' SHAH JEHAN KHAN YOUSAFZAI, J.---This revision petition is directed against the judgment and decree, dated 27-5-1998 passed by Civil Judge Charsadda Camp Court Tangi in Civil Suit No,106/1 whereby suit of the respondent/plaintiff was decreed which was also upheld in Appeal bearing No,89/13 by the Additional District Judge-II, Charsadda vide judgment and decree, dated 18-11- 2000.
2. Facts in brief are that respondent filed a suit for declaration to the effect that the property mentioned in the heading of the plaint is owned by her and the sale mutation No,981 attested on 16-1-1995 in A favour of Muhabat Shah, the predecessor of petitioners and the inheritance mutation No,959 attested on 27-3-1995 of said Muhabat Shah are wrong, based on fraud, collusion and ineffective upon her right. She also prayed for permanent injunction against the petitioners not to deny her title and to interfere in her possession. It was averred in the plaint that respondent- plaintiff is in possession of the suit-land as co-sharer and received its usufruct regularly without any hindrance. The suit was instituted on 17-6-1997 and it was alleged that about six months back, the petitioners denied title of respondent-plaintiff and also tried to enter into possession of the suit-land on the pretext that their predecessor. Muhabat Shah has purchased the suit-land for a sale consideration of Rs,six lac. The respondent who is an illiterate Pardah Nashin lady and had not approached to the revenue record but after denial of title by the petitioners, she approached the revenue staff and came to know that Muhabat Shah, the predecessor of petitioners/defendants entered a sale Mutation No,581 on 26-12-1976 for a sale consideration of Rs, six lac. She contended that neither she has entered the said Mutation No, 581 of 1976 nor she has received any sale consideration of Rs,six lac. She denied to have made any statement before Patwari Halqa regarding sale in favour of Muhabat Shah and neither she has thumb impressed the sale mutation and the entire exercise in this regard is fictitious and collusive. After going through the revenue record, she found that the petitioners/ defendants after the death of their predecessor Muhabat Shah collusively succeeded in attesting the said mutation on 16-1-1995 (after more than 13 years of its entry). Thereafter on 27-3-1995 the defendants transferred the suit-land in their favour through inheritance Mutation No,959 attested on 27-3-1995. Both the Mutations No,581 of 1976 attested on 16-1-1995 and 959 attested on 27-3-1995 are liable to be struck down being based on fraud and collusion.
3. The claim of respondent-plaintiff was denied by the petitioners through their written statement and the trial Court framed the following issues including the relief arising from pleadings of the parties:-
(1) Has plaintiff cause of action and locus standi? OPP
(2) Is suit legally competent.? OPP
(3) Whether the suit is good for court-fees and jurisdictional value? OPP
(4) Is suit within time? OPP
(5) Whether the impugned Mutations Nos.581, dated 9-8-1990 and 959, dated 27-3-1995 and revenue record entries thereto are bogus, fraudulent and sham hence liable to be set aside? OPP
(6) Is suit hit by res judicata? OPD
(7) Has the Court jurisdiction? Parties to argue
(8) Whether the plaintiff has bonafidely transferred the suit property to Muhabat Shah (predecessor-in-interse of defendants) in lieu of Rs,6,00,000 (six lac) vide mutation No,581 hence the suit is mala fide and vexatious? OPD
(9) Is suit decreeable? OPP
(10) Relief.
4. I have heard the learned counsel for the parties and went through the record with their valuable assistance. Learned counsel for the petitioners submitted in the first instance that the suit filed by the respondent through attorney was not maintainable for want of power of attorney. In this respect he placed reliance on 1995 CLC 1541, PLD 2003 Peshawar 40, PLD 2003 Karachi 156 and PLD 1994 Karachi 348. Next contended that sale mutation could not be set aside on the ground that the sale price mentioned in the mutation was hopelessly less than the prevailing rate in the area.
Placed reliance on 1995 CLC 1061. Further contended that even if objection regarding maintainability of the suit was rejected earlier but the same order could be challenged in the present Revision Petition because the whole case re-opens while passing the final judgment.
Placed reliance on PLD 1985 SC 405. Lastly contended that the final order passed in the revenue hierarchy remained unchallenged and the subsequent suit in the civil Court would be hit by res judicata. Placed reliance on 1988 CLC 1414. As regard the embargo contained under para. 24 of Land Reforms Regulations, 1972, he submitted that the same provision has been declared repugnant to the Injunctions of Islam by Federal Shariat Court. He referred to PLD 1989 FSC 80.
5. In rebuttal, learned counsel for the respondent/decree-holder submitted that the objection regarding the maintainability for want of proper power of attorney was accepted by the trial Court and the suit was dismissed with costs through judgment, dated 27-5-1998 which was challenged in appeal and the same was allowed vide judgment, dated 7-11-1998 by the learned Additional District Judge-I Charasadda and the case was remanded back to the trial Court with the direction to decide the same afresh on merits after hearing the learned counsel for the parties. No further proceedings were taken against the said order of Additional District Judge which has attained finality and the petitioners cannot be legally permitted to raise the same objection which has already been determined conclusively.
6. The petitioners/defendants have claimed in their written statement that an area of 1036 kanals 3 marlas was purchased for a sale consideration of Rs, six lac which is Shah Nehri Land and in the year, 1976 its rent was not less than Rs,500 per kanal while the aforesaid sale consideration would come to Rs,500 plus per kanal. How a land owner will sell his property at the rate of annual rent. It is established principle of law that the beneficiary of a document shall be bound to establish its genuineness. The impugned sale mutation was not only hit by para.24 of Land Reforms Regulations, 1972 but the same remained pending till 1990 and it was attested after striking down the aforesaid provision of Land Reforms Regulations, 1972 w.e.f 1-1-1990. The respondent thereafter made a collusion with the revenue staff and without summoning the respondent/land-lady unilaterally attested the mutation on 9-8-1990. In appeal the matter re-opens and all the interim orders passed during the proceedings in the trial Court re-opened for determination but the scope of Revision is limited being a supervisory jurisdiction of this Court and these orders which have attained finality in appeal for not further agitating the matter would be a close chapter and the objection regarding the maintainability was finally determined by the lower appellate Court without any further proceedings, therefore, the same cannot be re-opened in Revision. As regard the applicability of res judicata, he submitted that the respondent has invoked the jurisdiction of revenue authorities for correction of revenue record which was subsequently abandoned without reaching to the ultimate conclusion and since the title of respondent-plaintiff was denied by the petitioners, therefore, a declaratory suit under section 42 of the Specific Relief Act was filed and in these circumstances, the orders passed in the revenue hierarchy will not hit the instant suit on the ground of res judicata. Additionally submitted that the entry in the "Roznamcha Waqiati" and "mutation" would not confer any title in view of the bar contained in section 49 of the Registration Act, 1908. Placed reliance on 1996 SCMR 1386, 2002 CLC 88, PLD 1984 Peshawar 11, PLD 1975 Lahore 1349. Also contended that in the circumstances when title to the property is denied shall provide a cause of action and only civil Court is competent to determine the dispute regarding title under section 42 of the Specific Relief Act. Placed reliance on 1996 SCMR 78. Further submitted that mutation itself would not confer any title and if any body claims title through mutation, he must establish through evidence that sale has been effected between the parties and all the essential ingredients for sale is completed. Placed reliance on 1999 MLD 1386. There is no presumption attached to the mutation as it is not part of record-of-rights and even for record-of-rights only rebuttal presumption would be attached to it under section 52 of Land Revenue Act. Placed reliance on 1980 CLC 1602 and PLD 2003 SC 849. It would always be the burden of vendee under a sale mutation to establish a genuine transaction of sale. Placed reliance on 1994 SCMR 1454, 1995 MLD 1165. The plaintiff respondent is a Parda Nashin lady, simple denial of the sale by a landlady would shift the burden to the claimants purchaser under the sale mutation. Placed reliance on 1989 CLC 418 and 1990 MLD 89. Lastly he contended that concurrent findings of fact recorded on the point of sale in dispute cannot be reviewed in Revision Petition if found not suffering from defects of misreading and non-reading on record. Placed reliance on 1990 ALD 611.
7. The most controversial issue between the parties is regarding the concurrent findings of two Courts below on issues Nos. 5 and 8. The original record of sale Mutation No,581 attested on 9-8- 1990 was C requisitioned from the District Kanungo Charsadda but the same could not be produced and Jan-e-Sar District Kanungo Charsadda appeared in person on 30-3-2009 with a statement that record of the said mutation is not available in the District Record Room and contended that the said record may be available at Tehsil Kanungo Tangi then he was directed to produce the record of the said mutation on the following date. Amir Zaman, Office Kanungo Tehsil Tangi personally appeared on 27-4-2009 and stated that the said record is not available in his office. Thus the original record of the disputed sale mutation No,581 attested on 9-8-1990 is found not traceable in the Offices of District Kanungo or Tehsil' Kanungo Tangi.
8. The petitioners are thq beneficiaries of the untraced sale mutation, noted above, and it was their duty to prove the genuineness of said document whereby the plaintiff-respondent, the original owner, was deprived of her title and it was transferred to the predecessor of petitioners/defendants and subsequently transferred in their name through impugned inheritance Mutation No, 959 attested on 27-3-1995. In order to establish the genuineness of impugned sale mutation the original whereof was found not traceable and the identifier of vendor, namely, Abdur Raziq Khan, Haji Akhtar Ali Khan and Haji Usma n Ali Khan were not produced in the witness box. The respondent-plaintiff has produced Sher Bahadar Patwari Halqa as P.W.1 whereby it was established that the disputed, property was owned by the plaintiff-respondent in view of the jamabandi of 1970-71 and onward while in 1995 her name was removed from column of ownership. The copy of sale mutation reveals that after its entry, Patwari Halqa and Girdawar Circle were directed on 19-5- 1977 to submit their report. The same direction was followed by an identical direction on 29-9-1997, 28-11-1977, 22-1-1978. Patwari Halqa reported that the plaintiff-respondent is recorded owner in various revenue estate measuring 1698 kanals 16 marlas. It was also reported by revenue officer that the said area is equal to 10213 unit. This report was submitted on 3-1-1978 and the matter went to cold storage when on 13-2-1979 once again the revenue officer directed the Girdawar Circle to report as to whether the vendor/respondent is to be hit or not by Land Reforms. The same direction was repeated on 24-7-1979 and after about four years once again on 8-6-1983 the same direction was made whereafter the matter went under carpet till its attestation on 9-8-1990.
9. Since petitioners/defendants were the beneficiaries of the impugned sale mutation followed by inheritance mutation were required to establish its genuineness. Nadir Shah petitioner/defendant No,2 appeared in the witness box as D.W.1 in his personal capacity as well as attorney through Exh.D.W.1/1 on behalf of his co-defendants. He is the sole witness of the defendants' side who in support of impugned sale mutation submitted that the suit-land was purchased by his predecessor for a sale consideration of Rs,six lac and statement of the vendor was recorded and the sale mutation Exh.D.W.2/1 was entered on 26-12-1976. After recording the statement of vendor through local commission in presence of identifiers and marginal witnesses on 4-1-1977, the sale mutation was rejected on 26-7-1989 but on their appeal it was re-opened for verification on 31-1- 1990 through order of the Collector Exh.D.W.1/2 and once again the Revenue Officer rejected the mutation on 12-4-1990 which was again challenged in appeal, which was allowed through order, dated 26-7-1990 Exh.D.W.1/3 and directed the Revenue Officer to attest the mutation whereafter the same was attested on 9-8-1990. The plaintiff challenged the order of Collector before Additional Commissioner, Peshawar but the same was dismissed in default through order, dated 13-2-1995 Exh.D.W.1/4. The attestation of mutation was also challenged in appeal before the Collector which was dismissed on 29-11-1990 Exh:D.W.1/5 and was not further challenged in Revision Petition. In this way the defendants' claims to be owners of the suit-land and are in possession through tenants.
He denied that the vendor was illiterate rather she after recording her statement before the local commission signed the same and she received Rs, six Lac as sale consideration. While subjected to cross-examination he disclosed that the identifiers are Akhtar Ali Khan her general attorney, his brother Haji Usman Ali Khan and Numberdar Abdur Raziq who is now dead. He stated that in the year, 1977 he was a student of second year. He expressed ignorance as to whether the vendor was hit by Land Reforms or not. Also expressed ignorance that either she herself or through some body transacted the sale as he was a student. He stated that he was not present at the time of sign of vendor on the disputed sale mutation. No sale consideration was paid in his presence. He also expressed ignorance that where statement of vendor was recorded and the Revenue Officer entered the mutation no the report of local commissioner. He admitted that Haji Usman Ali Khan and Akhtar Ali Khan signatories of the impugned sale mutation are still alive. None of them was produced in the witness box in support of sale mutation. Regarding the payment he stated that probably sale consideration was paid in cash. He denied the suggestion that to save herself from the Land Reforms, a fictitious mutation was entered and no sale consideration was paid to her.
D.W.1 is the solitary witness of the defendants' side.
10. As stated earlier, it was the burden of petitioners/defendants to establish the genuineness of deed Exh.P.W.1/5 being its beneficiaries but from the solitary statement of one of the defendant also attorney of other is found not sufficient for the discharge of said burden.
11. The plaintiff-respondent was undisputedly recorded owner of the disputed property and P.W.3 Haider Ali Khan special attorney of the plaintiff-respondent through Exh.P.W.2/1 has deposed that the suit-land is in possession of the plaintiff through tenant and in order to save herself from the Land Reforms, a fictitious mutation No,581, dated 26-12-1976 was entered which was rejected on 26-7-1989 and subsequently after a lapse of fourteen years on 9-8-1990 it was attested. At the time of attestation, no notice was served upon the plaintiff. The plaintiff came to know about the attestation of sale mutation when the revenue record was checked and it was found that the petitioners are recorded owners on the basis of inheritance mutation being the legacy of their father Muhabat Shah recorded owner through impugned sale Mutation No,581 attested on 9-8- 1990. He denied the receipt of any sale consideration and has admitted the deposition of D.W.
Regarding the proceedings in Revenue Courts. Pertinent to mention here that Muhabat Shah, who denied somewhere before 1990 never agitated the informant of revenue staff for attestation of mutation. The petitioners being L.Rs, colluded with revenue staff after striking down para. 24 of M.L.R.
115 being against the Injunctions of Islam w,e,f, 1-1-1990.
12. In view of the above, when the original record of impugned sale Mutation No,581 attested on 9- 8-1990 is found not available in the District and Tehsil Kanungo Offices and none of the signatories of the identifier or marginal witnesses though two of them alive where not G produced in the witness box while defence witness is not himself witness of the transaction or payment of sale consideration to the plaintiff as vendor Muhabat Khan who remained alive till 1990 but did not make any efforts for attestation of mutation which was made about fourteen years later than its entry. From the report of revenue officer, vendor was victim of the Land Reforms and under the Land Reforms Regulation, 1972 the affectee landlords were prohibited from making any transfer of their land in any manner. Thus in view of the Land Reforms Regulation, 1972, the mutation through entered was not attested and rejected twice as admitted by D.W.1. Section 24 of the Land Reforms Regulation was struck down by the Federal Shariat Court w,e,f, 1-1-1990 (PLD 1989 FSC 80). After the said development the petitioners/defendants reopened a close matter and succeeded in its attestation on 9-8-1990 when the matter was remanded by the Collector to the Revenue Officer Circle. He directed the parties to approach the Civil Court as sufficient time has lapsed after entry of the mutation but on appeal the Collector directed the revenue officer to attest the mutation and at the time of attestation no notice whatsoever was served upon the plaintiff/vendor. Huge property of 1036 kanals 3 marlas was allegedly purchased by the predecessor of petitioners/defendants for a total sale consideration of Rs,6 lac about Rs,580 per kanals. The land was never purchased for such a lesser value in the area in the year, 1976 and even otherwise no evidence was adduced to establish that sale consideration was paid to and received by the plaintiff/respondent.
13. In view of the above, I found no illegality or irregularity in the impugned judgments and decrees of the two Courts below. This Revision Petition is dismissed with costs. 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.