' IKRAMULLAH KHAN, J.---Respondents, in strive of, to declare themselves, owners in possession of a piece of a land bearing Khasra No. 1094 measuring 7 kanals, 19 marlas out of 11 Kanats, 11 marlas situated in Moza/Estate Hangu, District Kohat, instituted a civil suit before the SCJ, Kohat with an alternate relief of possession thereof too, against the petitioner and respondents Nos. 8 to 11.
2. The respondents Nos. 8 to 11, did not contest the suit as, they were arrayed as pro forma defendants, and the property in their name, was not made disputed by either party therein the suit.
3. The petitioner, contested the suit, with a stance, that the disputed property, had been purchased by him vide an unregistered deed, dated 13-7-1980, with valuable consideration of Rs.75000.
4. Both contested parties, adduced their respective evidence, in order to substantiate their claims, as averred by them in their pleading before the trial Court.
5. The learned Civil Judge Hangu, came to the conclusion thereof, that the disputed land; had been entered in the Revenue Record, in the name of respondents in the column of ownership through Mutation No. 3380 dated 10-7-2003; therefore, decreed the suit in favour of contesting respondents vide his judgment dated 29-11-2005.
6. The petitioner, highly dissatisfied of the judgment of Civil Judge, Hangu, preferred an appeal before ADJ-II, Hangu, but his grievance was not addressed thereto and as a result his appeal was dismissed vide judgment dated 25-10-2008, hence the instant revision, being filed under section 115 of C.P.C., 1908 before this Court.
7. The learned counsel of petitioner, contended thereof, that the contesting respondents were not owners of the disputed property but, they were occupancy tenants over the land, they sold their tenancy right over the disputed property to one Sanobar Gul son .Of Muhammad Aman vide deed dated 12-1-1969 and 19-2-1968. The said Sanobar Gul sold his right acquired thereof through the above stated deeds to one Abdullah. Khan son of Nazir vide deed No. 12-2-1969. The petitioner purchased the right of tenancy from the legal heir of Abdullah Khan vide deed dated 13-7-1980. The possession of the land was also delivered to petitioner on the same date and right from 13-7-1980 petitioner is in peaceful possession over the disputed land, and has developed, improved the disputed land, but both Courts below, oversighted the ground realities, and facts on record and as such have rendered judgments against the available record, based on misreading and non- reading. The learned counsel further contended, that as, no mutation would be effected in Revenue Record on the strength of occupancy tenancy after the target date 23-3-1990, the Mutation No. 3380 attested on 10-7-2003 by Revenue Officer on the strength of an order No. 119 dated 28-3-1996 passed by Deputy Commissioner, is without jurisdiction, illegal.
8. He further contended, that contesting respondents were bound to prove and produce decision order No. 119 dated 28-3-1996, but neither the respondents produced the afore-stated order before the trial Court, nor the trial Court summon the concerned record, therefore erred in law and acted upon presumptions.
9. He further submitted, that the petitioner has purchased the occupancy rights over the disputed property, but even if the deed in regard to purchase of occupancy rights were not considered at all, then, too petitioner would be treated as tenant at will of the provincial Government, as the disputed land, was the ownership of the Provincial Government.
10. The learned counsel at last argued that, under the provision of section 41 of the Transfer of Property Act, 1882 petitioners title over the disputed property is protected, but this aspect of the case, has not been discussed by both the Courts below, thereby caused miscarriage of justice in this regard.
11. On the 'other hand, the learned counsel for contesting respondents argued with vehemence, that the respondent are in possession of the land through his tenant, Abdullah Shah son of Gul Badshah, while the disputed landed property has been legally mutated in the name of respondents. He supported the impugned judgments.
12. I scrupulously scrutinized the record and anxiously heard arguments of both the learned counsel for the respective parties.
13. To resolve the controversy, amongst the parties of instant revision petition, I intend to discuss first, the contention of the petitioner raised and argued with vehemence, by their learned counsel, that petitioner has stepped into the shoes of respondents as, respondents have sold the land in the hand of one Gul Sadbar.
14. In this regard, petitioner failed to prove the unregistered deeds dated 13-7-1980. Neither the original deeds exhibited during course of trial, nor the scribe nor any attesting witness to the said deed had been produced before the trial Court as required under the provision of Article 79 of the Qanun-e-Shahadat Order, 1984.
15. The petitioner also failed to get prior permission for production of secondary evidence in this regard as required under the provision of Article 77 of the Qanun-e-Shahadat Order, 1984. The provision of Article 77 of the Qanun-eShahadat Order, 1984 contemplate thereunder as:-- "Secondary evidence of the contents of the documents referred to in Article 76, paragraph (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to this advocate such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case".
16. The petitioner, as revealed from the contents of record neither has given any notice in this regard, nor has obtained any permission for secondary evidence.
17. The provision of Qanun-e-Shahadat. Order, 1984, contained there under Article 102 contemplate as:-- "when the terms of a contract, or of grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other dispossession of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provision hereinbefore contained.
' Article 117 and Article 118 of the Qanun-e-Shahadat Order, 1984, determined thereof the burden of proof, to be discharged by any party thereof in regard to facts, asserted by a party. As, the petitioner has taken the plea and asserted thereof in his pleading, that the disputed property has been purchased by him, so the burden of proof under the provision . Of Articles 117 and 118 of Qanun-e-Shahadat Order, 1984, certainly ries on him to prove, that he had purchased the disputed land from a lawful owner thereof and in this respect, he was bound under the law to prove, the first transaction between the respondents and the first vendee in this regard. But petitioner, did not discharge his this burden and failed to prove, that respondent have sold the land."
18. The second proposition, has to be answered herewith, raised thereof by petitioner, that they are in peaceful possession of the land without paying any rent in this regard, and had acquired proprietary right over the suit property due to adverse possession is out of context, as no one be permitted to raise inconsistent pleas. As petitioner has raised thereof in his pleading that he had purchased the suit land, then he would be not permitted to raise in consistent, plea even though it might be alternate one. The concept of acquiring proprietary rights over the land, by influx of time due to adverse possession has been declared against the injunction of Islam, by the Hon'ble Federal Shariat Court and no such plea is more available to any person after the year 1990.
19. The actual possession, over the suit land, may be ascertained, from the Revenue Record prepared thereof in course of crops inspection by the Revenue Officials in this regard, but neither the petitioner, nor the trial. Court ever tried to place on record Khasra Girdawari in respect to the suit property; however, the (Fard Jamabandi), produced thereof and duly exhibited during course of trial before the civil Court negated this version of the petitioner that he is in possession of the suit property.
20. The most crucial legal proposition, which needs thorough and elaborate discussion, is whether the disputed suit property would be mutated in the column of ownership in Revenue Record in the names of respondents being the occupancy tenants over the disputed property.
21. The Revenue Record, produced during the course of trial by P.W.1, Halqa Patwari, right from the year 1971 to 2003, revealed thereof, that Provincial Government was owners of the whole property comprised of the disputed No G Khasra and respondents were entered thereof as "Dakhal Karaan"
(L)1/10.1)) {{URDU TEXT}} in the column of tenancy and on 10-7-2003 vide Mutation No. 3380, respondents were entered therein the column of ownership as owners.
22. The Mutation No. 3380, dated 10-7-2003 transpired that this mutation had been attested on the basis of an Order bearing No. 119 dated 28-3-1996. But this mutation, itself creates a number of questions in a prudent mind that why the afore-stated mutation was attested too late on the strength of an order passed in the year 1996 but mutation was effected in the year 2003.
23. Mere late proof of mutation does not confer ownership rights in landed property thereof, without proof of the real transaction effected in regard to change of ownership or for the purpose of acquisition of proprietary rights over any landed property.
24. In case of Fida Hussain v. Murid Sakina (2004 SCM R 1043) the Hon'ble Supreme Court has observed thereof as:-- "It is known principle of law that mutation is not a deed of title and is merely indicative of some previous oral sale between the parties. This principle being in view, whenever any mutation is challenged, the burden squarely lies on the beneficiary of the mutation to prove not only the mutation but also the original transaction which he is required to fall back upon".
' This Court too in case of Fida Hussain v. Abdul Aziz (2005 CLC 180) has held thereof as:-- "Mere attestation of mutation would not convey any title nor same would be an evidence of title.
Beneficiary of mutation would be required to prove transaction through independent evidence.
Mere entry of mutation or its attestation would be of no benefit to party claiming benefit thereunder".
25. This principle of law is consistently followed by Courts. I fortify my this view by the judgment delivered thereof in case of Aurangzeb v. Muhammad Jaffar (2007 SCM R 236) whereof the Hon'ble Supreme Court held as:-- "Mere mutation could not confer any right" In case of Mst. Noor Fatima (1990 SCM R 629) and case of Ghulam Rasool (PLD 1971 SC 376), the same principle were enunciated that mere attestation of mutation, without proof of the original transaction, which was the determining factor for confirming of rights in landed property is of no evidentiary value and no title convey through such attestation of mutation."
26. The respondents in case in hand, were under their legal obligation to produce the order/decision dated 28-3-1996 passed by the Deputy Commissioner in favour of respondents, but they, failed to produce the basic and necessary transaction, which allegedly had conferred proprietary rights upon them.
27. It is by now settled proposition of law that no one shall be deprived of their proprietary rights except with its consent. Then how the respondents were conferred the proprietary rights over the disputed property, without making the Provincial Government as a party.
28. Both the Courts below were under their bounded obligation, in invoking the jurisdiction under the provision of C.P.C. 1908; contained thereunder rule 10 of Order I, for summoning the Provincial Government as a party to the suit.
29. The provision contained thereunder section 79 r/w Order XXVII of C.P.C. 1908, prescribed thereof, the command of law in this regard too.
30. The Hon'ble Supreme Court of Pakistan, in case of Muhammad Yousaf v. Hukomat Pakistan (PLD 1990 ?? 760(sic)) has defined thereof, some rules, principles for such like occupancy tenants and has declared sections 4 and 5 of the N.-W.F.P. Tenancy Act, against the injunction of Islam. No one could acquire proprietary rights in any land being the occupancy tenant after the target date 23- 3-1990 as held thereof by the Federal Shariat land that how the person in possession of Court. The disputed land had occupied the land.
31. In case in hand, respondents acquired as per their own averments made thereof in their pleading, the proprietary rights in the disputed land through the attestation of Mutation No. 3380 vide order dated 28-3-1996, passed by the then Deputy Commissioner.
32. When the afore-stated mutation is placed in juxta-position to the judgment of the Hon'ble Court, then, there would be no second opinion, in this regard that the very mutation was attested without jurisdiction by the Revenue Officials in that regard.
33. When a basic order is found to be without lawful authority, then all the superstructure built on it would fall on the ground automatically.
34. Another aspect of the case, which has not been discussed nor brought in view by both Courts below, that P.W.1 the Halqa Patwari, a competent Revenue official in this regard had produed site plan (Naqsha Tasweri) of the disputed property, wherein, petitioner was shown in possession of the disputed land, no any objection has been raised on behalf of the respondents and the documents were exhibited, without any objection in this regard.
35. In Revenue Record of disputed property one Abdullah son of Nazir was also being shown in possession of the property in the year 1971/1972 as tenant at will of the respondents, while the son of that very person had sold as alleged by the petitioner the disputed land to petitioner.
36. It is also settled principle of law, that the burden of proof lies on the person not in possession of a particular or disputed land that how the person in possession the disputed land had occupied the land.
37. Irrespective of the deed of title, the copies of which were produced thereof by, the petitioner, without proof in this regard as per the requirement of Article 79 of the Qanun-e-Shahadat Order, 1984, and the claim of the petitioner as averred thereof in his pleading, in regard to the provision of section 41 of the Transfer of Property Act, 1882, the trial Court failed to frame issues in this regard that whether the property of Provincial Government could be mutated under the annulled law of N.-W.F.P. Tenancy Act, in favour of respondents being occupancy tenants after the target date of 23-3-1990 and whether the Government was not necessary party to the suit, as well as that how the petitioner is in actual possession of the disputed land. All these questions of law and facts were not properly analyzed nor this aspect of the case has been discussed by both Courts below, which would be the determining factor for final adjudication of the controversy between the parties.
38. Therefore, keeping in view, the reasons given hereinabove. I, set aside both the impugned judgments passed by both Courts below and remand the case back to the trial Court for the purpose to summon the record of Order No. 119 dated 28-3-1996 and also put the Provincial Government on notice as defendant in the case, and thereafter decide the case in light of the judgment of the apex Court reported as PLD 1990 SC 760, and keeps in view to ascertain the actual position of the disputed land, that who is in possession of the land, and at what capacity, both parties shall bring on record through official witnesses the whole Revenue Record in regard to possession over the property, and a local commission shall be also appointed in this regard and thereafter, the trial Court is expected to pass a reasonable judgment according to the merit of the case as demanded.