Thumb-Impression-- It is settled practice of Courts not to base findings merely on expert’s opinion. -- -Filing a suit for declaration, Article 120 of Limitation Act, 1908 provides limitation of six years from date of right to sue.

 PLJ 2022 Lahore 118

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 49--Land Revenue Act, (XVII of 1967), S. 42--Title qua immovable property--Mutation--Scope of-- It is well established by now that mutation per se is not deed of title and party relying upon its entries is always bound to prove transaction reflected therein.                                                

                                                                                             [P. 120] A

Ref. AIR 1930 PC 93; AIR (35) 1948 PC 210; PLD 1965 Lahore 472; 1992 SCMR 1832 PLD 1988 Lahore 45.

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 49--Mutation containing sale transaction--Financial liability--Marginal witness--Examination of Tehsildar out of its signatories by beneficiary was not enough to meet with legal requirement--Impugned mutation was not liable to be taken as evidence, its attestation was established or sale transaction embodied therein proved, especially, when marginal witness while appearing on behalf of plaintiff created serious doubts in veracity of disputed mutation.    [P. 122] B

Ref. 2016 SCMR 986.

Witness--

----Attestation of mutation--Allegation of lady--Not personally known--Thus allegation of lady that she was impersonated could not be rebutted.                                                       [P. 122] C

Thumb-Impression--

----Expert opinion--Doubtful report--Opinion of an Expert is always a weak, type of evidence and is not that of conclusive nature--It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence--Expert’s testimony recorded in case in hand cannot be treated as substitute of available direct evidence. It is settled practice of Courts not to base findings merely on expert’s opinion.                             

                                                                                             [P. 124] D

Ref. 2004 SCMR 1859, 2006 SCMR 193.

Land Revenue Act, 1967 (XVII of 1967)--

----S. 42--Limitation Act, (IX of 1908), Art. 120--Suit was filed after 11 years of sanction of mutation--Beneficiaries failed to prove--A document which was procured by playing fraud, can be challenged at any stage of time--Plaintiff prayed for declaring mutation in dispute as illegal, which was implemented in relevant record of right--Every new entry in revenue record gives fresh cause of action to plaintiff and adverse entries therein even if are allowed to remain unchallenged does not necessarily extinguish right of party against whom such entry are renewed [P. 126] E

1995 SCMR 284.

Civil Procedure Code, 1908 (V of 1908)--

----S. 115--Civil revision--Jurisdictional defect--Appellate Court below misconstrued available evidence and law on subject, which being tainted with misreading/ non-reading of evidence as well as suffering from jurisdictional defect fully calls for interference by applying exceptions provided u/S. 115 of Code, 1908.     [P. 127] G

Limitation Act, 1908 (IX of 1908)--

----S. 120--Limitation for filing of suit--Filing a suit for declaration, Article 120 of Limitation Act, 1908 provides limitation of six years from date of right to sue.                                [P. 126] F

Miss Gulzar Butt, Advocate for Petitioner.

Mr. Sajjid Ali, Advocate for Respondents.

Date of hearing: 11.2.2021.

 PLJ 2022 Lahore 118
Present: Ch. Muhammad Masood Jahangir, J.
Mst. NOOR ELAHI--Petitioner
versus
MUHAMMAD ABBAS etc.--Respondents
C.R. No. 203 of 2008, heard on 11.2.2021.

Judgment

Undisputedly, the subject area was titled by the present petitioner, who claiming her to be a folk/illiterate lady, on 26.04.1992 brought declaratory suit against respondents, asserting that the said, land was only leased out, but while impersonating her, the respondents managed its transfer in their favour vide oral sale Mutation No. 192 dated 25.04.1981, whereas neither she offered its sale nor received any consideration, therefore, it being forged, fictitious as well as collusive was inoperative upon her rights and liable to be cancelled. The respondents/defendants (who inter se were brothers) obviously contested the suit through their written statement while pleading that suit area had been purchased by them, that the vendor/plaintiff in the company of her husband as well as attesting witnesses had appeared before Revenue Officer, who after recording the statement of the plaintiff and affixing her thumb-impressions over the Pert, sanctioned the subject mutation.

The parties to prove their respective stances produced evidence in pros & cons. As a result of appreciation thereof, the learned Trial Court decreed suit in hand and cancelled the mutation in dispute through judgment dated 17.06.2004, but the learned Appellate Court after analyzing the material with different angle dismissed the suit while reversing decree of the subordinate Court vide impugned judgment of 01.11.2007. Thus, the instant civil revision on behalf of the petitioner/plaintiff.

2. Arguments heard and record consulted.

3. Before adverting to the salient features of the case, it is to be added that mutation proceedings are initiated primarily for fiscal purposes to collect the land revenue and is only meant for maintaining the record. It is again not disputed that the revenue official/officer enters and attests the mutation during summary proceedings, which by no stretch of imagination can be considered judicial proceedings wherein right title qua immoveable property is determined. Although these proceedings made under Section 42 of the Land Revenue Act, 1967 are admissible under Article 49 of the Qanun-e-Shahadat Order, 1984 and some presumption is also attached thereto, but it is always rebuttable. It is well established by now that mutation per se is not deed of title and the party relying upon its entries is always bound to prove the transaction reflected therein. In holding so, I am fortified by the law laid down in Gangabai and others vs. Fakirgowda Somaypagowda Desaiand others (A.I.R.1930 PC 93), Durga Prasad and another vs. Ghanshiam Das and others (A.I.R. (35) 1948 PC 210), Muhammad and others vs. Sardul (PLD 1965 Lahore 472), and Hakim Khan vs. Nazeer Ahmad Lughmani and 10 others.(1992 SCMR 1832). Whereas this Court in the judgment titled M. Malik vs. Mst. Razia (PLD 1988 Lahore 45) defined the ‘sale’ as under:

“Sale means transfer of ownership in exchange for a price paid or promised or part paid and part promised where sale was made orally and reported Patwari by parties thereto who had admitted payment of the consideration and delivery of possession on the basis whereof mutation was entered. Sale would be effected and completed on that day and not when mutation in respect thereof was sanctioned.”

The august Supreme Court further elaborated the paramount ingredients of sale in Ali Muhammad and others vs. Chief Settlement and Rehabilitation Commissioner and others (1984 SCMR 94) to the following effect:

“Sale is defined as being a transfer of ownership for sale -price is an absolute transfer of rights in property sold and no rights are left in transferor. Essential elements of sale are (i) the parties; (ii) subject matter; (iii) transfer or conveyance and (iv) price or consideration.”

Whereas, according to Section 54 of the Transfer of Property Act, 1882, it is to be established on record that the sale price has been passed on to the vendor and in default thereof, sale is not completed.

4. While keeping in mind aforesaid features, when case of the parties consulted, the petitioner/plaintiff in paras 3 to 6 of the plaint narrated detail of the alleged malpractices, misrepresentation and fraud played upon her to usurp suit land. The respondents/defendants denied the said allegations while asserting that genuine transaction of sale was effected and after making payment of the consideration, the disputed mutation was properly attested. The said mutation was sanctioned on the attestation of Shafi Muhammad (PW2) & late Khan Bahadur Lumberdar, the father of PW3, whereas it was attested on the verification of Muhammad Ashiq (PW4), the husband of the plaintiff. As per available record, out of them two signatories (PW2 & 4) as well son (DW3) of third because the latter had already passed away was produced by the plaintiff. Out of those, PW1 explicitly worded that the plaintiff had never sold out suit area and consideration was also not paid to her, that she did not appear before the Tehsildar in his presence, and that she did not thumb-mark the sale mutation before him. He further stated that only for procuring some loan, his own thumb-impression was procured by the Patiuari. The next witness Riasat Ali (PW3) deposed on oath that his father Khan Bahadur though was Lumberdar, but he was illiterate person, who prior to his death told him that Patwari had managed his thumb-impression while cheating him, whereas plaintiff according to his knowledge never sold out subject land. On the same lines Muhammad Ashiq (PW4), who admittedly is husband of the plaintiff stated under oath that his wife had neither sold out the suit land nor she turned up before the Tehsildar and that he as well never appeared before the said officer or signed the subject mutation.

In response, the beneficiary though examined the Patzvari (DW5), but he was not the one, who either entered the mutation under dispute or attested in his presence. Although, the concerned Tehsildar (DW4) endorsed the genuine sanction of the disputed mutation, but admitted that consideration was not paid before him, whereas it was only acknowledged by the plaintiff/vendor that she had already received it. As a matter of law, subject mutation containing sale transaction was document pertaining to financial liability, thus required to be strictly proved. The examination of Tehsildar out of its signatories by the beneficiary was not enough to meet with the legal requirement. As such, the impugned mutation was not liable to be taken as evidence, what to talk that its attestation was established or the sale transaction embodied therein proved, especially, when the marginal witness while appearing on behalf of the plaintiff created serious doubts in the veracity of disputed mutation. See Islam-ud-Din through LRs and others vs. Mst. Noor Jahan through LRs. and others (2016 SCMR 986), wherein it was held that:

“The attesting witnesses of .all the three mutations are Muhammad Rashid son of Maula and Akbar Jan son of Mehr Jan, however, only one witness (Muhammad Rashid) was produced and no any reason was given for the non-production of Akbar Jan. Article 79 of the Qanun-e-Shahadat Order, 1984 stipulates that a document “shall not be used in evidence until two attesting witnesses at least had been called for the purpose of proving its execution”.

Apart therefrom, the Revenue Officer (DW4) during the cross-examination conceded that the plaintiff was not personally known to him, as such he could not say with certainty that she along with the witnesses actually appeared before him for attestation of mutation or not, thus the allegation of the lady that she was impersonated could not be rebutted. Even otherwise, father of respondents/ beneficiaries while appearing as DW2 during the cross-examination stated that the plaintiff/lady at that moment was about 15/16 years old and she (in 1981) was paid consideration of currency notes valuing rupees 500/1000, whereas learned counsel for the plaintiff on the strength of “Pakistani rupee - Wikipedia, the free encyclopedia” pointed out that notes of rupees 500 were introduced in 1986 followed by denomination of 1000 rupees in the next year. This position was strengthened when printed material to this extent was provided by the learned counsel for the petitioners, which is also retained on the file. The learned counsel for the beneficiaries after going through the same fell in great difficulty to respond the same satisfactorily and this situation provided much corroboration to the stance of the petitioner. In absence of proof that consideration was made good, the sale definitely could not be established.

5. Mr. Sajid Ali, Advocate for the respondents submitted that apart from mutation, the vendor herself reported the transaction to the Patwari, who recorded the same in the Register Roznamcha Waqiati, therefore, mutation duly supported by the report recorded in the Daily Diary could not be annulled. Suffice it to say that no doubt rapat Roznamcha Waqiati (Exh.D5) was brought on record, but without recording statement of its maker. There is no hesitation to hold that rapat Roznamcha Waqiati is not per se admissible, whereas exhibition of document as well as proof of its contents are two different aspects and the latter to me is more relevant and important, which to the extent of Exh.D5 was lacking here. Moreover in judgment reported as Zulfiqar and others vs. Shahdat Khan (PLD 2007 SC 582) the apex Court while dealing with a rapat Roznamcha Waqiati recorded on behalf of vendor has already held it to be against intention of relevant provision of law. The pertinent conclusion being relevant is reproduced as under:

“Although Roznamcha Waqiati is required to be maintained under the West Pakistan Land Revenue Rules, 1968 and entry made during the course of performance of official duty is admissible yet if the report contains the statement of a private individual, it is required to be proved to establish its correctness. It may also be noted here that under Section 42 of The West Pakistan Land Revenue Act, 1967 it is the person acquiring a right in the land who has to make such a report to the Patwari Halqa. However, in the case in hand the report way made by the vendor and, therefore, within the scope of Section 42, it is even doubtful whether such a report, at the instance of vendor (a person alienating his right) could be said to have been recorded by the Pahvari in the discharge of his official duty.”

In addition thereto, Roznamcha itself is not a document to confer title in view of bar contained in Section 49 of the Registration Act, 1908, ‘but the respondents being beneficiaries were required not only to lead solid evidence that the petitioner had sold out the suit land to him and also received its price as a whole or in part. This view finds support from the judgment of the august Supreme Court reported as Tooti Gul and 2 others vs. Irfanuddin (1996 SCMR 1386). Moreover, these entries were also not confronted to the plaintiff/alleged vendor (PW1), when she appeared in the witness box.

6. The next emphasis of Mr. Sajid Ali that the Revenue Officer (DW4) in his depositions explicitly deposed that vendor admitted before him that she had already received sale proceed, thus her statement duly supported by the entry recorded during sanction of mutation was enough to prove that consideration was received by the vendor/plaintiff, was again not well founded. The august Supreme Court even in a case wherein registered sale instrument was under question held that mere an admission as to receipt of sale price before Attesting Officer could not be taken as conclusive proof. See Muhammad Shafi and other vs. Allah Dad Khan (PLD1986 SC 519).

7. The other argument of learned counsel for respondents that the disputed mutation was referred to Finger Expert Bureau to compare alleged thumb-impression of the plaintiff, who (DW6) reported it to be identical with the admitted one, therefore, the stance of the plaintiff was falsified is not well founded. Although, Expert opined the similarity, but he 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 doubtful. Even otherwise, the opinion of an Expert is always a work, type of evidence and is not that of conclusive nature. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence. In view of this infirmity, the Expert’s testimony recorded in the case in hand cannot be treated as substitute of available direct evidence. It is settled practice of Courts not to base findings merely on expert’s opinion. In this regard, reference can be made to a case reported as Syed Muhammad Umer Shah vs. Bashir Ahmed (2004 SCMR 1859) wherein it was held as under:

“After scanning the entire evidence on record and after going through the concurrent findings, we are of the firm view that the only opinion of a Handwriting Expert, otherwise a weak piece of evidence, should not be allowed to prevail against strong circumstances and strong evidence giving inference, altogether, to the contrary. When once the petitioner had failed to prove his case on the basis of the very evidence produced by him, he cannot be given the benefit of the only favouarble opinion by the Expert, being otherwise a weak piece of evidence.”

This view was again affirmed by the same Court in case Mst. Saadat Sultan and others vs. Muhammad Zahur Khan and others (2006 SCMR 193) in the following words:

We have carefully examined the contentions as adduced on behalf of petitioners in the light of relevant provisions of law and record of the case. We have scanned the entire evidence and perused the judgments of learned trial and Appellate Courts as well as the judgment impugned. Let we make it clear at the outset that the opinion of Handwriting Expert is a very weak type of evidence and is not that of a conclusive nature. It is well-established by now that expert’s evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available. In this regard we are fortified by the dictum as laid down in Yaqoob Shah v. The State PLD 1976 SC 53. There is no doubt that the opinion of Handwriting Expert is relevant but it does not amount to conclusive proof as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner and can be rebutted by overwhelming independent evidence. In this regard reference can be made to Abdul Majeed v. State PLD 1976 Kar. 762. It is always risky to base the findings of genuineness of writing on Expert’s opinion. In this behalf we are fortified by the dictum as laid down in case of Ali Nawaz Gardezi v. Muhammad Yousuf PLD 1963 SC51,”

8. As far as, submission of learned counsel for the respondents that suit for simple declaration without seeking relief of possession was not maintainable is concerned, suffice it to add that per para 4 of the plaint, the plaintiff explained that the suit land was under lease, which while exercising fraud was mutated, therefore, simple suit for declaration is maintainable. After its final culmination in her favour, she might have opportunity to initiate proceedings to recover the possession. The learned Appellate Court ignored the said part of the plaint while rendering its findings on the issue settled in this behalf. Above all, the superior Courts while dealing with relevant provision/ Order VII, Rule 7 of the Code, 1908 reproduced here:

7. Relief to be specifically stated--Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.

in series of cases cited as Manager, Jammu and Kashmir, State Property in Pakistan vs. Khuda Yar and another (PLD 1975 SC 678), Ch. Akbar Ali vs. Secretary, Ministry of Defence. Rawalpindi and another(1991 SCMR 2114), Mst. Arshan Bi through Mst. Fatima Bi and others vs. Maula Bakhsh through Mst. Ghulam Safoor and others(2003 SCMR 318), Altaf Hussain alias Mushtaq Ahmed vs. Muhammad Din and otters (2010 CLC 1646), Sardara and Allah Ditta through legal heirs and others vs. Mst. Bashir Begum and another (PLD 2016 Lahore 587) and Muhammad Riaz and others vs. Qaim Ali and others (PLD 2019 Lahore 97) have already observed that for mere technicalities a suit cannot be defeated due to its bad form. It was further observed that a Court in aid of justice vests with unfettered powers to provide, mould and grant adequate relief even if not claimed through the contents of the plaint. As such the suit was competent in all respect and plaintiff could not be non-suited for such drawback, if any.

9. The next contention of learned counsel for respondents that the suit was filed after 11 years of the sanction of subject mutation, therefore, the same was liable to be dismissed on the score of limitation is without any substance. As discussed above, beneficiaries failed to prove the transaction of sale as well as valid attestation of impugned mutation. A document which was procured by playing fraud, can be challenged at any stage of time. As regards filing a suit for declaration, Article 120 of the Limitation Act, 1908 provides limitation of six years from the date of right to sue. The plaintiff prayed for declaring the mutation in dispute as illegal, which was implemented in the relevant record of right. The every new entry in the revenue record gives fresh cause of action to the plaintiff and adverse entries therein even if are allowed to remain unchallenged does not necessarily extinguish the right of the party against whom such entry are renewed. This view has been affirmed by the apex Court in the judgment reported as Wali and 10 others vs. Akbar and 5 others (1995 SCMR 284), wherein it is held that any new entry in the revenue record on the basis of the forged document  gave rise to a new cause of action. Moreover, any transaction/document, which is result of fraud neither can be perpetuated nor protected on the ground of period of limitation and whenever such transaction is assailed, the Court of law has to refuse to give effect to it. Reliance can be placed upon recent judgment reported as “Ghulam Farid and another vs. Sher Rehman

through L.Rs” (2016 SCMR 862). As such suit was very much within time and Issue No. 7 is answered against the respondents/defendants.

10. For the reasons discussed hereinabove, this Court has come to the conclusion that the learned Appellate Court below misconstrued available evidence and law on subject, which being tainted with misreading/ non-reading of evidence as well as suffering from jurisdictional defect fully calls for interference by applying the exceptions provided under Section 115 of the Code, 1908. Thus, this civil revision is allowed, judgment impugned herein is set aside and that of learned Trial Court by virtue of which suit of the petitioner decreed, is restored. No order as to costs.

(R.A.)  Civil Revision allowed