SH. HAKIM ALI, J. --- Facts forming background of this civil revision are that Sher Muhammad, respondent had filed a suit for recovery of possession, with regard to 52 kanals of agricultural lands, situated in Mauza Falak Sher Chishti, Tehsil and District Bahawalpur, with prayer of declaration that Mutation No 358, sanctioned on 26.9.1973 in favour of Qasim Ali, defendant petitioner, allegedly on behalf of Sher Muhammad, plaintiff, was against facts, illegal, fictitious, forged, collusive and without consideration, therefore, was ineffective upon the rights of the plaintiff. In the afore-mentioned plaint, prayer for grant of permanent injunction restraining the defendant to claim himself owner of the property was also made. Aforesaid suit was resisted by Qasim Ali, defendant, who filed the written statement on 3.2.1981. Issues were framed upon the pleadings of the parties and the parties had produced their evidence. After appreciation of evidence, learned Civil Judge dismissed the suit on 13.4.1992. Against that judgment and decree of dismissal, Sher Muhammad, plaintiff filed an appeal before the learned District Judge, Bahawalnagar, which was accepted through the impugned judgment and decree dated 7.11.1992.
Hence, this revision.
2. Petitioner's learned counsel submits that the plea taken by plaintiff to his plaint was that he had leased out the land in dispute to defendant and the lease was at the rate of Rs. 400/- for the entire land (16% acres) per year but the amount received was Rs. 2,600/-, which amount was admitted to have been received by the plaintiff. Therefore, from this fact it was obvious that the amount received by plaintiff was not for lease but 'it was the sale consideration for the entire land. Further submits that delivery of possession to defendant/petitioner was also an admitted fact. Accordingly, it was for the plaintiff to prove that there was no sale and the land was leased out to the defendant: As per learned counsel for the defendant, plea of lease was not proved-by the plaintiff on the record. Both the learned Courts below had declared that plaintiff had failed in his plea to prove that the land was leased out to the defendant. It has further been argued by the learned counsel that the entries of mutation having been carried in jamabandi; so in that event, according to PLD 1979 SC 890 (Abdul Ahad and others v. Roshan Din and 36 others), the entries of mutation had.
Consequently got presumption of correctness. According to the learned counsel, the plaintiff had failed to adduce the reasons, as to why the possession was delivered to Qasim Ali, defendant, particularly, when the plea of lease was disbelieved by both the learned Courts below.
3. Conversely, respondent's learned counsel submits that it was incumbent upon the defendant to prove the factum of sale and for that purpose, Patwari, who had entered the mutation and the Tehsildar/Assistant Collector Grade-11, who had attested the mutation, were to be.Brought into evidence. Due to failure to produce these witnesses, adverse presumption was to be raised against the version adopted by the defendant, that sale was made or mutation was rightly attested.
Learned counsel has relied upon PLD 2003 SC 688 (Muhammad Akram and another v. Altaf Ahmad) for the above-noted arguments. No transfer of title can take place when the sale amount exceeds Rs. 100/- and the sale is not evidenced through registered sale-deed. Relies upon 2000 YLR 1490 (Hyder through Legal Heirs v. Raja and 5 others By referring to 2001 SCMR 338 (Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5. Others) learned counsel submits that to prove the sale and mutation, burden of proof was upon the shoulders of the petitioner/defendant, who had failed in this regard. It has also been submitted by learned counsel that the identifier of the vendor in a mutation must be resident of the union council concerned as provided by Section 42 of the West Pakistan Land Revenue Act, 1967. To support this PLD 1984 SC 188 (Gharib Shah and others v. Zarwar Gul) has been relied upon. Mutation which was sanctioned in violation of the provision of Section 42 of the aforesaid Act, was void, nullity in the eye of law and no right had accrued to the person in whose favour it was sanctioned. Learned counsel has cited for this proposition PLD 1984 Quetta 158 (Bakhtiar & 3 others v. Member-III, Board of Revenue, Baluchistan, Quetta and 20 others).
4. Heard and record examined. To appreciate the facts and the law applicable to the facts, it is necessary to go through the averments of the plaint. In Para No. 2 of the plaint, the version adopted by Sher Muhammad, plaintiff was that he had leased out orally 6% acres of land, out of his owned lands to defendant at the rate of Rs. 400/- per annum and that defendant had been paying the lease money on each year by year. Fifteen days before the institution of the suit, plaintiff came across from Patwari that defendant had become owner of 52 kanals of lands, upon which the scrutiny of revenue papers was conducted and it was found that defendant had got sanctioned Mutation No. 358 showing an oral sale having been entered into for Rs. 2,600/- in his favour on 26.9.1973 allegedly by the plaintiff although plaintiff had not transacted any sale with the defendant nor had received any consideration. It was further alleged that plaintiff had not appeared before any Revenue Officer to get the mutation sanctioned and the mutation entries were fictitious, collusive, without registration, based on fraud and misrepresentation and it was sanctioned in the absence of plaintiff. From the bare reading of the plaint, I have nowhere found that the plaintiff had admitted the receipt of Rs. 2,600/-from the defendant. In these circumstances, plea raised by learned counsel for the defendant that plaintiff had admitted the receipt of Rs. 2,600/- was not found from the averments of the plaint. The other argument of the learned counsel for the petitioner that possession was admitted to have been delivered to the defendant, cannot grant any benefit to the petitioner because nature of the possession was also mentioned to have been granted to defendant on lease. Therefore, this fact of possession cannot prove the sale transaction.
To prove file sale transaction having been made through Mutation No. 358, dated 26.9.1973 (Ex.P- 1/Ex.D-1), it was for the defendant/petitioner to prove the factum of sale. Mere incorporation of the entries in the next jamabandi cannot prove its genuineness nor grant any benefit or absolve the petitioner from proving the sale transaction independently, which was denied by the plaintiff at the very outset. Vide the following decisions:--- PLJ 1985 Lahore 409 (Naja and 2 others v. Shahmand and 4 others); NLR 2000 SCJ 135 (Abdul Majeed and 6 others v. Muhammad Subhan and 2 others; 1988 CLC 2388 (Muhammad Azam and others v. Muhammad Yar and others); and 1990 MLD 89 (Hakim Khan v. Nazeer Ahmad Lughmani and others).
Law on this point is also settled that mutation itself does not convey any right or title in the property in dispute. It is sanctioned for the fiscal purposes only. The person who claims the sale in his favour has to prove the sale transaction independently in accordance with the legal evidence brought on the record of the case.
5. To remove and settler the conflict of findings of facts between two, Courts below, evidence brought on record has also been scrutinized by me. DW-2 Hakeem Nazar Muhammad was the witness who was admittedly neither owner nor resident of Mauza Falak Sher Chishti although he was cited as identifier to Sher Muhammad vendor. Moreover, it has also been found from his evidence that mutation in dispute was not sanctioned in the Mauza itself. Thus the sanction of mutation was made by Tehsildar in violation of the provision of Section 42 of the West Pakistan Land Revenue Act, 1967 which had mandated the Assistant Collector to conduct inquiry in the common assembly in the estate where the land was located and to pass order after the vendor was identified by two respectable persons of the union council concerned. According to that witness, he had never seen even the land of whole Mauza Falak Sher Chishti. He had not known even the distance of the aforementioned Mauza from Bahawalnagar City. He had clearly mentioned that no, amount was paid before him.
6. The other witness, DW-3 Muhammad Abdullah had clearly admitted that no transaction of sale was settled and no sale amount was paid before him. He had deposed in his evidence that he was not remembering as to whether order was written upon the mutation or not?
7. The last witness is DW-4 Muhammad Ameer who initially stated that Rs. 2,400/- were settled for sale transaction but upon interference and inkling from defendant, he changed his version from Rs.
2,400/- to Rs. 2,600/-. He also deposed that only Rs. 2,000/- were paid before him to the vendor as earnest money. No other witness was brought to corroborate this fact of payment of Rs. 2,000/- or with regard to settlement of sale bargain. It is an important fact that for the remaining amount of Rs. 2,400/- no other witness was brought on the record by defendant before whom that amount was paid to the vendor
7. DW-5 Muhammad Sabir had clearly mentioned that he had not participated in the transaction, while the statement of Qasim Ali, DW-6 cannot be believed as it was a self-serving statement of a party (defendant himself). It has also been found from his statement that at the time of alleged sale transaction. Muhammad Bakhsh Machhi. Muhammad Ameer and Noor Muhammad were also present. Muhammad Ameer DW-4 had not corroborated the fact of payment of the whole sum as stated by Qasim Ali, defendant himself, while Muhammad Bakhsh Machhi and Noor Muhammad were not produced by the defendant into his evidence. Therefore, essential ingredients of settlement of sale transaction, payment of price of the land, were not proved on the record by the defendant.
8. It may be mentioned here that burden of proof cannot be placed upon the shoulder of the plaintiff for the proof of the sale transaction, which was alleged and asserted by defendant. The party, who asserts the transaction, has to prove it himself.
9. Learned counsel for the respondent has correctly relied upon PLD 2003 SC 668 (Muhammad Akram and another v. Altaf Ahmed) that the failure to produce Tehsildar (Assistant Collector), who had attested the mutation and the Patwari who had entered the mutation, having not been produced was to affect adversely upon the case of the petitioner. Therefore, having found from the evidence and from the record, that defendant has failed to prove the sale transaction, decretal of suit in favour of plaintiff by learned District Judge, cannot be taken any exception. Decree passed in favour of plaintiff/respondent is upheld and the C.R. Is dismissed with no order as to costs.
Civil revision .