' MAULVI ANWARUL HAQ, J.---This judgment shall decide C.R. No,736 of 1998 to C.R. No,742 of 1998 and C.R.No,744 of 1998 to C.R. No,746 of 1998 as common question of law and facts are involved. I may further note here that separate judgments were recorded in the suits out of which these C.Rs, have arisen. However, due to the commonality of the issues involved and the evidence recorded, these are literally verbatim copy of each other both in the case of judgments passed by the learned trial Court as well as learned Court of first appeal.
2. The petitioners in all these cases filed suits on 6-8-1984 against the respondents. As noted by me above, the plaints are verbatim copies of each other except description of the land and the particulars of the mutations questioned in each case. I may note here the same before proceeding further to refer to the plaints in some detail.
(i) C.R. No,736 of 1998.
Suit-land measuring 57 Kanals, 14 Marlas, Mutation No,2822, attested on 31-10-1956.
(ii) C.R.No,737 of 1998.
Suit-land measuring 9 Kanals, 7 Marlas, Mutation No,2825, attested on 31-10-1956.
(iii) C.R. No,738 of 1998.
Suit-land measuring 11 Kanals, 9 Marlas, Mutation No, 2824, attested on 31-10-1956.
(iv) C.R. No,739 of 1998.
Suit-land measuring 1 Kanal, 14 Marlas, Mutation No,2816, attested on 31-10-1956.
(v) C.R. No,740 of 1998.
Suit-land measuring 29 Kanals, 2 Marlas, Mutation No,2828, attested on 31-10-1956.
(vi) C.R. No,741 of 1998.
Suit-land measuring 11 Kanals, 12 Marlas, Mutation No,2827, attested on 31-10-1956.
(vii) C.R. No,742 of 1998.
Suit-land measuring 63 Kanals, 16 Marlas, Mutation No,2831, attested on 31-10-1956.
(viii) C.R. No,744 of 1998.
Suit-land measuring 14 Kanals, 10 Marlas, Mutation No,2833, attested on. 4-3-1957.
(ix) C.R. No,745 of 1998.
Suit-land measuring 52 Kanals, 14 Marlas, Mutation No,2830, attested on 31-10-1956.
(x) C.R No,746 of 1998.
Suit-land measuring 171 Kanals, 12 Marlas, Mutation No,2829, attested on 31-10-1956.
3. In the plaint it was stated that the suit-lands, mentioned above, were owned by the respective predecessor-in-interest of the petitioners in these cases, upon whose death the land devolved upon the said petitioners and they are in possession as such. It was then stated that in the year 1956 Abdul Rehman respondent No,3 was the Patwari of the circle wherein the land is located. He got several mutations including the impugned mutations entered and attested. A criminal case was got registered against him under the orders of the Deputy Commissioner, Multan, which is pending. It is being given out by the said respondent that the property was sold by the said owners vide the impugned mutations in favour of Ahmad Bakhsh respondent No,1 . It was stated that the said owners never sold the land. They did not appear before any Revenue Officer and did not make any statement or received any consideration. Respondent No,3 managed to keep the transaction secret. With these averments, they sought a decree for declaration that petitioners are the respective owners of the said suit-lands and said mutations are illegal and void. The suit was contested by the respondents objecting that it is barred by time; that consolidation proceedings had taken place in the revenue estate and that the petitioners have not raised any objection. They claimed a valid sale for consideration. Following issues were framed by the learned trial Court in all the said cases:--
(1) Whether the suit is within time? OPD
(2) Are the plaintiffs estopped by his words and conduct to bring this suit? OPD
(3) Is the suit incorrectly valued, if so its effect? OPD
(4) Is the suit property ill described? OPD
(5) Whether the plaintiffs are owners-in-possession of the suit-land and impugned mutation dated 31-10-1956 is illegal, void being without consideration, unauthorized and based on fraud and as such is ineffective against them? OPD
(6) Have the plaintiffs no cause of action? OPP
(7) Whether the plaintiffs are not in possession of the suit-land? If so its effect? OPD
(8) Are the defendants entitled to special costs? OPD
(9) Relief.
' Evidence of the parties was recorded. The learned trial Court decreed all the suits vide judgments and decrees dated 28-3-1992. First appeals filed by the respondents in all, these cases were heard by a learned Additional District Judge, Multan, who proceeded to allow the same and dismissed the suits filed by the petitioners vide judgment and decree dated 14-12-1995.
4. Learned counsel for the petitioners contend that there is not an iota of evidence on record in support of the sale claimed by the respondents in their favour vide the impugned mutations and the learned Additional District Judge has misread the evidence on record and further has misconstrued the law on the subject in a manner to render his judgment to be without lawful authority.
5. Learned counsel for the respondents, on the other hand, has contended that notwithstanding the said contention of the learned counsel, since the mutations stood incorporated in the Revenue Records which enjoy presumption of correctness, the burden stood discharged and it was for the petitioners to disprove the sale. According to him, the petitioners were aware of the sale and, as such, the suit is barred by time. He has raised a further objection that the suits were filed by the petitioners through their general attorney, namely, Allah Bachaya. The learned counsel contends that the said power of attorney, a copy whereof has been shown to me by him from his brief, does not confer the power to file the suits in question upon the general attorney. His further contention is that Bakht Ali petitioner in C.R. No,744 of 1998 is not recorded to be a donor in the said document.
6. Learned counsel for the petitioners rejoin to urge that this objection was never taken before the learned trial Court or in the Court of first appeal.
7. I have gone through the records of this case with the assistance of the learned counsel for the parties. I may state in the very beginning that Ahmad Bakhsh son of Ali Muhammad, the recorded vendee in all the impugned mutations is admittedly the brother-in-law of Abdul Rehman Patwari respondent No,3. Another undisputed fact is that ultimately this land came to be held by the said Patwari or his wife and progeny, who of course were impleaded as defendants in these cases. I have already referred to the pleadings on record. Whereas the petitioners have come up with a specific denial in their plaints that the land was never sold to respondent No,1 vide the impugned mutations, the plea of the respondents was that a valid sale was made in their favour and the mutations were entered and attested. Now, the law is settled that where a transaction effected by means of mutations is challenged, the burden of proof is upon the beneficiary to establish the existence and validity of transaction. The mode of proof stands prescribed in several judgments of this Court including the case of "Muhammad and others v. Sardul" (PLD 1965 Lah. 472) and by the learned Peshawar High Court in the case of "Mst. Bibi Mukhtiar v. Mst. Amrezan and another" (PLD 1968 Peshawar 169). Earlier in some cases the view taken was that where a mutation stands incorporated in the Jamabandi then a presumption of correctness shall attach to it for the reasons that the entries in the Jamabandi enjoy presumption of correctness. However, in the case of "Abdul Majeed and 6 others v. Muhammad Subhan and 2 others" (1999 SCMR 1245) it was held by their Lordship at page 1254 of the report that a mutation although acted upon in Revenue Record, 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. I may also reproduce here the following observations in the said judgment at pages 1251 and 1252 of the said report:-- "A transaction which is not genuine may have been incorporated even in the Revenue Records which have a presumption of correctness. Still there is no need to have the transaction set aside, for Revenue Records are only evidence of it and do not affect title. If the Court finds that there is no true basis for the entry in the record-or-rights, its conclusion would be that there never did exist any transaction which affected any rights."
8. Now, examining the case in the light of the legal position stated above, I find that the only evidence on record in support of the sale in all these cases is the statement made by Abdul Rehman Patwari respondent No,3 as D.W.1. He stated that he was the Patwari in the revenue estate and that he entered the impugned mutations. The Gardawar has verified the entries. The mutations were got entered by the vendors and the vendees and the Revenue Officer had recorded the statements and attested the mutations and at that time Malik Ranjah Lumberdar, Chaprasi and some others were present. Malik Ranjha had identified the vendors. He retired on 4- 4-1971. In his cross-examination he admitted the suggestion and the manner, in which, ultimately the land came to be recorded in his name or in the name of his wife and children. In the entire statement there is not even a word as to what was the amount of consideration and whether it was paid or not. Needless to state that neither the original mutations were produced nor the Roznamchas were produced. There is no explanation forthcoming on record as to why even the said recorded vendee who is well and alive has not been produced in the witness-box.
9. Now, the learned trial Court had read evidence in the light of the said law laid down by the superior judiciary and found that there is no evidence of sale and accordingly decreed the suit. The learned Additional District Judge, on the other hand, has proceeded to allow the appeal holding that mutations are a sacrosanct document enjoying presumption of correctness. The judgment, therefore, is founded on premises, which is not warranted by law. In the absence of proof of any ingredient of a valid sale the learned Additional District Judge has proceeded to hold that the land was validly alienated through the said mutations.
10. Now, coming to the question of limitation the petitioners produced Allah Ditta A.W.1, who stated that he is cultivating the land on behalf of the petitioners and is paying produce to them. Although it was suggested to him that respondent No,3 has obtained the decrees for produce and ejectment against him yet it was not at all questioned that he was in possession of the land. It has come on record that the witness was ejected somewhere in the year 1987, i.e, long after filing of the suit and recording of the statement of the said witness. The petitioners being in possession, the mere fact that the said illegal entries existed in the records and on the basis of non-existant transaction would not render the suit barred by time. Besides the settled law is that where it is found that the entry is illegal, the previous entry continues to hold the field. Reference be made to the case of "Misri through Legal Heirs and others v. Muhammad Sharif and others" (1997 SCMR 338). This leaves the said contention of the learned counsel as to the authority of Allah Bachaya to file the suits. I have gone through the copy of the general power of attorney. I do find that Bakht Ali the petitioner in C.R. No,744 of 1998 is not recorded to be donor in the said document. However, the document clearly spells out conferment of authority on the attorney to file suits in respect of suit-land and to pursue the same up to the apex Court of the country.
11. At the same time, I find that Allah Bachaya appeared as P.W.2 stating that he is the attorney of other petitioners. Not a single question was put to him to challenge what he claims to be.
12. Learned counsel for the petitioners is also right in stating that this objection was not taken in the written-statement filed in the said case or in any other case. Still there is nothing on record at the moment to show that Bakht Ali had authorized Allah Bachaya to file the suit on his behalf. In the light of the above discussion, Civil Revision Nos.736 to 742 of 1998, Civil Revision Nos.745 and 746 of 1998 are allowed, the impugned judgments and decrees passed by the learned Additional District Judge, Multan on 14-12-1995 are set aside and those passed by the learned trial Court on 28-3- 1992 are restored. C.R. No,744 of 1998 is allowed in the manner that the case is remanded to the learned Senior Civil Judge, Multan before whom the parties shall appear on 20-12-2005. The record of the suit filed by Bakht Ali shall be requisitioned. An issue will be framed to the effect that as to whether the suit has been filed by a duly authorized person. In case the issue is answered in affirmative the suit shall stand decreed and in case its answer in negative the suit will be dismissed.
No order as to costs.