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2004 M L D 706
(a) West Pakistan Land Revenue Act (XVII of 1967)---
----S.42---Transfer of Property of Act (IV of 1882), S.54---Qanun-e-Shahadat (10 of 1984), Art. 119---Mutation of sale---Proof---After denial of transaction of sale, onus of proving the same would shift to beneficiary to prove through positive evidence not only mutation, but also transaction incorporated therein i.e. sale, payment of sale price, transfer of possession and attestation of mutation.
(b) West Pakistan Land Revenue Act, (XVII of 1967)---
----S.42---Mutation---Evidentiary value---Mutations are sanctioned only for fiscal purposes, which create no title---Mutation by itself is not a document of title---Person deriving title through mutation must prove transaction embodied therein.
Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Wazir Ali Industries Ltd. and others v. The Secretary to Government of Sindh (Local Government) and 2 others 1985 CLC 1843; Niaz Ali and 16 others v. Muhammad Din through Legal Heirs and others PLD 1993 Lah. 33; Mst. Rasul Bibi v. Nasrullah Khan 1994 CLC 1774; Allah Bakhsh and others v. Ghulam Hussain and others PLD 1975 Lah. 1349 and Collector, Dera Ismail Khan and others v. Shahzad Bibi and 7 others 1995 CLC 1843 rel.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art.129(e)---Official acts done in discharge of official duties Presumption of correctness attached to such acts---Proof---Such acts would need to be proved to have been taken honestly and according to law.
(d) Administration of justice---
----Nobody can be made liable for acts of others, unless it is proved that such person had some participation or connivance in the alleged act.
(e) Civil Procedure Code (V of 1908)---
----S.115---Revisionaljurisdiction of High Court---Scope---In absence of misreading or non-reading of evidence or any illegality or irregularity in the impugned judgment, no interference is permissible in revisional jurisdiction of High Court.
Ras Tariq Chaudhry for Petitioners.
Abdul Wahid Malik for Respondent.
Date of hearing: 15th December, 2003.
JUDGMENT
This civil revision assails the judgment and decree dated 6-10-1999 passed by the learned Additional District Judge, Gujranwala, whereby, the respondent's appeal was accepted, judgment and decree of the learned trial Court was reversed, and the suit of the respondent was decreed.
2. Precisely, short fall of facts relevant for decision of this petition are that respondent was owner of land measuring 62 Kanals and 5 Marlas in village Mangokay Tehsil and District Gujranwala, out of which he agreed to sell land Measuring 24 Kanals in favour of the petitioners for Rs.12,000 but the petitioners failed to pay the whole sale price 'on account of which respondent refused performance of the agreement and the petitioners filed a suit for specific performance of the agreement which was ultimately decreed in their favour on the basis of compromise vide judgment and decree dated 1-6-1978. Consequently, Naib Nazar of the civil Courts on 2-11-1981 executed a sale-deed in favour of the petitioners and Mutation No.921 under the said decree was also sanctioned on 10-12-1985. Respondent claims that after passing of decree in suit for specific performance on 2-II-1981, petitioners representated him for attestation of mutation under the decree and consequently he thumb-marked some blank papers before the Revenue staff just after the decree, above referred, but during consolidation proceedings, it revealed that the petitioners got attested Mutation No.729 dated 28-3-1991 in their favour, on the basis of some oral sale which necessitated him of filing a suit for declaration with permanent injunction as consequential relief. Respondent challenged in his suit Mutation No.729 dated 28-3-1981 being void, contrary to facts without consideration, fraudulent and collusive. He pleaded that he never entered into any other transaction of sale of 24 Kanals of his land in favour of the petitioners. Respondent's case was that he neither received any consideration nor delivered the possession under the alleged sale and his thumb-impressions were obtained fraudulently by the petitioners, making him to understand that mutation is being sanctioned under decree dated 1-6-1978 regarding 24 Kanals subject of the decree and prayed the said mutation declared as illegal, void and inoperative quo his rights. He also prayed for a decree for permanent injunction, restraining the petitioners from alienating or interfering in his possession over the land in question.
3. The petitioners being the defendants in the suit controverted the assertions in the plaint and raised certain preliminary objections regarding maintainability of the suit and limitation etc, Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, on the basis of his appraisal of evidence dismissed the suit of the respondent vide his judgment and decree dated 28-6-1997.
4. Respondent aggrieved of the decision of the learned trial Court dated 28-6-1997 filed an appeal before the learned Additional District Judge where he succeeded as his appeal was accepted. The judgment and decree dated 28-6-1997 passed by the trial Court was set aside and his suit was decreed, annulling Mutation No.729 dated 28-3-1981 vide judgment and decree dated 6-10-1999. The petitioners felt aggrieved of the decision of the Appellate Court dated 6-10-1999 filed revision petition before this Court which was admitted to regular hearing and has now been taken up for final determination.
5. The learned counsel for the petitioners submits that the respondent had asserted fraud and misrepresentation regarding attestation of mutation subject of suit but did not produce any evidence, in support of it, hence his suit could not have been decreed. He further submits that thumb-impression of the respondent appears on the mutation in question which has not been denied by him, as well it, according to him, led to presume that the said mutation was sanctioned as claimed by the petitioners. In this behalf he relied on the case of Khalil-ur-Rehman v. Mst. Halim Khatoon (PLD 2001 Lahore 63). It has also been argued on behalf of the petitioners that mutation and proceedings thereunder were conducted by the Revenue officials in discharge of their statutory obligations and under law a presumption of correctness is attached thereto but the Appellate Court has not adverted to this aspect of the case. The learned counsel for the petitioners further contends that it is incorrect to say that there is no evidence on passing of the consideration under the sale because D.W.3 had deposed regarding payment of price to the respondent, and his this statement, went un-cross-examined, thus under law, deposition of D.W.3 will be presumed to be correct. The learned counsel further elaborates his arguments by saying that son of the respondent pre-empted the sale evidence in Mutation No.729 dated 28-3-1981 subject of dispute in this suit and the respondent is admittedly living under one roof with his son and this will be presumed to have admitted the sale. It has further been asserted by the petitioners that after failure in the pre-emption suit, the suit in hand was filed with unclean hands.
6. Conversely, the learned counsel for the respondents refuted the arguments of the petitioners, supported the appellate judgment/decree and urged that after denial of sale by the respondent, onus to prove it, shifted on the shoulder of the petitioners and they were to prove not only the mutation but also the transaction of sale, by positive evidence but they failed to discharge this onus. The learned counsel for the respondent further submits that Mutation No.729 shows that in spite of the fact there was space available for thumb-marking by the alleged vendor, beneath the order of the Revenue Officer, but instead thumb-impressions, have been marked on another page whereover there is no order of the Revenue Officer. According to him, it shows that entire activity, of attestation of mutation in question, is fake. It has also been contended by the learned counsel for the respondent that there is no proof on the file that sale consideration was ever received by the respondent. Possession under the alleged sale was not given to the petitioners. He further submits that the mutation itself showns the nature of transaction challenged in the suit.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. It is settled law, by this time that after denial of transaction of sale, onus of proving it, shifts towards the beneficiary to prove through positive evidence, not only the mutation but also the transaction incorporated therein. The petitioners being vendees were to prove transaction of sale, payment of sale price, transfer of possession and attestation of mutation. The petitioners in order to prove all these things produced three witnesses. D. W .-1 Naqash Muhammad is a Record Keeper, Saddar Qamungo Office, who produced mutation register containing original Mutation No.729, copy of which was placed on record as Exh. D.1. D.W 2 is Muhammad Hussain-Girdawar who deposed that in 1981 he was posted as Patwari in the Halqa in question and during this period he entered Mutation No. 729 (Exh. D.1) on asking of Allah Ditta-respondent. According to him this mutation was sanctioned by Malik Safdar Ali, Naib Tehsildar and the parties were identified by Sardar Khan Lumberdar. In cross-examination this witness stated that the sale consideration was not paid in his presence, thumb impressions were got marked by the Revenue Officer and the mutation was entered at village Mangokey but he did not remember where it was sanctioned. D.W.3 is Muhammad Ashraf who appeared as attorney of Abdullah one of the petitioners and deposed that sons of the respondent filed a pre-emption suit against mutation in question which was dismissed. He also deposed that the land was, purchased by Abdullah etc after paying the sale price and no fraud has been committed. In cross-examination he admitted that Abdullah is his paternal uncle and earlier to his appointment as attorney, Abdullah himself had been following the proceedings in the suit. He further stated that bargains of land in question was struck in 1981 and it was not brought to black and white. According to this witness mutation was sanctioned in the Baithak of Sardar Khan Lumberdar. He admitted that he was not present at the time of attestation of mutation. This is the entire evidence produced by the petitioners. None of the witnesses of the petitioners stated that bargain between the parties, was struck in his presence. None of them has said a word regarding payment of sale price except D.W.3 who was not present at the time of sanctioning of mutation. Sardar Khan Lumberdar, who allegedly identified the parties before the Revenue Officer and in whose sitting room the mutation was allegedly attested, has not been produced in the witness-box. Revenue Officer, who allegedly got thumb-marks the respondent over the mutation in question (according to D.W.2) has not been summoned as a witness. File is absolutely thirsty regarding proof of pre-requisites of a valid sale, like transfer of possession and payment of sale price.
8. Mutation Exh. D.1 shows that it has two pages on the first page Revenue Officer passed the order sanctioning, oral sale of 24 Kanals out of Khata No. 120 bearing Khasras No.250,251;252 and 254 in favour of the petitioners for an amount of Rs.12,000 and beneath the order of the Revenue Officer, there was sufficient space for thumb-marks by the vendor and the witnesses but on this page thumb impressions were not obtained and are shown on the second page where besides, thumb impressions of the 3 persons, who signed and thumb-marked and those included Abdullah, who thumb-marked, Muhammad Aslam an owner of the estate also thumb-marked and Sardar Khan Lumbei'dar signed it. On this page there is no order of the Revenue Officer or his signature, showing that he obtained these thumb-impressions/signatures of the vendor and the witnesses. This activity of thumb-marking on a blank paper attached to Mutation No.729 negatively reflects on it and goes a long way to substantiate assertion of the respondent raised in the plaint, wherein he claimed that he was represented by the petitioners to have mutation sanctioned under the compromise decree dated 1-6-1978 in the suit for specific performance.
9. Another aspect of the case is that decree in the suit for specific performance (Exh. P.5) was passed; on the basis of statements of the parties dated 10-5-1978 (Exh. P.3) and sale-deed thereunder (Exh. P.6) was executed by Naib Nazir of the Civil Court on 2-11-1981 but Mutation No.721 on the basis of this sale-deed was got sanctioned on 10-12-1985. The sale-deed in favour of the petitioner, under the decree was executed in execution proceedings but Mutation No.921 was got attested without warrants from the Executing Court as this mutation has a recital that it is being sanctioned on the basis of sale-deed. Decree in the suit for specific performance was passed for 24 Kanals but the mutation was attested for land measuring 29 Kanals and 11 Marlas. Agreement to sell subject of suit for specific performance related to share to the extent of 24 Kanals owned by the respondent and sale-deed was also accordingly executed but while sanctioning Mutation No. 921, specific Khasra number were transferred in favour of the petitioners. In this background, it is not beyond thinking that they obtained thumb impressions of the respondent as claimed in the plaint. Above all, agreement to sell of 1978 was got specifically performed through suit though under compromise on 10-5-1978. It is unimaginable that a party coercing the petitioners to go to the litigation, would again be trusted and believed for sale of some other piece of land without writing in 1981 as deposed by the D.W.3. There is no agreement to sell, or receipt regarding payment of consideration or any other document on the basis of which the mutation in question was got sanctioned. Last but not the least "Roznamacha" entered on alleged report of the respondent, as deposed by D.W.-2, has not been produced, witnesses in whose presence Roznameha was entered, were not examined and all this shows fakeness of the transaction of sale subject of controversy. Circumstances of this case, coupled with entries in the Mutation No.729 are themselves proof of fraud and in presence of these facts submission of the petitioners that there is no evidence on the file in support of their fraudulent act, looses worth.
10. It has repeatedly been held that mutation by itself is not a document of title and person deriving title there from, must prove the transaction embodied in the mutation but as observed above, there is no proof in this behalf, on the file. A reference can be made to the judgments in the cases of Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832), Wazir Ali Industries Ltd, and others v. The Secretary to Government of Sindh (Local Government ) and 2 others (1985 CLC 1843), Niaz Ali and 16 others v. Muhammad Din through legal heirs and others (PLD 1993 Lahore 33), Mst. Rasul Bibi v. Nasrullah Khan (1994 CLC 1774). Mutations are sanctioned only for fiscal purposes, otherwise, those create no title. I am fortified for this proposition by the alighted judgment in the Allah Bakhsh and others v. Ghulam Hussain and others (PLD 1975 Lahore 1349), Collector, Dera Ismail Khan and others v. Shahzad Bibi and 7 others (1995 CLC 1843).
11. No doubt a presumption of correctness is attached to official acts done in discharge of official duties but those are needed to be proved to have been taken honestly and according to law. Sale in favour of the petitioners cannot be allowed to be sustained, only on the basis of this, acts. Other submissions of the petitioners regarding non-cross-examination of D.W. 3 on the point of payment of consideration which also has substance because this witness was subject to cross-examination on this point, as well. As regards estoppel against father on account of some suit by his son pre-empting the sale, it is settled that nobody can be made liable for acts of others unless it is proved that the person claimed to have estopped, have some participation or connivance in the alleged act. There is no evidence showing that the respondent was privy to the pre-emption suit by his son if at all it was filed.
S.A.K./M-13/L Revision dismissed.
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