ایسا انتقال جو غیر تصدیق شدہ ہو اسکی کوئی قانونی حیثیت نہیں ہے
2003 CLC 1118
West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Specific Relief Act (I of 1877), Ss.12 & 55-Suit for declaration and permanent injunction qua ownership of land---Mutation. attestation of---Mutation having not been attested could not transfer any right---Unattested mutation had no validity in the eyes of law---Burden of proving the transaction embodied in the mutation was on the person acquiring title through the mutation.
PLD 1990 SC 1049 and 1991 SCMR 829 ref.
Abdul Sattar Khan for Petitioners.
Walayat Khan for Respondents.
Date of hearing: 18th February, 2003.
JUDGMENT
Through the instant civil revision petition the judgment and decree dated 26-10-1995 recorded and passed by the learned District Judge Swabi, upsetting the judgment and decree of Civil Judge 3rd Class, Swabi dated 4-10-1994, has been called in question.
2. The short facts of the case relevant for the disposal of this revision petition are that the respondents filed a suit for declaration and permanent injunction against. the petitioners qua the land measuring 5 Kanals, 1 Maria detail fully incorporated in the heading of the plaint. The suit was hotly resisted by the petitioners and the pleadings of the parties gave birth to seven issues includingthe relief. Both the parties adduced the evidence in support of their rival stances a they willed. The trial of the suit ended in its dismissal on 4-10-1994. The respondents being aggrieved of the dismissal of the suit preferred an appeal which was heard and decided by the learned District Judge, Swabi who for his reasons given in the impugned judgment set aside the judgment and decreei of the learned trial Court and decreed the suit of the respondents.
3. The respondents claimed that they are owners in possession of land measuring 5 Kanals and 1 Marla in Khasra No.360 situated in Mauza Salim Khan through a sale Mutation No.3234 attested on 13-3-1947 as the same was purchased by their ancestor Muhammad Anwar, from Muhammad Zahid for a sum of Rs.140 by enforcing his superior right of pre-emption. The petitioners/defendants had instituted a suit in the Revenue Court for the recovery of produce. The respondents voiced their grievances against the entry of the petitioners as owners in possession in the Revenue Record. It was averred that on the checking of the Revenue Record it was found that Mutation No.3234 which was the basis of their rights qua the suit-land was not incorporated in the Revenue Record. The respondents also pleaded adverse possession over the suit property.
4. The learned counsel appearing on behalf of the petitioners has vociferously argued that the judgment of the learned trial Court is well reasoned and based on proper appreciation of evidence but the learned District Judge for reasons insufficient in law and not supported by the record has decreed the suit of the respondents resulting into grave miscarriage of justice. He argued that according to the version of the respondents Muhammad Anwar had purchased the suit property from Muhammad Zahid and Muhammad Zahid had statedly purchased the suit- land vide Mutation No.3069 from Dilawar Khan and Ghulam Haider. Dilawar Khan was the father of petitioners 6 and 7. Uncontrovertedly Mutation No.3069 was never attested by the Revenue Authorities. He further contended that neither Mutation No.3234 nor Mutation No.3069 was given effect in the Revenue Record. He next argued that the respondents took two mutually destructive pleas that on the one hand they claimed to be purchasers of suit-land through Mutation No.3234 in lieu of Rs.140 on the ground of superior right of pre-emption and on the other hand they claimed their title by way of adverse possession. Relies on PLD 1990 C and 199 L, SCMR 829.
5. On the other hand, Mr. Wilayat Ali Khan, Advocate the learned counsel for the respondents has defended the impugned judgment of the learned- District Judge arguing that the respondents are -in possession of the suit-land and that they have purchased this land through a validly attested Mutation No.3234 dated 13-3-1947 for an amount of Rs.140 by enforcing the superior right of pre-emption. by the predecessor of the respondents namely Muhammad Anwar, He however, has admitted the fact that Mutation No-3234 has not been incorporated in any of the ' Jamabandis' . He also contended that the non-attestation of Mutation No.3069 through which Muhammad Zahid had purchased the suit-land from Dilawar, the predecessor of the petitioners, would not affect the rights of the respondents.
6. I have hard and considered the rival contentions of the learned counsel for the parties in the light of the record of the case. It is a matter of record that the suit-land originally belonged to Dilawar and Ghulam Haider. Subsequently Mutation bearing No.3069 appears to have been entered in the name of Muhammad Zahid but uncontrovertedly this mutation was never attested by the authorized functionaries of the Revenue Department. The non-attestation of this mutation becomes more clear when looked into the statement of C.W.1 Niamat Khan, A.D.K. who was examined by the learned District Judge, Swabi. He stated that:
Mutation No.3069 is not available in this Register. Only those mutations are available in this Register, and even in all other mutations register which are attested and accepted either rejected or unattested mutations do not become part and parcel of such Register.
Significantly Mutation No.3068 attested on 23-1-1945 pertaining to the same ' Mauza' was available with him and a copy thereof was placed on record as Exh.C.W.I/R.1. P.W.1 Abdullah Shah 'Patwari Halqa' clearly stated that Mutation No:3069 has not been attested. He further stated that Mutation No.3234 (on the basis of which the respondents have claimed their rights) was attested on the basis of Mutation No.3069. He also stated that both the mutations have not been incorporated in the Revenue papers. On the point of non-attestation of Mutation No.3069 the statement of P.W.2 Abdul Qayum, A.D.K, is also highly significant.
On the above statement of evidence it becomes clear that Mutation No.3069 having not been attested could not transfer any right from Dilawar Khan to Muhammad Zahid. Thus Muhammad Zahid having not acquired any right qua the suit-land could not sell it through Mutation No.3234 in favour of Muhammad Anwar. In this view of the matter Mutation No.3234 could not confer any right upon the respondents. It appears that the learned District Judge could not properly appreciate the evidence on the record on this significant feature of the case. The non-attestation of Mutation No.3069 was considered merely result of slackness by the Revenue Staff. It may be- observed that an un-attested mutation has got no validity in the eyes of law. Thus the conclusion drawn by him was incorrect. The learned counsel for the respondents effect in the Revenue Record (sic). It is also admittedly position as is evident from the plaint that a suit for produce was filed by the petitioners against the respondents and the argument of the learned counsel for the petitioners that the said suit for produce has been decreed in favour of the petitioners against the defendants was not controverted at the bar by the learned counsel for the respondents. The legal position is that any person who is acquiring title through a mutation, the burden of proving the transaction embodied in the mutation is upon him. In the instant matter the factum of pre-emption has not been proved as neither any suit for pre-emption was filed nor any other evidence was adduced to that effect pertaining to Mutation No.3234. Since the learned counsel for the respondents has not argued the case on the question of adverse possession and the aforementioned discussion is sufficient for the acceptance of this revision petition, therefore, I do not feel any need to dilate upon the factum of adverse possession taken in the plaint. Consequently on the strength of the above mentioned discussion, I allow this revision petition, set aside the judgment and decree of the learned District Judge dated 26-10-1995 and restore the judgment and decree of the learned trial Court dated 4-10-1994. No order as to costs.
M.B.A./794/PPetition accepted.
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