' This civil revision arises out of a declaratory suit filed by respondent No.1 claiming that transfer of his land by way of Mutation No.81 dated 7-1-1989 having been sanctioned without his knowledge and consent is nullity in the eye of law. It was contested by the petitioner. The suit was dismissed by the learned trial Court vide judgment dated 2-4-1996. An appeal was preferred by respondent No. 1 . It was accepted by a learned Additional District Judge on 27-3-2003, which judgment is being impugned herein.
2. Learned counsel for the petitioner argued that respondent No.1 transferred the land in his favour through Mutation No.81 of his own free-will; the mutation was sanctioned in his presence against a consideration.
3. On the other hand, learned counsel for the respondents urged that the transaction in dispute was without consideration. Possession was also not transferred to the petitioner vendee. He supported the judgment of the learned Additional District Judge.
4. Plaintiff-respondent No.1 appeared as P.W.1 and denied transaction of sale through mutation. He deposed that he never appeared before Tehsildar and that the transaction in dispute is a result of fraud. P.W.2 Atta Muhammad stated that the Revenue Officer always sanctions the mutation in the village in an open assembly. The Revenue Officer neither visited nor any mutation was placed before him for sanction. Sufi Muhammad Iqbal appeared as P.W.3 and stated that he is a tenant on the land. The plaintiff had not transferred the land to the petitioner-vendee. Asghar Hussain Patwari appeared as D.W.1. He produced the record of Mutation No.81 along with Roznamcha Waqiati.
Muhammad Ramzan Patwari D.W.2 of Sheikh Jalil Revenue estate previously Patwari of revenue estate Nahang appeared and produced a copy of Roznamcha Waqiati Exh.D.1. He stated that he had entered Mutation No.81 on 29-8-1989. It was placed before the Revenue Official in the village assembly. It was sanctioned on 7-9-1989. The plaintiff Muhammad Habib was identified by Sardar Bakhsh, Councillor and Faiz Hussain Pattidar. He stated that he personally knew the plaintiff. D.W.3 Ehsan Elahi Clerk from the office of Kanoongo produced Parrt Sarkar of Mutation No.81. Haq Nawaz, NaibTehsildar appeared as D.W.4. He deposed that mutation in dispute was sanctioned by him. He stated that plaintiff appeared before him. He admitted to have received the consideration amount.
His thumb-mark was affixed on the mutation. His identity card was examined. Faiz Hussain Pattidar put his signatures in his presence. Sardar Bukhsh, Member Union Council, also signed. He stated that transaction in dispute is not result of any fraud or forgery. The vendor himself appeared before him. Sardar Bakhsh appeared as D.W.5. He stated that the plaintiff transferred land in favour of the petitioner against a consideration of Rs.10,000. The plaintiff affixed his thumb-mark. He produced his identity card to the Tehsildar. Faiz Hussain Pattidar was also present, who also signed the mutation and identified the vendor. The petitioner himself appeared as D.W.6. He stated that the plaintiff himself got the mutation sanctioned. He appeared before the Tehsildar and produced his identity card. Sardar Bakhsh, Member Union Council and Faiz Hussain Pattidar, identified him.
5. Exh.P.3 is the mutation of the disputed transaction. It contains thumb-impression of Sardar Bakhsh, signatures of Faiz Bakhsh and thumb-mark of the plaintiff besides signatures of the petitioner. Exh.P.4 is a copy of Mutation No.80, whereby the Provincial Government transferred land in favour of the plaintiff. This mutation was sanctioned on 30-8-1989. Exh.P.5 is the copy of register Haqdaran Zamin for the years 1987-88. Exh.P.6 and Exh.P.7 are the copies of Khasra Girdawari.
Exh.P.7 shows that the possession of Mukhtar Ahmed through Sufi Iqbal is recorded. Exh.D.1 is copy of Roznamcha Waqiati. It contains thumb-mark of the plaintiff. Exh.D.2 is the copy of plaint filed by Muhammad Iqbal P.W.3 against the petitioner.
6. In paragraph No.2 of Exh.D.2 (plaint) it is mentioned that plaintiff has transferred his land to the petitioner tenant. However, this may not be of much help to the petitioner, because of the fact, that when Muhammad Iqbal appeared as P.W.3, he was not confronted with his previous statement made in Exhs.D.2 and 3, however, is the statement of the petitioner, whereby the suit (Exh.D.2) was disposed of on the statement of the petitioner. Copy of Khasra Girdawari Exh.D.7 records possession of Mukhtar Ahmed through tenant. Register Haqdaran Zamin for the years 1991-1992 evidences incorporation of the entries of mutation.
7. The evidence re-produced above clearly shows that the plaintiff appeared before Patwari concerned thumb-marked Roznamcha Waqiati Exh.D.1. The Revenue Officer appeared as D.W.4, while an attesting witness, Sardar Bakhsh Councillor appeared as D.W.5 and supported the case of the plaintiff. The Revenue Officer clearly stated that plaintiff was identified by the witnesses and he, also, had seen his identity card. It shows that the plaintiff himself appeared before him and acknowledged receipt of consideration amount and transferred land in favour of the petitioner. The other attesting witness died, before the trial of the case.
8. The petitioner proved through positive evidence of sale having been made in his favour by the petitioner through Mutation No.81 sanctioned on 7-9-1981.
9.The findings of the learned Additional District Judge about non- payment of consideration amount to respondent No.1 and absence of transfer of possession have no substance in it. The Revenue Officer stated that the plaintiff himself appeared and acknowledged receipt of consideration amount and thumb-marked the mutation. He had seen his identity card. As far as possession is concerned, the documentary evidence shows that physical possession of the suit property lay with the tenant P.W.3. Non-delivery of physical possession will not annul the transaction of sale. The sitting tenant if refuses to attorn the landlord, he can be proceeded with in accordance with law. The reasoning given by the learned Appellate Court are not based on correct appraisal of evidence. The attestation of mutation was made by respectable persons, whose identity has not been questioned.
10. In view of the above discussion, this civil revision is allowed and the judgment of the learned Additional District Judge dated 27-3-2003 is set aside. Resultantly, the judgment and decree dated 2-4-1996 passed by the learned trial Court is restored.