' Since common questions of law and facts are involved and in the learned Courts below consolidated proceedings were conducted, this judgment will dispose of Civil Revisions Nos.558/D of 2004 and 559/D of 2004 jointly arising out of the consolidated judgment, dated 7-6-2004 passed by the learned Additional District Judge, Khanewal, whereby while accepting two civil appeals filed by Manzoor Ahmad and Kishwar Manzoor respondents in the civil revisions respectively and setting aside the consolidated judgment and decree dated 29-4-2003 passed by the learned Civil Judge, Jehanian the two suits instituted by the petitioner against both, the respondents respectively for declaration were dismissed.
2. The facts in brief of the filing of the two suits were that Abdul Shakoor son of Fazal Din was owner of the property. Vide Mutation No,1130 dated 20-11-1998 he alienated 16 Kanals, 9 Marla land to Manzoor Ahmad and vide Mutation No,1131 dated 20-11-1998, 17 Kanals, 15 Marlas of land alienated to Mst. Kishwar Manzoor, wife of above mentioned Manzoor Ahmad. The description of the property is fully mentioned in the head notes of both the plaints. Being aggrieved by the impugned transactions the petitioner namely Masood Akhtar son of Abdul Shakoor (minor) instituted two suits through his mother Mst. Naziran Bibi while claiming that in fact his father Abdul Shakoor was an employee in Postal Life Insurance Corporation and was settled at Karachi. Mst. Naziran Bibi was married with Abdul Shakoor and their wedlock resulted into his birth (Masood Akhtar plaintiff of the suit). At the behest of Mansoor Ahmad and Mst. Kishwar Manzoor his father divorced his mother.
Thereafter Abdul Shakoor entered into two other marriages. However, no other child was born from said two women and they were also divorced. It was pleaded that Abdul Shakoor had never transferred his property and impugned Mutations Nos.1130 and 1131 dated 20-11-1998 were forged, fraudulent and ineffective upon his rights. No consideration was paid and above all Abdul Shakoor was then facing Marz-ul-Maut and only died 1-1/2 months thereafter on 10-2-1999.
3. Through their separate written statements both the respondents-defendants contested the suits while alleging that Abdul Shakoor himself had alienated the property after receiving consideration.
Though he was ill but he was never suffering from Marz-ul-Maut. He always remained in senses and was mentally fit. He had received considerations from them, lodged reports with the Patwari and at the time of registration of mutation he was duly identified by the witnesses. After his statement the Revenue Officials attested the mutation. Certain legal objections including cause of action etc. Were also raised.
4. On the basis of pleadings of the parties the learned trial Court framed the following consolidated issues:--
(1) Whether the plaintiff is owner in possession of the suit-land to the extent of his share being legal heir of deceased Abdul Shakoor son of Fazal Din and Mutation No,1130 and 1131 are illegal void, against law and facts, based on fraud, misrepresentation and ineffective to the rights of the plaintiff?
(2) Whether the plaintiff Masood Akhtar is not the son of deceased Abdul Shakoor so he is not legal heir of the deceased Abdul Shakoor being son? OPD
(3) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
(4) Whether the suit is collusive one? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether the suit is false and frivolous and the defendant is entitled to special costs? OPD
(7) Relief.
5. Parties produced their evidence in support of their version. The petitioner-plaintiff produced P.W.1 Muhammad Ata Ullah Khan, P.W.2 Khalid Rashid, P.W.3 Nazeer Ahmad and P.W.4 Mst. Naziran Bibi mother of the plaintiff. Moreover, Exh.P.1. To Exh.P.19 were tendered in documentary evidence.
6. On the other hand respondents-defendants examined D. W.1 Shams-ul-Haq Patwari, D.W.2 Muhammad Rafique, Record Keeper, D.W.3 Ikram-ul-Ghani, Lambardar D. W.4 Ali Asghar, D.W.5 Manzoor Ahmad, D.W.6 Mst. Naseem Akhtar, D.W.7 Muhammad Rafiq, Naib Sadar, GOR and Muhammad Asghar Ali ADOR as D.W.B. Documents Exh.D.1 to Exh.D.3 were also brought on record.
7. On the close of the trial, the learned Civil Judge, Jehanian after hearing learned counsel for the parties while replying all the issues in favour of the petitioner and against the respondents decreed both the suits vide, consolidated judgment and decree dated 29-4-2003 but the learned Appellate Court while reversing the finding of the learned trial Court only on Issue No,1 accepted both the appeals filed by the respondents and dismissed the suits filed by the petitioner through consolidated judgment and decree dated 7-6-2004. Hence this revision petition.
7-A. Learned counsel for the petitioner contends that both the mutations were not sanctioned in accordance with section 42 of the Land Revenue Act as D.W.8 Ch. Asghar Ali, Tehsildar in the examination-in-chief stated that the mutations were sanctioned in the Estate but during cross- examination contradicted that these were sanctioned in Jehanian City. According to the learned counsel the other D. Ws. Also stated that those were not sanctioned in the Estate, hence it being violation of subsection (8) of section 42 of the Land Revenue Act, both the mutations were illegal, void and a nullity in the eye of law. It is also contended that D.W,1 Shamsul Haq was not the Patwari when Rappats Nos.138/139 were entered and he frankly admitted during cross-examination that signatures of the parties were not affixed on the Register while other Rappats Nos.135 to 137 contained signatures of the concerned parties; that D.W.3 Ikram-ul-Ghani and D.W.4 Ali Asghar who allegedly identified the vendor had shown ignorance about the deal which was struck between Abdul Shakoor deceased and the respondents for the sale of the said property and they had also not witnessed the making of payment by the respondents to the vendor Abdul Shakoor; that according to D.W.4 Ali Asghar the mutations were sanctioned in Jehanian city which is nine miles away from the village and it was violation of the Land Revenue Act; that Ch. Asghar Ali ADOR (D.W.8) also stated that the payment was not made in his presence, who firstly stated that the mutations were sanctioned and accepted in village/Chak No,138/10-R but during cross- examination made contradictory statement that these were sanctioned in the estate; that Manzoor Ahmad D.W.5/respondent also failed to state that where such deal was struck, how much amount was paid; what was the mode of payment and who were the witnesses in 'whose presence the said amount was paid to Abdul Shakoor, as such the respondents-defendants failed to discharge the onus upon them; that the plaintiff/ petitioner on the other hand succeeded in proving that the deceased Abdul Shakoor had taken leave for bed rest on the advice of the doctor which shows that he was not in a position to move and thus, could not visit Jehanian but both the respondents Manzoor Ahmad as well as his wife Kishwar Manzoor, who were residing in the same house while taking advantage of the illness of the deceased Abdul Shakoor got prepared forged documents in order to grab the property of Abdul Shakoor and thereby depriving the petitioner from his lawful right in the inheritance being son of Abdul Shakoor; and that onus was shifted to the respondents who were to prove that the sale of the property was made in a legal manner and with consent of the owner for consideration. Relies upon Haqnawaz Khan and others v. Rab Nawaz and others 1992 SCMR 993; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Naja and 2 others v. Shamand and 4 others PLD 1985 Lah. 607 in support of his contentions.
8. Learned counsel for the respondents on the other hand opposes these revision petitions on the ground that the mutations were sanctioned on 20-11-1998 and Abdul Shakoor remained alive till 10- 2-1999 but he never raised any objection about the sanction of the said mutation and the transfer of property from his name, thus at this stage no such objection could be raised. It is also contended that mutations were sanctioned with the consent of Abdul Shakoor, whose thumb-impressions and signatures are affixed on the said mutations with his Identity Card Number and names of the witnesses were also mentioned. It is further contended that the respondents had succeeded in proving that the mutations were duly sanctioned and onus to disprove the same was upon the petitioner, who failed to discharge the onus upon them, hence both the suits were liable to be dismissed. It is also contended that the case-law cited by the learned counsel for the petitioner being on different facts and circumstances in cases of pre-emption is not applicable in the present case and sufficient evidence was produced by the respondents to prove the mutations, hence the judgment and decree passed by the learned Additional District Judge being in accordance with the evidence and law are liable to be maintained.
9. I have heard the learned counsel for the parties and also perused the impugned judgments and decrees of the Courts below as well as the evidence on the record. It is well-settled law that usually this Court does not interfere in the orders passed by the competent Courts but if there is any misreading or non-reading of evidence apparent on the face of the record and impugned judgment was not passed properly in accordance with the decisions of the superior Courts this Court is very much competent to interfere therewith in revisional jurisdiction. In the present case the learned Additional District Judge/Appellate Court is found to have not properly appreciated the evidence on the record and the law on the subject. He only gave much importance to the sanction of the mutations which did not confer any title or title as according to the entry of Rapt in the Roznamcha the parties had only come to inform the relevant Authorities that the said sale was already struck, hence the entry in this regard was not the solid proof that the sale was struck between the parties as no payment was made at that time. If mutations were sanctioned, but the payment was already made by the respondents to Abdul Shakoor then the onus shifted towards the respondents Manzoor Ahmad and his wife to prove that where the sale was struck, how much amount was settled between the parties, what was the mode of payment of the amount and who were the witnesses before whom the said amount was paid. In Abdul Majeed and 6 others v.
Muhammad Subhan and 2 others 1999 SCMR 1245 the Honourable Supreme Court of Pakistan has held that everything which finds mentioned in the registered deed, or Revenue Record must not invariably be accepted Without proof of its execution, genuineness, and authenticity. The relevant portion is reproduced as under:-- "Everything which finds mention in the registered deed or Revenue Record must not invariably be accepted without proof of their execution, genuineness and authenticity. It is axiomatic principle of law that a registered deed, by itself without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly a mutation although acted upon in tRevenue Record would, would not, by its own force, be sufficient to prove the genuineness of the transaction to which it purports, unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they, by their own force, would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of documents."
10. The respondents have failed to produce any evidence to discharge the onus that how much amount was paid to Abdul Shakoor, who were the witnesses thereof and what was the mode of its payment, hence the argument of the learned counsel for the respondents that the onus was upon the petitioner to disprove the mutations is repelled as it has been consistently held by this Court and the Supreme Court of Pakistan that execution of mutation by itself does not create title and the person deriving title thereunder has to prove that the transferor did part with the ownership of the property, the subject of mutation, in favour of the transferee and that the mutation was duly entered and attested. Moreover, it is by now well-settled that any person who is acquiring title through a mutation, the burden of proof of proving transaction embodied in the mutation is upon him. The learned counsel for the petitioner has rightly relied upon the judgments of the superior Courts reported in Mst. Jaina v. Mst. Zohra Bibi and 12 others 1999 MLD 2302 and Hakim Khan v. Nazir Ahmad Lughmani and 10 others 1992 SCMR 1832 in this regard.
11. There is another aspect that in the present case the witnesses made contradictory statements about the sanction of mutation as D.W.8 Ch. Asghar Ali, Tehsildar who allegedly sanctioned the mutation in the examination-in-chief stated that these were sanctioned in the estate as required under subsection (8) of section 42 of the. Land Revenue Act, but during cross-examination he stated that these were sanctioned in Jehanian City and other witnesses (D.Ws.3 and 4) who allegedly identified Abdul Shakoor before the relevant Authorities also stated that the said mutations were sanctioned in Jehanian City and not in the Revenue Estate as required under the Land Revenue Act.
12. It is also admitted fact that no documentary proof was produced by the respondents to prove that the payment was made to Abdul Shakoor G and in such circumstances the claim of the vendee was rejected in PLD 1985 Lah.
607. In the present case D.Ws.3 and 4 who had allegedly identified Abdul Shakoor deceased at the time of sanction of mutations before the Tehsildar during the trial frankly slated that they did not witness the payment of sale price between the parties of the mutations. Even otherwise in the Rapt Roznamcha according to D.W.1, the signatures and thumb-impressions of the parties and the witnesses were not affixed. The sanction of the mutations having been taken place in dubious circumstances, it cannot be accepted that the transferor did part with the ownership of the property of the mutations with consent and for consideration. From the evidence oh record it has also not been proved that the amount was actually paid to Abdul Shakoor and he had received the same. Moreover, the respondents failed to state the source of H arranging the amount of sale price for payment to Abdul Shakoor and that where the said amount was spent by him, who admittedly died after about 1-3/4 months of sanction of the mutations.
13. It is also relevant to point out that Abdul Shakoor was admittedly posted in Postal Life Insurance Company at Karachi and was residing there with his brother Manzoor Ahmad one of the respondents. He remained on medical leave from the Corporation before his death, which fact has been fully proved by his colleague in the said Corporation while appearing as P.W.1. Moreover, according to the evidence produced by the petitioner, said Abdul Shakoor during the period of his illness never visited his native town till his death and remained admitted there at Karachi for treatment. As such there was no question of his appearance before the Revenue Authorities for sanction of the mutations.
14. Apart from above the intention of the respondents to deprive the petitioner from inheritance of Abdul Shakoor is clear that during the pleadings as well as in the evidence at the trial they denied that the petitioner was son of Abdul Shakoor and claimed that the latter was impotant but did not produce any evidence in this regard. Both the Courts below gave consistent finding on the point that the petitioner was son of Abdul Shakoor. This finding having not been challenged by the respondents has attained finality. It is strange that if according to the version of the respondents, the petitioner was not son of Abdul Shakoor, what was the necessity for the respondents to get formally transferred his property in their names few days earlier to his death, when the same was to devolve upon Manzoor Ahmad respondent being collateral of Abdul Shakoor. It also casts serious doubt about the genuineness of the alleged mutations of sale sanctioned in favour of the respondents.
15. For the foregoing reasons, I am of the considered view that the learned Appellate Court has not given valid reasons to upset the findings of the learned trial Court on Issue No,1, which were arrived at by properly appreciating the evidence on the record and the ease-law on the subject. Therefore, both these civil revisions are accepted, the impugned judgments and decrees dated 7-6-2004 passed by the learned Additional District Judge, Khanewal in appeals filed by the respondents are set aside and those of the learned trial Court dated 29-4-2003 decreeing the suits filed by the petitioner are upheld/restored. There will be no order as to costs.