MUHAMMAD AMEER BHATTI, J. - Through this C.R. The petitioner has challenged the judgment and decree dated 28.11.2001 passed by the learned Trial Court whereby the suit, of the respondent/plaintiff for the cancellation of the sale-deed dated 16.1.1996 had been decreed and the appeal filed by the petitioner was dismissed by the learned first Appellate Court vide its judgment dated 18.11.2005.
2. The brief facts of the case are that the respondent No. 1 vide sale-deed No. 2650, dated 27.12.1997 purchased the suit land from respondent No. 2 who inherited this land from his father. The same land was sold by the respondent No. 2 through his general attorney vide sale-deed No. 81, dated 16.1.1996. The respondent No. 1 through the instant case challenged this transaction/sale- deed and mutation which was sanctioned in favour of the petitioner on the basis of this sale-deed through the present suit filed on 7.3.1996 on the ground that the total land in the 'khata which was inherited by the respondent No. 2 alongwith the respondent/plaintiff, has already been sold out to the plaintiff. The effect of this sale-deed has not been incorporated in the revenue record, although mutation has been sanctioned, due to the negligence of the revenue hierarchy and taking the benefit of this non-incorporation in the revenue record, the change of ownership, the present petitioner with the collusion of general attorney of the respondent No. 2 and the revenue hierarchy succeeded in getting the mutation sanctioned in favour of the present petitioner/defendant which is illegal, unlawful and based on fraud, as the respondent No. 2 was left with no land in the khata at the time of impugned sale-deed and mutation.
3. The present petitioner contested the suit and filed his written statement on the ground that he was a bona fide purchaser and the land was in the name of respondent No. 3, hence his transaction was a valid one as he never committed any fraud.
4. Five issues were framed from the divergent pleadings of the parties. Parties produced their evidence. Plaintiff/respondent No. 1 produced as many as five witnesses and appeared himself as P.W.4 and also produced Naseer Ahmed/the original owner as P.W.3. He also produced documentary evidence in the shape of Ex. P.1 to Ex. P.5. The defendant/present petitioner produced two witnesses. He himself appeared as D.W.1 and produced two exhibits.
5. Learned Trial Court after considering evidence of both the parties, decreed the suit vide its judgment and decree dated 28.11.2001. However, on filing an appeal by the present petitioner, the first Appellate Court vide its order dated 12.6.2002, after setting aside the decree, remanded the case back to the learned Trial Court with the further direction in the following terms:--, "To allow either party of the suit to bring on record any definite evidence with regard to the ownership of defendant No. 3 namely Nazir Ahmed son of Nawaz Din and the evidence on this point should also be produced as to the date when the said Nazir Ahmed seized to the owner in Khata No. 108 with which the present dispute is concerned."
The plaintiff in post-remand trial, produced P.W.5 Halqa Patwari and in the second round of litigation again the suit was decreed by the learned Trial Court vide its judgment dated 1.3.2003.
Appeal filed by the petitioner was also dismissed by the learned first Appellate . Court vide judgment/decree dated 18.11.2005, hence this C.R. Against the concurrent findings of both the Courts below.
6. Learned counsel contends that there is nothing on the record that the possession was obtained from the respondent/plaintiff. It is a matter of record that the petitioner obtained the possession according to the sale-deed, even then the respondent did not claim the possession through the present suit, hence the suit was not maintainable. No issue was framed about the possession. The respondent has not produced any evidence about the non-availability of the land in the ownership of Nazir Ahmed at the time of sanctioning of impugned mutation and sale-deed in favour of the petitioner. Further contends that, no cross-examination was made to the witnesses to this effect, hence this fact has established that NaSeer Ahmed was owner in the khata at the time when he purchased the land in dispute. On non cross-examining the fact to the witnesses amounts to admission. Reliance is placed on PLD 1987 SC 60.
7. On the other hand, the learned counsel for the respondent contends that the mutation No. 412, dated 19.5.1976 was sanctioned although not incorporated in the revenue record but fact remains that the respondent Naseer Ahmed had no piece of land after selling his share to the respondent/plaintiff vide mutation No. 412, dated 19.5.1976. He supported the concurrent findings of both the Courts below being based on the evidence available on the record and has not committed any type of mis-reading or nonreading of evidence, hence the C.R. Is liable, to be dismissed.
8. I have considered the arguments of the learned counsels for the parties and have also gone through the record available in the file.
9. It is clear from the evidence that one Nawab Din who was father of eight sons including the present petitioner and respondents Nos. 1 and 3, was owner of agricultural land measuring 25- kanals. He gifted this land to each of them measuring 3-kanals, 4-marlas. However, all these brothers through mutation No. 679 obtained the land 10-kanals (each of them became owner of 4- kanals, 9- marlas). However, Nazir Ahmed respondent No. 3 sold more than total share measuring 5-kanals to the present respondent/plaintiff Meraj Din through mutation No. 412, dated 19.5.1976, So he exhausted his share of land in this khata. Thereafter, the subsequent sale in the same khata through the same general attorney was on the face of it a fictitious and against the ownership of Nazir Ahmed. For this purpose, I have considered the evidence of Patwari P.W.5 whose evidence was subsequently recorded after the remand. There is no other evidence produced by the defendant/petitioner which could substantiate the fact that Nazir Ahmed had any land in his name after 1976. The benefit was drawn due to non-incorporation of the name of respondent/vendee in ownership column in the revenue record. Although, the general attorney was the same person who had sold it to the respondent and this entire drama had been staged by the general attorney with the connivance of the present petitioner who was also aware of this fact as he was brother of respondent as well, Nazir Ahmed original owner and they were living in the same village arid in occupation of land as per their on shares. In fact, the respondent No. 3 having no ownership in the khata at the time of subsequent sale which has been proved from the evidence available on record. The plaintiff/respondent No. 1 cannot be non-suited, as he has valid ownership through the registered documents.
10. The concurrent findings recorded by both the Courts below are reflecting the precise consideration of the evidence available on the record. There is no misreading or non-reading and illegality or irregularity in the conclusions drawn by both the Courts below. I do not find any reason to interfere in the concurrent findings as the right has been given to the legitimate vendee/plaintiff.
11. For what has been discussed above, this petition stands dismissed. Civil revision .