Shams Mehmood Mirza, J:-Through this revision petition, the judgment rendered by the lower appellate court on 03.07.2002 has been challenged whereby the appeal filed by the respondents- defendants was allowed and the suit filed by the petitioner-plaintiff was dismissed.
2. Brief facts of the case are that the petitioner filed a suit for declaration claiming to be owner of 98 kanal and 4 Marla land situated in Mouza Fateh Pur Tehsil Mailsi (hereinafter referred to as the land in dispute) and impugning orders dated 15.03.1982, 02.06.1983 and 15.04.1985 passed by the revenue authorities. The land in dispute was owned by Noor Samand, the predecessor of the parties, which was allotted to him on account of being a displaced person. After the death of Noor Samand, inheritance mutation No.2143 was sanctioned on 15.03.1963 in favour of the petitioner and his four sisters namely Mst. Fateh Bibi, Mst. Noor Bibi, Mst. Meena and Mst. Kacko. After a lapse of 2 years, the aforementioned sisters allegedly sold their shares in the land in dispute to Muhammad Siddique through mutation No.2198 dated 29.02.1964. However, on 29.01.1973, Mst. Fateh Bibi and Mst.
Kacko filed an appeal before Assistant Commissioner/Collector challenging mutation No.2198, which appeal was subsequently withdrawn on 22.06.1973. Subsequently, Fateh Bibi and Noor Bibi filed an application before Deputy Commissioner seeking review of mutation No.2198 dated 29.02.1964 on the ground that Mst. Meena had died before the sanctioning of the said mutation.
The said review petition was allowed on 15.03.1982 to the extent of the share Mst. Meena in the land in dispute. The said order resulted in filing of two appeal/revision petition before the Additional Commissioner (Revenue) Multan by Mst. Fateh Bibi and Muhammad Siddique, which appeal/revision were allowed on 01.06.1992 and case was remanded to Assistant Collector/Tehsildar for deciding it afresh after ascertaining the facts and after making a determination that Mst. Meena was dead at the time of sanctioning of mutation No.2198. The Assistant Collector/Tehsildar vide order dated 03.10.1982 sanctioned mutation No.683 in favour of the petitioner in respect of the land in dispute excluding the share of Mst. Meena to give effect to order dated 15.03.1982 passed earlier by the Deputy Commissioner/Collector. Both the parties filed appeal before Assistant Commissioner/Collector who vide order dated 02.06.1983 dismissed the appeal filed by the petitioner and allowed the appeals filed by Mst. Fateh Bibi etc. Feeling aggrieved, the petitioner preferred an appeal and a revision before Additional Commissioner who vide order dated 15.04.1984 dismissed the same and set aside mutation No.683. The petitioner instead of throwing a further challenge to the decision rendered by Additional Commissioner, Multan filed a civil suit on 18.04.1985 seeking declaration regarding his entitlement over the land in dispute and challenging the orders passed by the revenue authorities. The respondents filed their written statement contesting the stance of the petitioner by alleging that their predecessors never appeared before the revenue authorities for sanctioning of mutation No.2198.
3. On account of the rival claims made by the parties in their pleadings, the trial court framed the following issues:
1. Whether the plaintiff is the owner in possession of the suit land and the orders of the revenue officers/authorities mentioned in the plaint are illegal, void and as such ineffective over the rights of the plaintiffs? OPP
2. Whether the suit has not been correctly valued for the purpose of court fee and jurisdiction?
3. Relief.
4. In order to prove his case, the petitioner-plaintiff produced Shah Behram and Noor Hayat as PW- 1 and PW-2 who were allegedly the witnesses of oral sale by the four sisters in favour of the petitioner. Muhammad Hussain appeared as PW-3 in his capacity as attorney of the petitioner.
After appraisal of the evidence, the trial court decreed the suit filed by the petitioner-plaintiff on 30.09.1989. The respondents-defendants filed an appeal which was dismissed on 30.06.1990 whereafter revision petition No.707 of 1990 was filed which was accepted on 27.03.2002 and the case was remanded to the lower appellate court for decision afresh. The lower appellate court on 03.07.2002 accepted the appeal and dismissed the suit of the petitioner-plaintiff.
4. The learned counsel for the petitioner-plaintiff made the following submission to impugn the judgment rendered by the lower appellate court.
(a) The lower appellate court while giving its decision on the appeal did not adjudge the legality of the orders passed by the revenue authorities which were impugned in the suit.
(b) Initially the appeal was dismissed by the lower appellate court and the remand to it of the appeal by this Court in C.R. No.707 of 1990 did not entitle it to change its earlier decision as it amounted to review by it of its earlier decision.
(c) The death certificate of Exh.P-D of Mst. Meena was not proved in accordance with law.
(d) While passing order (Exh.P-7) the revenue authorities found no patent illegality in sanctioning of mutation No.2198.
(e) From 1973 to 1982 the Register Haqdaran Zamin showed the petitioners as owner in land in dispute.
(f) Both the witnesses of the respondents did not state in their evidence that Mst. Ameena had died prior to the sanctioning of mutation No.2198.
(g) The issues were not properly framed.
(h) The petitioner rightly filed the suit before the civil court as a complicated question of facts could not be adjudicated by the revenue authorities.
6. The learned counsel for the respondents on the other hand, supported the judgment of the lower appellate court.
7. The contentions of both the learned counsels have been heard and the record has been perused.
8. It appears that the lower appellate court after examining the record did not believe that the witnesses of the petitioner-plaintiff were able to prove the transaction of sale on account of serious inconsistencies in their deposition. It may be pointed out that on account of the inconsistencies, the trial court was constrained to hold that ".....This case has not been conducted in a dutiful manner by those who were supposed to produce clear evidence on the subject and the issues involved."
However, notwithstanding the afore-mentioned observation, it still passed a decree in favour of the petitioner-plaintiff. The inconsistencies in the statements of the witnesses produced by the petitioner-plaintiff, which will be adverted to later in this judgment, were explained away by the trial court to be the result of lapse of considerable time between the sale and the recording of evidence.
9. In order to prove issue No.1, the petitioner-plaintiff had to prove the alleged sale in his favour by his four sisters and not mutation No.2198 dated 29.02.1964. It is settled law that mutations per se do not confer any title and once challenged the beneficiary thereof has to revert to the original transaction on the basis of which mutation was sanctioned and to prove the same (see Muhammad Akram and another v. Altaf Ahmed PLD 2003 SC 688). The petitioner-plaintiff for inexplicable reasons did not appear in the witness box himself and in his place his attorney appeared as PW-3. In the power of attorney (Ex.P-18), it was stated that the petitioner-plaintiff was suffering from ailment, which was not described therein, and has, therefore, appointed the attorney to conduct the suit on his behalf. A party to a suit must show some plausible reason for not appearing in the witness box to give evidence more so when the facts required to be deposed are exclusively in the personal knowledge of the party. Where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. In other words, if a party abstains from entering the witness box, it would give rise to an adverse inference against him. In Janki Vashdeo Bhojwani v. Indusind Bank Limited 2005 (2) SCC 217, the Indian Supreme Court, while referring to the provisions of Order 3 Rules 1 and 2 of the Code of Civil Procedure, 1908 (the CPC), set forth the scope of evidence that can be led by an attorney holder on the following terms: Order 3, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross- examined.
Of course, there are cases where a party without examining himself can establish his case possibly by examining witnesses who can validly testify and in such a case, a party can give evidence through an attorney holder and such evidence cannot be ignored. For example, where a particular fact is to be proved by production of documentary evidence, the scope for leading oral evidence is very limited and in such a case personal knowledge does not matter. The documents in such a case can be adduced by the party or by his attorney holder as production of the document in evidence does not require any personal knowledge. Be that as it may, in the end, the court has to be satisfied from the material on record whether the case pleaded by the party has been proved or not. If the facts required to be proved are exclusively in the personal knowledge of the principal, the evidence of the attorney holder on those facts would be in the nature of hearsay evidence carrying no weight.
10. In the case of Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512, the Indian Supreme Court has formulated the following principles as to who should give evidence in regard to matters involving personal knowledge.
"12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney- holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney-holders or person residing abroad managing their affairs through their attorney-holders.
(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.
(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.
(g) Where the law required or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
The above principles expounded by the Indian Supreme Court depict the correct position of law and this Court agrees entirely with them and unhesitatingly affirms them. The above mentioned principles apply with equal, if not with greater, force to the facts of the present case.
11. In the present case, PW-3, the attorney of the plaintiff, was not privy to the transaction of the alleged sale and did not say so in his examination-in-chief. In fact, the details of the alleged sale were divulged by PW-1 who stated in his examination-in-chief that there was a dispute with regard to the sale price of the land in dispute between the petitioner-plaintiff and his sisters and that he was instrumental in getting the deal concluded between them and that it was he who took Fateh Bibi to the house of the petitioner-plaintiff for concluding the alleged sale. It is quite apparent from the reading of the testimony of PW3 that he was not privy to the details furnished by PW-1 regarding the sale. For proving the facts leading up to the conclusion of sale transaction (oral sale) between the parties and the payment of the sale consideration, therefore, the petitioner-plaintiff ought to have examined himself as a witness and to state all these facts that were in his personal knowledge. Even otherwise, the testimony of PW-3 (the attorney of the petitioner-plaintiff) on the payment of sale consideration was curiously different from the testimony of other witnesses, which shall be adverted to in the succeeding paragraph. His evidence regarding the conclusion of sale and payment of sale consideration, therefore, has to be ignored. It may pertinently be pointed out that after the conclusion of the affirmative evidence, the counsel did reserve the right of the petitioner-plaintiff to lead evidence in rebuttal and affirmative. However, thereafter, PW-3 was produced in evidence on 28.09.2988 before the defendants led their evidence.
12. As an oral sale was alleged by the petitioner-plaintiff, it was imperative that the sale consideration was proved through cogent and convincing evidence. However, all the three witnesses deposed altogether different versions regarding payment of sale consideration. PW-1 stated that the sale consideration (Rs.12000/-) for the land in dispute was paid to the sisters at the house of the petitioner-plaintiff partly in the shape of cash and partly as jewellery. PW-2, on the other hand, deposed that a lump sum cash of Rs.12000/- was given in addition to the jewellery.
PW-3 (the attorney of the petitioner-plaintiff) took an entirely different stance and deposed that the sale consideration was paid to the four sisters inside the precincts of the office of the Tehsildar Mailsi. The divergent and contradictory statements made by the witnesses make the evidence led by the petitioner-plaintiff not credit worthy and confidence inspiring. The material contradictions in their depositions could not have been justified by the trial court on account of long lapse of time.
By any standard, the petitioner-plaintiff cannot be said to have proved the sale transaction and the payment of sale consideration by him to his four sisters.
13. It is by now well established that the courts will take a hard look at the transactions through which illiterate ladies are divested of their share in the inheritance. The beneficiary of such transactions, often the male members of the family, are duty bound to prove through confidence inspiring evidence that the transaction was indeed entered into by the ladies and that independent legal advice was available to them at the time (see Ghulam Ali and 2 others v. Mst.
Ghulam Sarwar Naqvi PLD 1990 SC 1 and Malik Riaz Ahmad and others v. Mian Inayat Ullah 1992 SCM R 1488). It is an admitted position that after the death of Noor Samand, the predecessor of the parties, the petitioner-plaintiff initially got the inheritance mutation surreptitiously sanctioned exclusively in his name by depriving the sisters from their share. It was only when the sisters initiated legal proceedings that inheritance mutation was sanctioned in the name of the petitioner-plaintiff and the four sisters. This fact was admitted by PW-3 and was also alluded to by the Additional Commissioner while annulling the sale mutation in favour of the petitioner-plaintiff. It needs to be stated that the sisters of the petitioner-plaintiff had all along been agitating that they had been deprived from their inheritance by sanctioning of mutation No.2198.
14. It was also the case of the petitioner-plaintiff that at the time of sanctioning of the sale mutation that the four sisters were identified by Tajudin, who was the Lumbardar but he was not produced in evidence although PW-3 stated he was alive. The trial court made light of this statement and instead, quite surprisingly, relied upon the statement of DW-2 who stated that Tajudin was dead.
The fact that Tajuddin was alive or dead was not confirmed and could only be ascertained if the petitioner-plaintiff, who was duty bound to call him as a witness, had summoned him through the process of the court.
15. Although the petitioner-plaintiff had challenged in his suit various orders passed by the revenue authorities, it was not necessary for the trial court or the lower appellate court to render their findings on the said orders. Once the petitioner-plaintiff filed the suit for declaration regarding his title over the land in dispute, the orders impugned by him became irrelevant as the revenue authorities are not empowered to examine and pronounce upon the title of a person. It is well established position of law that once the title becomes the issue between the parties and is under challenge, the civil court is the only proper forum for adjudication of the said issue. The revenue authorities are only clothed with the power to correct the entries of the revenue record, which record does not confer title. The challenge made by the sister before the revenue authorities pertained only to the correction of the sale mutation and as such the alleged sale transaction was not an issue and could not be adjudication upon. Accordingly, the petitioner-plaintiff rightly filed the suit before the trial court. The second part of issue No.1 is, therefore, superfluous and there was no need for the lower appellate court to give findings thereon as the petitioner-plaintiff had failed to establish the sale transaction (oral sale) and the consideration underpinning it. It may further be added that the trial court correctly framed issue No.1, which was an all-encompassing issue.
Similarly, after remand of the case by this Court (in CR No.707 of 1990), the lower appellate court had to decide the case afresh and was not bound by its earlier decision. The question whether Meena was alive or dead at the time of sanction of sale mutation also pales into insignificance in view of the failure of the petitioner-plaintiff to prove the oral sale through any convincing evidence.
It is, therefore, unnecessary to elaborate any further on the matter and the counsel's submission in this regard seems to be hardly well-conceived.
16. In all cases where the judgments of the lower courts are at variance, the revisional Court necessarily has to indulge in a comparative analysis of both the judgments to assess their merits and demerits. In a judgment reported as Maddan Gopal and four others v. Maran Bepari and three others PLD 1969 SC 617 it was held as follow: If the findings of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent findings. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavored in the contrary finding. The findings being at variance that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the findings of the first appellate Court cannot be supported on the evidence on record of it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the findings of the trial Court, or it otherwise found to be arbitrary of capricious, it will have to be rejected in second appeal.
After examining both the judgments in the light of the record of the case, it is clear that the judgment of the trial court proceeds on generalities and focuses entirely on lapses in the evidence led by the respondents-defendants instead of ascertaining whether the petitioner-plaintiff had been able to prove his case and the issues the onus whereof was on him. The trial court blithely ignored the inconsistencies in the material evidence produced by the petitioner-plaintiff and failed to draw proper inferences there-from. The judgment of the trial court is, therefore, legally not sustainable. The judgment of the lower appellate court, on the other hand, deals with all the relevant points and correctly appreciates the evidence of the petitioner-plaintiff and draws correct inferences from it. The judgment delivered by the lower appellate court does not suffer from any jurisdictional error or legal infirmity and is, therefore, upheld.
17. In the circumstances, the revision petition is dismissed being devoid of any merit.