' AMIN-UD-DIN KHAN, J.---Through this single judgment I intend to decide the above captioned civil revision and Civil Revision No,2635 of 2011, as common questions of law and facts are involved in both the civil revisions.
2. The respondent-plaintiff (Muhammad Ramzan) filed a suit for declaration on 6-10-1997 challenging therein the exchange Mutation No, 745 attested on 15-2-1994. The other suit for declaration, which is subject-matter of Civil Revision No,2635 of 2011, was filed on 12-2-2000 by Muhammad Din and Muhammad Rafique against Muhammad Ramzan, wherein they alleged that they are owner in possession of suit property mentioned in the head note of plaint measuring 3- kanals 15-marlas and the alleged transfer of 10-marlas land through Mutation No,745 in favour of defendant, Muhammad Ramzan, is fictitious one. Learned trial Court consolidated both the suits and proceedings were ordered in the suit titled "Muhammad Ramzan v. Muhammad Din etc."- After the close of trial, vide judgment and decrees dated 26-10-2009 learned trial Court decreed the suit filed by Muhammad Ramzan and dismissed the suit filed by the petitioners-defendants, Muhammad Din etc. The petitioners filed two appeals before the first appellate court. The decree holder also filed cross-objections, as the mesne profit was not granted to him. Vide judgment and decrees dated 17-5-2011 learned first appellate court dismissed both the appeals of Muhammad Din etc. And accepted the cross objections filed by Muhammad Ramzan. Hence, these two civil revisions.
3. Learned counsel for the petitioners-defendants states that the stance of petitioners in their suit was that there is an agreement to sell of suit property, subject-matter of suit titled "Muhammad Ramzan v. Muhammad Din etc." and plaintiffs paid an amount of Rs,60000 at the time of agreement to sell reduced into writing on 17-1-1994, total land is measuring 8-kanals 18-marlas and total sale price was Rs,140000 and after receiving the balance amount by Muhammad Ramzan, they agreed that Mutation No,745 will be for exchange of land agreed to sell in their favour and in lieu thereof fictitiously 10-marlas land owned by Muhammad Din etc will be transferred in favour of Muhammad Ramzan, who will subsequently return this 10-marlas; that it was settled by the parties in order to save themselves from heavy expenses of stamp duty. Learned counsel argues that learned trial Court while recording the findings on issues Nos.1, 11 and 13 in paragraph 9 of the judgment came to the conclusion that it is proved through on well as documentary evidence that Muhammad Ramzan agreed to sell his property measuring 8-kanals 18-marlas in favour of defendant No,1 i,e, Muhammad Din through Exh.D-1 for payment of Rs,140000, who paid Rs,60000 through Exh.D-2 and Exh.D-1 was executed as sale agreement. Learned counsel further argues that even the learned Judge has compared with the signatures of Muhammad Ramzan upon Exh.D-1 and Exh.D-2 with his admitted signatures and came to the conclusion that upon Exh. D-1 and Exh.D- 2, there are signatures of Muhammad Ramzan.
' Further that learned trial Court fell in error while ignoring unrebutted evidence of witnesses and statement of defendant as DW-6 and his witness Haq Nawaz. DW-2, who categorically stated that the remaining amount was paid in his presence. This portion of statement of DW-2 has not been challenged in the cross-examination, therefore under the law if the portion of statement of a witness is not challenged in cross-examination, it will be presumed that the other side has accepted the same. It has been further argued that when there was no cross appeal with regard to these findings recorded by the trial Court that Exh.D-1 and Exh.D-2 have been proved through oral as well as documentary evidence, when the case of petitioners Muhammad Din etc is that this impugned Mutation No,745 was in continuation of that agreement to sell and further when the defendant proved the attestation of mutation by producing overwhelming evidence, the findings recorded by the trial Court as well as first appellate court are result of misreading and non-reading of this overwhelming evidence, therefore are not sustainable under the law. Learned counsel has prayed for setting aside the judgments and decrees passed by both the courts below and also prayed for dismissal of suit filed by Muhammad Ramzan and decreeing the suit filed by the petitioners-defendants Muhammad Din etc.
4. On the other hand, Learned counsel for the respondent-plaintiff Muhammad Ramzan has argued that as there are concurrent findings of facts recorded by two courts below, therefore a limited scope remains with this court to scrutinize the findings of both the courts below; that when the plaintiff himself has challenged the impugned mutation, therefore learned trial court has rightly decreed the suit filed by his client. Further states that learned trial Court has not granted mesne profit and he prayed for the same through cross objections, which was granted by learned first appellate court and lastly learned 'counsel prayed that on the basis of any agreement to sell, a declaratory suit cannot be filed.
5. I have heard the learned counsel for the parties at full length and also gone through the voluminous record with their able assistance.
6. I have observed that learned trial Court came to the conclusion that agreement to sell with regard to suit property and receipt of payment of earnest money were proved by the petitioners- defendants, Muhammad Din etc. The portion remained unproved on behalf of petitioners- defendants, Muhammad Din etc. According to the trial Court, was payment of remaining price of land in dispute. As pointed out by learned counsel for the petitioners that for payment of remaining price, Haq Nawaz DW-2 was produced, who categorically stated that the remaining amount was paid in his presence. This portion of statement of DW-2 has not been challenged in the cross- examination by learned counsel for the plaintiff, Muhammad Ramzan. Under the law, the portion of statement of a witness remained unchallenged in the cross-examination is presumed that the other party has admitted this portion of statement of witness. Even the defendant (Muhammad Din) when appeared as DW-6, has stated that remaining price of Rs,80000 was paid on 15-2-1994.
Furthermore, as it is pleaded by the defendant that it was agreed between the parties for execution of agreement to sell, the mode agreed by the parties was that the device of exchange mutation was adopted in order to save the parties from bearing heavy expenses of stamp duty, therefore Mutation of exchange No,745 was attested on 15-2-1994. I have noticed that the plaintiff has impleaded Patwari, who entered the mutation and also revenue officer. They not only filed written statements but also appeared in the court as witnesses and supported the version of petitioners- defendants and fully proved the valid attestation of mutation on the basis of statement as well as presence of parties.
7. In furtherance of agreement to sell for its execution or compliance the mode of exchange was adopted by the parties, which has been proved through unrebutted evidence produced by the defendants, as Patwari has fully proved the entry of 'Rappat-Roznamcha' and Rappat has also been produced on the record. The revenue Halqa-Patwari Chadhar appeared as DW-7, who produced the original record of Roznamcha for the year 1992 to 1995 and Register of mutations wherein Mutation No,745 dated 15-2-1994 also exists. Muhammad Tariq, previous Patwari of Halqa appeared as DW-8, who confirmed that Rappat No,202 dated 1-2-1994 is in his writing, on the basis of which Mutation No,745 was entered and the said Rappat also bears his signatures. He has proved this Rappat with full detail. Muhammad Rasheed, Naib Tehsildar appeared as DW-9, who stated that he has attested the mutation. Against this unrebutted evidence, plaintiff failed to prove that no such mutation was entered or attested. Even the case of plaintiff is for seeking declaration of ownership of whole of the land measuring 8-kanals 18-marlas, whereas his own pleadings are even contradictory in paragraph 5 of his plaint. In the body of plaint he has introduced another story that actually through the mutation in question it was agreed that he will transfer 06-marlas of land out of his owned land and will get 10-marlas of land owned by the defendants and also receive Rs,5000. In this view of the matter, the proceedings and attestation of mutation are not totally denied by the plaintiff-respondent. When it is so, it was the duty of plaintiff to prove the transaction otherwise than the mutation has been attested. The plaintiff failed to prove his case as pleaded by him. Even on behalf of plaintiff there is only solitary statement of P.W.1 (Muhammad Iftikhar) who is son of original plaintiff. No other witness has been produced by the plaintiff. It is admitted by the witness that his father was in the business of "Pesticide", therefore the pleading of original plaintiff that he is an illiterate villager, is admittedly not correct. As a person who is in the business of "Pesticides" must be a vigilant and a prudent shopkeeper, as it is a technical business.
8. The other contention of learned counsel for, the plaintiff-respondent that on the basis of agreement to sell, suit for declaration cannot be filed. I am afraid that this contention of learned counsel is result of misunderstanding the facts of case. The defendants-petitioners have not filed the suit for seeking a declaration of ownership of suit property on the basis of any agreement to sell, rather their suit is that 10-marlas property transferred through an exchange mutation in favour of plaintiff, to the extent of that property they be declared owner of 10-marlas which has been shown to have been transferred in favour of respondent-plaintiff through Mutation No,745 dated 15-2-1994. It is the plaintiff who has challenged the mutation, otherwise through the exchange mutation the property subject-matter of agreement to sell has been transferred in the name of petitioners-defendants and the same has been incorporated in the Revenue Record. As it is the case of defendants that parties have used the device of exchange mutation for implementation of sale agreement, therefore there was no need for the defendants to file a suit for specific performance, as through the exchange mutation suit property has been mutated in their names.
9. The other valuable documentary evidence which has been overlooked by both the courts below is Exh.P-2. This document is of the plaintiff himself. It is evident through this document, Jamabandi for the year 1992-1993, in the Column 4 of ownership name of Muhammad Rafique, one of the defendants, has been written. Learned counsel states that as this land was given to Muhammad Rafique as mortgagee, therefore his name is entered here, which also confirms the case pleaded by the defendants. Since the possession of defendants over the suit-land has been admitted by the plaintiff. Though the case of plaintiff is that it was given to the defendants on lease, whereas case of the defendants as pleaded by them that it was previously mortgaged with another person, then with one of the defendants and afterwards agreement to sell was arrived at between the parties.
10. In the above circumstances, when the agreement to sell was found by learned trial Court to have been validly executed and proved and also the receipt Exh.D-2 and further when with regard to Exh.D-2 the findings of learned trial Court are that through this receipt Rs,60000 were paid, therefore the other findings reverting the petitioners-defendants by both the courts below are result of misreading of valuable documentary as well as oral evidence produced by the petitioners-defendants. In this view of the matter, both the courts below have committed illegality and material irregularity while recording the findings against the petitioners, the same are not sustainable under the law because the same have been recorded while ignoring A the settled principles of law, Learned counsel for the respondent-plaintiff (Muhammad Ramzan) has relied upon "1984 SCM R 504 (Muhammad Bux v. Muhammad Ali) and 1997 SCM R 1139 (Abdul Hakeem v.
Habibullah and 11 others)" to argue the case that there are concurrent findings of facts recorded by two courts below and the High Court cannot change these findings by fresh interpretation of evidence. There is no cavil to this rule but the case-law referred to by learned counsel for the respondent-plaintiff is not applicable to the facts of this case, as the courts below have committed illegality and material irregularity, therefore the findings recorded by both the courts below are result of misreading and non-regarding of evidence.
11. The crux of above detailed is that both the civil revisions are allowed and impugned judgments and decrees passed by both the courts below are set aside. The result would be the suit filed by the respondent-plaintiff (Muhammad Ramzan) shall stand dismissed with costs throughout, whereas the suit filed by the petitioners-defendants (Muhammad Din etc.) shall stand decreed with costs throughout.
12. In both the civil revisions, the petitioners sought permission to lead additional evidence through Civil Miscellaneous No,4-C-2012 in Civil Revision No,2634 of 2011 and Civil Miscellaneous No,2-C of 2012 in Civil Revision No,2635 of 2011. As I have noticed that sufficient material is available at this final stage, therefore no need to require or discuss further document. As such both the above mentioned C.Ms. Are disposed of accordingly.