' I intend to decide the following revision petition by one consolidated order having similar facts and law.
(i) C.R. No.886 of 2005.
(ii) C.R. No.887 of 2005.
2. The brief facts out of which aforesaid petition at No.1 arises are that Muhammad Arshad and others filed suit for declaration along with consequential relief of possession and permanent injunction against the petitioner on 24-5-1999 in the Court of Civil Judge, Sheikhupura. The contents of plaint reveal that the respondents/plaintiffs are in possession of the property in question measuring 6 Marlas and 6 Sarsahi, situated in Chak No.167/R.B. Tehsil Safdarabad, District Sheikhupura. The contents of plaint further reveal that the petitioner/defendant is clever man who asked them to exchange his property measuring 7 Marlas with the suit property but fraudulently he got sanctioned the mutation of sale No.1623 on 17-9-1998 which is against the law and facts and without consideration, therefore, the same is liable to be cancelled. The petitioner filed written statement controverting the allegation levelled in the plaint, wherein the petitioner/defendant has taken stand that the respondents/plaintiffs sold the disputed property by their own free consent to the petitioner and no fraud was made. Out of pleadings of parties, the learned trial Court framed the following issues:-- ISSUES:
(i) Whether the plaintiffs have no cause of action to file this suit? OPD
(ii) Whether the suit is time-barred? OPD
(iii) Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD
(iv) Whether the plaintiffs have not come to the Court with clean hands? OPD
(v) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction?
OPD
(vi) Whether the suit is false, frivolous and has been filed only to harass the defendants, hence, the defendants is entitled to get the special costs under section 35-A, C.P.C.? OPD
(vii) Whether the plaintiffs are entitled to get the relief as prayed for in the plaint? OPP
(viii) Relief.
' The learned trial Court decreed the suit vide judgment and decree dated 5-3-2003. The petitioner being aggrieved filed an appeal in the Court of learned Additional District Judge, Sheikhupura, who dismissed the same vide impugned judgment and decree dated 1-3-2005. Hence, the Revision Petition No.886 of 2005.
3. In C.R. No.887 of 2005, the petitioner filed suit for declaration along with permanent injunction against the respondents (Province of Punjab etc.) in the Court of Civil Judge 1st Class Sheikhupura, who rejected the plaint under Order VII, rule 11 of C.P.C., vide order dated 3-6-2003. The petitioner being aggrieved filed an appeal before the learned Additional District Judge, Sheikhupura, who dismissed the same vide order dated 1-3-2005. Hence, the Revision Petition No.887 of 2005.
4. The learned counsel of the petitioner in C.R. No.886 of 2005 submits that mutation in question was sanctioned in favour of the petitioner by the respondents in the village, where the land in question is situated. He further submits that mutation is public document, therefore, both the Courts below erred in law not to weigh the principle that public document has attained presumption of truth. He further submits that the respondents did not enter appearance in the witness-box and attorney has appeared in the witness-box, therefore, both the Courts below erred in law to non-suit the petitioner. He further submits that according to Paragraph No.2 of specific allegation, fraud has been mentioned in the contents of plaint by the respondents, but the respondents failed to prove the same. He further submits that the possession of the land in question is with the petitioner, but this fact was not considered by the Courts below. Mere possession over the land in question by the petitioner is sufficient to prove that the petitioner has purchased the land from the respondents for a consideration of Rs.20,000, but this fact was not considered by the Courts below. He further submits that both the Courts below have non-suited the petitioners on the basis of hearsay evidence produced by the respondents/plaintiffs.
5. The learned counsel of petitioner in C.R. No.887 of 2005 submits that both the Courts below erred in law to non-suit the petitioner on the ground of second suit of the respondents. Consequently the plaint was rejected under Order 7, rule 11 of C.P.C. By the learned trial Court, which is not in consonance with law laid down by the Superior Court. This fact alone is sufficient that both the Courts below have non-suited the petitioner without application of mind and also on the ground that no cause of action accrued to the petitioner.
6. I have given my anxious consideration to the contention of learned counsel of the petitioner and perused the record.
7. It is admitted fact that the mutation in question was cancelled by the competent Revenue Officer (A.C/Collector) vide order dated 3-5-1999 after notice to the parties as the land in question is owned by the Provincial Government. The petitioner has not challenged the order dated 3-5-1999, wherein mutation was cancelled by the competent Revenue Officer, therefore, basic entitlement of the petitioner over the land in question on the basis of aforesaid mutation, is no more in the field.
Coupled with the facts that the petitioner failed to prove on record that the petitioner/defendant has paid consideration of Rs.20,000 to the respondents-plaintiffs. The petitioner is beneficiary of said mutation, therefore, it is the duty and obligation of the petitioner to prove that mutation was properly sanctioned and consideration was paid by the petitioner to the respondents and also the mutation in question is still in the field. As mentioned above, the mutation was cancelled, therefore, both the Courts below were justified to decide the case against the petitioner. The petitioner has alternative remedy to challenge the order of cancellation before any higher authority under the Land Revenue Act. It is settled principle of law that mere mutation does not confer any title with regard to land in question.
8. It is pertinent to mention here that term "mutation" has not been defined by the legislature. It literally means the change or alteration, meaning thereby "mutation" merely reveals alteration of entry in the Revenue Records with object of bringing the latter upto date so as to represent the facts with regard to the respective rights and liabilities of persons as these at present are and not as they should be. It is also settled principle of law that entry made in the Record of Rights in accordance with law is entitled to a rebuttable presumption of correctness, but it is equal to mere making of entry and does not in any way create a title. It is also settled proposition that Mutation Register is -not part of Record of Right and its entries do not share presumption of truth attached to that record. As presumption of truth is not attached to the entries in the mutation, it is for the party who relies on their correctness to prove them by leading necessary evidence. In case of dispute about genuineness of the mutation, initial burden of proof must always rest on the party, who claims to be its beneficiary and not the one who denies its correctness. In arriving to this conclusion, I am fortified by the law laid down by this Court in "Noor Alam v. Mehdi and 2 others"
(1990 CLC 321), Abdul Jalil's case" (PLD 1964 Peshawar 159)," Adam Khan's case (1995 M LD 506) and "Major Muhammad Ayyub Khan's case" (NLR 1980 R.S.C.AJK 62). The aforesaid proposition of law is considered in the aforesaid "Noor Alam's case" and laid down the following principle:- ' In my opinion, mere incorporation of mutation entry in the Jamabandi would not affect the allocation of initial burden of proof. Looked at from this point of view, the question as regards genuineness of sale turns upon appreciation of evidence led by the parties to prove their assertions."
' In the present case, the petitioner failed to discharge his initial onus. Both the Courts below have concurrently given findings against the petitioner as the petitioner failed to prove the same with cogent evidence on record. It is also settled principle of law that relevant provisions of Land Revenue Act makes it clear that mutation proceedings are intended primarily for fiscal purpose for collection of land revenues and they are by no means a judicial proceeding in which right and entitlement in the property is determined. The proposition of law is considered by their Lordship of Judicial Committee in "Nirman Singh's case" (53 IA 220). The relevant observation is as follows:-- "The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh leads their Lorships to think that it is to a great degree based on the mischievous but persistent error that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times inumberable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with the greater confidence that the revenue for it will be paid."
9. It is also settled principle of law that mutation has to be proved through evidence and it has no evidentiary value of title unless basic transaction is proved on the basis of which said mutation was sanctioned, as per principle laid down by the Honourable Supreme Court in "Haji Muhammad Boota's case" (PLD 2003 SC 979). It is also settled principle of law that as mentioned above, in order to prove the existence of transaction of exchange through mutation, a party relying on such mutation, is bound to prove both of them as per law laid down by the Honourable Supreme Court in "Muhammad Akram's case" (PLD 2003 SC 688). Both the Courts below have given concurrent findings of facts against the petitioner and rejected the plaint of the petitioner with cogent reasons, therefore, I do not find any infirmity in the concurrent findings of Courts below. This Court has very limited jurisdiction to reverse the findings of Courts below while exercising power under section 115 of C.P.C. The Privy Council has also laid down parameter to interfere in the findings of the Courts below while exercising power under section 115 of C.P.C. In "N.S. Vonkatagiri Ayyangar and another v.
The Hindu Religious Endowments Board Madras" (PLD 1949 P.C. 26). The relevant observation is as follows:-- "This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Courts upon questions of fact or law."
' The judgment of the Privy Council was considered and relied upon by this Court in "Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood" (1985 CLC 657).
10. It is pertinent to mention here that the judgment of this Court is upheld by the Honourable Supreme Court in C.P. No.1146 of 1984 vide judgment dated 31-3-1985 which was reaffirmed and approved by the Honourable Supreme Court in "Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir" (PLD 1988 SC 625). The learned counsel of the petitioner failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment. Both the Courts below have rightly given concurrent findings of facts against the petitioner. The learned counsel of the petitioner failed to point out any infirmity and illegality in the impugned order/judgments of both the Courts below; therefore, I am not inclined to interfere in the concurrent findings of the facts of the Courts below.
' In view of what has been discussed above, the aforesaid revision petitions have no merit and the same are dismissed.