JUDGMENT SYED SAJJAD HASSAN SHAH,J.---This petition under section 115, C.P.C. Directed against the judgment and decree dated 10-1-2007 passed by the learned Additional District Judge-IV, Swabi, whereby appeal preferred on behalf of the petitioners has been dismissed and the judgment and decree dated 30-4-2005 passed by the learned Civil Judge kept intact.
2. Precisely stated facts are that the plaintiffs/petitioners (hereinafter called petitioners) instituted suit against the defendants/respondents (hereinafter called the respondents) seeking for declaration to the effect that they are owners of the property detailed in the heading of the plaint, by challenging the sale Mutation No.2348 dated 27-2-1984 on behalf of defendant/respondent No.1 in favour of the plaintiffs/petitioners and defendant/ respondent No.4, on account of incorrect entries in the revenue record in favour of defendant/respondent No.1. The sale Mutations Nos.216 and 164 attested on 29-9-2002 on behalf of defendant/respondent No.1 in favour of defendant/ respondents Nos.2, 3 were wrong, fictitious, result of forgery, ineffective, void and the Revenue Record may be corrected in favour of the plaintiffs/ petitioners and also prayed for the perpetual injunction as the consequential relief. The respondents Nos.1 to 3 contested the suit by filing their separate written statements. In the light of the divergent pleas of the parties, issues were framed, both the parties adduced documentary and oral evidence as they' wished to produce, the suit and appeal of the petitioners were dismissed.
3. The learned counsel appearing on behalf of the petitioners contended that the petitioners being lawful owners in possession of the suit property, raised construction after attestation of sale Mutation No.2348 attested on 27-2-1984 in their favour, as the possession of the suit property under the sale transaction was handed over to the petitioners by vendor' namely Shireen. The respondents Nos.1 to 3 derived unlawful advantages due to incorrect entries appearing in their favour in the Revenue Record and alienated the property through above mentioned sale mutations, same are unlawful and liable to be cancelled and the Revenue Record may also be corrected.
4. The learned counsel for the respondents vehemently rebutted, the arguments of learned counsel for the petitioners and contended that the disputed mutation though was attested, but same has not been incorporated in the Revenue Record as the same was attested unlawfully and without consideration and against the provisions of section 42 of the Land Revenue Act.
5. Arguments advanced by the learned counsel for the parties considered. Record carefully perused.
6. I have carefully examined the contentions as agitated on behalf of the parties in the light of the relevant provisions of law and record of the case, scanned the entire evidence and perused the judgment of the learned trial Court as well as the learned appellate Court. While deciding appeal the learned appellate Court focused on the provisions of section 42 of the Land Revenue Act, 1967 and concluded that the various pre-requisites and formalities prescribed under the said law, not observed and ignored, the Revenue Officer acted in contravention of law, thus, concurred with the judgment and decree passed by the learned trial court and dismissed the appeal.
7. It is astonishing to note that the ground considered for decision of appeal without pleading and framing any issue regarding the matter discussed by the learned appellate court. The learned trial Court has not given findings with regard to the matter considered by the court of appeal. In such circumstances, the learned appellate Court resorted the exhaustive discussion and ultimately rendered the findings pertaining to the matter neither permissible under the law nor inconsonance with the principle of natural justice, as the learned appellate Court while deciding the appeal in view of above referred legal aspect of the case, either to remit it to the learned trial Court or direct the amendment in the written statement, if permitted under the law, so that other party may have the notice of the same.
8. The learned appellate Court while deciding the appeal did not advert to overwhelming documentary and oral evidence available on the record. Moreso, the point taken for decision of appeal, decided without considering and referring the relevant provisions of law. In order to seek the benefit of section 42 of the Act ibid, no evidence brought on record by either of the parties, that villages Maini and Panjman are two different revenue estates. The only available evidence is of P.W.1. Patwari Halqa and P.W.2. ADK, but no document placed on record in support of above stated plea. The anxiety of the learned appellate court was that the disputed mutation was not attested in the same revenue estate and the vendor was not identified by two respectable witnesses of the same locality.
9. In order to substantiate the above mentioned point, the decision of the learned appellate court revolves around the word "Estate", but the word "Estate" as provided in section 42 of the Act ibid, misconceived and decided without going through its definition, same is given in section 4 (9) of the Act ibid, for convenient sake, reproduced as follows:- S.4 (9) "Estate" means an area...
(i) for which a separate record of rights has been made; or
(ii) which has been separately assessed to land revenue; or
(iii) which the Board of Revenue may, by general rule or special order, declare to be an estate;
10. Visualizing the true import and meanings of above referred law, it is noteworthy to say that the pre requisites as mentioned in the above section of law are that an "Estate" consist of separate record of rights or separately assessed to land revenue or Board of Revenue declared to be an Estate by its general and special order, same completely ignored by the learned court below while deciding the appeal.
11. The learned appellate court without being any proof and revenue record, decided that villages Maini and Panjman are separate estates. Although, the requirements mentioned above can be ascertained from the record maintained in the concerned offices, the same being public document can be easily procured.
1.2. The connotation of word "Estate" employed in section 4(9) of the Land Revenue Act, 1967, does not mean that it consists or village or Mauza or Gaon or Pind. Generally an Estate or Mahal is identical with the Village or Mauza. But an Estate may include more than one Village may be divided into two Estates.
13. In order to further elaborate the word "mauzas or villages and mahals or estates" as enunciated in section 123 of Land Settlement Manual, reproduced as under:- S.123---Mauzas or Villages and Mahals or Estates It is convenient to explain exactly, what is meant by the two terms mauza, which is usually translated "village" and mahal, of which the English equivalent is "estate" a mauza is defined by Mr. Thomson as "a parcel or parcels of land having a separate name in the Revenue Records and known limits" and a mahal as "any parcel or parcels of land which may be separately assessed with the public revenue, the whole property of the persons settled within the mahal being held hypothecated to Government for the sum assessed upon it".
There are two elements in this definition, the separate assessment and, where more than one person on the same estate, there joint responsibility for the payment of its revenue "village" is not defined in the Land Revenue Act, but the meaning of "estate" is explained to be an area;
(a) which a separate record of rights has been made; or
(b) which has been separately assessed to land revenue or would have been so assessed, if the land revenue had not been leased, compounded for, or redeemed; or
(c) which the local Government may, by general rule or special order, declared to be an estate.
14. As per law referred above, the "estate" not consists of one village, but it includes more than one village, the record maintained by the same patwari of all those villages, which are part and parcel of the same "Estate". Now adverting to the legal consequences of non compliance of provisions, contained in section 42 Act ibid, would not invalidate the transactions covered by such mutations.
In this regard, reliance placed on the dictum laid down by august Supreme Court in a case titled Hakeem Khan v. Nazir Ahmed Lughmani and 10 others, reported as 1992 SCM R 1832 reproduced as under:-- "The provisions of section 42 of the West Pakistan Land Revenue Act are mandatory inasmuch as the word 'shall' has been used at the relevant places and the revenue staff to whom directions to act in certain manner have been made are bound to obey them in letter and spirit. However, there is no provision in the Act or rules framed thereunder that noncompliance with the said provisions by the revenue staff will invalidate the transactions covered by such mutations, for the obvious reasons that even if a mutation is regularly attested, the same cannot by itself create title in the transferee and in case of disputes about transactions or the mutations relating thereto, the parties to the transactions have to prove the transactions just like any other document according to the provisions of the law of evidence. Consequently, the provision of section 42 whether mandatory or directory had nothing to do with the transactions themselves. Needless to mention that mutations are entered and attested for bringing the record up to date for fiscal purposes of recovery of land revenue and/or not of effecting title in immovable property."
15. The above referred celebrated judgment of apex Court, relied upon by this Court in a case titled Muhammad Ishaq v. Ghafoor Khan, reported as NLR 2000 Revenue 21 = 1999 YLR 1956 is reproduced as under:--
(a) Land Revenue Act (XVII) of 1967...
S. 42: Strict non-compliance with S.42 would not invalidate the. Mutation. It may, however, have some aspersion on its existence but too is to be determined on the basis of evidence adduced at the trial not in isolation.
(b) Ibid...
S. 42. Bare reading of S.42 though apparently gives impression the same to be mandatory for the revenue staff but it only prescribes mode and manner, the person and the place for registration/execution and attestation of mutation. Nowhere in the whole Land Revenue Act the non-adherence to procedure as prescribed in S. 42 is visited by penalty to be imposed on any Revenue Officer.
(c) Ibid...
S. 42. Object of S. 42 is to follow a particular procedure with a view to minimize rather to exclude commission of any fraud firstly to deprive the owner or his, proprietary rights, and secondly to protect the vendee/transferee after once the mutation is attested. The concept of attesting a mutation as envisaged under subsection (87) of S.42 in commonly assembly (Jalsa-e-Aam) is precisely for this object.
16. While, evaluating, the judgment and decree at the touch stone of afore-stated provisions of law, there is no difficulty to hold that the judgment as founded on a sole ground of violation of the provisions of section 42 Act ibid is apparently not maintainable on both legal and factual premises.
There is yet another legal flaw left by the learned appellate Court in the impugned judgment, the findings of learned trial Court have not been examined and not made the appraisal of material available on record in accordance with legal requirements, thus, decided the matter haphazardly and avoided the perusal of bulky record of the case, as three lines decision made regarding the payment of sale price and delivery of possession in paragraph 8 of the Judgment, same reproduced as under:- "The findings of the learned lower court regarding non-payment of sale price and delivery of possession of suit property are correct, no misreading or non-reading or evidence is pointed out by the learned counsel for the appellants/plaintiffs and the suit was rightly dismissed in accordance with law and the evidence of the parties."
17. The adjudication regarding the rights of the parties in such manner not approved ,under any law, it was bounden duty of the learned appellate court to appraise the evidence and other material available on record in accordance with law and then to decide the appeal.
18. In view of the above discussion, this revision petition is allowed, the impugned judgment and decree of the learned appellate Court is set aside and the appeal filed by the petitioners is to be considered as pending, thus, remanded back to the learned appellate Court to decide afresh, after application of its independent mind to all the questions including one discussed above, without being influenced by any observation made in the instant judgment, however, in accordance with directions and discussions made in the foregoing paragraphs of this judgment, with no orders as to costs.