AMIN-UD-DIN KHAN, J. --- Through this civil revision the petitioners-defendants have challenged the judgment and decree dated 24.11.1998 passed by the District Judge, Bahawalpur whereby the appeal filed by the plaintiff-respondent was accepted and the judgment and decree dated 25.3.1996 passed by the Civil Judge, Khairpur Tamiwali dismissing the suit of the plaintiff- respondent was set aside.
2. Brief facts of the case are that plaintiff- respondent filed a suit for declaration on 6.1.1981 with the prayer that he be declared the owner of the suit property and further that mutation No. 450 attested on 21.6.1960 is without consideration against the law and has been got attested on the basis of fraud, therefore, it has no value against the rights of the plaintiff-respondent. The defendants appeared and filed their written statement and contested the suit. The learned Trial Court on the divergent pleadings of the parties on 7.12.1981 framed the issues and some more issues were framed subsequently and invited the parties to produce their respective evidence. Both the parties produced their respective evidence. The learned Trial Court after hearing the arguments of the parties vide judgment and decree dated 25.3.1996 dismissed the suit. The plaintiff-respondent filed an appeal before the first Appellate Court which was accepted on 24.11.1998, hence this civil revision.
3. Learned counsel for the petitioners states that before the attestation of the sale mutation the vendor-plaintiff entered into agreement to sell with the vendee and the document has been produced as Ex.D-1 which has been fully proved by the defendants-petitioners. Further states that the plaintiff-respondent has even transferred some other land through mutation No. 412 attested on 29.12.1959 in favour of Karim Bakhsh son of Muhammad Bakhsh vendee of the impugned mutation Which has also not been challenged by the said Jalal. Learned counsel further states that the suit was absolutely time-barred, therefore, the findings of the learned Appellate Court be set aside and that of the learned Trial Court be restored. Though the learned Trial Court has not recorded the findings with regard to limitation in favour of the petitioners but under Section 3 of the Limitation Act, 1908 this Court can observe the same, even without objection of the other party.
4. On the other hand, learned counsel for the respondent-plaintiff states that the findings recorded by the first Appellate Court are absolutely in accordance with law and relying upon Hakim Khan Vs. Nazeer Ahmed Lughmani and 10 others (1992 SCM R 1832) states that mere attestation of mutation does not confer right in favour of the vendee and further that Section 54 of the Transfer of Property Act, 1882 was applicable in the State of Bahawalpur at the time of impugned sale and prayed for dismissal of the civil revision.
5. The pivotal issue in this case is issue No. 7-A. Sale of land by the plaintiff to the predecessors of the petitioners-defendants has been fully proved through cogent evidence and the learned first Appellate Court on the basis of applicability of Section 54 of the Transfer of Property Act, 1882 in the State of Bahawalpur at the time of impugned transfer set aside the findings recorded by the learned Trial Court.
6. In the light of judgment titled Muhammad Amin, etc. Vs. Mian Muhammad (PLD 1970 B.J. 5) this Court has decided the matter in issue once for all because it is a common practice in this area that after selling property, receiving the sale price and attestation of mutation in favour of the vendee afterward the seller in routine files suit for declaration that he is the owner of the property and mutation does not create or confer right and in this eventuality Section 54 of the Transfer of Property Act, 1882 was applicable through Government of Bahawalpur vide Notification No. 20, dated 28th May, 1931. This Court held in the said judgment that under Section 42 of the Specific Relief Act, 1877, the relief is discretionary and equitable, therefore, it is necessary for the plaintiff to approach the Court with clean hands. The principle laid down rests on the maxim that he who seeks equity must do equity and should come with clean hands. Maxim Nullus commodum capere do injuria sua propria (no man can take advantage of his own wrong). In case in hand the suit has been filed after 21 years of the alleged attestation of mutation and the first Appellate Court has not discussed the evidence. The first Appellate Court has decided the appeal only on the basis that Section 54 of the Transfer of Property Act, 1882 was applicable in the State of Bahawalpur, therefore, the mutation No. 450 attested on 21.6.1960 does not transfer the ownership right in favour of the vendee. The findings of the learned Trial Court that defendants have fully proved valid attestation of mutation in their favour and when the learned first Appellate Court has not discussed the evidence and has not rebutted the findings on fact with regard to the attestation of mutation of sale in favour of the predecessor of defendants-petitioners, therefore, the only question remains with this Court whether filing of suit after 21 years of attestation of mutation gives the right to the plaintiff- respondent to file this suit for declaring him the owner of the suit property. So far as the question of applicability of Section 54 of the Transfer of Property Act, 1882 is concerned that has been beautifully dealt with in the above-referred judgment.
7. No doubt the plaintiff-respondent of the suit for declaration is bound under the law, must come in the Court with: clean hands. In this case the defendants-petitioners have proved the validity and attestation of impugned mutation; therefore, filing of the suit after 21 years of the impugned sale by the plaintiff is not competent. Further admittedly, the petitioners are in possession of the land and mere suit for declaration under Section 42 of the Specific Relief Act, 1877 where consequential relief can be prayed and in this suit relief for possession has not been prayed, therefore, the suit filed under Section 42 of the Specific Relief Act, 1877 was not competent.
8. The contention of the learned counsel for the petitioners with regard to Section 53-A of the Transfer of Property Act, 1882 get support from Ex.D-1 and in furtherance of that agreement the impugned mutation was got sanctioned and the possession of the land was delivered to the predecessor of the defendants-petitioners. In this regard light can be taken from Mst. Akhtar Begum Vs. Mien Aziz and others (NLR 1981 AC 545) when there is an agreement coupled with the mutation of transfer of rights and the mutation has been incorporated in the Jamabandi and name of vendee continuously for a period of 21 years exists in Record-of-Rights. The entries are intact and filing of the suit without prayer of the possession by the plaintiff-respondent is not competent. The protection of Section 53-A of the Transfer of Property Act, 1882 cannot be denied to the petitioners-defendants. In this view of the matter, I am dear in my mind that the findings recorded by the first Appellate Court are against the settled principle of law enunciated by the apex Court of the country.
Civil revision .