' SARDAR MUHAMMAD ASLAM, J.---This civil revision is filed by the defendants against the judgment of the learned appellate Court granting decree to the plaintiffs Ahmad Bakhsh and others in a suit for specific performance. The plaintiffs and Mst. Nooran Mai are decendents of Bakhshu, who was original owner of the suit land. He died leaving behind four sons (plaintiffs) and three daughters.
Mst. Nooran Mai is one of them. The plaintiffs filed a suit against Mst. Nooran Mai, alone, as the remaining two transferred their shares to them. It was claimed by the plaintiffs that through Mutation No.975 dated 27-3-1995 the defendant Nooran Mai, along with her other two sisters transferred the property in favour of the plaintiffs by way of mutation but later on got the same cancelled. The defendant contested the suit. She transferred her share in favour of her son Ghulam Yasin, defendant. Issues were framed. Both the parties produced their evidence in support of their respective pleas. The learned trial Court dismissed the plaintiffs' suit vide its judgment and decree dated 20-10-1999. Appeal was preferred, which was allowed by the learned Additional District Judge, which is being impugned herein.
2. The learned counsel for the petitioner argued that specific performance is sought on the basis of oral sale; entry of mutation by the Revenue Officer cannot be considered as an agreement to sell; the execution of the sale was denied by the defendant shifting onus on the plaintiffs but the learned appellate Court found the defendant responsible to disprove the existence of agreement; provision of section 17 of Qanun-e-Shahadat Order, 1984 has not been complied with and that the defendant being Pardanashin lady was not in possession of any independent evidence.
3. Conversely, the learned counsel for the respondent opposed the arguments and submitted that once mutation was entered at the instance of petitioners/defendant and was cancelled, the onus shifted on the defendant to prove non-existence of an agreement. He, thus supported the impugned judgment.
4. Heard. Record perused.
5. The question which falls for determination in this revision is as to whether any sale by way of an agreement oral or express took place between the parties and whether mere entry of mutation can be termed as an agreement to sell. To resolve this controversy evidence produced by the parties is sifted. P.W.1 Muhammad Bakhsh one of the plaintiffs appeared as his own witness. He stated that all the three sisters including the defendant transferred their share of the property to the real brothers (plaintiffs) against consideration of Rs.2,5000. All the three sisters appeared before the Tehsildar and admitted the sale. The defendant and other vendors were identified by Maulvi Muhammad Khan and Saeed Ahmad. However, after one month, they came to know that the sale mutation has been cancelled. When approached the Tehsildar, he told them to bring all the sisters in person before him. Nooran Mai, refused while the other two sisters made statements.
The sale mutation was entered and sanctioned. In fact mutation entered on the statements of three sisters was cancelled. In cross-examination, he admitted that the suit property devolved upon to the plaintiffs (brothers) and three sisters including the defendant in-inheritance. The suit- land was transferred in favour of the plaintiffs in presence of witnesses Ahmad Ali, Ahmad and Abdul Sattar, husband of the defendant. Consideration amount was paid to the sisters in presence of Sufi Ahmad. He denied that the consideration amount was not paid to the sisters. Mst. Esso Mai, appeared as P.W.2. She stated that she along with her two sisters including the defendant transferred their share in the suit-land to the plaintiffs' mutation was entered. However, the defendant Nooran Mai-withdrew from the sale on account of her sons advice. She and her other sister transferred their share in favour of their brothers. When Nooran Mai, was called upon to make statement in favour of the plaintiffs, she refused. However, both the sisters delivered the possession after receiving money from the plaintiffs. In cross-examination, she stated that when original mutation was entered she along with her two sisters including the defendant, had thumb-marked the mutation. Mst. Nooran Mai, however, on the instruction of her son withdrew herself and, thus, mutation was cancelled. Muhammad Iqbal is Moharrir of Record, office of Qanoongo, Bhakkar. He only produced the record of Mutation No.975. P.W.4 is Muhammad Aslam, Patwari of Revenue Estate concerned. He stated that he has authored the mutation Exh.P.1, on the statements of three sisters and put his signature, Pattidars also signed the mutation. Later on, the Revenue Officer has stopped the proceedings. Parties were present before the Tehsildar who ordered that the mutation has been sanctioned. He is not aware about the cancellation of the mutation as he stood transferred thereafter. In cross-examination, he conceded that identity card of the vendors were not written by him. He did not know Mst. Nooran Mai, personally. However, he after examining her identity card had satisfied himself. The patidaran had identified Mst. Nooran Mai. As against this, Mst. Nooran Mai stated as D.W.1 that property in dispute devolved upon her in inheritance. She did not transfer the property in favour of the plaintiffs. She instead transferred the same in favour of her son by way of gift deed. She denied suggestion that she along with her other two sisters had transferred the property in favour of the plaintiffs. Ahmad Bakhsh appeared as D.W.2. He is a witness of mutation, whereby Mst. Nooran Mai transferred her property in favour of her own son, defendant No.2. Malik Ghulam Shabbir, Naib Tehsildar appeared as D.W.3. He stated that he had sanctioned the Mutation Exh.D.1. The vendor was identified by Maulvi Ahmad Bakhsh and Allah Wasaya, pattidars. He stated that Mutation No.975 was not authored by him. It was handed down by Manzoor Khan Chandio, Tehsildar. Abdul Hameed, patwari appeared as D.W.4. He stated that Mutation No.1075 was entered by him, which was sanctioned later on. In cross-examination, he stated that he is not aware how the Mutation No.975 Exh.P.1 was entered as it was not authored by him. Mutation No.979 was entered by him. Allah Wasaya, D.W.5 and Muharrunad Bakhsh D.W.6 stated that Mst. Nooran Mai had transferred the property in dispute to her son Ghulam Yasin by way of gift, who as D.W.7 stated that the gift was made in his favour, which was accepted by him.
6. Mutation No.975 Exh.P.1 indicates that on 9-4-1995, it was placed before the Revenue Officer in `Jalsa Aam' of the Revenue Estate concerned. It was observed that in view of the report of the field office the agreement has been cancelled. He, therefore, rejected the mutation. In Column No.14, Muhammad Aslam Patwari entered the mutation on the statements of the vendors and vendees.
Sahib Dad and Saeed Pervez have signed the said mutation.
7. There is no written agreement. Exh.P.1 was mutation for sale of the disputed property in favour of the plaintiffs. It was, however, cancelled. No evidence has been brought on the file to prove oral agreement of sale. Respondent-plaintiffs' claim is based on document Exh.P.1. It nowhere indicates that the defendant Mst. Nooran Mai appeared before the Revenue Officer. Mere entry of mutation Exh.P.1 does not prove the sale. P.W.4 stated that Esso Mai, Nooran Mai, and Khanoo Mai got entered the mutation. The witnesses of the mutation namely Sahib Dad and Saeed Pervez did not enter appearance. P.W.4 did not know Mst. Nooran Mai personally. He stated that he had seen her identity card. However, this fact does not find any mention in the record of proceedings of mutation. Section 17 of Qanun-e-Shahadat Order, 1984 provides attestation by at least two marginal witnesses. No marginal witnesses of Exh.P.1 has been produced to prove factum of sale.
8. The petitioner-defendant is real sister of the plaintiffs-respondents. The other two sisters have transferred their property to the plaintiffs. P.W.2 Esso Mai has categorically stated that Mst. Nooran Mai did not appear before the Registrar as her son did not allow her to do so. Male members of the society do not approve devolution of property on the females. They, usually, are in their bid to get the landed property transferred into them. It appears that the plaintiffs, being real brothers of the defendant have got a mutation entered of their own on behalf of all the three sisters. The petitioner/ defendant refused to make statement before the Tehsildar in `Jalsa-A-Aam', the same was cancelled. This is the reason that fresh mutation was entered for the sale of the share of other two sisters.
9. The petitioner-defendant was Pardanashin lady. No independent advice was available to her.
Though P.W.1 claims that her husband was present when the transaction of sale was materialized.
This statement of one of the plaintiffs remained uncorroborated. It does not inspire confidence. No person of her fiduciary relations was available at the time of alleged transaction of Exh.P.1.
10. Execution of agreement to sell was denied by the defendant. Onus heavily lay on the plaintiffs to prove the same. The learned appellate Court wrongly observed that the onus was to be discharged by the petitioner-defendant instead of plaintiffs. The defendant was not required in law to prove in negative.
11. The respondents-plaintiffs have badly failed to prove agreement of sale in their favour by defendant No.
1. Proof in regard to payment of consideration amount remained lacking.
12. For what has been discussed above, this civil revision is allowed. This impugned judgment passed by the learned Additional District Judge is set aside and that of trial Court is restored.