' AMIN-UD-DIN KHAN, Through this single judgment, I intend to dispose of Civil Revisions No,1607 and 2548 of 2001 and R.S.A. No,67 of 2001 as all the three matters have been filed against the same judgments and decrees of both the courts below.
2. Through this civil revision the petitioners have challenged the judgment and decree dated 19-6- 2001 passed by the learned Additional District Judge, Bhakkar, whereby the appeals filed by the petitioners/appellants/plaintiff were dismissed against the judgment and decree dated 17-3-1982 passed by the learned Civil Judge, Bhakkar, whereby the suit for preemption filed by respondent No,1 was decreed against the revision petitioners and partially decreed against appellant of R.S.A.
No,67 of 2001.
3. Brief facts of the case are that the plaintiff Fateh Muhammad filed a suit on 2-9-1974 to pre- empt the sale of land measuring 550 kanals and 7 marlas through. Mutation No,4561 attested on 2- 9-1973 in favour of defendants. The suit was contested by the defendants and written statements were filed separately.
4. Sharfa defendant narrated in his written statement that suit is wrong; He purchased 204 kanals and 14 marlas out of the suit land through Mutation No,4539 and also stated that he is tenant over the suit land, therefore, suit is not maintainable against him. He has further narrated that through agreement dated 6-8-1973 for a consideration of Rs,10,000, he has purchased the property and Mutation No,4539 was entered and deceitfully with the connivance of the attorney of the seller and the' employees of the revenue department, the said mutation was cancelled on 2-9-1973 behind the back of the defendant purchaser and fictitiously Mutation No,4561 was entered on 28-8-1973 and attested on 2-9-1973 and the plaintiff has not filed the suit against Mutation No,4539, therefore, the suit is not competent.
5. Sana Ullah defendant No,4 also filed written statement and contested the suit. Mulazim Hussain and Muhammad Sadiq defendants Nos.2 and 3 revision petitioners of Civil Revision No, 1607 of 2001 also filed their written statement wherein they have stated that they purchased 175 kanals and 2 marlas on 28-8-1973 through Mutation No,4558 for consideration of Rs,10,000 and they have stated that the impugned mutation has been sanctioned with the connivance of plaintiff and the official of the revenue department on 2-9-1973.They have also raised objection that the plaintiff has not impugned sale of Mutation No,4558, therefore the suit is not competent. Further that Mutation No,4558 has been wrongly cancelled behind the back of the defendants. Kamal defendant No,5 also filed written statement, as Kamal and Sanaullah are no more contestant in this litigation, therefore, their case need not be thoroughly discussed.
6. The learned trial court framed various issues and invited the parties to produce their respective evidence. The parties produced their respective evidence and the learned trial court decreed the suit to the extent of 360 kanals and 7 Marlas and exempted 190 kanals from the operation of the pre-emption declaring that it was in the tenancy of Sharfa, therefore, to the' extent of 190 kanals suit was dismissed. Fateh' Muhammad as well as Sharfa and Mulazim Hussain and Muhammad Sadiq filed their respective appeals. Vide consolidated judgments and the decrees the learned first appellate court dismissed all the appeals, hence these matters.
7. This Court on 1-3-2005 dismissed both the civil revisions as well as R.S.A. The judgment was assailed before the august Supreme Court of Pakistan through C.P.L.As. Nos.1618, 1756 and 1846-L of 2005 and vide order dated 9-3-2010 the august Supreme Court of Pakistan remanded the cases before this Court for fresh decision.
8. So far as Civil Revision No, 2548 of 2001 is concerned it is filed by the plaintiff against the judgment and decree whereby 190 kanals of land has been exempted from the decree in his favour, therefore, he has filed the said civil revision and on 19-2-2002 before this court, learned counsel for the plaintiff- petitioner stated that he only claims relief against Sharfa respondent No,1 in his civil revision and rest of the respondents are pro forma respondents. Admittedly, no decree has been passed to the extent of sale 190 kanals of the suit-land before 31-7-1986. Therefore, now no fresh decree can be passed in respect of 190 kanals. Reliance is placed on Muhammad Ismail Khan and others v. Ghulam Haider and others PLD 1988 Lah.
691. Resultantly, Civil Revision No,2548 of 2001 is not competent and the same is dismissed on this score.
9. Learned counsel for the petitioners in Civil Revision No,1607 of 2001 contends that the petitioners have purchased 175 kanals and 2 marlas and through Mutation No,4558 which was entered on 28- 8-1973. And Sharfa appellant claims to have purchased the, property measuring 204 kanals and 14 Marlas through Mutation No,4539 entered on 6-8-1973. Learned counsel further add that both the courts below have held that the petitioners Mulazim Hussain and Muhammad Sadiq purchased property measuring 175 kanlas and 2 Marlas through Mutation No,4558 and Sharaf appellant purchased 204 kanals and 14 Marlas through Mutation No,4539 and the trial court while recording findings on issue No,5-A observed as under:- "The entries of both Mutations Nos.4539 and 4558 are declared and held to have remained intact.
The Mutation No,4561 (Exh.D-3) is simultaneously declared to be void to the extent it infringed the entries of Mutations Nos.4539 and 4559. Mutations Nos.4539 and 4558 will be taken up afresh for attestation by the concerned revenue officer in accordance with law, whereas Mutation No,4561 would be corrected and modified in accordance with the above mentioned findings."
10. The first appellate court while recording findings on issue No,5-A observed as under:- "Mutations Nos.4539 and 4558 were pending attestation when the Patwari through duplicity, entered another Mutation bearing No,4561 wherein besides other land, even those fractions of land were also included which had earlier formed the subject-matter of Mutations Nos.4539 and 4558 upon a purported verification of rescission of the two alienations represented by the entries of those mutations.
' The source of purported verification, this is indeed intriguing to note was kept undisclosed. On the very day i.e, 2-9-1973 Mutation No,4561 was instantaneously sanctioned wherein the transactions originally indicated by the entries of Mutations Nos.4539 and 4558 were also assimilated in a different manner. The contrivance deployed for that matter was that all the defendants Nos.1 to 4 should be shown to have jointly purchased the existing suit land through an oral transaction. All the orders appearing on Mutations Nos.4539, 4558 and 4561 appear to. Be queerly silent as to how the purported recession of alienations borne by Mutations No,4539, 4558 and their revival through absorption into a single wider transaction should have simultaneously taken place. In these circumstances, it has rightly been held that a separate oral sale had occurred in favour of defendant No,1 respecting 204 kanals, 4 marlas mentioned in the entry of Mutation No,4539. Several alienations had been orally concluded in favour of the defendants Nos.2 to 3 witnessed by the entry of Mutation No,4558, in respect of 175 kanals 2 marlas mentioned therein and that an individual transference had occurred in favour of the minor defendant No,4 enshrined by the entry of Mutation No,4262. This issue has also been rightly decided by the learned lower court. The findings on this issue of the learned lower court need not be changed".
11. In this view of the matter these findings on. Issue No,57A recorded by loth the courts below have not been challenged by the plaintiff before ,this Court, therefore the same have attained finality.
Therefore, learned counsel states that when both the courts below declared that the sale was made through Mutation No, 4558 in favour of Mulazim Hussain and Muhammad Sadiq which was entered on 28-8-1973 and in favour of Sharfa Mutation No,4539 which was entered on 6-8-1973 and filing of the suit on 2-9-1974 was clearly time-barred.
12. Learned counsel for Sharfa appellant has also supported the arguments advanced by the learned counsel for the petitioner and stated that the sale in favour of Sharfa was through Mutation No,4539 which was entered on 6-8-1973 and both the courts below held that the sale was completed and formal attestation of mutation was to be made and as the courts below held that sale was not made through Mutation No,4561, therefore, stated that the suit was wrongly decreed against Sharfa to the extent of 14 kanals and 14 marlas.
13. On the other hand, learned counsel for the respondent-plaintiff states that Sharfa has admitted Mutation No,4561 to be correct and in the suit for permanent injunction copy of order dated 1-4- 1975 has been produced as Exh.D-7. Learned counsel further states that there are concurrent findings of fact recorded by both the courts below therefore, the same should not be interfered with by this Court while exercising jurisdiction under sections 100 and 115 of the C.P.C.
14. I have heard the arguments of the learned counsel for the parties at length and have perused the record with their able assistance.
15. Learned counsel for the parties agree that the findings on issues Nos.3 5-A, 5-B and 5-C are under issue before this Court in these matters. They have advanced the arguments on these issues. Though both the courts below have found that actual sale in favour of vendees Mulazim Hussain and Muhammad Sadiq took place through. Mutation No,4558 and in favour of Sharfa through Mutation No,4539. Admittedly, these sales through these mutations have not been assailed in the, suit in hand. Under section 4 of the Punjab Pre-emption Act, 1913 a transaction of sale is pre-empted. Both the courts below have found that no sale took place through Mutation No,4561 attested on 2-9-1973 as according to the findings of both the courts below before entrance of Mutation No,4561 already two separate Mutations Nos.4558 and 4539 had already been entered with regard to the portions of the suit property in favour of various vendees and even another Mutation No,4262 in favour of Sana Ullah was in the field, therefore, clubbing the sale of land through Mutations Nos.4539, 4558 and 4562 with Kamal in Mutation No,4561 was not permissible.
There are concurrent findings of fact recorded by both the courts below, as I have noted above there is no appeal or revision before this Court against these findings despite that as the matter is very delicate and interesting ,therefore, in the interest of justice ,I also dilate upon the matter. In accordance with subsection (3) of section 42 of the Land Revenue Act, 1967 the persons who acquired any right or interest in a holding is bound to report the matter to Patwari. I have noticed that in Mutation No,4558 Patwari has noted in Column No,14 of the Mutation form as under:- {{URDU TEXT}},
16. The fee of Mutation No,4558 was paid according to entry of Column No,13 through Receipt No, 50 dated 2-9-1973 and fees of Mutation No 4539 according to Column No, 13 was paid through Receipt No,51 dated 2-9-1973. Girdawar compared Mutation No,4558 with the record on 29-8-1973, whereas Mutation No,4539 was cornpared by the Girdawar on 24-8-1973. Both these mutations have already been cancelled by the Revenue Officer due to cancellation of the agreement. This order is dated 2-9-1973. I have noticed that the entries of Mutation No,4561 in Column No,14 dated 28-8- 1973 are as under:- {{URDU TEXT}}
17. Girdawar compared this mutation with the record on 29-8-1973. According to the entries of Column No,13 fee of this mutation was paid through Receipt No,54 dated 2-9-1973. It is clear that Mutations _ Nos.4539 and 4558 were validly entered according to dates mentioned above.
Therefore, fees were paid prior in time as receipt number shows from impugned Mutation No,4561.
When valid mutations were entered and even the land purchased by each of the vendees has no variation in the mutation separately entered in their names and in the impugned joint mutation, therefore, learned courts below rightly held that when valid mutations were entered in favour of the separate vendees which were admittedly compared and even fees were paid then there was no occasion to cancel those mutations and-enter and sanction with regard to the same property joint sale mutation on the same day and date. It was with the connivance of the revenue staff as well as the plaintiff who became beneficiary of impugned Mutation No,4561. As I have noticed that Mutation No,4558 was got entered by the vendee. As I have also noted that according to subsection (3) of section 42 of the Land Revenue Act, the matter has to be reported .By the person who has acquired the right and admittedly according to entry of Column No,14 of impugned mutation wherein Sharfa etc. Have been written the vendees and Mulazim Hussain and Muhammad Sadiq cannot be said that they have reported the matter of entry of impugned mutation. When both the courts below have declared that no sale took place through Mutation No,4561 then I am astonished how they decreed the suit in favour of the plaintiff. Their findings are contradictory one to that extent when at the one side they found that no sale took place through the impugned mutation and on the other hand they are decreeing the suit and the view taken by the courts below that Article 120 of the Limitation Act is applicable, is not sustainable under the law.
This case is covered under section 30 of the Punjab Pre-emption Act, 1913 wherein limitation has been given one year for filing the suit. In this behalf light can be taken from the pronouncement of August Supreme Court of Pakistan reported as Muhammad Nazeef Khan v. Gulbat Khan and others (2012 SCMR 235), wherein august Supreme Court of Pakistan held that , completion of sale of immovable property is not dependent upon attestation of its mutation. Sale have been completed earlier and attestation of its mutation would merely be its manifestation. In case reported as Haji Abdul Ghafoor Khan through his LRs v. Ghulam Sadiq through .His L.Rs, PLD 2007 SC 433; wherein it is held assumption that there cannot be sale without a registered sale-deed or a sanctioned mutation has no merit because a sale-deed or sale mutation only records a concluded sale transaction. Even otherwise when mutations were entered on the statement of the attorney of the vendor and the vendee and presented before the revenue officer for attestation of the same, the mutation entered previous in time with regard to the property were cancelled on 2-9-1973 on the ground that - the agreement has been cancelled between the parties and at the same time with respect to the same property absolutely same transaction a joint mutation which is impugned in the suit has been shown to have been attested on the same Jalsa-aam> which shows the contradiction and mala fide on the part of the revenue officer attesting the impugned mutation, therefore, in the light of the law declared by this Court reported as Ashfaque Ahmad and 8 others v.
Nadeem Ahmad and 3 others (PLD 2006 Lahore 643), the Division Bench of this Court held that when price was paid and power of attorney was executed the unilateral cancellation of that power of attorney is not permissible. In this case even there is no mention in the order with regard to Mutations Nos.4558 and 4539 that who reported the matter about the cancellation of the agreement between the parties and further the august Supreme Court of Pakistan declared in case titled Abdul Rahim and others v. Muhammad Hayat and others (2004 SCMR 1723) as under:-- "Mutation entry including the Jamabandi does not confer proprietary rights except raising rebuttal presumption in favour of their correctness and in case there was no rebuttal of such entries but same were on the other hand supported by other evidence, person in whose favour such entries were made, could rely upon them."
18. In the above circumstances, I am clear in my mind that actually sale was manifested through Mutation No,4558 in favour of Mulazim Hussain and Muhammad Sadiq and through Mutation No,4539 in favour. Of Sharfa. These mutations are declared to have been attested on 2-9-1973 and Mutation No,4561' to this extent is nullity in the eyes of law for the purposes of this pre-emption suit.
As I have noticed that event of oral sale has been entered in Column No,14 of the respective mutation on the respective dates. Sale means payment of money and delivery of possession. At least at the time of entrance of mutation the delivery of possession and receipt of money has been admitted and certainly it was to be reiterated at the time of sanction of mutation and admittedly on 2-9-1973 attorney of the vendor and vendee appeared before the revenue officer to certify the receipt of money and delivery of possession already taken place but as discussed above the revenue officer dishonestly did not record the version of the parties in their respective mutations earlier separately entered but in Mutation No,4561 the same has been recorded as the courts below have held that Mutation No,4561 is fictitious one against_ the rights of vendees of Mutations Nos.4539 and 4558. Actually, Mutations Nos.4539 and 4558 were to be attested, therefore, under these mutations the possession was delivered to the vendees and even the plaintiff has stated in Para No,5 of his plaint that he has asked the defendants to take the money and hand over the possession of the suit property, meaning thereby that he also did not deny their possession in the suit property and admittedly Sharfa got entered mutation on 6-8-1973, therefore, he is in possession since 6-8-1973 and Mulazim Hussain and Muhammad Sadiq are in possession since, 28-8-1973 and filing of suit on 2- 9-1974 was certainly over one year from taking the possession of the suit land under the sale.
Therefore in accordance with section 30 of the Punjab Pre-emption Act, 1913 the suit was filed after prescribed limitation of one year.
In the light of what has been discussed above, the findings recorded by both the courts below against the vendees on issues Nos.3, 5-A, 5-B, and 5-C are reversed. Resultantly, Civil Revision No,4607 of 2001 and R.S.A. No,67 of 2001 are allowed and suit filed by the plaintiff-respondent stands dismissed to their extent. There is no order as to costs.