' SYED SAJJAD HASSAN SHAH, J.---This petition is directed against the judgment and decree dated 29-5-2006 passed by the learned Additional District Judge Karak, whereby, the appeal filed against the judgment and decree, passed by the learned Civil Judge-II, Karak dated 28-1-2004 was dismissed.
2. Briefly stated facts are that the plaintiffs/petitioners (hereinafter called as the petitioners) instituted a suit, seeking the decree for declaration against Qalam Badshah and others, the defendants/ respondents (hereinafter called as the respondents) regarding the property fully detailed in, the heading of the plaint, claimed that the petitioners purchased the share of respondents Nos.1 to 10, (as impleaded defendants/respondents in trial court as well as appellate court) got entered a sale Mutation No,6203 on behalf of the respondents in favour of petitioners, same was rejected on 11-5-1998. Sale consideration was received by the respondents Nos.1 to 10, therefore, against the Hissadari of the said respondents in Khata Nos.1150 and 1165, the petitioners may be substituted as owners instead of the defendants/respondents Nos.1 to 10 in Revenue Record and also prayed for the perpetual injunction restraining the respondents to alienate and change the nature of the suit property. The averments made by the petitioners that a sale transaction effected in respect of Khata No,1165, Khasra No,2080, measuring 86-9 Kanals and the property comprised of Khata No,1150 consisting of two fields measuring 27 Kanals ownership of Attaullah Khan and others, including respondents Nos.1 to 10. The said property alienated through sale, on receiving the entire sale consideration Mutations Nos.6203 and 6206 were entered in favour of the petitioners, but before the Revenue Officer, the said respondents did not appear, therefore, the share of the respondents Nos.1 to 10 deleted from the said sale mutations. The suit was contested by the respondents Nos.1 to 10 by filing their separate written statements, denied the sale transaction by all the respondents. However, the instant suit filed by the petitioners with the collusion of Said-urRehman son of Qalam Badshah. The respondent No,1 Qalam Badshah filed his written statement on 3-3-1999, refuting the claim of petitioners, however on 27-10-1999 Said-ur- Rehman, general attorney of respondent No,1 filed a cognovit, admitting the claim of the petitioners, on the over leaf of said cognovit, trial court recorded the statement of Said-ur-Rehman, framed issues, recorded pro , and contra evidence of both the parties and after hearing the parties dismissed the suit of the petitioners.
3. The learned counsel appearing on behalf of the petitioners contended that learned courts below, while deciding the matters, failed to appraise the evidence in its true letter and spirit. The learned appellate court while deciding the appeal, . Returned the findings that instead of filing suit for specific performance, the petitioner has filed the suit for declaration, but without any valid title deed, same was not maintainable. He further contended that the learned appellate Court fell in grave error of law, while not giving effect to the cognovit filed by the respondent No, 1 . Moreover, he argued that the learned appellate Court committed gross error, while deciding and specifying the consequences of filing the proceedings against the dead person who had been expired at the time of initiating the proceedings against such person, as the defendant/respondent No,3 Muhammad Nawaz died when the suit was pending decision in the trial court, to this effect the learned trial court mentioned/noted down in Order Sheet No,45 dated 25-6-2003. The learned counsel further contended that sale transaction and payment of sale consideration were amply proved by the petitioners, but both the courts below failed to advert to those portions of evidence. He further argued that the documents exhibited on record without any objection on behalf of the respondents, the suit property is in possession of petitioners, therefore, prayed for setting aside the concurrent judgment and decree passed by the courts below. Reliance placed upon PLD 1968 Supreme Court 140 and PLD 1969 Supreme Court 136.
4. As against that, the learned counsel for the respondents strenuously rebutted the arguments of learned counsel for the petitioners and supported the judgments and decrees passed by both the Courts below, however, he averred that non-impleadment of the legal heirs of dead respondent No,3 Muhammad Nawaz (Late) fatal to the appeal filed by the petitioners and liable to be dismissed. He placed reliance on PLD 1982 Supreme Court 46 and PLD 1987 Lahore 387. He further contended that the appeal filed against the dead person but on account of this defect it became time-barred; reliance placed on PLD 1964 Supreme Court 559. He further argued that no presumption of truth attached to Khasra Girdawari, as dictum laid down in 2007 SCMR 1802.
5. Arguments of the learned counsel for both the parties considered, record carefully perused.
6. Viewing the record, the pleadings, evidence, of the parties and the arguments of learned counsel for the parties, certain questions of pivotal importance required determination which dug deeper into the merits of case. Firstly the form of the ,suit is not in accordance with law and in absence of any detail regarding the date of sale, sale consideration and without giving other particulars of sale in pleadings, even if the allegations proved, the decree cannot be passed in favour of petitioners. For instance, it can be safely said that, whenever, the plaintiff seeks the decree for declaration of his title in the immovable property, he is under legal duty to prefer his claim on the basis of a valid title deed. In absence thereof, no decree can be passed declaring plaintiff as owner of the property. With reference to instant case argued that suffice it to say that the petitioners, notwithstanding, that not filed any title deed in support of their claim against the respondents, but, they have failed to mention the date of sale transaction, despite, the claim preferred on the basis of some oral sale transaction, however, failed to provide the detailed particulars of the oral sale transaction, inasmuch as, not even mentioned the sale consideration in their pleadings. The same is sine qua non for a valid sale.
7. The petitioners relied upon a sale Mutation No,6203 attested on 4-4-1998. The Mutation No,6206 entered, but rejected on 11-5-1998, in support of their claim, placed reliance on an entry made in Roznamcha-e-Waqiati, Rapit No,603 dated 25-6-1997, allegedly the Mutation No,6203, entered on 30-6-1997, whereas, the rapit recorded in Roznamcha-e-Waqiati on the statement of one Said-ur- Rehman, who has signed the same. It is worth-mentioning that said Said-ur-Rehman neither impleaded as party to the suit nor brought in the witness box to testify about the sale transaction.
The factum of entry of the Roznamcha-e-Waqiati reported by the respondents, no proof furnished on the record that Said-ur-Rehman, ever since appointed as the attorney of the respondents. The Rapit Roznamcha-eWaqiati not treated as the valid piece of evidence, as to have considered as sufficient piece of evidence for constituting transfer of land in the name of person claiming on the strength of such rapit. The respondents along with other co-owners transferred their ownership in Khasra No,2080 in the name of present petitioners, the mutation Exh.P.W.1/5 duly attested, but no nexus in any manner proved on record that the same was also the part and parcel of the said sale transaction, same concluded by attestation of mutation. If the petitioners aggrieved of the rejection of mutation and treated the same as part of the impugned, sale transaction which culminated into sale mutation. Against the order of rejection of impugned mutation, the petitioners were bound to challenge even the attested sale mutation, as according to the petitioners the above quoted sale mutation being part and parcel of one and same sale transactions, its attestation not legal and as the entire sale transaction has not been given effect by attestation of earlier sale mutation or by registration. The available material brought by the petitioners, examined and appraised by both the learned courts below, but, concurrently came to the conclusion, that no sale transaction effected between the parties, no sale consideration paid by the petitioners. Self- contradictory evidence was not believed by both the courts below. The factum of non-execution of any document acknowledging the receipt of sale consideration candidly admitted by P.W.2 the attorney of the petitioners. He further admitted that he did not pay the sale consideration to the respondents, voluntarily stated, the same might be paid by Muhammad Nazir, even Muhammad Nazir was not examined as witness in support of the claim of the petitioners.
8. In order to substantiate the afore stated reasonings, the reference of section 54 of the Transfer of Property Act, 1882 can be conveniently made, which reads:-- Section 54"Sale Defined".---Sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
"Sale how made".---Such transfer, in the case of tangible immovable pro-perty of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property.
Contract of sale.---A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself create any interest in or charge on such property.
9. It transpired from the close analysis of section 54 that the valid sale transaction constituted, when the following essential elements proved by the vendee.
(i) The valid sale agreement.
(ii) The parties to the sale transaction.
(iii) The sale consideration fixed and paid.
(iv) The subject-matter of the sale transaction.
10. Even, anyone of the ingredients mentioned above, found as missing from a sale transaction, it would not be considered as the sale rather would not fall within afore stated definition of sale. In this regard, reference can be made of section 17 of the Registration Act, the sale transaction of the immovable property, value more than Rs,99 same is compulsorily registered able under section 17 of the Registration Act.
11. The petitioners have also failed to furnish evidence as per requirement of Article-17 regarding the sale transaction as well as sale consideration, in absence whereof, the alleged sale transaction has not been proved on the record.
12. The learned counsel further relied upon the cognovit filed by Said-ur-Rehman the son of respondent No,1 Qalam Badshah as an attorney on 27-10-1999 admitting the claim of the petitioners, on over leaf of said cognovit the statement of Said-ur-Rehman recorded by the learned trial Court, but no date recording of statement mentioned, more so, the learned trial court allowed to file the same on record, but did not take any further step in the matter, the petitioners never drew the attention of the learned trial court to the said cognovit. Respondent No,1 or his attorney never appeared in order to testify the said cognovit as under the law, the pleadings would not be considered as evidence, unless the party filing the same examined by the court and stood to the test of cross-examination. Therefore, the cognovit filed on behalf of the respondent No, 1 was not of any legal significance and could not be used for passing decree in favour of the petitioners.
13. The proceedings of cognovit are of unique nature, as on 3-3-1999, Said-urRehman filed the written statement on behalf of Qalam Badshah, wherein, altogether denied the claim of the petitioners and asserted his own title in the suit property but without pinpointing any reason filed cognovit on 27-10-1999, admitting the claim of the petitioners, however, without being initiated any further action under the law.
14. Notwithstanding, that the petitioners miserably failed to prove the sale transaction and payment of sale consideration as well, can the petitioner on the basis of rejected sale mutation and entries made in Roznamcha-e-Waqiati seek the declaration of his title in the suit property? It would be rather apt to point out that the learned counsel for the petitioners placed reliance on Khasra Girdawari in support of the claim of the petitioners, that those entries showing the possession of the petitioners over the suit property, enjoying no.. Evidentiary value and no presumption attached to such entries, unless incorporated in record of rights. Moreso, no cogent, convincing and confidence inspiring evidence produced, by the petitioners in order to substantiate their claim of possession under the sale transaction as claimed vide rejected sale mutation coupled with the entries made in Roznamcha-e-Waqiati. Therefore, Khasra Girdawari can be considered as a part of Revenue Record but its evidentiary value cannot be considered at par with the other Revenue Record of, rights. However, to this extent it can be considered as official record prepared and maintained by the Patwari Halqa while discharging his official duty. In case, the entries made against the rights and interest of a party, questioned the same by the said party, then they are to be proved by furnishing proof as required for all the unproved documents rather it would be more appropriate to say that these entries are rebutable by any valid and cogent piece of evidence. In this regard, reliance place upon a case titled Sikandar and others v. Sherbaz (deceased) through L.Rs,, reported in 2007 SCMR 1802, the relevant para 6, reproduced as under:-- "We have no hesitation in our mind that the authenticity and genuineness of Exh.D-1 is got above board. Insofar as, Khasra Girdawari is concerned no presumption of correctness can be attached to the entries of Khasra Girdawari like those appearing in Jamabandi. This view point finds support from the dictum laid down in case Muhammad Akram v. State (1977 SCMR 433) and Abdul Majid v, Muhammad Ashraf (1994 SCM1? 115)."
15. Since, respondent No,3 died during the trial of the suit, the legal heirs brought on record by the petitioners vide application dated 13-1-2004, the factum of death recorded in order Sheet No,47 dated 13-1-2004. Besides, the knowledge of defendant's death, the petitioners, while filing the appeal not impleaded the legal representatives of the said defendant, the same was decided against the petitioners as they filed the appeal against a dead person. All the respondents having the joint and common interest in the subject-matter of the suit, it was not indivisible, thus, there was no distinction laid down regarding the right and interest of each respondent.
16. This is the legal requirement, as the parties to the litigation fighting legal battle must be at guard at all stages of the litigation about their rights and to do the needful whenever required by law and must be vigilant about the status of their lis. It is for the reason that either of the parties must not be dragged in fruitless, frivolous and superfluous litigations so that at the conclusion of trial, on discovery of legal defect at belated stage, not to effect the very legality and proprietary of lis pending for a sufficient long time and was being proceeded by the parties to the suit and ultimately it appears that the entire exercise consumed more than a decade became redundant on account of such defect caused due to the negligence of the party to the suit.
17. In these circumstances, the party committed such a- blunder on account of its negligence; therefore, it might suffer the consequences of slackness and in dolence. It' any amendment to implead the al representatives of the dead person permitted in appeal, after the passage of time prescribed for the filing of appeal, the appeal would be rendered as time-barred and incompetent.
The same aspect has been delineated in case titled Mst. Maqbool .Begum and others v. Gullam and others PLD 1982 Supreme. Court 46, wherein, it was held that:- "The relevant portion in the order of the High Court on the subject reads as follows:-- "It is by now a settled proposition of law that where the necessary parties to the appeal are not brought on the record and the possibility of divergent decrees not ruled out the appeal would be incompetent. In the case of Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 322 the Supreme Court of Pakistan observed:- `Once it is found that the decree appealed from by some of the defendants was joint and indivisible against all the defendants, then it follows that the failure to implead the remaining defendants or any of them, would render the appeal incompetent. The principle underlying come into existence regarding the same subject-matter and as a result of the same litigation. This principle has been reiterated by the superior courts on several occasions. See Ram Chand Dalil- Mal v. Badri Nath AIR 1935 Pesh, 106; Ramzan v. Allah Diwaya PLD 1953 B J 45; Qasim Khan v. Mt.
Malkai PLD 1963Khan Pesh. 58; Muhammad Jamil v. Chairman, Industrial Court PLD 1964 SC 559; Wali v. Manak Ali PLD 1965 SC 651 and Shah Muhammad v. Muhammad Bakhsh PLD 1972 SC 321.
There is accordingly no escape from the conclusion that the Regular First Appeal filed in the High Court by only seven defendants, out of 16, impleading five defendants as respondents and leaving out four defendants altogether, was not properly constituted, and merited dismissal on the score."
' Respectfully relying on the dictum laid down by the Supreme Court of Pakistan in the above- referred cases which is clearly applicable to the circumstances of the instant appeal the preliminary objection raised by the learned counsel for the respondents, prevails and this appeal being not properly constituted was incompetent and merited dismissal on that score.
' In this view of the matter it is, therefore, not necessary to deal with the merits of appeal and pass judgment thereon.
' In the result this appeal fails and is dismissed with 'no order as to costs."
"As is evident the view expressed in the above paragraph is quite in accord with long list of precedents quoted therein. In our opinion this was a clear case of an incompetent and not maintainable appeal due to non-impleadment of necessary parties, and as the subject-matter of the dispute namely the impugned sale of your. 1951 in favour of Muhammad Yaqub (vendee/defendant) (now represented by some of his legal representatives namely the petitioners) was an indivisible transaction, therefore, the High Court was justified in holding that the appeal had abated in toto and was not maintainable for the fatal infirmity hereinbefore mentioned. It was argued that if some of the heirs of the vendee had not been impleaded, at the most, it could affect only the shares of the non-impleaded heirs inasmuch as according to Muhammadan Law every heir succeeds only to the extent of his respective share along with others though as tenants in common. The contention has no merit inasmuch as the present case is to be examined from the point of view of the oneness of the sale above mentioned and not parts of that sale which was to stand or fall as a whole".
18. The ratio laid down in a case titled Muhammad Suleman and Abdul Rashid and 13 others, reported in PLD 1987 Lahore 387, wherein, it was observed that:-- "In Thakar Hari Ram v. Central Government through, Secretary Commerce. Department, Delhi AIR 1941 Lah. 120, a necessary party to an action, appeal or other proceeding was defined as the one whose presence on- the record is enjoined by law or in whose absence no effective decision can at all be given. It was also laid down therein: - "It is the duty of the person brining the action, appeal or proceeding to implead all necessary parties to it and his omission to do so is a fatal defect which if not remedied with the permission of the court within the period prescribed by law results in its dismissal."
' The above definition of a necessary party was approved in Gul Muhammad and v. Another v. Mir Zaman and another PLD 1954 Lah.
406. To the same effect is also National Bank of Pakistan v. Syed Muzammal Hussain PLD 1965 (W.P.)
Kar.
633.
' Abdul Qadir being a co-judgment debtor under the trial court's decree passed without making any distinction, he was a necessary party required to be joined in the appeal below. No doubt, he is a son of the appellant and even if the father and son may have a community of interests in the venture to dislodge the claim of the pre-emptors, still he had to be joined in the appeal of Muhammad Suleman either as his co-appellant or as a respondent but could not be simply left out. In Musmar and another v. Khairullah Khan and others PLD 1954 Pesh 52, it has been held:-- "Where a decree has been made in favour of several persons against several defendants without making any distinction whatsoever, the appeal cannot proceed if all the plaintiffs and the defendants are not impleaded in the case as appellants or as respondents" and it was concluded that since, for the failure to, so implead all the parties, the appeal below was rendered incompetent and should have been dismissed on that ground alone, the judgment of the trial court would stand intact.
' It cannot be accepted that a litigant may, to his pleasure, leave out of his appeal a necessary party as arrayed in the suit and then rejoin Him subsequently to his convenience".
19. The same proposition of law came for the consideration in a case titled Musmar and another v.
Khairullah Khan and others, reported in PLD 1954 Pesh. 52, wherein, it was observed that:-- "Where a decree has been made in favour of several persons against several defendants without making any distinction whatsoever, the appeal cannot proceed if all the plaintiffs and the defendants are not impleaded in the case as appellants or as respondents. It consequently follows that the appeal before the learned Senior Sub-Judge was incompetent, and should have been dismissed on that ground alone. Since the appeal before the learned lower appellate court was incompetent, the judgment of the learned trial court stands intact".
20. The other redeeming feature of the instant case is that the petitioners seeking the declaration of title on the basis of alleged sale transaction, entered between the parties without mentioning any date and year, no declaration can be sought in alike circumstances.
21. This is also pertinent to observe that one Said-ur-Rehman not impleaded as party to the proceedings, despite the fact that he had been attributed significant role in the proceedings as he was a person who allegedly appeared before the court, made the statement and also that he received the sale consideration and signed the Roznamcha Waqiati, no effective and conclusive adjudication could be made in his absence from the arena of litigation as he was the necessary party and could speak volume regarding the controversy between the parties rather in case of proof of any payment, he could be held to return the same to the petitioners as was received without any legal right. Hence, the appellant committed another sheer mistake and rendered the proceedings reached to the conclusion as challenged in the present petition.
22. In view of the above discussion, the findings rendered by both the courts below vide impugned judgments and decrees not suffering from any illegality or irregularity or muchless jurisdictional error, therefore, maintained.
23. This petition being without any substance, hence dismissed. No order as. To costs.