law

Trial Court had rightly decreed the suit of defendants and dismissed that of plaintiff

Plaintiff could not be allowed to approbate and reprobate and change his position after the Expert report which had confirmed his thumb impression on the impugned mutation

Appellate Court had failed to appreciate that fact of the case and had only relied on the evidentiary value of Expert opinion

Impugned judgment passed by the Appellate Court was set aside and that of Trial Court maintained

Revision was allowed in circumstances.

2019 PLD 202 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 42 & 8Transfer of Property Act (IV of 1882), S. 54Qanun-e-Shahadat (10 of 1984), Arts. 117 & 126Suit for declaration and possessionSale mutationBurden of proofOfficial actsPresumptionContention of plaintiffs was that they were owners of suit propertySuit was dismissed concurrentlyValidity

Burden of proof did lie on the shoulders of the person who desired any Court to give judgment as to any legal right or liability dependent on the existence of fact which he had asserted

Plaintiffs were bound to prove as to how defendants were in peaceful possession on the suit land which they had failed to discharge

Defendants had proved that they were bona fide vendees of suit property

Attestation of mutation in column of tenancy or ownership was official responsibility of revenue officials

If any person had permanently acquired ownership rights in a land then his name was to be entered in column of ownership through attestation of mutation

If a sale was incorporated and sale mutation was attested in column of tenancy then it would not affect the sale or rights of vendee in the said land

Acts performed by public authorities deserved due regard by the Court

Presumption of regularity was attached to the official acts

Sale effected in column of tenancy could not be given any other meaning except a permanent transfer of ownership in immovable property

No illegality or irregularity had been pointed out in the impugned judgments passed by the Courts below

Revision was dismissed, in circumstances.

2019 CLCN 4 PESHAWAR-HIGH-COURT Judicial Precedent

S. 12Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79Transfer of Property Act (IV of 1882), Ss. 41 & 55Suit for declarationSale mutationGeneral power of attorneyAgreement to sell by attorneyProofProcedureRequirementsRegistered documentProof ofBona fide purchaserRequirements

Contention of plaintiff was that suit property had been transferred on the basis of fictitious and forged power of attorney whereas defendants contended to be bona fide purchasers

Suit was decreed concurrently

Validity

Agreement to sell was required to be attested by two witnesses

Defendant, being beneficiary of agreement to sell were required to establish the same by producing marginal witnesses in support of its execution qua the contents of said document

Defendants failed to produce marginal witnesses of agreement to sell

General power of attorney creating interest in any immovable property was not only required to be registered but also attested by two witnesses

Plaintiff had disputed the execution of general power of attorney and defendants being beneficiaries of the same were required to have established the contents of said document

Mere registration of a document would not prove its valid execution as the contents of the same were to be established through the manner and mode as provided under Art. 79 of Qanun-e-Shahadat, 1984

Defendants were bound to prove that general power of attorney was validly executed

Defendants had produced only one marginal witness of general power of attorney and other witness of said document was not examined

General power of attorney had not been established, in circumstances

Alleged attorney was not ostensible owner of suit property nor he had valid authority to transfer the said property to the defendants

No one could transfer to other the title or right better than he himself owned or possessed

Burden of proof was on the beneficiaries to establish that all the ingredients of S. 41 of Transfer of Property Act, 1882 had been complied with

Revision was dismissed in limine.

2018 YLR 2574 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 42Qanun-e-Shahadat (10 of 1984), Arts. 79 & 129 (g)Suit for declarationSale mutationProofRequirementsMaxim: secundum allegata et probataApplicabilityContention of plaintiff was that impugned sale mutation was outcome of fraud and misrepresentationSuit was decreed concurrentlyValiditySale mutation did not create any title or right in the immovable property

Beneficiary of mutation was bound, not only to prove its attestation but also establish the original transaction reflected therein

Attestation of mutation was a subsequent stage whereas prior to it the transaction must have been effected among its parties

Essential details with regard to settlement of transaction pertaining to time, month, venue and names of witnesses before whom it was struck down should be provided by the beneficiary in his pleadings so that same could be proved later on

No such detail had been provided by the defendant in his written statement

Oral sale mutation being a document involving financial obligation had to be proved as per mode provided under Art. 79 of Qanun-e-Shahadat, 1984

Such document could only be used as evidence until two attesting witnesses at least had been called for the purpose of proving its contents, execution and construction

If beneficiary failed to examine required number of witnesses to prove sale mutation then there would be adverse presumption against him

Nothing was on record with regard to payment of sale consideration to the vendor

Impugned mutation having been attested in the office of Revenue Office, which being militant to the basic provisions, could not sustain in the eye of law

Vendor was on death bed when impugned mutation was sanctioned

Courts below were justified to decree the present suit

No illegality, irregularity or mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees

Revision was dismissed in circumstances.

2016 MLD 1267 PESHAWAR-HIGH-COURT Judicial Precedent

O. XLI, R. 27Transfer of Property Act (IV of 1882), S. 41Specific Relief Act (I of 1877), S. 42Suit for declarationProduction of additional evidence in appellate courtScopeSale mutationRequirements

Contention of plaintiff was that she neither appeared before the Revenue officer nor received the consideration of alleged sale amount

Defendants claimed that they had purchased the suit property from the plaintiff

Trial Court dismissed the suit on the ground that defendants had not produced the attesting witness of impugned mutation

Defendant moved application before the Appellate Court for production of additional evidence of Revenue Officer who attested the impugned mutation but same was dismissed

Validity

Appellate Court had power to allow production of additional evidence whether oral or documentary, if same was refused by the Trial Court, which ought to have been admitted

Defendants were bound to produce evidence proving the presence of plaintiff and her signatures on the sale mutation

Testimony of Revenue Officer was essential for proper adjudication of the present case

Defendants had only sought relief of allowing them to call the Revenue Officer as a witness

Impugned order passed by the Appellate Court was set aside and application for production of additional evidence was allowed

Revision was accepted accordingly.

2016 CLCN 23 PESHAWAR-HIGH-COURT Judicial Precedent

O. VII, R. 4Suit for mandatory injunctionSale mutationLimitation to challenge document

Plaintiffs filed suit to the effect that they purchased suit property from the defendants but whole property was not entered in the jamabandi

Defendants claimed set off of the mutation on the ground that one of the defendants was minor

Suit was dismissed concurrently

Validity

Impugned mutation had not been challenged by the defendants

Defendant in question had not been shown as minor in the said mutation, however from his appearance he seemed to be minor

Set off allegedly claimed would not amount to a separate suit as it was confined specifically with suit for recoveries

No evidence was available on file to suggest that plea of set off had been proved by the defendants through positive evidence

Minor defendant had made omnibus statement that mutation was bogus but no details of fraud were given by him

Written statement was silent about the particulars of fraud

Long-standing entries in the jamabandi had presumption of truth and correctness would attach to such entries

Convincing and corroborative evidence was required to annul such entries which was lacking in the present case

Beneficiary of mutation had to prove the contents of the same by producing the marginal witnesses and attesting officer including Patwari halqa

Once entries of the mutation were incorporated in the jamabandi then those would become part and parcel of the same and burden to prove mutation would shift on the defendant to rebut the said entries

Limitation had been provided to challenge document including mutation and logic behind the same was to eliminate fraud

Entries made in the jamabandi of year 1971 had not been challenged by the defendants and claim of set off had been made in the suit of plaintiffs filed in the year 1997

Defendant was bound to challenge the entries made in the jamabandi after the institution of suit by plaintiff

Defendants had sold property in question in favour of plaintiffs by concealing facts

Plaintiffs approached the revenue authorities for incorporation of mutation only to the extent of half of the property available and they were entitled to be compensated through other property owned by the defendants

Sufficient evidence was available on file for grant of decree in favour of the plaintiffs

Share of minor should be deducted from the mutation as well as revenue record to meet the ends of justice and rest of mutation should remain intact

Plaintiffs were entitled for the decree to the extent of their share excluding the share of minor and suit to such effect was decreed

Revision petition was partly accepted.

2016 YLR 2575 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 42Limitation Act (IX of 1908), Art. 120Punjab Land Revenue Act (XVII of 1967), S. 42Suit for declarationLimitationSale mutationProofProcedureContention of plaintiff was that he was owner of suit property and alleged sale mutation was result of fraudSuit was decreed by the Trial Court but Appellate Court dismissed the sameValidityBeneficiary of a document had to prove its valid execution after denial of the same by its executantDefendants were bound to prove the valid execution of oral sale and mutation in question thereof

Written statement and evidence were silent with regard to entrance of actual transaction i.e. oral sale as no date, time and place of the same had been mentioned

Nothing was on record as to when and where the possession of suit property was delivered to the defendants

Mandatory provisions of S. 42 of Punjab Land Revenue Act, 1967 were not followed in stricto sensu which had vitiated whole proceedings with regard to attestation of impugned mutation

Impugned mutation was result of fraud, forgery, impersonation and without consideration and was void

Limitation did not run against a void order

Present suit was within time

Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored

Revision was allowed in circumstances.

2015 YLR 411 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 30 & 19Specific Relief Act (I of 1877), S. 42Qanun-e-Shahadat (10 of 1984), Arts. 85, 92 & 95Suit for declarationSale mutation

Contentions of plaintiffs were that suit land was allotted in favour of defendants who could not fulfil the conditions of allotment and entered into an agreement to sell with them and that registered agreement to sell and power of attorney were executed but mutation was cancelled by the Assistant Commissioner

Suit was decreed by the Trial Court but same was dismissed by the Appellate Court

Validity

Power of attorney was irrevocable wherein agreement to sell was mentioned

Defendants had never challenged those documents in any forum through suit or other proceedings

Registered documents had presumption of correctness and same had been proved by the plaintiffs

No rebuttal against the said documents was available on the file

Mutation of sale of suit property was sanctioned in favour of plaintiffs and same was incorporated in the revenue record

Assistant Commissioner was not competent to adjudicate upon the agreement to sell or power of attorney and cancel the mutation

No issue with regard to bar of suit under S. 19 of Colonization of Government Lands (Punjab) Act, 1912 was framed and such objection had been raised for first time before the High Court

Such bar was not available to the agreement to sell

Conditions of tenancy would vanish after completion of sale and 'Bae Nama Shahi' registered in favour of allottee and he would become owner of suit land

One could not take benefit of his own fault

Defendants could not press and use the conditions for cancellation of sale if they had sold out the land in violation of conditions of sale deed

Findings of Trial Court with regard to genuineness of documents were exhaustive and in accordance with law

Appellate Court had not given a single reason as to why it was setting aside the factual findings recorded by the Trial Court

Findings of Appellate Court were against the evidence available on the file

Appellate Court had exercised jurisdiction not vested in it

Impugned judgment and decree of Appellate Court were set aside and that of Trial Court were restored

Appeal was accepted in circumstances.

2014 YLR 956 PESHAWAR-HIGH-COURT Judicial Precedent

S.42Suit for declarationLimitationSale mutationPlaintiffs were never put in possession of property which they had claimed to have purchased in the year 1935Predecessors of plaintiffs never filed any suit in their life-time

Partition proceedings of total khata were conducted and on the basis of the same mutation was attested in favour of defendants

Plaintiffs never challenged partition proceedings in the revenue hierarchy

Present suit was filed in the year 2007 and that too when property was transferred to another person

Plaintiffs could not offer plausible explanation for not filing suit against said owner who was in possession

Plaintiffs had failed to justify as to why they were out of possession from 1935 till filing of suit and what was khata number or Khasra number of property which had been transferred through sale mutation

Plaintiffs and their predecessors remained satisfied and silent for 72 years and they could not avoid the bar of limitation

Remedy in time-barred matters could not be granted

Findings of Trial Court and Appellate Court were based on correct appreciation of the material brought on record

Revision was dismissed.

2014 YLR 359 PESHAWAR-HIGH-COURT Judicial Precedent

S. 42Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118Suit for declarationBurden of proofSale mutationContention of plaintiffs was that mutation was fictitious, bogus and without considerationSuit was decreed concurrentlyValidity

Payment of sale consideration as well as valid attestation of mutation had been proved through examination of one of the vendor, marginal witnesses and revenue officials including Patwari halqa, Tehsildar, and Girdawar circle

Marginal witnesses had identified transferors and had suggested that transaction took place properly and mutation was validly attested

Attesting officer of mutation had supported the marginal witnesses

Defendant had proved the mutation through independent evidence and same could not be annulled on the mere allegations

Mere assertion that beneficiary had to prove the mutation would in no case exonerate the plaintiff from initial burden which lay upon him to the allegation of fraud

Entries in the mutations register, though were not conclusive, but the evidence produced in support of the same would amount to discharge the burden which lay upon beneficiary

Sole statement of attorney of the plaintiff departing from the pleadings would not be sufficient to prove fraud

Plaintiff must plead fraud in the pleadings and same should be proved through reliable evidence which was lacking in the present case

Plaintiff had failed to prove the case

Both the courts below had wrongly scanned and evaluated the evidence on record

Findings of courts below suffered from infirmity and were perverse in nature

Revision was accepted and judgments and decrees of both the courts below were set aside and suit of plaintiff was dismissed.

2014 YLR 178 PESHAWAR-HIGH-COURT Judicial Precedent

S. 42Suit for declarationSale mutationBurden of proofSale transaction by a pardanashin ladyPrecautionsParadanashin ladyScopePlaintiff filed suit to the effect that she was owner in possession of suit propertyContention of defendant was that he had purchased the said land through sale mutationSuit was dismissed by the Trial Court but same was remanded by the Appellate CourtValidity

Wherever an illiterate, old-age person, pardanasheen lady or female issue of a Muslim was deprived of her property through sale, exchange, gift, inheritance etc., then beneficiary of the transaction would be required to prove its genuineness

Beneficiary would be required to prove with confidence-inspiring evidence that same was the result of free and independent advice of the person parting with the property

Factum of fraud was to be proved by the person alleging the same but in such-like circumstances mere assertion in pleading and evidence were sufficient to discharge their burden

Defendant who alleged sale mutation in his favour was required to strengthen the sale transaction to defeat the claim of plaintiff

Defendant did not appear in the witness box to prove the execution of mutation and payment of sale consideration

Tehsildar and Patwari halqa were not produced to prove that they prepared and attested the same at the instance of plaintiff and she had received sale consideration

Defendant was bound to produce the marginal witnesses of the mutation to prove that same was executed in their presence

Son of defendant appeared in the witness box as attorney of his father but he had not stated about the inability of his father to appear in the witness box

Trial Court had not considered such facts at the time of decision of the case

Appellate Court had rightly found that findings of Trial Court were ambiguous and evidence and material highlighted on record were not discussed

Custom of year 1964 regarding obtaining of signature/thumb-mark on the mutation required comprehensive discussion

Defendant had failed to point out any illegality or irregularity in the impugned judgment

No jurisdictional defect by the Appellate Court was pointed out

Resolution of disputed issue on merit was the goal of administration of justice

Revision petition was dismissed in circumstances.