' The land measuring 16 Kanals and 4 Marlas, which after consolidation has increased to 20 Kanals and 5 Marlas, situated in Village Porni, Tehsil Shakargarh, District Narowal, was owned by Imam Khan, who died on 25-11-1964; his death certificate is Exh.D.7 on the record. Imam Khan was the resident of village Gotta Fateh Garh, Tehsil and District Narowal. After his death, the said land devolved upon his son Kamal Din and daughter Mst. Sammo. Both the above named, allegedly sold the land in favour of the present petitioners, vide registered sale-deed, dated 17-2-1977, when on 1- 3-1977, Abdul Latif, the: predecessor of respondents Nos.1 and 2, filed a suit for declaration against the petitioners, Kamal Din and Mst. Sammo claiming that, Imam Khan, in his life time, had sold the land in favour of his father namely Nawab Din about 14/15 years ago for a total consideration of Rs.8,000 and had also delivered the possession thereof to the purchaser, thus, he sought the declaration of being the owner in possession of the property, and challenged the sale-deed, dated 17-2-1977 in favour of the petitioners as invalid mainly for the reason that, the petitioners were aware of the sale made earlier in favour of the plaintiff's side. It is also the case of the plaintiff that, if the oral sale is not proved, then he be declared to have matured his title to the property on account of adverse possession, being in possession since more than 15 years.
2. The suit was contested by the petitioners, Kamal Din and Mst. Sammo, by filing a joint written statement, dated 4-5-1977; the latter two clearly averring that their father never alienated the suit property in favour of the predecessor of the plaintiff Abdul Latif, and that, they have sold the property in favour of the present petitioners through sale-deed, dated 17-2-1977. This written statement was filed through Ch. Muhammad Iqbal, Advocate, Shakargarh. Subsequently, Mst.
Sammo, through Mr. Nisar Ahmad, Advocate, who has also appeared as witness on behalf of the plaintiff, moved an application stating that, the earlier written statement has not been on her instructions and, therefore, she be permitted to substitute the written statement. She also appeared in person on 28-7-1977, and made a statement in which, she acknowledged that, she had engaged Mr. Muhammad Iqbal, Advocate, as her counsel, but now has engaged Ch. Nazir Ahmad, Advocate; she in a way tried to wriggle out of the first written statement. Anyhow, on 10-6- 1977 without the permission of the Court, Kamal Din and Mst. Sammo, through Ch. Nazir Ahmad, Advocate, filed a written statement in which, they admitted the case of the plaintiff and denied the sale of the property to the petitioners. Thereafter, on account of death of Kamal Din, another amended written statement was filed on 2-10-1985, which is in line with the written statement, dated 10-6-1977.
3. It may be pertinent to state here that, in between, Mst. Sammo and Kamal Din through Mr. Nisar Ahmad, Advocate, had moved two applications, seeking amendment of their first written statement, so as to take up the plea that, their father had already sold in the land in favour of the plaintiff and that, no sale was made by them in favour of the petitioners. These applications were dismissed by the learned trial Court vide order, dated 12-7-1980. It may also be relevant to mention here that, in the said order, it has been held by the learned trial Court that, second written statement, dated 10-6-1977 by the said defendants, was filed without the permission of the Court and was cancelled vide separate order, dated 19-12-1979. The order, dated 12-7-1980 was challenged by Mst. Sammo and Kamal Din before the learned District Judge in revision, which was disallowed, and it has been held in paragraph No.4 as follows:- "I have absolutely no doubt in my mind that application for amendment of the written statement is mala fide and the petitioners are playing in the hands of the plaintiff so as to delay the trial of the suit."
' Further in this paragraph, it has been stated:-- "At the trial, the parties shall be allowed proper chance to produce evidence in respect of their claims. Pleadings made by Kamal Din and Sammo will not affect the merits of the case. They may or may be examined by any party and they can make any statement during the trial of the suit. It is not necessary to allow any amendment in their written statement."
4. As mentioned earlier; that when Kamal Din died and his legal heirs and Mst. Sammo filed the amended written statement, again the stance taken in the second written statement, which was already declared by the Court as unauthorized change in the pleadings, was reiterated. Anyhow, after the framing of the issues and conclusion of the trial, the learned Civil Judge disallowed the suit, holding that, the plaintiff/respondent has failed to prove a valid oral sale in favour of his father by Imam Khan. Against the above, the said respondent/plaintiff preferred an appeal, which has been accepted. The learned Appellate Court Is of the view that, according to the evidence brought on the record, especially Exh.P.4, which contains the entry that, the possession of the respondent/plaintiff on the suit-land is on the basis of {{URDU TEXT}} which means that, there was some sale made in favour of the respondents' father and he was put in possession of the property on the basis of above; moreover, the present petitioners having purchased the property subsequent to the entry in the Jamanbandi for the year 1966-67 (Exh.P.4), they necessarily had the knowledge of the status of the respondent as owner and, therefore, were not the bona fide purchasers of the land. The oral evidence led by the plaintiff/respondent in the nature of the statements of Azmat Khan P.W.1, Laddu Khan P.W.2, Muhammad Ramzan P.W.3, Chiragh Din P.W.4 and Fateh Ali P.W.5, has been believed.
5. Learned counsel for the petitioners has attacked the findings of the learned Appellate Court on the ground that, the entire evidence has been misread by the learned Court of appeal. It is argued that, according to the plaint, the case of the plaintiff/respondent is that, Imam Khan, the father of Kamal Din and Mst. Sammo, agreed to sell the suit-land about 14/15 years before the filing of the suit, which was instituted on 1-3-1977, but according to Exh.P.2, the entry of the mutation, which was got entered in the year, 1966, and is dated 5-10-1966, the sale is shown to have been entered by Kamal Din son of Imam Khan as his attorney, whereas, Imam Khan admittedly, had died on 25-11- 1964 (death certificate is Exh.D.7); the averments of the plaint are further contradicted by another entry of the mutation, which, when presented before the Tehsildar on 6-2-1970, was rejected on account of the fact that, the legal heirs of Imam Khan were not present and the council fee, necessary for the attestation of the mutation, has not been paid; besides that, no "Rapat Rozenamcha" has been produced to show, if in the relevant register, mutation as alleged, was ever entered on 5-10-1966; the learned counsel further submitted that there is visible tampering of the date and the amount in Exh.P.2. He also assailed the statement of the P. Ws. And argued that, Azmat Khan P.W.1, has never claimed that he was present at the time, when the sale between Imam Khan and father of the plaintiff Abdul Latif, was negotiated and finalized; the venue, time, date, month and the year have not been mentioned either in the plaint or proved through evidence; this witness in the examination-in-chief, rather has contradicted the contents of the plaint, about the price, when he claims that, it was Rs.4,000, however, by clarifying subsequently in the cross- examination, he deposed that Rs.4,000 were paid about 20/21 years before his statement was recorded on 10-12-1986, which means that, the amount of Rs .4 , 000 was paid somewhere in the year, 1964-65, but for the remaining Rs.4,000 he stated the payment about 15/16 years thereafter, which would be somewhere in the year, 1980; this is not even the case of the respondent/plaintiff in the plaint. Thus, on account of the above, the statement of said witness cannot be given any credence. It is further submitted that P. W.2 Laddu Khan, also is neither the witness of sale, not that of entry of the mutation; he too has not given the specific time, date, venue etc. Of the sale. P.W.3 Muhammad' Ramzan is a witness, who claims that Mst. Sammo had subsequently sworn an affidavit, acknowledging the sale by her father in favour of the plaintiff/respondent, but he does not know Mst. Sammo personally, therefore, from his evidence, it cannot be proved that, the affidavit was sworn by the lady. As regards P.W.4 Chiragh Din, he has contradicted the other witnesses, when states that, the sale price was paid before the Tehsildar in his presence, whereas, this is factually incorrect, because when the matter was put up before the Tehsildar on 6-2-1970, no payment is shown to have been ever made, rather as none was present on behalf of the seller, therefore, the mutation was not sanctioned. As regards the statement of P.W.6 Nisar Ahmad; Advocate, he is the same person, through whom, an attempt was made to detract from the original written statement of Kamal Din and Mst. Sammo. It is he, who claims to have attested the affidavit of Mst. Sammo (Exh.P.1). Moreover, from Exh. P . 1 , it is clear that the stamp paper of this document was purchased for the purpose of some agreement to sell as per endorsement on its back, and not for any affidavit, therefore, it is a vivid case of fabrication of the affidavit.
Furthermore, when Mst. Sammo appeared, even though, for recording her better statement on the issue, if she had earlier filed the joint written statement or not, she was never confronted with Exh.P.1.
She also was not examined by the petitioners as her own witness to prove the execution of the document.
6. Confronted with the above, learned counsel for respondents Nos.1 and 2 has argued that, there was ample evidence about the proof of the sale made in favour of the plaintiff, which is so envisaged by the Jamabandi for the year, 1966-67 and according to the statements of the P.Ws, it stood proved that, the sale was so made; the plaintiff was in possession of the property, resultantly, the sale in favour of the petitioners made subsequently in the year, 1977, was absolutely illegal and void as Kamal Din and Mst. Sammo were not the owners of the property at that time. It is further submitted that, Mst. Sammo and Kamal Din in equivocal terms, in their written statement, which was genuinely filed by them, had taken up the plea that, they had never sold the property in favour of the petitioners and conceded of having made a sale in favour of the 'respondent/ plaintiff, thus, on the basis of this admission alone, suit of the respondent/ plaintiff was liable to be decreed. He has lastly submitted that, in the order of the learned District Judge in revision, filed by Kamal Din and Mst. Sammo, challenging the order of the learned trial Court, refusing the applications for amendment, it has been made clear that, they can lead evidence to the effect, of admitting the claim of the respondent/plaintiff, therefore, on the basis of such admission in the written statement, case of the respondent/ plaintiff, even needed no proof on the rule, that the fact admitted requires no proof.
7. Learned counsel appearing for the legal heirs of Kamal Din and Mst. Sammo has supported the version of respondents Nos. 1 and 2 and has reiterated the stance taken by two, in subsequent written statements; admitting the sale in favour of the plaintiff and denying that in favour of the present petitioners.
8. I have heard the learned counsel for the parties. As per law, it is the duty of the plaintiff to prove his case. The plaintiff's documentary evidence, such as Exh.P.1; admission of Mst. Sammo through affidavit, has not been proved at all. The author of the document does not know her and statement of Nisar Ahmad, Advocate/ Notary Public, is absolutely shady and doubtful, especially because of his attempt to be a counsel for Mst. Sammo, while moving an application for resiling from the original written statement and then also appearing for the plaintiff's side. Moreover, the endorsement on the back of Exh.P.1 shows that, it was purchased for the purpose of some agreement of sale and not an affidavit, thus, no case on the basis of above, can be set out by the plaintiff. As regards Exh.P.2, the alleged entry about the mutation, dated 5-10-1966 is concerned, strangely the sale is shown to be on behalf of Kamal Din and Mst. Sammo does not figure anywhere. Moreover, entry allegedly was got incorporated by Kamal Din as attorney for Imam Khan, whereas Imam Khan and died about two years ago, therefore, his power of attorney stood revoked and Kamal Din could not have acted as the attorney of a deceased person. Moreover, in Exh.P.2, the price mentioned is Rs.4,000 but there is no reference, if any further amount of Rs.4,000 is payable or has been earlier paid, so as to reconcile the price with the claim of the respondents of Rs.8,000. The attempt, made by D.W.1 to explain the payment of two amounts of Rs.4,000 each, is not only beyond the pleadings of the plaintiff, but also contradicts their case vis-a-vis the time and the manner of its alleged payment.
9. Above all, Exh.P.2, the alleged entry of mutation, was never ever sanctioned, because the owner of the property did not appear. The plaintiff never made any attempt to seek specific enforcement of the transaction, if it was not finalized through the sanctioning of the mutation in the Revenue Record. It seems that, after sale having been made by Kamal Din and Mst. Sammo in favour of the petitioners, the plaintiff/respondent attempted to built up a case of the sale, so as to nullify the transaction in favour of the petitioners and to this plot, the vendor also sided with them.
10. As regards the question raised by the learned counsel for the respondents that, according to the Jamanbandi for the year, 1966-67, Exh.P.4, the respondents are in possession of the suit property as {{URDU TEXT}} and, therefore, on account of this, the sale stands established. I am afraid that, this independent entry would not prove the sale, until corroborative evidence about the date, time, venue, month, year and the payment of consideration was proved by the said respondent/plaintiff, which was the essential in this behalf. Thus, this entry in isolation, cannot be considered sufficient for conferring the right in favour of the respondents on the basis of some improved oral sale, particularly in the presence of "Misal Haqiat" for the year 1975-76, which has been prepared after the "Ishtemool" and Imam Khan has shown to be in possession of the property and respondents do not figure anywhere. When the petitioners have purchased the property from Kamal Din and Mst.
Sammo on 17-2-1977, at that time, the respondents Nos.1 and 2, as per the Revenue Record, are not shown to be in possession of the disputed land.
11. The submission that, Kamal Din and Mst. Sammo, in their written statement have admitted the claim of the plaintiff, suffice it to say that, in the original written statement, they had controverted the plea of the plaintiff and any subsequent written statement, was unauthorizedly filed, which was not permitted even through an amendment by the Court to be changed, thus, any admission in an unauthorized and illegal pleadings, would be of no legal value and would not mean that, the claim of the respondent/plaintiff has been admitted by Kamal Din and Mst. Sammo, especially, when by a specific order, the second written statement was directed to be cancelled, which order was challenged in revision, but without success. However, for the observation of the revisional Court in the said order, suffice it to say that, Kamal Din and Mst. Sammo were not examined by the respondents and they themselves also did not appear before that Court. Therefore, without dilating upon the legality and the value of such observation, it can be safely held that, the respondents have not been able to use it for their benefit. It may also be not out of place to mention that under the law, as admission of a co-defendant is not binding on the other.
12. The nutshell of the case is that, it was the duty of the plaintiff to have proved his oral sale by weighty and positive evidence on the record, which ' is conspicuously missing. Therefore, the suit was rightly dismissed by the learned trial Court, but the learned Court of appe,al, for extraneous reasons, and by misreading and non-reading the evidence on the record, as highlighted above, has granted the decree, which decree is liable to set aside. Accordingly, the impugned judgment and decree of the learned Court of appeal is set aside and by upholding that of the learned trial Court, the suit of the respondents stands dismissed. This revision petition is accordingly allowed.