' MAULVI ANWARUL HAQ, J.---On 24-8-1993 Barkhurdar, the predecessorin-interest of the petitioners, filed a suit against the respondents. In the plaint, he stated that the plaintiffs purchased the suit land measuring 32 }Canals and 10 Marlas described in the plaint from Asghar Hussain Shah, the predecessor-in-interest of respondents Nos.1 to 6, vide registered sale-deed dated 31-5- 1984 for a consideration of Rs.65,000. However, this sale was not incorporated in the Revenue Records. The result was that Asghar Hussain Shah continued to be recorded as an owner. He sold some land to respondents Nos.8 and 9 vide Mutation No.560 attested on 17-8-1989. On his death, Mutation of Inheritance No.639 was attested on 28-5-1989 in favour of respondents Nos.1 to 6.
Thereafter, the respondents Nos.1 to 6 sold some land to respondents Nos.26 to 28 vide Mutation No.641 attested on 28-6-1989. The respondent No.1 sold some land to respondents Nos.23 and 24 vide Mutation No.672 attested on 12-11-1989.
' Respondents Nos.2 to 6 transferred some land to respondent No.11 vide Mutation No.727 attested on 26-2-1991 while respondent No.2 sold some land to the respondents Nos.29 to 35 vide Mutation No.805 attested on 24-8-1992. All these transactions were stated to be illegal and void and a declaration was sought accordingly. Now respondents Nos.1 to 6 expressed ignorance in reply to para.1 of the plaint where it was stated that their father had sold the land to the petitioners. They, however, admitted having made the said alienations. Similarly, the remaining respondents expressed ignorance. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 1-4-1999. A first appeal filed by the petitioners was dismissed by a learned ADJ-II, Mianwali, on 30-9-2000.
2. Learned counsel for the petitioners contends that in the course of evidence it turned out that the respondent No.1 filed a pre-emption suit and the matter was decided inasmuch as 10 Kanals of land was decreed in favour of respondent No.1 while the remaining sale remained intact in favour of the petitioners. According to the learned counsel for the petitioners, the learned Courts below have deprived his clients of the said land by passing the impugned judgments and decrees and thereby exercising a jurisdiction not vesting in them. The learned counsel for the respondents, on the other hand, while not in a position to deny the factum of sale or the said position emerging as a result of preemption suit filed by respondent No.1 has tried to argue that his clients are bona fide purchasers.
3. I have gone through the copies of the evidence on the record. As noted by me above, there is no denial at all in the pleadings by any of the respondents that the suit-land was sold by the father of respondents Nos.1 to 6 to the petitioners by means of a registered sale-deed dated 31-5-1984 (Exh.P.6). Apart from this, I may note here that Ghulam Yasin respondent D.W.1 in his cross- examination as well stated that he does not know as to whether the petitioners have purchased the land from Asghar Hussain Shah. D.W.2 Gul Muhammad respondent No.26 made a similar statement. Ghulam Hussain respondent No.4 appeared as D.W.3 admitted that the petitioners purchased 32 Kanals and 10 Marlas of land from Asghar Hussain Shah.
4. Now Zafar Shah, respondent No.1, appeared as D.W.3. He stated that Asghar Hussain was his father; that he filed the pre-emption suit, some further alienations he admitted and some he denied. He produced the copy of decree (Exh.D.18). According to this document, Zafar Shah filed a suit to pre-empt the sale of suit land vide the said sale-deed and the suit was decreed to the extent of 10 Kanals and 8 Marlas and dismissed to the extent of 22 Kanals and 2 Marlas. This decree was passed on 23-12-1987.
5. It will thus be seen that as a result of the said decree, 10 Kanals and 8 Marlas out of the said land came to vest in Zafar Shah, respondent No.1, while 22 Kanals and 2 Marlas remained vested in the petitioners.
6. Now coming to the impugned judgments and decrees, the learned trial Court has observed that the petitioners, notwithstanding the pre-emption decree, has filed a suit seeking a declaration in respect of 32 Kanals and 10 Marlas of land and not 22 Kanals and 2 Marlas of land which was left with him. It is indeed shocking to note that the learned trial Court who is a Civil Judge Ist Class, Mianwali, has observed that it is an admitted position that the suit property remained in the ownership of the predecessor-in-interest of respondents Nos.1 to 6 and when he died then by inheritance it devolved upon his heirs. According to him, it was the bounden duty of the petitioners to have produced the sale-deed before the Revenue Officer and to have got attested a mutation and his failure to do so extinguished his title.
7. A more perverse observation is yet to be seen by me. It is an age old rule of law that a mutation, what to speak of title, is not even an evidence of title. It is only a record of facts. The learned Civil Judge in all probability has never read the Punjab Land Revenue Act, 1967, otherwise he would not have made the said observation that it was the bounden duty of the petitioners to have got the mutation attested. The second proviso to subsection (3) of section 42 of the Punjab Land Revenue Act, 1967, provides that it shall not be necessary to give the information if the right or interest has been acquired by a registered document in which case it shall be the duty of the Sub-Registrar concerned, to inform the authorized officer within three months of the registration of the documents. The petitioner could not have been penalized by the learned Courts below for inaction of the Sub-Registrar and his failure to perform his duty enjoined upon him by the said law. The learned A.D.J. Has reproduced the said judgment of the learned trial Court verbatim.
8. The impugned judgments and decrees by all means are perverse and as such without jurisdiction. To my mind the petitioners have acted in good faith in conceding even those 10 Kanals covered by the pre-emption decree for the simple reason that it was not even pleaded by Zafar Shah or any of the respondents Nos.1 to 6 that a pre-emption suit was filed and part of the land was decreed in favour of Zafar Shah. There is no plea and there is no evidence that the pre- emption decree amount was ever deposited by Zafar Shah so as to create title in his favour.
However, since the learned counsel before me as well has admitted that the said land stood decreed in favour of Zafar Shah. I am not inclined to interfere in the matter of the suit-land.
9. So far as the said plea of bona fide purchase being raised by the learned counsel for the respondents is concerned, I find that no such plea was raised in the trial Court and in the second there is no evidence in support of the same. As noted by me, it has not even been denied by any of the respondents that the petitioners did purchase the land by means of a registered sale-deed from its original owner.
10. The civil revision is accordingly allowed. Both the impugned judgments and decrees of the learned Courts below are set aside and instead a decree is passed partly decreeing the suit of the petitioners and it is hereby declared that they are owners of 22 Kanals and 2 Marlas out of the suit- land and all the subsequent transactions evidenced by the mutations mentioned in the plaint beyond the said 10 Marlas are declared to be illegal and void and ineffective upon the rights of the petitioners. The costs throughout shall be borne by the respondents Nos.1 to 6.