' AMIN-UD-DIN KHAN, J.---Through this civil revision, petitioner-plaintiff has challenged the judgment and decree dated 20-9-2011 passed by the learned , Addl: District Judge, Gujranwala, whereby the appeal filed by the respondents-defendants was accepted, by way of which, judgment and decree dated 29-9-2010 passed by the learned Civil Judge 1st Class, Wazirabad decreeing the suit of petitioner-plaintiff, were set aside.
2. Briefly, the facts of this case are that on 16-11-2006 petitioner-plaintiff filed a suit for declaration and permanent injunction, wherein he challenged the Mutation No.4017 attested on 30-6-2003 on the basis that it is fraudulent and against the facts and is not binding upon the plaintiff. The defendants be asked to get it cancelled and accept the plaintiff as sole owner of suit property. It was further prayed that defendant No.1 be permanently restrained from interfering into the suit property owned by the plaintiff and further transferring the same personally or through any attorney. In the suit the original owners i.e. Vendors of suit property were impleaded as defendants Nos.1 to 4 and Mst. Zahida Parveen, ex-wife of plaintiff was impleaded as defendant No.5.
3. The written statement was filed by defendants Nos.1 to 4. They accepted the claim of plaintiff. The defendant No.5 ex-wife of plaintiff and defendant No.6, who is purchaser of suit property from defendant No.5 through Mutation No.476 attested on 16-11-2006, filed their joint written statement and contested the suit. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial, suit was decreed by the learned trial court vide judgment and decree dated 29-9-2010. An appeal was preferred by the defendants before the learned first appellate court, which was accepted vide judgment and decree dated 20-9-2011.
Hence, this civil revision by the petitioner-plaintiff.
4. Learned counsel for the petitioner-plaintiff argues that petitioner is permanent resident of U.S.A and in January, 2003 a bargain was struck with the actual owners i.e. Defendants Nos.1 to 4 for a consideration of rupees 8.6 million, out of which Rs.6,00,000 were paid at the time of agreement and the remaining amount was to be paid till June 2003; that he has sent the money to his wife Mst. Zahida Parveen, who dishonestly got sanctioned the sale mutation No.4017 of suit land in her favour on 30-6-2003; that the original owners support the case of petitioner-plaintiff; that the petitioner proved his case, therefore, learned trial court was justified in decreeing the suit in favour of petitioner-plaintiff; that the learned first appellate court fell in error while reversing the well, reasoned findings recorded by the learned trial court; that the findings recorded by learned first appellate court are not sustainable under the law; that the petitioner has filed C.M. No.1 of 2014 for permission to produce additional evidence, which will help the court in decision of the civil revision in hand. Prays for acceptance of application for permission to produce additional evidence and acceptance of civil revision in hand; that the defendant lady Mst. Zahida Parveen ex-wife of the plaintiff was having no source of income and she was the beneficiary of impugned mutation, therefore, she was bound under the law to prove the same without any shadow of doubt but she miserably failed to prove the same; that the judgment and decree passed by the learned first appellate court are not sustainable under the law. Learned counsel for the petitioner has relied upon the judgments "2010 SCMR 1351 (Khan Muhammad v. Muhammad Din through L.Rs.), 2007 SCMR 729 (Rehmatullah and others v. Saleh Khan and others), 2011 YLR 1789 (Mst. Zeenat Bibi v.
Muhammad Younas and others), 1996 SCMR 1386 (Tooti Gul and 2 others v. Irfanuddin), 2000 SCMR 1058 (Laloo and another v. Ghulaman), 2001 SCMR 609 (Amirzada Khan and another v. Itbar Khan and others), 1995 MLD 1165 (Ghulam Hussain and others v. Imam Bakhsh and 9 others), 1999 MLD 2302 (Mst. Jaffna v. Mst. Zohra Bibi and 12 others), 2011 YLR 2725 (Zulfiqar and 11 others v. Fateh Sher and 4 others) and 2002 YLR 1320 (Muhammad lqbal and 9 others v. Muhammad Rafique)."
5. The respondents Nos.1 to 4 have already been proceeded against ex parte vide order dated 13- 4-2012.
6. Learned counsel for respondents Nos.5 and 6 argues that the pleadings and evidence of plaintiff are contradictory. While referring Para 4 of the plaint argues that according to the plaintiff, his agreement was oral with the original vendors but states that when the plaintiff appeared as PW-1 he has introduced written agreement and specifically stated that on the stamp paper it was written and further when the same has not been produced meaning thereby if there was any agreement, best evidence has been withheld which fact also goes against the petitioner-plaintiff; that the plaintiff was required to prove his case without any shadow of doubt and it is not a case of shifting of onus of proof upon the beneficiary of mutation in question. ,It has been further argued that the findings recorded by the learned first appellate court are very exhaustive and in accordance with law, there is no misreading or non-reading on the part of learned first appellate court. With regard to C.M. No.1 of 2014 which is an application for permission to produce additional evidence learned counsel argues that some documents were tried to be produced during the recording of evidence of plaintiff but subsequently counsel for the plaintiff on 4-7-2007 received back said documents and now that documents sought to be produced as additional evidence cannot be permitted, as these are in contradiction with the case set up by the plaintiff earlier; that when his counsel withdrew the documents during the trial, now there is no reason to allow the plaintiff to produce the additional evidence.
' Learned counsel for respondents Nos.5 and 6 has relied upon the judgments "2013 SCMR 397 (Niaz Rasool through Muhammad Bilal v. Mst. Parveen 1kram and others), PLD 2011 Supreme Court 151 (Muhammad Tariq and others v. Mst. Shamsa Tanveer and others), 1979 CLC 533 (Waris Ali and 2 others v.. Ghulam Rasool and another), 2005 SCMR 123.1 (Muhammad Siddique v. Muhammad Sharif and others), PLD 2013 Lahore 17 (Shakoor v. Province of Punjab through Collector and others), 2008 SCMR 855 (Muhammad lqbal and another v. Mukhtar Ahmad through L.Rs.), 2007 SCMR 729 (Rehmatullah and others v. Saleh Khan and others), PLD 1998 Supreme Court 1509 (Sardara and 4 others v. Muhammad Khan), 1982 SCMR 511 (Muhammad Aslam v. Khuda Dad), 2001 CLC 60 (Abdul Rashid and another v. Suleman and 4 others), 2001 SCMR 345 (Late Mst. Majeedan through Legal Heirs and another v. Late Muhammad Naseem through Legal Heirs and another) and PLD 2004 Supreme Court 20 (Canal View Cooperative Housing Society v, Javed lqbal and another).
7. I have heard the learned counsel for the parties at full length and also gone through the record minutely, findings of both the courts below as well as The case law referred to by the learned counsel for the parties.
8. The case of plaintiff that he be declared as owner of suit property measuring 92-kanals 15- marlas on the basis of an oral agreement to sell arrived at between the parties in January, 2003 for a consideration of rupees 8.6 million and the earnest money was paid to defendants Nos.1 to 4 and remaining amount was to be paid till June 2003. It was agreed that the plaintiff will get the mutation attested in his favour and possession was delivered to the plaintiff by defendants Nos.1 to 4 at the time of receipt of earnest money. The plaintiff was in U.S.A in June 2003. He sent the money to defendant No.5 his wife who was available in Pakistan. The plaintiff sent rupees 8.4 million, which the defendants Nos.1 to 4 received the dame. It is averred that total sale consideration was paid by the plaintiff and for expenses an amount of Rs.4,30,000 was paid by the plaintiff. The defendant No.5, who was wife of plaintiff, being in Pakistan through fraud and against facts got attested Mutation No.4017 on 30-6-2003 in her favour, therefore, same is liable to be cancelled. It is further pleaded that upon 3-kanals land out of the suit land plaintiff has constructed a house as well as boundary walls. It is the case of plaintiff that one and half month back he came to Pakistan when defendant No.5 tried to interfere into the possession of plaintiff. He came to know about the attestation of mutation in the name of defendant No.5, therefore, he filed the suit in hand. The defendants Nos.1 to 4 have supported the plaintiff and admitted the claim of plaintiff. It is pleaded that they have received remaining amount of rupees 8 million, which was sent by the plaintiff from U.S.A. It is their case that they have stated at the time of mutation in favour of plaintiff, defendant No.5 through fraud got the mutation attested in her favour. The plaintiff when appeared as PW-1 in cross-examination stated that there was a written agreement of sale of suit, property by the owners i.e. Defendants Nos.1 to 4 in his favour. This assertion is in contradiction with the pleadings.
In pleadings he has claimed oral agreement to sell and with regard to payment of amount by him to the vendors is very ambiguous. He has not stated in clear words that by which means he has paid the amount. Pleading that the amount sent by him from U.S.A was received by the vendors is not a clear pleading. The written statement filed by defendants Nos.1 to 4 is very interesting and further the statement of Muhammad Hanif, who appeared as DW-1. Stated that he has never seen Mst. Zahida Parveen and he has made no statement in favour of said lady. Against the pleadings and statement in chief stated he has seen Mst. Zahida Parveen at the time of mutation. He has admitted that the remaining consideration amount of rupees 8 million was received by the vendors through cheque, which was deposited in his son's account namely Tariq. In cross- examination he admitted that he has seen Mst. Zahida Parveen. Mst. Zahida Parveen defendant No.5 appeared as DW-1. Ansar Butt was produced as DW-2. He stated that he received the money from Zahid Iqbal son of Mst. Zahida Parveen, who is brother in law of said witness and the money sent in his account from U.S.A was paid to the vendors on the asking of Mst. Zahida Parveen. Irshad Ullah Patwari appeared as DW-3. He produced Roznamcha Waqiati on the basis of which the impugned mutation was attested. DW-4 is the Record Keeper of Tehsil office Gujranwala: DW-5 is Naib Tehsildar, who attested the mutation. The attorney of defendant No.6 appeared as DW-6.
9. From the comprehensive scrutiny of pleadings and evidence it reveals that at the time of attestation of impugned mutation, defendant No.5 Mst. Zahida Parveen was the wife of plaintiff. The mutation was attested in her favour in due course of law when the money was paid by Ansar Butt, who supports the version of defendant No.5. The revenue authorities got entered and attested the mutation. It seems that afterwards some differences arose between the spouses and plaintiff filed the suit in hand after more than three and half years of attestation of mutation. It is astonishing that the original owners i.e. Defendants Nos.1 to 4 got attested the mutation in favour of defendant No.5 and when suit in hand has been filed, they have totally denied from attestation of mutation in favour of defendant No.5 and pleaded that their signatures were got on blank papers. When one of the defendants appeared as DW-1, admitted that the impugned mutation bears the signatures of all the vendors i.e. Defendants Nos.1 to 4. The Patwari as well as Revenue Officer also appeared in the witness box and deposed about the valid attestation of impugned mutation.
10. According to the case of plaintiff that he was not available in Pakistan at the time of attestation of impugned mutation, his pleadings as noted above are not clear with regard to the payment of consideration amount. With regard to earnest money the case and evidence of plaintiff are self contradictory. In the pleading agreement to sell is oral, whereas while appearing as PW-1 his case is that there was a written agreement to sell between the parties. The written agreement was never produced, which shows that if there was any agreement then best evidence has been withheld, that fact certainly goes against the petitioner-plaintiff. It is not a case of shifting of onus of proof upon the .Beneficiary. In the proceedings of sale mutation plaintiff is nowhere a party. He is a third party challenging the mutation. Therefore, he was required to plead specific case with detail event of oral agreement to sell specifying the names of witnesses, date and place where the agreement was arrived at but no such detail is available in the plaint. It is also not specifically pleaded that who was his appointed agent at the time of attestation of mutation who was to take possession on behalf of the plaintiff. He has not pleaded that who was to take part in the proceedings of transaction of sale mutation in his favour. It is also not clear in the pleading that who paid the money on his behalf to the vendors.
11. When the plaintiff came in the court with the prayer that he be declared owner of suit property, it was incumbent upon the plaintiff to prove his ownership of suit property and then he was required to prove that attestation of mutation is against the law and a clog on his ownership is liable to be declared not binding upon the rights of plaintiff. I am clear in my mind that through a declaratory decree a pre-existing right can be declared and a new right cannot be created through a declaratory decree. In this case the plaintiff prays that a right be created in his favour in the suit property through a declaratory decree. Admittedly the suit' property was never transferred in his favour by the original owners i.e. Defendants Nos.1 to 4, rather it was transferred in favour of defendant No.5 through the impugned mutation. The plaintiff failed to prove the agreement to sell when his case is self contradictory and further the payment of consideration amount to the vendors and transfer of rights in his favour. If there was any agreement in favour of plaintiff and the vendors have not transferred the property in his favour, then a cause of action in his favour was of filing a suit for specific performance and if at the time of attestation of mutation defendant No.5 being his wife as his case is that he has paid money and property was transferred in the name of defendant No.5 being his wife, then the plaintiff may have a case of Benami transaction and for a declaratory decree it is incumbent upon the plaintiff of a suit for declaration filed under section 42 of the Specific Relief Act, 1877 to prove pre-existing right in his favour. Admittedly no right of ownership of suit property was ever transferred in his favour. Therefore, the form of suit in my view was incorrect. I have gone through the findings recorded by the learned first appellate court and the case law referred to by the learned counsel for the parties. I have noticed that the findings recorded by learned first appellate court are not only exhaustive one but also every bit of evidence has been considered, as such learned first appellate court came to a right conclusion. There is no cavil to the case law referred to by the learned counsel for the parties. The case law referred to by the learned counsel for the petitioner is not applicable to the facts of case in hand and not helpful for the petitioner-plaintiff.
12. So far as the permission to produce additional evidence is concerned, the certificate annexure "A" with the application was tried to be produced in evidence at the time of recording of statement of plaintiff, which was being recorded as PW-1. The certificate is not per se admissible and further the learned counsel for the plaintiff received back said document on 4-7-2007 from the trial court.
Besides, permission to produce evidence of Record Keeper of Allied Bank concerned is also not helpful for the court to decide the matter in issue, as it is clear that the additional evidence can be permitted by the court if D it is helpful for the court to decide the matter in issue. As I have discussed supra that no specific pleading with regard to payment of consideration amount is mentioned in the plaint, therefore, at this stage permission to produce additional evidence will not be helpful for the court to decide the matter in issue.
13. In view of the above discussion, learned counsel for the petitioner-plaintiff failed to make out a case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C.
Consequently, this civil revision having no substance stands dismissed with costs.