1. MAZHAR ALAM KHAN MIANKHEL, J.---This single judgment of mine would dispose of C.R. No.230 and C.R. No.231 of 2003, having common question of law and facts involved between the, same parties and subject matter of both the revisions is also common.
2. The petitioners in both the petitions are aggrieved of the consolidated judgment and decree dated 17-12-2002 of District Judge, Swabi whereby the appeal of the respondents against the judgment and decree dated 25-5-1999 of the trial Court i.e. Senior Civil Judge Swabi was allowed and judgment/decree of the trial Court was set aside.
3. The present petitioners filed their suit for possession through redemption of their mortgaged property, fully detailed in the head note of the plaint on 15-9-1991. The defendant/respondents in their written statement had totally denied the factum of mortgage of the suit property and claimed themselves to be the owners of the suit property. The defendant/respondents also filed a suit for declaration on 22-2-1994 against the present petitioners regarding the suit property by claiming to be the owners of the same aid not the mortgagees of the suit property and thereby denied the existence of mortgage. The trial Court vide its consolidated judgment and decree dated 25-5-1999 granted a decree of redemption of suit property in favour of present petitioners and thereby dismissed the suit for declaration filed by the present respondents. Accordingly, two separate appeals were filed by present respondent, which were accepted by the District Judge, Swabi. The judgment and decree of the trial Court regarding redemption of suit property was set aside and the suit of present respondents for declaration was decreed in their favour vide single judgment and decree dated 17-12-2002. Hence the present revision petitions.
4. The learned counsel for the petitioners contended that the Revenue Record available on the file and evidence produced by them fully establishes the fact that they were the owners of the suit property and their predecessors had mortgaged their property in favour of predecessors of the respondents and they being mortgagors of the property, are fully entitled to get their property redeemed. He next contended that the respondents, except their status as mortgagees of the suit property, have got no concern with the same and they or their predecessors had never remained the recorded land-owners as claimed by them and requested. For setting aside of the judgment and decree of the Court of appeal by restoring that of the trial Court. The learned counsel in support of his arguments placed reliance on the cases of Nawab Khan and others v. Said Karim Khan and others (1997 SCM R 1840) and Tanzeem Bazyabi-e-Haqooq Malkan-e-Orush, Abbottabad through General Secretary v. Deputy Commissioner/Collector, Abbottabad and others (1992 CLC 382).
5. As against that, the learned counsel for the respondents ' contended that the respondents since their predecessors are the owners of the suit property and their names have wrongly been recorded in Revenue- Record as mortgagees of the suit property by showing the petitioners as the owners/mortgagors He further contended that the petitioners have bitterly failed to prove their status as mortgagors and similarly, there is no evidence on the record reflecting that the suit property was mortgaged by the predecessors of the petitioners with the predecessors of respondents. In absence of this material evidence, one cannot be declared as mortgagor of the property and requested for dismissing the revision petitions by upholding the judgment and decree of the Court of appeal.
6. Learned counsel for the parties were heard and record of the case was gone through with their valuable assistance.
7. The available Revenue Record on the file would reveal that the predecessors of the present petitioners are recorded owners/mortgagors of the suit property since 'Register Haqdaran-e- Zameen' for the year 1932-33, copy of which is Exh.PW1/3, whereas the predecessors of the respondents have been shown to be the mortgagees of the suit property in the said documents.
8. The record available on the file would further suggest that mutation No.993 dated 4-6-1933 was attested for correction of entries in the column of ownership of the jamabandi, as a result of which, the names of the predecessors of the present petitioners were substituted with the name of predecessors of the present respondents but on 17-7-1933, just after a month, yet another mutation bearing No.1580, copy of which is Exh.PW 2/D1, was attested for the same purpose i.e. For correction of entries in the column of ownership. This mutation replaced the entries of earlier mutation but only to the extent of suit property by showing the names of predecessors of present petitioners as the owner/mortgagors, whereas the predecessors of the respondents were shown as mortgagees of the suit property. Yet another aspect of the case cannot be left to go un-noticed that this mutation was thumb impressed by one of the predecessors of the respondents, namely Noor Muhammad son of Yar Muhammad giving strengthening effect to the entries of the mutation. The Revenue Record available on the file would confirm the fact that this very mutation was incorporated in the Revenue Record in the jamabandi for the years 1932-33, copy of which is Exh.PW1/3, and said entries were repeated without any change in the Revenue Record up to the jamabandi for the years 1991-92 i.e. Till the time of filing of the suit by the present petitioners. All the Revenue Record confirming this aspect is available on the record as Exh_PW1/3 to Exh.PW1/15, except Exh.PW1/14, which is the copy of khasra girdawari for the period kharif-1985 to rabi-1992.
9. Though it confirms the possession of present respondents but as mortgagees and not as owners and similar entries are also available in yet another copy of khasra girdawari from kharif 1992 to kharif 1994, which is Exh.PW1/16. Similarly, Exh.PW1/17 consisting of two sheets is the copy of pedigree-table of the present petitioners. The entire available Revenue Record confirms the only fact that the petitioners are the owners/mortgagors and the status of respondents is that of mortgagees.
10. On the other hand, the claim of the respondents, by filing their written statement in the suit of present petitioners and by instituting their own suit for declaration, throughout remained that they are the owners of the suit property and their predecessors were wrongly shown to be the mortgagees of the suit property. Their said stance is not supported by any Revenue Record available on the file and similarly, no oral reliable evidence in this regard was produced by them to confirm their status as owners. The main reliance of the learned counsel for respondents remained on mutation No.993 attested on 4-6-1933, copy of which is Exh.PW2/1. Basically, this very mutation for correcting the entries in the column of ownership is with regard to three khasra numbers i.e. 874, 875 and 876. Khasra No.874 was subdivided (c- ) into four khasra, numbers i.e. 275$/874, 2756/874, 2757/874 and 2758/874. Similarly khasra No.876 was subdivided ( tzt ) into three khasra numbers i.e. 2759/876, 2760/876, 2761/876, whereas khasra No.875 remained in its original position. The predecessors of the respondents were shown to be the owners of two subdivided{{URDU TEXT}} ((:t ) khasra numbers of 874 i.e. 2756/874 and 2757/874 whereas the remaining two subdivided khasra numbers of 874 were shown in the names of others. The disputed property consists of these two khasra numbers. The relevant entries of the suit property in the mutation have been encircled with red-ink by this Court. This very mutation, no doubt, was thumb-impressed and sighed by. Said Ghulam and Shah Rasool, the predecessors of the present petitioners but it refers to other khasra numbers also. So, attestation of yet another mutation No.1580 just after one month of earlier mutation No.993, copy of which is available on the file as Exh.PW2/D1, duly thumb impressed by one of the predecessors of respondents for correction of entries in the colomn of ownership only with regard to suit property would confirm the fact that the entries with regard to suit property made in mutation No.993 were incorrect and the same were corrected through another mutation No.1580 and in token of its correctness, one of the predecessors of respondents also thumb impressed the same. All the above referred entries were made by the revenue officials and their acts and deeds A during discharge of their official duty will have presumption of correctness. There is nothing in rebuttal to this effect. These entries have continued till filing of present suit of petitioners i.e. Till 1991 and silence of the present respondents regarding said entries against them as mortgagees till filing of their own suit for declaration in the year 1994 would establish the fact that their said suit is nothing but a counterblast to the suit of present petitioners for redemption of their property. The respondents are enjoying possession of suit property along with its usufruct since very long and this very fact is reflected from the above referred Revenue Record. Redemption of said mortgage in other words would mean cessation of their possession as mortgagees and they will have no right under the law to retain or remain, in possession of the suit property and surely they have to surrender the same in favour of petitioners.
11. No doubt that the original mortgage mutation or mortgage deed assigning the status of mortgagors to the petitioners and that of mortgagees to the respondent has not been brought on the Revenue Record, available, on the file since 1927-28 but the fact would remain that the suit property was owned and possessed by the predecessor of present petitioners as reflected in Exh.PW1/1 and Exh.PW1/2 and in the next very jamabandi i.e. Of the year 1932-33, copy of which is Exh.PW1/3, reflects the suit property to be cultivated by a tenant-at-will but on behalf of mortgagees the predecessor of respondents and by this time the original khasra number of the suit property i.e. 874 measuring 19 kanal 5 marla was further sub-divided into four khasra numbers, as stated above and the suit property comprised of the two khasra numbers, i.e. 2756/874 measuring 7 kanal 12 marla and 2757/874 measuring 10 marla. Yet another mutation bearing No.2550 attested on 224-1927, copy of which is Exh.PW2/4, was referred to by the learned counsel for respondents and that too was for correction of entries in the column of ownership but the 'learned counsel for the respondent was unable to point-out any nexus of said Mutation with that of suit property. That mutation included a great chunk of the village property.
12. No doubt, mutation No.1580 cannot be termed as a mortgage mutation because it is simply a mutation correcting the entries in the column of ownership, as discussed above, and presumption of correctness attached to the entries made in this mutation supported by long standing entries in the Revenue Record would be sufficient enough to hold that there was a mortgage between the parties. Needless to say that there is no clog on the parties to enter into oral agreements for alienation of property through sale, gift etc. Similar is the position of oral agreements of mortgage.
13. Presumption in this regard would be an oral agreement of mortgage. So, non-availability of record of creation of mortgage in presence of long standing entries of Revenue Record specially in absence of anything material in rebuttal, would have no bearing on the case of petitioners. The entries in Mutation No.1580 continued in the Revenue Record since 1932-33 could safely be relied upon having presumption of truth attached to the same being prepared by the revenue officials during discharge of their official duties and supported by the un-interrupted long standing entries.
14. The learned counsel for the respondents referred to a joint statement of the lumberdars, owners and mortgagors of the village, made before the Revenue Officer of the area on 10-7-1926 for correction of Revenue Record, which is thumb-impressed by almost 97 persons of the village but the learned counsel for respondent was unable to refer to a single thumb-impression of predecessors of respondents.
15. So, what has been discussed above, it is established on the record that the petitioners are the owners and mortgagors of the suit property and the status of the defendant/respondents is that of mortgagees and the petitioners are entitled to redeem their property but not against any consideration as the mortgagees remained in possession of the suit property throughout and have earned much more usufruct from the suit property.
16. So, in this view of the matter, both these revision petitions are hereby allowed by setting aside the judgment and decrees of the Court of appeal and thereby restoring those of the trial Court. In the peculiar circumstances of this case, there would be no order as to costs.