' SYED SAJJAD HASSAN SHAH, J.---Respondent No.1 plaintiff Sona Khan filed a suit for- declaration and injunction against the petitioners and respondent No.1 defendants to the effect that the property mentioned in the plaint is his ownership and in his possession and Mutation No.2064 dated 8-7-2000 attested on his behalf in favour of petitioners and respondent No.1-defendants is fraudulent, collusive and inoperative upon his rights. He also challenged the subsequent Mutation No.2081 attested on 7-2-2001 in favour of petitioners and respondent No.2-defendants on behalf of respondent-plaintiff. He also challenged the execution of general power of attorney deed notwithstanding that same was reflected as sale-deed. By way of consequential relief, the respondent-plaintiff prayed for permanent injunctive decree against the petitioners and respondent No . 2-defendants from interfering with his possession, alienating and creating any charge, while claiming it their ownership. The respondent-plaintiff denied the sale transaction in his plaint and attestation of sale Mutation No.2064 dated 7-7-2000 alleging that no sale transaction was effected and no sale consideration was paid. Moreso, he never appeared before the Revenue Officer for the purpose of attestation of mutation. He averred .That the attestation of alleged mutation was, thus, fictitious, fake and fraudulent and the petitioners and respondent No.2- defendants in collusion with his step-children played a significant role in attestation of alleged mutation and execution of said attorney deed. Mutation No.2084 and all subsequent mutations attested on the basis of ,earlier mutation are liable to be cancelled.
2. The suit was contested by the petitioners and respondent No.2-defendants by filing their written statement on 17-2-2002 whereby they resisted the suit of the respondent-plaintiff and pleaded that the suit was filed at the behest of Mst. Safia Bibi, the step-mother of petitioners-defendants and the Mutation No.2064 ibid was attested in their favour on payment of sale consideration, thus, they are the owners in possession of the suit property. Moreover, the petitioners and respondent No.2-defendants also claimed that they are the bona fide purchasers and also that the above stated power of attorney deed was executed by the respondent-plaintiff and so was the case of subsequent Mutation No.2081 referred to above. The learned trial Court framed issues from the pleadings of the parties. The parties produced their respective evidence as they wished to adduce.
After hearing the arguments of learned counsel or the parties, the learned Civil Judge-I, D.I.Khan dismissed the suit vide judgment and decree dated 22-1-2007. Feeling aggrieved from the judgment and decree of the learned trial Court, the respondent-plaintiff filed appeal which was accepted by learned Additional District Judge-III, D.I.Khan vide judgment dated 10-7-2008, thus, the judgment and decree of the trial Court was set aside and suit of the respondent-plaintiff was decreed. Aggrieved from the same, the petitioners-defendants have filed the instant revision petition.
3. The learned counsel for the petitioners-defendants contended that the suit filed by the respondent-plaintiff is mala fide and without any just and legal foundation. He further contended that the respondent-plaintiff entered into sale transaction with the petitioners and respondent No.2-defendants and Mutation No.2064 was attested on 7-7-2000 in presence of respondent- plaintiff who received the total sale consideration before attestation of mutation. He argued that to prove the factum of completion of sale and payment of sale consideration, considerable evidence has been produced by the petitioners and respondent No.2-defendants on the record. Tie further argued that the sole question of beneficiary of sale transaction was highlighted by the learned trial Court but the learned appellate Court has not adverted to the relevant material brought on record by, the petitioners and respondent No.2-defendants, thus, reached a wrongful conclusion that the petitioners and respondent No.2-defendants failed to prove the sale and payment of sale consideration. The learned counsel maintained that independent source of evidence whereby the claim of respondent-plaintiff was negated has not been considered by the learned appellate Court. He further argued that the local commission was appointed who recorded the statement of respondent-plaintiff who admitted before him and the witnesses that he had received the sale consideration, thus, the stance of the petitioners and respondent No.2- defendants is supported not only by the local commission but the other witnesses as well.
4. As against that, the learned counsel appearing on behalf of the respondent-plaintiff vehemently argued that the fraud was committed by the stepchildren and the respondent-plaintiff in league with their mother notwithstanding that the petitioners-defendants were legally bound to prove the case being beneficiaries of the mutation. Moreover, the petitioners-defendants were obliged to prove the original transaction which they failed to prove. No independent witness has been produced to prove the payment of sale consideration of the suit-land to the respondent-plaintiff by the petitioners and respondent No.2-defendants. He further argued that it was not the job and vocation of the learned trial Court to summon petitioner No.1-defendant for recording her evidence as such, the presumption can be drawn against the petitioners-defendants as none of them appeared as witness in support of their stance. Though this gap and lacuna cropped up in the case of the petitioners-defendants, they would have to suffer but the learned trial Court extended benefit to them by calling the respondent No.1-defendant for her examination. Her statement even otherwise is not admissible in evidence as no opportunity of cross-examination was afforded to the respondent-plaintiff. He urged that the petitioners-defendants being beneficiaries of the transaction failed to discharge their burden of proof. The mutation is a document prepared for collection of land revenue and cannot take place of the title deed, thus, the claim of the petitioners-defendants is merely a bald assertion without any valid documentary evidence. The sale consideration is one of the essential prerequisite of sale transaction which has not been proved by the petitioners-defendants. Moreover, the delivery of possession is not supported by any evidence available on record. He maintained that there are material contradictions in the statements of witnesses of petitioners-defendants which have been ignored by the learned trial Court, however, those were considered and given effect by the learned appellate Court in addition to the other material brought by the respondent-plaintiff on record during the course of evidence.
5. I have considered the arguments of learned counsel for the parties and carefully perused the record.
6. The dispute between the parties is that the petitioners-defendants (stepchildren of the respondent-plaintiff) claimed the alienation of suit property in their favour vide sale Mutation No.2064 dated 7-7-2000 by respondent-plaintiff on the one hand and Mst. Amina Bibi, petitioner- defendant on the other hand. However, the respondent-plaintiff altogether denied the existence of sale transaction and the attestation of above stated sale mutation in favour of petitioners- defendants.
7. The petitioners - defendants vehemently claimed that they purchased the suit property through valid sale transaction for a sum of Rs.2,50,000, sale consideration was duly paid and same was emphatically admitted by Sona Khan respondent-plaintiff before Girdawar/ Qanungo. To prove the sale transaction, the petitioner - defendant notwithstanding produced the witnesses mentioned on the sale mutation who testified to the effect that the sale transaction and receipt of sale consideration was acknowledged by the respondent-plaintiff, however, all of them deposed that no sale consideration was paid in their presence. The evidence of these witnesses cannot be availed by the petitioners-defendants when they did not appear personally before the Court to support the averments made in the written statement and to furnish the first hand information on the point in issue. Moreover, no explanation has been brought on record on behalf of the petitioner No.1- defendant that why she did not appear before the Court and further that in absence of any application and urge on behalf of the party itself, why the learned trial Court summoned party to the suit for recording her statement. To this effect, there is no application available on record. When asked that in such circumstances, how a party can be summoned when the party itself avoided appearing before the Court, the learned counsel could not furnish any explanation by referring any provision of law, however, he persuaded the Court by stating that the statement of Mst. Amina Bibi C.W may be excluded from consideration. No doubt the learned trial Court examined her but in absence of the respondent-plaintiff. Even otherwise, this statement cannot be availed by the petitioners-defendants: When the statement is excluded from consideration, the Court can draw the inference that the party who was fully cognizant of the subject-matter of the suit, abstained from appearing in the Court to stand the test of cross-examination. In this background of the matter, it can be laid down that the existence of sale transaction and payment of sale consideration could not be proved by the party on whose shoulder the onus of proof was lying this regard, it can be observed that when the receipt of sale consideration was squarely denied by the vendor, then it was the paramount duty of the petitioners-defendants to prove the existence of sale transaction and payment of sale consideration about the entry and attestation of sale mutation in dispute in his name.
8. There is yet another aspect of the case that there is no material available on the record that what were the circumstances which prompted the petitioners-defendants to record the statement of respondent-plaintiff a day before the attestation of mutation, because the mutation was entered on 8-6-2000 whereas the statement of the respondent-plaintiff was allegedly recorded on 7-7-2000 and the mutation was attested on 8-7-2000. The entire exercise in attestation of mutation seems to be doubtful and engineered at the behest of stepchildren of the respondent- plaintiff just to deprive the respondent-plaintiff of his immovable property. The above-referred proceedings of recording of statement by the Revenue Officer instead of attesting mutation in open assembly supported the contention of the respondent-plaintiff that the mutation was attested in his absence. It appears from the perusal of the mutation that the statement of the respondent-plaintiff was recorded through local commission. However, the vendor could appear before the Revenue Officer in open assembly on the date of attestation of mutation in compliance with the provisions contained in section 42 of the West Pakistan Land Revenue Act, 1967, which provide that the mutation shall be attested in presence of vendor who has to be identified by two respectable witnesses of the locality preferably Lumberdar and Councillor of the concerned Union Council within the same revenue estate. However, in the instant case, the essential requirements of section 42 ibid were not complied with while attesting the mutation. It is well-settled that thing required to be done in a particular manner must be done in that particular manner or not at all and doing something which is in conflict with that would be not only unlawful but mala fide, thereby rendering same as without jurisdiction. Reliance placed on the case titled Muhammad Shafiullah v. Government of Pakistan through Secretary, Parliamentary Affairs Division, Pak Secretariat, Islamabad and 5 others (PLD 2002 Peshawar 50).
9. As far' as the payment of sale consideration is concerned, the petitioners-defendants have also put no efforts to prove the payment of Rs.2,50,000 as alleged in the written statement that the same was paid to the respondent-plaintiff. It appears from the evidence brought on record by the petitioners-defendants that the sale consideration and payment thereof was made prior to the recording of statement of the respondent-plaintiff on the mutation and thereafter the mutation was entered. In order to prove this aspect of the case, Tanvir Hussain, special attorney as well as brother of petitioner No.1-defendant appeared as DW-5 who stated that:-- {{URDU TEXT}} ' Mulazim Hussain (DW-7) stated that:- ' The examination of both the statements in juxtaposition reveals that these are self-contradictory.
The non-appearance of Shah Nawaz as witness in support of the case of his wife (petitioner No.1- defendant) is also a circumstance which cannot be ignored. Moreso, when the sale transaction was effected, why it was not reduced into writing is another factor which lends support to the stance of the respondent-plaintiff.
10. By now it is well-settled that mutation per se is not a deed of title and is merely indicative of some previous oral sale between the parties. In view of this principle, whenever any mutation is challenged, the burden heavily lies on the beneficiary of the mutation to prove not only the mutation but also the original transaction, which he is required to fall back upon. In the instant case, the petitioners-defendants utterly failed to independently prove the transaction of suit-land in their favour. In this regard, reference can be made to the cases titled Muhammad Akram, v. Altaf Ahmad (PLD 2003 SC 688), Fida Hussain v. Murid Sakina (2004 SCMR 1043), Muhammad Hussain v.
Wahid Bakhsh (2004 SCMR 1137), Muhammad Munir v. Muhammad Saleem (2004 SCMR 1530), Fida Hussain v. Abdul Aziz (PLD 2005 SC 343), Arshad Khan v. Resham Jan (2005 SCMR 1859) and Muhammad Afzal v. Matloob Hussain (PLD 2006 SC 84). Thus, it is well-settled that mutation entries in favour of petitioners-defendants, by themselves, would not confer any right or title upon them. In fact, such entries are made for the purpose of maintaining the Revenue Record and if any entry appears to have been made incorrectly and in contravention of law, the mutation would not have any legal effect on the title to the property. Since the petitioners-defendants have failed to prove that sale consideration was paid to the respondent-plaintiff, therefore, there was no sale of suit property in the eye of law. In this respect, reliance is placed on a case titled Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729). It is settled law that when the basic order is without lawful authority then all the superstructure is bound to fall to the ground. The subsequent transfer on the basis of disputed mutation, after its cancellation, the entire superstructure built upon such mutation would come to the ground. The subsequent transferees cannot claim any benefit of the fraudulent action of the petitioners-defendants.
11. As stated earlier, the learned trial Court had no lawful authority to summon a party to the suit for examination. The conclusion is supported by Rule 14, Order XVI, C.P.C. Which is reproduced as under:-- "14... Court may of its own accord summon as witnesses strangers to suit... Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any perion other than a party to the suit and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document."
' This question came for consideration before Division Bench of this Court in case titled Mst. Urman Jee v. District Judge, Kohat and 3 others (PLD 1990 Peshawar 100) wherein it was held that:- "Under Order XVII Rule 14, C.P. C, the Court is invested with ample powers to summon any person, to give evidence or produce document, but this power does not extend to summoning of a party as a witness."
12. For the reasons mentioned above, I am of the view that the learned appellate Court has correctly appreciated the evidence and law on the subject and arrived at a just and lawful conclusion while decreeing the suit of the respondent-plaintiff. There is no illegality or material irregularity in the impugned judgment calling for interference by this Court in exercise of its revisional jurisdiction. Resultantly, the revision petition being without substance is hereby dismissed, leaving the parties to bear their own costs.