' MUHAMMAD AKHTAR SHABBIR, J.---This civil revision has been filed to call in question the judgment and decree dated 21-4-1994 passed by the Additional District Judge, Faisalabad whereby the judgment and decree dated 24-2-1993 passed by the Civil Judge decreeing the suit of the plaintiff had been set aside.
2. Facts giving rise to the present revision petition are to the effect that Fazal Hussain plaintiff has filed a suit for declaration claiming to be the owner in possession of the land measuring 21 Kanals, 12 Marlas situated in Khewat No,283 Khatooni No,475 Square No,29 Chak No,39 G-B Tehsil and District Faisalabad, challenging the vires of Mutation No,1215 dated 5-11-1990, as result of fraud, without consideration, misrepresentation and ineffective qua his rights with further consequential relief of permanent injunction restraining the defendant from alienating the suit-land in any manner.
3. The suit had been resisted by the defendant Yaseen-respondent herein who filed his written statement denying the averments of the plaint raising some preliminary objection. From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame the following issues:--
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the suit has not been properly valued for the purposes of court-fee? OPD.
(3) Whether the plaintiff is estopped by his act and conduct to bring this suit? OPD
(4) Whether suit is false, frivolous, vexatious and the defendant is entitled for special costs under section 35-A, C.P.C.? OPD
(5) Whether the plaintiff is owner in possession of suit-land comprising Khewat No,283, Khatooni No,475 Square No,29 measuring 21 Kanals 12 Marlas situated at Chak No,39/GB Tehsil Jaranwala and Mutation No,1215 dated 5-11-1990 is illegal, void, fraudulent, undue influence, coercion and ineffective upon the rights of the plaintiff and is liable to be cancelled? OPP
(6) Relief.
4. After recording and appreciating the evidence of the parties pro and contra, the learned trial Court, vide its judgment and decree dated 24-2-1993 decreed the suit. Feeling aggrieved the defendant/ respondent preferred an appeal, which came up for hearing before the learned Additional District Judge, Faisalabad, who vide the impugned judgment and decree dated 21-4- 1994 accepted the appeal and set aside the judgment and decree of the trial Court and dismissed the suit. The petitioner through this civil revision has assailed the said judgment of the lower appellate Court.
5. I have heard the arguments of the learned counsel for the petitioner and perused the record.
During the pendency of this revision petition, the respondent has passed away and his legal representatives were arrayed as respondents. Notices were issued to them but they did not turn up and they were directed to be served through substitute mode of service by issuing publication in "Daily Pakistan" but despite publication, none has entered appearance. Thereafter, for the ends of justice, it was ordered that fresh notices be issued to them through registered post as well as through the agency of learned Senior Civil Judge, concerned. The Process Server has reported that respondent No,1 had proceeded abroad and other respondents have refused to accept the service.
Despite repeated notices through different modes of services, none entered appearance on behalf of the respondents, therefore, vide order dated 5-12-2003, they were proceeded against ex parte.
6. The learned counsel for the petitioner has challenged the findings of the lower appellate Court on Issue No,5, which is a pivotal issue and directly hits the root of the suit. To prove this issue the plaintiff Fazal Hussain has produced order as well as documentary evidence. He himself appeared as P.W.1 and to corroborate his assertion he also produced Abdul Rashid P.W.2 and Akbar Ali P.W.3.
He has also produced copy of impugned mutation Exh. P.1. And a copy of record of rights of the land in question Exh. P. 2 .
7. A litigant who is beneficiary of the sale has to prove offer acceptance, passing of consideration and delivery of possession. Onus to prove Issue No,5 was upon the plaintiff who categorically stated in the Court that he did not sell the land to the defendant/respondent. Neither he appeared before the Revenue Officer nor received any consideration. After denial of transaction of sale by the plaintiff, the onus legally shifts upon the defendant the beneficiary of the transaction to prove that the transaction was legally made. The defendants/respondents himself did not appear in the Court to controvert the statement of the plaintiff/petitioner. On his behalf his general attorney Muhammad Younas entered appearance and he also B produced Muhammad Bashir D.W.2, Mushtaq Ahmad D. W3 and Muhammad Nawaz D.W.4. D.W.1 has stated that the sale amount has been paid in the house of the plaintiff in his presence. D.W.2 Muhammad Bashir in his cross- examination has categorically stated that the sale consideration has not been paid in his presence. D.W.3 is neither the witness of the mutation nor any sale-consideration has been passed in his presence. He deposed that he was told by the petitioner that he has sold his land and got attested the sale-mutation in favour of the defendant. It will not be out of place to mention here that this D.W. Is the real brother of general attorney of defendant D.W.1 His testimony is of no value as he neither the witness of bargain nor of attestation of mutation in dispute. D.W.4 has also admitted that sale consideration has not been paid in his presence. He stated that he marked his thumb-impression on the direction of a BD member but he did not know that on which paper he marked his thumb-impression and he had also not seen the parties before the Revenue Officer. He categorically denied that he appeared before the Revenue Officer and marked his thumb- impression. He further denied the passing of the consideration. From the evidence produced D by the defendant, it is established that there is no direct witness of bargaining of the suit property.
Except D.W.1 neither the Revenue Officer nor the Revenue Patwari had been produced to prove the execution of the mutation in dispute.
' Sale-consideration has also not been proved by the defendant.
8. The Revenue Authorities in proceedings for sanctioning of mutation do not act as arbiters of the rights of the parties and a decision in mutation proceedings is not a decision as to the title of the parties. In this context reference can be placed to the cases of Muhammad Iqbal v. S.A.M. Khan Member Board of Revenue, West Pakistan, Lahore and 3 others (PLD 1970 Lahore 614), Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others (PLD 1994 SC 462), Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), (Thakur) Nirman Singh and others v. Thakar Lal Budra Partab Narain Singh and others (AIR 1926 Privy Council 100) and (1981 CLC 462).
9. Had the defendant/respondent been genuinely purchased the land in dispute from the plaintiff/petitioner for a consideration, he would have been in physical possession over the same or through tenant having symbolic possession but in the instant case neither the defendant/respondent is in physical possession nor in symbolic possession, as tenant P.W.5 who is an admitted tenant by the parties had deposed against the defendant and had admitted that he is tenant under the plaintiff and pays him his share of Batai. There is no evidence of offer and acceptance, passing of the consideration and delivery of possession. All the ingredients of a valid sale are lacking in the present case. The learned lower appellate Court has failed to apply its judicious mind to this legal as well as factual aspect of the case, hence the findings of the lower appellate Court is exceptionable and calls for interference.
10. The most important feature of the case is that P.W.5 Asghar Ali, the tenant of the land in dispute categorically stated that he is tenant under the plaintiff and he pays share of Batai to him. The defendant/ respondent has miserably failed to establish by cogent and convincing evidence the ingredients of a valid sale. There is no evidence of agreement of sale/bargain and neither passing of the sale-price nor delivery of possession.
11. From the above discussion, it is proved that the defendant beneficiary of the sale mutation has not been able to prove that the mutation in dispute was a valid and legal. It is a settled principle that when the transaction of sale lacks any of the ingredients of a valid sale, it has no sanctity of law. Therefore, I have no hesitation in observing that the mutation in dispute was a result of fraud and misrepresentation. The plaintiff/petitioner has successfully proved that fraud has been committed with him and the Mutation No,1215 dated 5-11-1990 was result of fraud, without consideration, illegal and ineffective qua his rights.
12. For the foregoing reasons, this revision petition is accepted. Resultantly, the impugned judgment and decree dated 21-4-1994 passed by the lower appellate Court is set aside and that of the trial Court is maintained.