' SYED JAMSHED ALI, J.---Judgment and decree, dated 26-10-1985 passed by the learned Additional District Judge, Sialkot have been assailed in this revision petition whereby, the suit filed by the petitioners for declaration has been dismissed. It arises out of the following circumstances.
2. Allah Rakha, the predecessor-in-interest of the petitioners and respondent No,16 owned land measuring 10 Kanals in Village Langaryali, while Muhammad Ismail, the predecessor-in-interest of respondents Nos.1 to 14, owned land measuring 9 Kanals, 18 Marlas in Village Ghulain. They mutually exchanged the said parcels of land vide Mutations Nos.1134 and 586 attested on 14-12-1963. The factum of this exchange was noted in the Jamabandi for the year 1963-64 of village, Ghullian in favour of Allah Rakha. However, Mutation of Exchange No,1134 in favour of Muhammad Ismail was implemented in subsequent Jamabandi, while Mutation No,586 in favour of Allah Rakha was not further implemented in the Jamabandi after 1963-64, with the result that Muhammad Ismail continued to remain owner of the exchange land in Mauza Ghullain. The case of the petitioners- plaintiffs has been that in pursuance of the aforesaid mutations of exchange, the respective possession of the exchanged areas was transferred. However, on 4-10-1976 Muhammad Ismail sold an area measuring 6 Kanals and 14 Marlas in favour of Muhammad Sadiq, respondent No,15, deceased now represented by his legal heirs, from village, Ghullain, on which Mutation No, 19 was entered on 5-11-1975. On 22-7-1981 the petitioners filed the suit claiming to be the owners of the land in dispute on the basis of Mutation of Exchange No,586. The aforesaid registered sale transaction and Mutation No,19 entered on the basis thereof were also assailed. The legal heirs of Muhammad Ismail and Muhammad Sadiq filed a joint written statement. The exchange was denied with the averment that Mutation No,1134 was the result of collusion and, therefore, was illegal and did not have any effect on the rights of Muhammad Ismail aforesaid.
' They also objected that the suit was barred by time.
3. Necessary issues were framed and the suit was tried. The learned trial Court found that the mutations of exchange were duly made and possession of the exchanged areas transferred to the parties. It was held that Muhammad Ismail had no saleable interest to be transferred to respondent No,15. The suit was held to be governed by Article 120 of the Limitation Act and hence within time. Accordingly, it were decreed on 14-12-1982. Muhamniad Sadiq alone, the vendee from Muhammad. Ismail, challenged the aforesaid judgment and decree. The learned First Appellate Court found that possession of the land, subject matter of the exchange was never transferred, the exchange was incomplete, the mutations were sanctioned in disregard of the provisions of the Land Revenue Act, Muhammad Ismail continued to remain the owner of the land in dispute and respondent No,15 was bona fide purchaser for value. On the question of limitation it was held that the suit was barred by time as it was governed by Article 91 of the Limitation Act and not by Article 120 thereof. Accordingly, the appeal of Muhammad Sadiq was allowed and the suit filed by the petitioners was dismissed vide judgment and decree, dated 26-10-1985 which have been assailed in this revision petition.
4. The learned Court for the petitioner contends that the learned First Appellate Court misread evidence establishing exchange between Allah Rakha and Muhammad Ismail, even the documents produced by the defendants in the suit clearly established the factum of exchange and actual physical possession of the petitioners over the disputed land measuring 6 Kanals and 14 Marlas and, therefore, the finding that the exchange was not complete was based on non- reading of material evidence. As to the question of limitation his contention is that against the sale, dated 4-10-1976 the suit which was filed on .22-7-1981 was within time as the same was governed by Article 120 and not by Article 91 of the Limitation Act.
5. On the other hand, the learned counsel for the respondents No,16 submits that the finding on the question of exchange has duly been arrived at by the learned First Appellate Court in the light of the evidence produced by the parties. It is a question of fact and, therefore, no interference is called for.
6. It may also be noted that this revision petition was being heard along with R.S.A. No,209 of 1983 because in both the suits the sales were made from the Khata in which Muhammad Ismail was the owner had been assailed. While examining the record of the two cases I found it necessary to examine the original Revenue Record. Accordingly vide an order recorded on the R.S.A. File, the Patwari Halqa was summoned who produced the record which was examined. The aforesaid R.S.A.
Involved alienation by Muhammad Anwar and Sakina Bibi, co-owners with Muhammad Ismail. The Revenue Record relating to the R.S.A. Did not pose any difficulty for its decision. Accordingly, vide judgment of the even date, the aforesaid R.S.A. Has finally been disposed of.
7. Since it was judgment of variance. I have carefully examined the entire evidence produced in the case. On behalf of the petitioners, Nazir Ali, one of the plaintiffs, was examined as P. W.1 and documents Exhs.P.1 to P.8 were tendered. On behalf of defendants Nos.1 to 11 in the suit, four witnesses, including Muhammad Sadiq, respondent No,15, were examined and documents, Exhs.D.1 to D.9 were produced.
8. P.W.1 testified to the exchange as also that they were in possession of the land in dispute, Muhammad Siddique, son of Muhammad Ismail, appeared as D. W.1 and stated that his father owned land in Mauza Ghullian, he sold the disputed land in favour of respondent No,15 and there, has not been any exchange. He, however, admitted that Mst. Sharifan Bibi was in possession of the disputed land as a tenant. On being questioned, he stated that he did not know as to how its father became a land owner in village, Langaryali. He admitted that they had not taken any legal proceedings against Sharifan Bibi, etc. Regarding share of produce or their ejectment. Abdul Rashid was examined as D.W.2. He was a marginal witness to Exh.D.1, whereby Muhammad Ismail had sold the land in dispute in favour of respondent No,15. Mst. Barkat Bibi, widow of Muhammad Ismail, was examined as D.W.3. She denied that the exchange was made by Muhammad Ismail and affirmed that her husband had sold land in favour of respondent No,15. She admitted that Allah Rakha owned land in village Langaryali, she also admitted possession of the petitioners as tenant.
She, however, denied any knowledge about the mutations of exchange. Muhammad Sadiq, respondent No,15, appeared as D.W.4. According to him, he had purchased the disputed land for a consideration of Rs,10,000. He also admitted that the plaintiffs have been in possession of the land in dispute although as tenants and that he had not taken any legal proceedings against them for the recovery of the share of produce.
9. As far as documentary evidence produced by the petitioners is concerned, Exh.P.1 is the disputed sale deed. Exh.P.2 is the Jamabandi for the year 1973-74 in respect of Village Ghullian in respect of Khata No,40. In this Jamabandi, Allah Rakha the predecessor of the petitioners, is recorded as a tenant on an area measuring 6 Kanals and 14 Marlas. It may be noted that the area of Khata No,40 as given in the copy of this Jamabandi is only 8 Kanals, 6 Marlas out of which Muhammad Ismail is shown to be an owner of 40 shares. This copy of this Jamabandi is not complete to the extent of Khata No,40. Exh.P.3 is Missel-i-Haqiat for the year 1973-74 in which at Khata No,77, Muhammad Ismail is recorded as an owner of land measuring. 10 Kanals in Mauza, Langaryali. This is the land Muhammad Ismail had obtained in exchange from Allah Rakha. Exh.P.4 is Mutation No,1134 whereby exchange was sanctioned in favour of Muhammad Ismail on 14-12-1963. Exh.P.5 is Mutation No,586 attested on the same date in favour of Allah Rakha. The total area shown in Exh.P.5 is 9 Kanals, 18 Marlas with specific field numbers while in column of ownership, Muhammad Ismail is shown to be the owner to the extent of one half. This was essentially the reason to summon the original record to determine the extent of ownership of Muhammad Ismail in the Khata out of which he had made exchange with Allah Rakha. Exh.P.6 is Mutation No,19 which was entered on 5-11-1976 on the basis of registered sale deed in favour of respondent No,15. Exh.P.7 is Khasra Girdawari of Mauza Langaryali from Kharif 1973 to Rabi 1976, according to which, Muhammad Ismail is recorded as owner in possession of an area measuring 10 Kanals. Exh.P.8 is Khasra Girdawari from Rabi 1972 to Rabi 1979 in respect of Village Ghullian, according to which Allah Rakha is in possession of land measuring 6 Kanals, 14 Marlas as a tenant.
10. As far as the documentary evidence produced by the defendants in the suit is concerned, Exh.D.l is the sale-deed in favour of respondent No,15 which was also produced as Exh.P.1. Exh.D.2 is an incomplete copy of Jamabandi for the year 1963-64 in which in Column 4, the factum of exchange was duly recorded but it was scored off and Allah Rakha was recorded as "Ghair Dakheel Kar" therein. Exh.D.3 is Khasra Girdwari for Kharif 1968 to Rabi 1973 in respect of. Village Ghullian in which Allah Rakha has been recorded as in possession of land measuring 10 Kanals, 6 Marlas as "Ghair Dakheel Kar". Exh.D.4 is Khasra Girdwari in respect of Village Ghullain for Kharif 1964 to Rabi 1968. In the column of cultivation, Allah Rakha, has been recorded as a "Tabadala Garinda". Exh.D.5 is Jamabandi for the year 1967-68 of Village Ghullian in which Muhammad Ismail is recorded as an owner while Allah Rakha was recorded as "Ghair Dakheel Kar" on an area measuring 8 Kanals and 9 Marlas. Exh.D.6 is Jamabandi for the year 1963-64 in respect of Khata No,59 showing Muhammad Ismail as owner of one half of land in village Ghullian. In the column of cultivation Allah Rakha has been recorded as a tenant on land measuring 8 Kanals, 8 Marlas while he is recorded as co-owner in self cultivation in respect of land measuring 2 Kanals 19 Marlas. Exh.D.7 is a copy of the application for supplying certified copy of Mutation No, 586. Exh.D.8 is an inspection note by the Girdawar Halqa appended to the Jamabandi for the year 1963-64, according to which, Mutation No,586 was implemented against Khata No,84/163 to the extent of 8 Kanals, 11 Marlas, while area of Khasra No,100 was left out because it had already been sold by Muhammad Ismail and others in favour of Jan Muhammad, etc. And, therefore, Mutation No,586 was liable to be reviewed. Exh.D.9 is Mutation No,594 attested on 21-1-1964 evincing a sale of total area measuring 8 Kanals 6 Marlas by Muhammad Ismail and others co-sharers from Khata No,59. This includes Khasra No,100 as well.
Ekh.D.10 is Fardat Badar Nos.18 and 22. According to this Faradat not only the area of Khasra No,104 required correction but also that Mutation No,594 was required to be implemented in the Jamabandi Zer Kar. Exh.D.11 is Mutation No,735, according to which an area measuring 1 Kanal 7 Marlas of Khasra No,104 was acquired for a public road. There is a note on this mutation that Allah Rakha had got this land in exchange through Mutation No,586 which had been reviewed by Farad Badar No, 8, dated 17-6-1965 (the said Fard was not produced). Exh.D.12 again is copy of Mutation No,594.
11. In fact the fate of this case depends on the documentary evidence produced in the case. Exh.P.3 shows that the mutation of exchange in favour of Muhammad Ismail was duly implemented in the Jamabandi for the year 1973-74 as affirmed by Exh.P.4, the mutation in favour of Muhammad Ismail. Exh.P.7 and Exh.P.8, Khasra Girdawaries shows that Muhammad Ismail was in cultivating possession of the land he had obtained in exchange from Allah Rakha in village Langaryali, although he was described as a tenant. The factum of exchange was initially recorded in the Jamabandi for the year 1963-64 (Exh.D.2) but the entry was scored off and substituted showing Allah Rakha as a tenant. No order of the competent authority was placed on the record in support of the substitution of the entry in Exh.D.2. The learned trial Court had rightly observed that no order was placed on record showing that A Mutation No,586 was cancelled by an order passed by the competent authority. According to the Khasra Girdawari, Exh.D.3, although Allah Rakha has been shown as "Ghair Dakheel Kar" yet factum of exchange of land in Langaryali has also been mentioned in this document. Likewise in Exh.D.4, Allah Rakha has been recorded as a "Tabadla Grinda". Likewise, actual physical possession of Allah Rakha on the disputed land is also supported by the entries of the Jamabandi Exh.D.5. In Exh.D.6, against Khatuni No,172, of Khata No,59 of Village Ghullian, Allah Rakha has been recorded as in self-cultivating possession. From the above said documents I have no doubt in my mind that not only the two mutations of Exchange were duly entered and attested but also that possession of the land subject-matter of the aforesaid mutations was also duly transferred in B favour of the parties to the aforesaid transactions and the finding to the learned First Appellate Court that mutations of exchange were incomplete and possession of the exchanged areas was not transferred Is not based on the evidence produced in the case.
12. Unfortunately only Parat Patwar of Mutation No,586 (Exh.P.5) was placed on record. I had directed the Patwari Halqa to find out and produce the Parat Sarkar of this mutation but he stated that it was not available on the record. It may also be noted that as far as Mutation No,1134 in favour of Muhammad Ismail is concerned, (Exh.P.4), it was also Parat Patwar. It appears to be the reason that the learned first appellate Court condemned Mutations Nos.586 and 1134 aforesaid because a Parat Patwar does not contain detailed order of the Revenue Officer. The case had to be decided in view of the entire evidence produced in the case and as rightly noted by the learned trial Court an oral transaction of exchange of agricultural land was permissible in accordance with law.
13. It may also be noted that the learned First Appellate Court omitted to take into consideration the fact that Muhammad Ismail and his successors continued to own the land which was given by Allah Rakha in exchange to him. It also note worthy that the defendants in the suit hand not denied attestation of Mutation No,1134, but their case was that it was the result of collusion and was illegal.
Thus, at least existence of Mutation No,1134 in favour of Muhammad Ismail was not disputed.
14. It may, also be noted that the successors-in-interest of Muhammad Ismail, who were co- defendants, in the suit did not assail the judgment and decree of the trial Court, according to which, Mutation D No,586 was upheld. Therefore, to the extent of exchange by Muhammad Ismail the judgment and decree of the trial Court qua the successors-in-interest of Muhammad Ismail .
Otherwise attained finality.
15. As far as the findings of the learned First Appellate Court that respondent No,15 was a bona fide purchaser for value is concerned, suffice is to say that this finding is also not supported by evidence. Respondent No,15, who appeared as D.W.4 that the time of sale in his favour, the petitioners were in actual possession of the land. A cursory inquiry would have revealed the true state of affairs to respondent No,15.
16. The finding of the learned First Appellate Court that the suit was barred by time, is equally untenable. The petitioners were not party to the sale-deed, dated 4-10-1976 and, therefore, as rightly held by the learned trial Court, the suit was governed by Article 120 of the Limitation Act, particularly, in view of the fact that the petitioners were in actual physical possession of the land in dispute, although as tenants.
17. The Patwari Halqa, who was summoned has produced the original record. It has been ascertained that in fact Mutation No,586 related to land measuring 9 Kanals and 18 Marlas out of the share of Muhammad Ismail which he owned in Khata No,59 of the Jamabandi for the year 1963-64. According to the original Jamabandi for the year 1963-64, the total of area of the Khata was 30 Kanals, 8 Marlas , and share of Muhammad Ismail in the said Khata was one half i.e, 15 Kanals, 4 Marlas. However, according to the Jamabandi for the year 1973-74, Muhammad Ismail was recorded as owner of one half share in Khata No,40 the total area of which was recorded as 22 Kanals in this Jamabandi which means that he had 11 Kanals, when he made sale of 6 Kanals and 10 Marlas in favour of respondent No,15. Thus, out of his holding Muhammad Ismail exchanged 9 Kanals, 18 Marlas with Allah Rakha, the predecessor-in-interest of the petitioners while another area of measuring 3 Kanals, 2 Marlas was earlier sold by Muhammad Ismail in favour of Jan Muhammad vide Mutation No,594. Thus, as a result of mutations Nos.586 and 594., Muhammad Ismail had alienated a total area of measuring 13 Kanals out of his holdings measuring 15 Kanals, 4 Marlas as recorded in the Jamabandi for the year 1963-64. However, according to Jamabandi for the year 1973-74 he owned 11 Kanals. The Halqa Patwari has explained that the area of Khata No,59, as entered in the Jamabandi for the year 1963-64, was reduced in the Jamabandi for the year 1973-74 (prepared as a result of settlement operations) and the rest of the area of Khata No,59 was included in the 'Abadi' during the settlement operations.
18. While returning findings on issues Nos.6, 8 and 8-A, the learned First Appellate Court in the operative part of the judgment (para 8) only referred to Exh.P.2 and that the two mutations were not only duly attested. The net effect of the impugned judgment and decree is that successors-in- interest.Of Muhammad Ismail have been allowed to retain the land of Allah Rakha as well as of Muhammad Ismail which had been given in exchange to Allah Rakha. If at all the two mutations had only procedural deficiency, both the parties should have been restored to their original position. Thus, the learned First Appellate Court not only did not take into considerations the reasoning of the learned trial Court but also did not consider material evidence, such as Exhs.P.3, Exh.4, Exh.P.7, Exh. 8, Exh.D.2, Exh.D.3, Exh. 4, Exhs.D.5, Exh. 6, Exh.D.8 and Exh.D.
11. I may add that mere entry of Allah Rakha as tenant in revenue record, when sufficient evidence of exchange was available, was not considered to establish that Allah Rakha was in possession of the disputed land as a tenant.
19. Accordingly, the impugned judgment and decree of the learned appellate Court are set aside and the suit of the petitioners is decreed in terms that the impugned sale, dated 4-10-1976 made by Muhammad Ismail in favour of Muhammad Sadiq, respondent No, 15 is illegal and inoperative qua the rights of the petitioners. No order as to costs.