' FAZAL-E-MIRAN CHAUHAN, J.---On 4-9-1995, suit for declaration was filed by the appellants/plaintiffs against the respondent seeking declaration that the land, measuring 1-kanal, 14-marlas, 168 'square feet min. Khasra No,2800 (Amarti), situated in Mian Mir Sahib, Lahore, in favor of the respondent on the basis of a letter, alleged to have been issued by A.D.C. (G), Lahore is illegal, void, based on =la fide intention and is ineffective qua the rights of the appellants. As a consequential relief, also claimed the possession of the land after demolition of the superstructure raised thereupon.
2. Facts of the case are that, Sardar Girls High School raised and constructed upon evacuee land by one Sardar Muhammad. After his death, the school was being run by his son Muhammad Sadiq.
The owner of the school Sardar Muhammad way back in 1970 encroached upon the land, measuring 1-kanal, 14-marla, 168 square feet, out of 2-kanal, 10- marlas, 23 square feet bearing Khasra No,2800, owned and possessed by the appellants. Having come to know about the same, the appellants got their land demarcated and it was found that the suit-land bearing khasra No,2800/2 min, is in the illegal occupation of the said owner of school. On 9-10-1972, the appellants filed a suit restraining the owner from raising construction on the suit-land, which was decreed ex parte on 22-4-1974. Execution filed was dismissed, as by that time the said school was nationalized through MLR No,118. It was further alleged that, during the whole litigation between the parties, Provincial Government respondent never disclosed that Mutation No,771 was got sanctioned in its favor on 10-9-1986 on the basis of letter, dated 15-5-1985 of A.D.C. (G), Lahore and the land, in dispute, was transferred from the name of the appellants/plaintiffs in the name of the respondent.
It was further alleged that, as per MLR No,118, only schools were nationalized and not the land and building owned by other private persons. The suit-land was not the property of Sardar Girls High School, thus, the same does not vest with the school and in the Provincial Government by virtue of MLR No,118. The subsequent sanction of mutation on the basis of letter, dated 15-5-1985, alleged to have been issued by the A.D.C. (G), Lahore was illegal, void, ab initio and ineffective qua the rights of the appellants and the 'same was liable to be set aside.
3. The suit was vigorously contested by the respondents; various legal objections were raised, likewise, that the suit is barred by time; being not maintainable; barred by res judicata and barred by want ofcause of action; the appellants had not come to the Court with clean hands and ownership of the appellants was also denied. On merits, it was claimed that the land, in dispute, is owned and possessed by the respondents, being integral part of the school property was taken over by the 'respondent and now vest with the respondent.
4. Following issues were framed by the trial Court. ISSUES.
(1) Whether the suit is not maintainable under the Land Revenue Act? OPD.
(2) Whether the suit is barred by principle of res judicata? OPD
(3) Whether the suit is false, frivolous and baseless? If so, whether the same is liable to be dismissed? OPD.
(4) Whether the plaintiff has not come to this Court with clean hands? OPD
(5) Whether the plaintiff has no cause of action against the defendant? OPD.
(6) Whether the Mutation No,771, dated 10-9-1986 was attested in favor of the defendant is unlawful? If so, what is the effect of attestation of Mutation? If so, its effect? OPD.
(7) Whether the suit is barred due to non-joinder of the necessary parties? OPD.
(8) Whether the suit is within time? OPP.
(9) Whether the plaintiffs are entitled to the possession of the land in dispute instead of the compensation? OPP.
(10) Relief.
5: After framing the formal issues, the parties were directed to produce their evidence in support of their respective claims.
' AppellantNo,1-Mahboob Alam appeared as P.W.1 and examined Muhammad Iqbal as P.W.2 and Muhammad Rafique as P.W.3. The plaintiffs/appellants also produced Exh.P.1. Khasra Amarti 1961- 62, showing that Mutation of Inheritance No,329 was recorded in favor of Mahboob Alam etc. Exh.P.2-Copy of Register. Haqdaran-e-Zamin for the year 1969-70, Exh.P-3 copy of Mutation No, 771, dated 10-6-1986 recorded in favor of Provincial Government.
' As against, Muhammad Abdullah appeared as P.W.1 and examined Muhammad Ishaque as P.W.2.
' After recording evidence and hearing the arguments of both the parties, the learned trial Court dismissed suit of the appellants vide impugned judgment and decree, dated 26-10-2000, hence, this appeal.
6. Learned counsel for the appellants states that, the land in dispute was illegally taken over by the respondents and Mutation No, 771 (Exh.P.3) was recorded on 10-9-1986, behind the back of the appellants, who never called upon or served by the Revenue Authorities. The letter/Notification, dated 15-5-1986, alleged to have been issued by A.D.C. (G), Lahore, has not been produced in the evidence nor the same is available with the Revenue Authorities, whereas, as per law, the same was liable to be annexed or placed with Mutation No,771. Further states that, by MLR 118/2, only schools were taken over and as prescribed in the 'said MLR, the schools vest with the Provincial Government and not the land and building, as held in 1987 SCMR 1187. If at all, the land and building was owned by Sardar Girls High School, then it vested with the respondents only to the extent of land, owned by Sardar Girls High School. The land, in question, was mutated in the name of the appellants by Mutation of Inheritance No, 329, 28-11-1962, and the same is mentioned in Exh. P.1; Roznamcha Khasra Amarti showing the same to be the property, being ancestral property of their father Ghulam Hussain. The respondent has failed to prove his title on the basis of which Mutation No,77I was wrongly attested.
7. Conversely, learned Assistant Advocate-General appearing on behalf of the respondent states that, the land, in question, being evacuee property was transferred in the name of the Provincial Government, hence, the same belongs to the Government and was rightly sanctioned in favor of the Provincial Government Mutation No,771 regarding the suit premises was sanctioned in favor of the Provincial Government and any right accrued and the plaintiffs/appellants, if had any right, had lost the same after sanctioning of the mutation. Since, very mutation is under challenge in the suit, which was decided by the revenue authorities under the relevant rules. Thus, the same cannot be declared to be unlawful by the Civil Court, as it was the exclusive jurisdiction of the Revenue Authorities to decide the same and Issue No,6 was rightly decided against the appellants. Further states that, while deciding Issue No,8, it was rightly observed by the learned trial Court that mutation was attested in the year, 1986 and the same is being a public document which always operates as a notice to the general public and it was rightly observed by the Civil Judge that the plaintiffs/appellants cannot take the plea that they remained ignorant about the sanctioning of the mutation. It was their duty .To inquire from the Revenue Authorities and the suit was rightly declared barred , by time. Also states that, the suit property is in possession of the school since, 1950 and was an evacuee property. Since, the property has been taken over with the school and the same belongs tothe Provincial Government. The nature of the suit seeking declaration is not maintainable and at the most, the appellants can ask for compensation for their land, hence, the suit was rightly dismissed by the learned trial Court and there is no merit in this appeal and the same may also be dismissed.
8. We have heard learned counsel for the parties and perused the record. Admittedly, Khasra No,2800, measuring 2-kanals, 10-marlas, 23-square feet being ancestral property of the appellants and Mutation of Inheritance bearing No,329 was mutated in their names, Exh.P.1-Khasra Amarti for the year 1961-62, Mauza Mian Mir Sahib Lahore Cantt., find mentioned the fact that Mutation No,329 was recorded in the name of Rehmat Ali, Mehboob Alam 4/5 shares and Mst. Mumtaz Begum 1/5 share since the death of Ghulam Hussain, Document Exh.P.2. Copy of Register Haqdaran for the year 1969-70 also finds mentioned and shows that the appellants as owner in possession of land measuring 2-kanals, 10-marlas, 23-square feet bearing Khasra No,2800. The land of the appellants was adjacent to Sardar Girls High School and the management/owner of the above said school encroached upon the land, in dispute, measuring 1-kanal, 14-marla, 168-square feet min, Khasra No,2800, against whom, a suit for declaration along with permanent injunction was filed by the appellants seeking injunction that the respondent/ex-owner of the school be restrained from raising any construction over the land. During pendency of the civil suit, the school in question was taken over by the Government of the Punjab by MLR No, 118, dated 1-4-1972. The management of the school was taken over by the Government of the Punjab, resulting the land, building of the school was also taken over, which also includes the land in dispute on 14-1-1968, considering the same to be property of the school. The suit filed on 9-10-1972 against the respondent restraining not to raise construction upon the land, in dispute. As nobody appeared on behalf of the respondent and the suit was decree ex parte on 22-4-1974. The executing Court refused to execute the decree against Government of the Punjab/Education Department vide order, dated 6-1-1993.
Appeal was also dismissed on 28-7-1996. Para. 7 of the plaint is not specifically denied by the respondent. Thus, the evasive denial supported the contention that fact of recording of mutation on 10-9-1986 without notice to the appellants was not disclosed during the earlier civil litigation.
The fact that the appellants come to know on February, 1994 about the mutation is also not specifically denied. Thus, filing of the suit from the date of knowledge is always presumed to be in time unless otherwise A proved. The finding of the learned trial Court that the very attestation of mutation, being a public notice would prove as notice to all concerned, is not correct view. The limitation to challenge the mutation without notice B to the appellants would run from the date of knowledge. There is noevidence to rebut the contention that the appellants acquired the knowledge in February, 1994. Mehboob Alam, one of the appellants, appeared as P.W.1. Supported version of plaint. The appellants had proved on record that Khasra No, 2800 bearing 2-kanals, 10- marlas, 23-squre feet was owned by their father namely Ghulam Hussain and on his death, Mutation of Inheritance No,329 was recorded in their name on 28-11-1962. Since, ex- management/owners of Sardar Girls High School encroached upon the land measuring 1-kanal, 14-marlas, 168-square feet illegally and the Revenue Authorities on the basis of letter, dated 15-5- 1985, which has not been produced in evidence, transferred the land by way of Mutation No,771, recorded on 10-9-1986 in favor of the Government of the Punjab. Thus, findings on Issue No,8 are set aside and it is held that the suit was filed within time from the date of knowledge i,e, February, 1994.
9. So far as the title of the appellants vis-a-vis Khasra No,2800 isconcerned, there is sufficient evidence on the record to show that the said Khasra measuring 2-kanals, 10-marlas, 23-square feet was owned by their father and on his death, Mutation of Inheritance No,329 was recorded in their name. Exh.P.2., copy of Register Haqdaran, to which presumption of truth is attached, shows the appellants in possession as 'owner of the said Khasra. On the other hand, the respondent had not produced iota of evidence in rebuttal. Exh.P.3, Mutation No,771, dated 10-9-1986 was produced by the appellants to show that the said mutation was attested in their absence. They were not called upon by the Revenue Department, while attesting the mutation. No notice was ever issued in their name by the Revenue Authorities before recording the mutation of exchange, in dispute.
10. It is settled principle of law that a mutation is not a document of title, and by itself, it does not confer any title, right or interest and burden of proof lies on the party, who seeks to establish the genuineness of the transfer in its favor. On the other hand, record of rights though not instrument of title, but unless rebutted, presumption of truth is attached to them.
' In the present case, the respondent has failed to prove on what basis. The land measuring 1-kanal, 14-marlas, 168-square feet was mutated in the name of the Government of the Punjab vide impugned mutation. The order on mutation recorded on Exh.P.3, shows that the said mutation was recorded on the basis of letter, dated 15-5-1986, said to have been issued by the A.D.C. (G), Lahore, but the said letter has not been produced in evidence. In the absence of the said letter, which is the best evidence to show on what basis the land was transferred, has been purposely withheld. As per Article 129 of the Qanun-e-Shahadat Order, 1984, if the best evidence is withheld, thus it would be presumedthat the same would have been read against the party, if produced. Reference in this respect can be placed on Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others (2001 SCM R 338) and Fiaz Hussain and 7 others v. Muhammad Din through Legal Heirs (1999 M LD 1386 Lahore). Mutation itself is not a part of record of rights, if there is any presumption of truth attached to the facts recorded in the mutation the same are rebutable. The appellants have proved on the record that a mutation of inheritance was recorded in their name on 28-11-1962 and since then their name is mentioned in the record of rights as owners in possession of the land, in dispute. It is also established on the record that, Mutation No,771, dated 9-10-1986 was recorded behind the back of the appellants and the basis for the change of ownership from the name of the appellants to the Government of the Punjab slicing 1-kanals, 14-marlas, 168-square feet being Khasra No,2800 measuring 2-kanals, 10-marlas, 23-squre feet is not on the record. There is no evidence on what basis, the said mutation was recorded in the name of the Government of the Punjab.
11. Learned Assistant Advocate-General tried to argue that the land, being an evacuee property, was transferred in the name of the Government of the Punjab. We are afraid that she cannot be allowed to argue the case against the pleadings. A question of fact not pleaded/ mentioned in the written-statement unless amended with permission, D cannot be allowed to argue the case on those facts. No document showing that the land was owned by a Hindu owner has been placed on the record. The evacuee land was transferred in the name of Provincial Government after repeal of Settlement Laws in 1975. Thus, the entires recorded in the mutation without any support, does not carry any weight as against the documents placed by the appellants.
12. There is no evidence on the record that the appellants were summoned by the Revenue Authorities at the time of attestation of Mutation No,771 nor were put to notice that the land measuring 1-kanal, 14-marlas, 168-sugare feet is being cancelled from their name. The entry of mutation was recorded without notice. The only document is a letter of A.D.C. (G), Lahore, dated 15- 5-1986, but the same has not been produced by the respondent, thus, any mutation entered without complying with the mandatory requirements of section 42 of the land Revenue Act, would be deemed to be invalid. Reference in this regard can be placed on 1998 CLC 2008.
13. The other question involved in the instant appeal is whether by virtue of MLR No,118, dated 1-4- 1972, it was only the school management, which was taken over or the land, building and other fixtures in the school were nationalized. The matter was taken up in acase reported as Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary Education, Civil Secretariat, Lahore and another (1987 SCM R 1197), wherein it was held by the Honourable Supreme Court of Pakistan that by virtue of MLR No,118, only the schools managements were taken over by the Provincial Government under MLR No,118, 1972 and it is only the schools, which vest with the Provincial Government and not the land and building.
' The word "vest" has been defined by the Honorable Supreme Court in 1987 SCM R 1197 (Supra) that "merely because the privately managed schools, along with their assets were to vest in the Government, under the terms of para. 5 of Martial Law Regulation No,118, it did not imply the Government had become owner in relation to the buildings wherein schools or colleges were being run". The intention of MLR 118 manifestly was only to take over the management of the institutions and not to confiscate the property in which the privately managed school was being run.
14. In the instant case, no evidence has been produced by the respondent to show that at the time of taking over of the schools under MLR No,118, the land in dispute was owned by Sardar Girls High School, whereas, on the other hand, it is established on the record, that the land measuring 2- kanals, 10-marlas, 23-square feet bearing Khasra No,2800 owned by father of the appellants and on his death, same was transferred by Mutation of Inheritance No,329, dated 28-11-1962, the same fact is mentioned in Exh.P.l., copy of Roznamcha Waqiati.
15. In the light of above discussion, we are of the view that the land measuring 1-kanal, 14-marlas, 168-square feet was wrongly mutated in the name of the Government of the Punjab presuming the same to be the property of Sardar Girls High School or property of Provincial Government in the absence of any solid proof, the mutation so recorded was not recorded in accordance with law, as required under section 42 of the Land Revenue Act.
16. For the facts discussed above, we are of the view that, Mutation No,771 (Exh.P.3) recorded. On 10- 9-1986 was not recorded in accordance with law. In view of the above, we accept this appeal; set aside the impugned judgment and decree of trial Court and decree the suit of the appellants as prayed for. No order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.