CH. MUHAMMAD TARIQ, J. --- Through this Regular Second Appeal, the appellants have assailed the judgment and decree dated 15.11.2006 passed by learned Additional District Judge, Mianwali who dismissed the appeal of the appellants and maintained the judgment and decree dated 14.2.2005 passed by the learned Civil Judge, Mianwali.
2. Precisely stated the facts of the case giving rise to the filing of this Regular Second Appeal are that the plaintiffs- respondents filed first suit for possession with the contention that they are owner of the suit property,, fully described in the head note of the plaint, measuring 125 kanals, 11 marlas situated at Muzaffar Pur Shumali Tehsil & District Mianwali. Nearly 1/2 years prior to the institution of the suit, defendants-appellants forcibly occupied the suit property and in collusion with the revenue officials, they were able to show their cultivation over the suit property. The defendants agreed to vacate the suit property but they denied. So the plaintiffs filed the suit.
3. After 55 days of filing of first suit by the respondents-plaintiffs, the appellants-defendants filed second suit for declaration with the contention that they have purchased the suit property from the respondents-plaintiffs through oral sale agreement for a consideration of Rs. 741,037.50 alongwith turbine valuing Rs. 226,500/- and have paid total amount of Rs. 967,537.50 to the respondents- plaintiffs in the presence of witnesses namely Dost Muhammad Khan son of Sher Muhammad Khan, Abdul Sattar Khan son of Khan Muhammad Khan, Ali Khan son of Jaam and Falak Sher son of Muhammad and the possession of the property and turbine was handed over to them and the respondents-plaintiffs got entered mutation No. 514, dated 15.6.1993 as well as rapat Roznamcha No. 451, dated 15.6.1993 before the Patwari Halqa Mauza Muzaffar Pur Shumjali and since then, the appellants- defendants are in possession of the suit property. Later on, the respondents-plaintiffs resiled from the sale and pretended themselves to be the owners of the suit property whereupon the appellants-defendants moved an application before Assistant Commissioner for correction of entry of possession of the suit property in the Revenue Record. On 9.10.1994, the respondents- plaintiffs also moved an application before Assistant Commissioner, Mianwali for cancellation of Mutation No. 514 and an inquiry was held by Tehsildar Mianwali and the version of the appellants- defendants was found correct and the Assistant Commissioner directed the parties to approach the Civil Court. It was contended that the appellants-defendants are entitled to get Mutation No. 514, dated 15.6.1993 attested in their favour. The appellants-defendants also prayed for alternative relief of specific performance of contract ifdecree for declaration was not suitable.
4. Both the parties submitted their respective written statements in both the suits and from the divergent pleadings of the parties, following issues were framed:--- "ISSUES:
(1) Whether the plaintiffs are co-owners in the disputed property and defendants Abdul Ghafoor etc. Illegally occupied the suit land and the plaintiffs Ghulam Muhammad etc are entitled to get possession? OPP
(2) Whether the suit for possession is within time? OPP
(3) Whether the defendants Abdul Ghafoor etc. Purchased the suit property from plaintiffs Ghulam Muhammad etc. In consideration of Rs. 967537.50, they paid consideration and got possession and Mutation No. 514, dated 15.6.1993 was entered by Patwari and report No. 451, dated 15.6.1993 was entered in the Roznamcha Waqiati? OPD
(4) Whether the defendants Abdul Ghafoor, etc. Are entitled to get decree for declaration and as alternative for specific performance of contract? OPD
(5) If the above issue No. 4 is decided in favour of the defendants. The suit of the plaintiffs for possession is false and frivolous and Abdul Ghafoor etc. Are entitled to get special costs? OPP
(6) Whether the plaintiffs Ghulam Muhammad etc. Are entitled to get decree for possession? OPP
(7) Whether the defendants are illegal occupants and their suit for declaration is illegal, false and frivolous and the plaintiffs are entitled to get special costs? OPP (7-A) Whether Raza Muhammad and Ghulam Muhammad. Appellants sold the property through Ex.P-3 and Ex.P-4 after receiving the fresh payment at the time of passing of the mutation or sold it making adjustment allegedly said by the respondents? OPAs.
(8) Relief"
5. After recording of oral as well as documentary evidence, the learned Trial Court vide judgment and decree dated 14.2.2005 dismissed the second suit for declaration filed by appellants- defendants while the suit for possession filed by respondents-plaintiffs was decreed.
6. Feeling dissatisfied, the appellants filed appeal which was also dismissed on 15.11.2006 by the learned Additional District Judge, Mianwali. Hence this Regular Second Appeal.
7. Learned counsel for the appellants inter alia contends that the judgments and decrees of both the learned Courts below are against the law and facts. Exh.D5, which is an order of Executive District Officer (Revenue), clearly establishes that the respondents want to get more .Money and for that matter, they are denying the execution of sale-deed in favour of the appellants. He further contends that the report on the application of appellants and the copy of Khasra Gardawri clearly establish that the property was sold for consideration. Delivery of possession is duly incorporated in Roznamcha Waqiati of Patwari and the respondents have never cross-examined or challenged the entries of Roznamcha Waqiati.
8. Relied upon the statements of Patwari/DW.5 and DW.6, the learned counsel for the appellants ha contended that the consideration price of the suit land was completely paid to the vendors.
Thereafter, a mutation was entered but due to the male fides of the respondents, the mutation was not sanctioned. Learned counsel for the appellants argues that in the circumstances of the case, the sale stands fully proved and it also stands fully established that the appellants had made full payment of Rs. 967,537/-in presence of the witnesses, therefore, R.S.A. Be accepted, the impugned judgments and decrees passed by both the learned Courts below be set aside and the suit of the appellants-defendants be decreed with costs throughout.
9. Conversely, learned counsel for the respundents have vehemently opposed this R.S.A. And has contended that there are concurrent findings of,facts against the appellants-defendants. The appellants-defendants have failed to establish factum of payment of consideration price of the suit land. That is why, the mutation was entered but because of non-payment of consideration price, the respondents did not appear before Revenue Officer to finalize the mutation. He has further contended that in the plaint, the appellants-defendants have mentioned the names of tour persons before whom the payment was made but three of them did not appear before the Court to support the version of the appellants while the 4th witness Ali Khan appeared as DW.6 and made an entirely different statement, therefore, the R.S.A. Be dismissed.
10. I have heard the arguments .Put forth by learned counsel for the parties and have also perused the -record to the extent available on file.
11. According to the averments made in the suit for declaration filed by the appellants, the suit land was sold for total consideration of Rs. 967,537/-. This amount was paid to the vendors-respondents before Dost Muhammad Khan, Abdul Sattar Khan, All Khan and Fatak Sher witnesses. The agreement was an oral agreement which was not reduced in writing owing to cordial relations between the parties and as a consequence, the possession of the suit land was also delivered to the vendees/purchasers. But when the case was fixed for. The evidence of the parties, out of 4 witnesses before whom the alleged payment was made, the 3 witnesses namely Dost Muhammad Khan, Abdul Sattar and Falak Sher never entered appearance 'before the learned Trial Court to support the version of the appellants-defendants.. All Khan appeared as DW.6 who made the statement that the suit land was sold for a total consideration of Rs. 967,500/- which amount was paid to the vendors and accordingly the matter was recorded in Roznamcha Waqiati as well as in the mutation of sale of the suit land. But perusal of rapat Roznamcha reveals that instead of Rs.
967,537/-, the amount of Rs. 860,000/- was recorded in rapat Roznamcha as well as in the mutation of sale. This fact straightaway contradicts the version of appellants-defendants. Similarly, in the plaint filed by the appellants-defendants, it was mentioned that the entire consideration price was paid in cash while DW.6 in his statement contends that out of total price of suit land, Rs.
80,000/- were paid in shape of bank draft.-This bank draft was never produced in evidence.
Similarly, no receipt was produced in evidence
12. Perusal of order further reveals that none of the witnesses has deposed that money was paid in his presence. Rather, the witnesses have only made statements that the money was paid which do not establish factum .Of payment of consideration price.
13. Another important factor in this case is that during the pendency of the suit, some of the parties compromised with the owners of the suit land and thereafter vide two separate mutations, land measuring 32 kanals, 18 marlas and 22 kanals, 18 marlas was purchased by them against consideration price. This fact is also fatal for the case of the appellants-defendants as, if the parties had already paid the consideration price of the suirland, then they could not indulge in separate two transactions of purchase of some portion of the suit land against value.
14. To establish an oral agreement, solid and cogent evidence is always required but in the instant case, the appellants-defendants have badly failed to produce cogent evidence in support of their version. Simple entry in a mutation without attestation has no sanctity in the eye of law nor it creates.Any title, right or interest whatsoever in favour of any person. The mutation is not a document of title but is a sanction under the revenue law meant only for fiscal purposes.
15. Further a suit for declaration to enforce an agreement to sell is not maintainable. There are concurrent findings of fact against the appellants. All the contentions raised by the learned counsel for the appellants before this Court were earlier agitated before both the learned Courts below who have looked into these contentions, have dealt with the matter minutely and have passed the detailed and well-reasoned judgments. Since this is Regular Second Appeal, therefore, the appellants have to restrict themselves within the four corners of Sections 100 and 101, C.P.C.
Learned counsel. For the appellants could not convince this Court that there are illegalities and irregularities in the impugned judgments. No interference is called for.
16. The result of the whole discussion is that this R.S.A. Is without any merit, hence dismissed. No order as to costs. .