' CH. SHAHID SAEED, J.---The instant R.S.A. Is directed against the judgment 86 decree dated 14-2- 1993 passed by learned appellate court by way of which appeals separately filed by respondents Nos.1 to 13 and 14 to 16 were accepted .And the suit for declaration filed by appellants which was decreed by the learned trial Court vide judgment and decree dated 24-7-1991 was dismissed.
2. Brief facts of the case are that the ancestor of the predecessor in interest of the appellants namely Muhammad Kazim Shah deceased was owner of the land fully described in the head note of the plaint. Whereas the predecessor in interest of the respondents Nos.1 to 13 Noor Ahmed deceased was an influential person. He in collusion with the Revenue staff and in the absence of Muhammad Kazim and at his back got sanctioned Mutation No,537 dated 24-4-1962 in his favour, fictitiously and by playing fraud. Noor Ahmed did not pay sale consideration of the suit land, hence the Mutation No,537 was without consideration and as such liable to be cancelled and set aside.
When this fact of the sanctioning of mutation in dispute came in the knowledge of the appellants, they sought remedy and relief before revenue hierarchy in the form of appeals and revision but in vain, whereas the contents of the mutation in dispute itself manifest that the mutation in dispute was sanctioned by the Revenue officers in the absence of the predecessor in interest of the appellants and in contravention of the Land Revenue Act. The appellants approached to the District Collector who upon the inquiry report of the Revenue officials allowed the Mutation No,537 to be reviewed on 6-9-1980, whereupon this mutation was cancelled on 22-11-1980, and thereafter the ownership Mutation No,1061 was sanctioned in favour of the appellants on 22-11-1980, but afterwards the respondents Nos.1 to 13 filed .a revision before the Additional Commissioner Bahawalpur which was accepted on technical grounds on 31-5-1987. The appellants filed the suit fOr declaration challenging the Mutation No,537 dated 24-4-1962 as illegal, void against the law and facts; without consideration and in-effective upon the rights of the appellants.
3. The respondents appeared before the learned trial Court and contested the suit while submitting their separate written statements. The learned trial Court out of the divergent pleadings of the parties framed the necessary issues including relief. Thereafter both the parties produced their pro and contra evidence. The learned trial Court after hearing both the parties at length decreed the suit of the appellants.
4. Learned counsel for the appellants argued that the judgment and decree passed by the learned appellate court is against law and facts and also based on surmises and conjectures. That the learned first appellate court while passing the impugned judgment and decree has committed error of law. The findings are totally based on misconception of law and thus not tenable in the eyes of law; the findings of the learned trial Court on question of limitation are contrary to law because it has come in evidence rather held by the learned appellate court itself that the mutation in question was sanctioned behind the back of the appellants and in such eventuality the limitation shall firstly starts from the date of knowledge and secondly from the date when the remedies available under the revenue laws were finally exhausted; moreover in case of a suit for possession, the limitation is 12 years from the date of the last cause of action; the learned first appellate court throughout its judgment gave no sound reasoning to dislodge the well considered and solid findings of the learned trial Court; that according to section 34 of Punjab Land Revenue Act 1887 it was essential that prior to entering and sanctioning the mutation Halqa Patwari should be satisfied about the acquisition of right; further contends that respondents have not taken any specific plea in their written statement to controvert the stand of the appellants and an evasive denial has been made in the written statement; lastly learned counsel contended that the Mutation No,537 is illegal, void and result of fraud and misrepresentation. Learned counsel has also relied upon 2007 SCM R 729, 2007 CLC 257, 1991 M LD 2167 and 2000 M LD 2015.
5. On the other hand learned counsel for the respondents vehemently opposed the contentions raised by the other side and has also supported the judgment and decree passed by the learned appellate court while maintaining that the respondents are in possession of the land in dispute since their forefathers thus the question of evasive denial does not arise; further contends that the consideration amount was paid but there was no sale in fact; that Mutation No,507 was in fact a security to return of the loan; lastly learned counsel states that the suit of the appellants was badly time barred and prayed for dismissal of the instant R.S.A.
6. Arguments heard. Record perused.
7. Undeniably, the main dispute between the parties is regarding Mutation No,537 which was got mutated on 26-4-1962 in favour of predecessor in interest of respondents Nos.1 to 13. The main contest of the appellants is that the land measuring 809 kanals, 19 marlas was purchased by one Syed Kazim Shah predecessor in interest of appellants from Noor Ahmed predecessor in interest of the respondents Nos.1 to 13 for a sum of Rs,14,700 vide sale mutation Exh.D.1. But afterwards Noor Hussain at the back of the Syed Kazim Shah having in league with the Revenue officials through mutation No,537 alienated the said property in his own name. The main contention of learned counsel for the appellants is that the Mutation No,537 is illegal, void and based on fraud and misrepresentation. From the careful perusal of Mutation No,537, Exh.P.1 and the report of the revenue officials over Exh.P.1 itself speaks that some fraud or misrepresentation has been committed because during the proceedings of said Exh.P.1 brother of the defendant Naseer Ahmed stated that the vendor is residing in Multan due to which he could not appear. From the statement of brother of the defendant it appears that without consent of predecessor in interest of the appellants Mutation No,537 was sanctioned in favour of Noor Hussain. Moreover record further shows that no consideration amount was paid.
8. The contention of respondents Nos.1 to 13 is that Noor Ahmed their predecessor in interest had friendly relations with Asghar Shah, from whom, he received Rs,17400 as a loan amount and got sanctioned Mutation No,507 in favour of Syed Kazim Shah as security of the return of the said amount and it was settled that upon the re-payment of the loan amount, the land transferred by way of Mutation No,507 shall be returned to the original owner. The loan was paid by Noor Ahmed predecessor in interest of the respondents Nos.1 to 13 and due to which the land was again transferred through Mutation No,537 in favour of predecessor in interest of respondents but respondents have not taken this plea in their written statement and it is settled principle of law that variation in pleading and proof is not permissible in law. Moreover party cannot lead evidence which is not supported by pleadings and no evidence can be led or looked into in support of a plea which has not been taken in the pleadings and the parties would be bound by their pleadings. The other contention of learned counsel for the respondents is that the appellants are not owners in possession of the land in dispute and the Mutation No,507 which was sanctioned in favour of the appellants is based on fraud and misrepresentation. It is strange enough that if the appellants were not owners of the land in dispute then what was the need to transfer the said land through Mutation No,537 which was sanctioned in the absence of predecessor in interest of the appellants.
No consideration amount was paid and no consent was obtained from Kazim Shah in this regard.
The Revenue Officer was not examined in this respect. The law required that at the time of attestation of mutation, the parties to the transaction must be present so as to admit the receipt of sale consideration delivery of possession. In the present case, the revenue officer giving reference of Mutation No,537 buried the question of payment of the sale consideration. The alleged vendor was also not present before the Tehsildar at the time of the attestation of mutation. It is evident from the record that vendor Kazim Shah had no knowledge of the alienation of the suit land. The learned trial Court has rightly held that the Mutation No,537 was sanctioned on the basis of presumption, surmises and conjectures. It has been sanctioned in collusion with the Revenue staff.
So I am of the considered view that the Mutation No,537 is illegal and void, result of fraud and collusion and the learned trial B Court has rightly set aside the same.
9. The last contention of learned counsel for the respondents that the suit is barred by time is without any substance because the appellants filed a suit for declaration and the limitation period of which is given under section 120 of Limitation Act and the limitation period under this provision of law is six yeaRs, The Mutation No,537 was sanctioned on 26-4-1962 Thereafter the appellants approached to the revenue hierarchy to declare the Mutation No,537 as illegal and void. Record further reveals that the revision of the appellants was decided by the Additional Commissioner Bahawalpur in the year 1968 with direction to the appellants to approach to the civil court and the appellants brought this suit in the year 1974 within six yeaRs, of the passing of the said order. The starting point for the limitation shall be the year 1969. So the suit filed by the appellants was within time.
10. For the foregoing reasons the instant R.S.A. Is accepted and the judgment and decree passed by the learned appellate court dated 142-1993 is set aside and the decision made by the learned trial Court dated 24-7-1991 is upheld. Parties are left to bear their own costs.
Second .