AMIN-UD-DIN KHAN, J. --- Through this single judgment, I intend to dispose of Civil Revisions Na.
3990 of 2010 and 3775 of 2010 as common questions of law and facts are involved in these civil revisions.
2. Through this civil revision the petitioners have challenged the judgment and decrees dated 15.10.2010 passed by the learned Additional District Judge, Sheikhupura, whereby two appeals filed by the petitioners were dismissed against the judgment and decrees dated 14.2.2007 passed by the learned Civil judge, Sheikhupura, whereby the suit for declaration filed by the petitioners was dismissed and the other suit for possession filed by respondents Bashir Ahmed and others was decreed.
3. Brief facts of the case are that the petitioners-plaintiffs on 10.10.2001 filed a suit for declaration that they are owners in possession of the suit property measuring 11 kanals and 2 marlas fully described in the head note of the plaint and stated that entries in the revenue record against their rights have no legal value and have prayed that mutation No. 48 attested on 2.7.1969 be declared as illegal, void, fraudulent and against the law and facts. Written statement was filed. The suit was contested. Another suit for possession of land "titled Bashir Ahmad etc. v. Ahmad A.I etc." measuring about 12 Marlas relating to the suit land which is subject-matter of the suit for declaration, was filed on 21.2.2002. This suit was also contested. The learned Trial Court consolidated both the suits and framed the consolidated issues and proceedings were ordered in suit for declaration filed by the petitioners. Both parties produced their respective evidence. The learned Trial Court vide consolidated judgment and decrees dated 14.2.2007 dismissed suit for declaration filed by the plaintiffs-petitioners and decreed the suit for possession filed by the respondents. Two appeals were filed before the first Appellate, Court by the petitioners and vide consolidated judgment and decrees dated 15.10.2010 both the appeals were dismissed, hence these civil revisions.
4. Learned counsel for the petitioners contends that the impugned Mutation No. 48 is forged and fictitious one. It does not contain the signatures, or thumb impression of the alleged seller i.e.. The predecessor of the petitioners. Further there, is no signatures of Lambardar, Pattidar or any respectable of the area. It has not been sanctioned in Jalsa-aam, therefore, states, that it is proved on record that this mutation was got sanctioned on the basis of fraud. Further contends that the respondents were bound under the law to prove the valid attestation of mutation by producing revenue officer, Lambardar, Pattidar and Patwari etc. None of the above-said persons have been produced as witnesses . In this context reliance has been placed on Qasim A.I v. Sher Muhammad (2007 YLR 1770), Khushi Muhammad and others v. Bashir Ahmad and others (2010 YLR 175) and Muhammad lqbal and another v. Mukhtar Ahmad through L.Rs. (2008 SCMR 855). He further contends that when fraud has been alleged limitation is not a bar in filing of the suit. When impugned mutation came in the knowledge of the petitioners-plaintiffs, they filed the suit. In this context reliance has been placed on Wall and 10 others v. Akbar and 5 others (1995 SCMR 284).
Further contends that every entry in the next Jamabandi gives new cause of action. In this perspective reliance has been placed on Saleem Akhtar v. Nasir Ahmad (PLD 2000 Lahore 385).
5. On the other hand, learned counsel for the respondents states that there are concurrent findings of fact recorded by the two Courts below, therefore, while exercising jurisdiction this Court is not required to re-appraise the evidence available on the file and has prayed for dismissal of the revision petitions.
6. I have heard the arguments of the learned counsel for the parties and have perused the record with their able assistance.
7. I have noticed that the alleged mutation on the basis of which respondents have claimed rights in the property has been sanctioned which is clear violation of Section 42 of the Land Revenue Act, 1967. Admittedly, this mutation is not signed or thumb marked by the seller. There is no identification by the Lambardar or the Councilor or land owner of the estate. I have noticed that through Mutation No. 47 the proprietary rights were transferred in favour of Muhammad Ibrahim from the Central Govt. And on the same day through Mutation No. 48 whole of the land from his name has been shown to be transferred in the name of Bahali etc. The predecessor of the respondents through oral sale as the successors of Muhammad Ibrahim filed suit for declaration and one of the plaintiffs Noor Muhammad appeared as PW.2 and made statement on oath, therefore, onus to prove the valid sale of the land in favour of predecessor of defendants was on the defendants to prove valid sale and valid attestation of the mutation. I have observed that copy of impugned mutation is Ex,P-2 as well as Ex.D.2 or. The file which is not signed or thumb marked by Muhammad Ibrahim the alleged seller, Lambardar, Councilor, Pattidar or identifier before the revenue officer. These conditions have been mentioned in Section 42 of the Land Revenue Act, 1967.
The compliance of all the conditions mentioned therein for valid attestation of mutation is necessary, without strict compliance of Section 42 ibid the mutation is nullity in the eyes of law; therefore it does not create any right or title in. The suit property in favour of the predecessors of the respondents and it has also no effect upon the rights of the predecessor as well as of the petitioners. As the mutation proceedings are not judicial proceedings and do not at all happen to confer title. Whenever genuineness of any mutation is challenged, the burden squarely lies on the parties relying upon the mutation, to prove the actual transaction. Reliance is placed on Muhammad lqbal and another v. Mukhtar Ahmad through LRs. (2008 SCMR 855) (supra). When this mutation is clearly against the law and declared as such, therefore, no valid title in the suit land was transferred in favour of the predecessor of the respondents. It is settled law that till the time the entry of Jamabandi is not changed through the valid attestation of mutation, on the basis of any transaction between the parties or the order passed by any Court, the previous entry remains in the field. I have observed that through invalid attestation of mutation the entries in the Jamabandi were change, therefore when the impugned mutation is declared null and void, the previous entries automatically take place on the surface of the Jamabandi. Therefore, the law cited by the learned counsel for the petitioners that every wrong entry in the new Jamabandi gives the new cause action to a person, is fully applicable to the facts of this case, therefore by no stretch of imagination, the suit can be declared barred by limitation. Eveh otherwise, the petitioners-plaintiffs are in possession of some portion of the suit land for which the respondents have filed suit for possession, it is also a strong circumstance in favour of version of the petitioners-plaintiffs which supports the version with regard to the limitation put forth by the plaintiffs.
8. Even otherwise respondents were bound to prove the factum of sale independent of attestation of impugned mutation No. 48 but they miserably failed to plead and prove the same.
9. In this view of the matter, the arguments advanced by the learned counsel for the respondents that there are concurrent findings recorded by the two Courts below, therefore, this Court cannot interfere in the concurrent findings, have no weight. This Court cannot close its eyes and validate the concurrent findings without application of mind. This Court ought to exercise its jurisdiction vested to it under Section 115, CPC and to interfere in the illegal findings recorded by the Courts below, so as to rectify the illegality committed by two Courts below, when they have ignored the basic provisions of law.
Civil Revision .