' SHUJAAT ALI KHAN, J.---The petitioners have instituted the instant Civil Revision petition assailing judgment and decree dated 7-4-1983 passed by the learned Additional District Judge, Rahim Yar Khan.
2. Succinctly, the facts, as gathered from the instant petition, are that petitioner No,1 and his brother, namely, Hazoor Bakhsh (predecessor-in-interest of respondents Nos.2 to 5) filed suit against Muhammad Yaqoob, etc seeking declaration to the effect that they are owners-in- possession of land measuring 30-Kanals 03-Marlas comprising in Khata No,74/72 situated within the revenue estate of Mouza Ghotia, Tehsil Khanpur, District Rahim Yar Khan and Mutation No,583, attested on 5-7-1968, being illegal, unlawful and against facts was inconsequential upon their rights and decree dated 11-5-1976 passed in a suit for declaration titled "Muhammad Yaqoob v.
Mst. Wassan" being result of collusion, fraud and mis-representation was inoperative.
3. The suit was contested by the respondents/defendants inter alia with the plea that they being bona fide purchasers against valuable consideration are lawful owner of the suit land and the mutation in question was rightly attested by the Revenue Officer. Out of divergent pleadings of the parties, the learned trial court framed the following Issues:-- ISSUES:
(1) Whether the plaintiffs are the owners and in possession of the suit land?.
(2) Whether defendant No,1 purchased the suit property through a valid sale from the plaintiffs vide mutation No,583 dated 5-7-1968?.
(3) Whether the decree dated 11-5-1976 is illegal void and ineffective on the rights of the plaintiffs?.
(4) Whether the suit is barred by time?
(5) Whether the plaintiffs have not come with clean hands, if so to what effect?.
(5-A) Whether Mutation No,583 is fictitious, collusive, and inoperative against the rights of the plaintiffs for the reason given in the plaint?.
(5-B) Whether the gift deed dated 21-6-1973 is illegal and ineffective against the rights of the plaintiffs?.
(6) Relief.
4. To discharge their onus, Rasul Bakhsh, one of the plaintiffs appeared as PW-7 and they also examined Ghulam Rasool, Faqir Bakhsh, Ghulam Rasool Patwari, Abdullah Khan Revenue Clerk A.C.
Office, Abdul Malik Naib Saddar Qanoongo, Ghulam Rasool Patwari Muharrar Naib Saddar Qanoongo (PW-1 to PW-6 respectively). In addition to their oral evidence, they also produced documentary evidence in the shape of certified copy of report dated 6-8-1973 (Exh.P/1), certified copy of report (Exh.P/2) copies of Mutations Nos.556, 557, 558, 559, 541 and 542 (Exh.P/3 to Exh.P/8), Copy of plaint in suit titled Muhammad Yaqoob v. Mst. Wassan (Exh.P/9), copies of orders dated 14- 5-1976 (Exh.P/10 and Exh.P/11), copy of decree sheet (Exh.P/12), copies of jamabandis of Khata No,72/71 and 73/72 for the year 1970-71 (Exh.P/13 and Exh.P/14), copies of Khasra Girdawaris for the period Kharif 1969 to Rabi 1974 and Kharif 1975 to Rabi 1976 (Exh.P/15 and Exh.P/16), copy of registered gift deed (Exh.P/17), copy of Mutation No,583 (Exh.P/18), copy of jamabandi for the year 1974-75 of Khata No,74/72 (Exh.P/19), copy of Khasra Girdawari for the period Kharif 1974 to Rabi 1975 (Exh.P/20) and copy of Khasra Girdawaris for the period Kharif 1975 (Exh.P/21).
5. On the other hand, respondents/ defendants produced in evidence Muhammad Hanif, Ghulam Rasool Muharrar Patwari D.C. Office Rahimyar Khan, Allah Bachaya Lumberdar, Niaz Ali, Ghulam Rasool, Muharrar Patwari Saddar Office Qanoongo Rahimyar Khan, Ch. Shah Muhammad Tehsildar and Sanaullah (DW-1 to DW-7 respectively). It is important to mention over here that statement of Muhammad Yaqoob (defendant No,1) was recorded through the courtesy of a Local Commission pursuant to the permission granted by the trial court. The respondents/ defendants also got exhibited General Power of Attorney (Exh.D/1), Special Power of Attorney (Exh.D/2), copy of Jamabandi Wanda Ishtimal No,85 (Exh.D/3), copy of written statement filed in suit titled Muhammad Yaqoob v. Mst. Wassan (Exh.D/4), copy of decree sheet (Exh.D/5), copy of order of Consolidation Officer dated 12-7-1975 (Exh.D/6), copies of Jamabandis for the year 1968-69, 1970- 71, 1974-75 (Exh.D/7 to Exh.D/9). After recording evidence of the parties and hearing their respective arguments, the learned trial court proceeded to decree the suit vide judgment and decree dated 12-1-1981 against which the respondents/defendants filed an appeal which was accepted through judgment and decree dated 7-4-1983.
6. Being aggrieved by the judgment and decree passed by the appellate court, the petitioners/plaintiffs filed the present civil revision which was accepted by this Court vide ex parte judgment dated 26-9-2001 against which some of the respondents filed Civil Petition for Leave to Appeal before the apex Court of the country wherein after grant of leave to appeal, the judgment passed by this Court was set aside and the matter was remanded to this Court for decision afresh.
7. The legal propositions, put forwarded by the learned counsel for the petitioners, are to the effect that while upsetting the findings of the learned trial court, the learned appellate court has neither appreciated the evidence in its true perspective nor has applied the law on the subject in a judicious manner; that though the respondents/defendants failed to establish valid transaction in their favour subsequent whereto Mutation No,583 was attested on 5-2-1968 but the learned appellate court proceeded to dismiss the suit of the petitioners/plaintiffs on the basis of surmises and conjectures; that as section 54 of the Transfer of Property Act, 1882 was applicable in erstwhile State of Bahawalpur since 1931, no sanctity could be attached to the Mutation in question; that oral sale had no effect on the rights of the petitioners/ plaintiffs but the said fact escaped notice of the learned appellate court; that though the respondents/defendants miserably failed to establish the passing of consideration amount and transfer of possession but the appellate court illegally dismissed the suit filed by the petitioners/plaintiffs; that the lower appellate court failed to appreciate that the acclaimed transaction, in favour of respondents/defendants being violative of Martial Law Regulation No,64, was not sustainable; that the learned appellate court did not advert to the most important question that decree passed in favour of Muhammad Yaqoob and against Mst. Wassan, was not tenable for the reason that the suit was to be filed at Khanpur whereas the same was filed at District Headquarter Rahim Yar Khan and the consent purportedly given by Mst.
Wassan was . Result of misrepresentation and fraud and that the impugned judgment and decree passed by the learned appellate court, being violative of the established principles on the subject, is not sustainable. In addition to his oral submissions, learned counsel has also relied on the case reported as Fazal Din v. Muhammad Bashir (2001 YLR 2204).
8. Conversely, learned counsel appearing on behalf of the respondents, while defending the impugned judgment and decree, states that the legal questions raised by the learned counsel for the petitioners/ plaintiffs before this Court have been attended to by the learned appellate court while giving its findings under Issues Nos.2, 5, 5-A and the same being unexceptionable, the instant revision petition merits dismissal; that the question regarding application of section 54 of Transfer of Property Act, 1882 to the erstwhile State of Bahawalpur has already been set at rest in the cases reported as Khiali Khan v. Hani Nazir and 4 others (PLD 1997 Supreme Court 304) and Muhammad Amin v. Mian Muhammad (PLD 1970 Baghdad-ul-Jadid 5) so the said contention of the petitioners/plaintiffs has no worth; that as Muhammad Yaqoob deceased was owner of land in the same village prior to the transaction in question, there was no violation of Martial Law Regulation No,64; that though the mutation was attested in the year 1968 but the suit was filed by the petitioners/plaintiffs beyond the prescribed period of limitation thus the findings of the appellate court under the Issue qua limitation being perfect are immune from interference by this Court in revisional jurisdiction.
9. Learned counsel for the petitioners, while exercising his right of rebuttal, submits that the period of limitation was to be started from the date of knowledge as the alleged transaction was oral in nature, thus the suit filed by the petitioners/ plaintiffs was well within the prescribed period of limitation; that as the declaratory decree in favour of Muhammad Yaqoob was result of collusion and fraud, the same could not be made a ground to cross the hurdle contained in Martial Law Regulation No,64; that as Mst. Wassan had no property in Mouzia Ghotia, any decree passed against her in the suit filed by Muhammad Yaqoob was inconsequential.
10. I have heard learned counsel for the parties at length and have also perused the documents annexed with this petition and the case-law cited at the bar.
11. Prior to delving into the merits of the case, I deem it necessary to make clear that the record of the lower court has been summoned by this Court but the same is not available in its original form after having been worn due to termite thus this Court has been left with no opti6n but' to decide the matter on the basis of available material which in my opinion is sufficient to resolve the controversy between the parties.
12. Now, reverting to the merits of the case, I am of the view that in a civil suit it is the duty of the party concerned to prove its case as set up in its pleadings but when a party challenges any transaction on the basis of fraud or misrepresentation, the onus shifts on the shoulders of the beneficiaries of said transaction to prove the same. Insofar as the case in hand is concerned, the respondents/defendants were bound to prove the offer by the vendors regarding sale of the land in question and its subsequent acceptance by the vendees. Further, they were bound to establish the payment of consideration amount in addition to delivery of possession. During the course of evidence, the respondents/ defendants did not produce an iota of evidence to establish that petitioners/ plaintiffs ever made an offer to respondent No,1 regarding sale of suit land which was accepted by him.
13. As far as the payment of consideration amount is concerned, evidence produced by the respondents/ defendants cannot be considered sufficient for the reason that Muhammad Yaqoob, during the course of his cross-examination, while replying to the question as to whether any receipt was got issued by him in lieu of payment, of consideration amount, firstly, he answered in affirmative but in the same breath, stated that no such receipt was executed. Likewise, Allah Bachaya (DW-3) stated that he identified the parties at the time of attestation of mutation but nothing was paid in lieu of consideration amount in his presence. In this regard, the following lines from the cross-examination of the said witness are very important {{URDU TEXT}} Moreover, the respondent/defendants have mainly relied upon the contents of the impugned mutation which, in my humble opinion, could not be relied upon without its due corroboration. Thus, the entire evidence produced by the respondents/ defendants does not show that anything was paid by respondent No,1 in lieu of amount of consideration. The consequences of non-proving of payment of consideration has been elaborated in the judgment of the Hon'ble ' Supreme Court of Pakistan reported as Rahmatullah and others v. Saleh Khan and others (2007 SCM R 729) relevant portion whereof reads as under:-- "*The petitioners have failed to prove that sale price was paid to the original owner as evident from para 8 of the impugned judgment, therefore, there was no sale in the eye of law as law laid down by this court in Muhammad Shafi's case PLD 1986 SC 519.... ".
If we adjudge the transaction in favour of the respondents/defendants on the touchstone of afore- quoted judgment, the answer is that the same was not a valid sale as they failed to establish the passing of consideration amount.
14. At the cost of repetition, it is observed that transfer of possession is one of the most important ingredients to establish a valid sale of immovable property. The stance of the petitioners/ plaintiffs regarding their possession over the suit land has also been admitted by the respondents/defendants in their evidence with the only difference that they were enjoying the possession being attorneys of respondent No,l. The questions which boil down for determination by this Court is as to whether the General Power of Attorney executed by Muhammad Yaqoob in favour of Niaz Ali and then by Niaz Ali in favour of petitioners/plaintiffs relates to the suit land or not? Secondly, as to whether in a matter when a person is possessing a patch of land on behalf of others, can his name be incorporated in the revenue record as owner. Taking up the question of execution of General Power of Attorney, firstly by Muhammad Yaqoob in favour of his brother, namely, Niaz Ali and then by the latter in favour of the petitioners/plaintiffs namely Rasool Bakhsh and Hazoor Bakhsh, I am of the view that the learned appellate court while dealing with Issue No,1 has mainly relied on Exh.D/1 and Exh.D/2. A perusal of the said documents shows that there is no mention of property in dispute thus the same could not be used by the respondents/defendants to establish that petitioners/plaintiffs were enjoying the possession of the land in dispute as Attorneys of respondents/defendants. Moreover, Muhammad Yaqoob, while responding to the question as to whether he was aware of the "Rectangle" or 'Killa' number of the land which he purchased from the petitioners/plaintiffs, he showed his inability to specify the same. Further, while responding to the query as to whether they ever received any receipt in lieu of payment of revenue cess he answered in negative. When his statement is considered conjunctively with that of Niaz Ali, with specific reference to opening three lines of his cross-examination wherein he admitted that in Exh.D/2, the acclaimed Special Power of Attorney, there was no mention of the land situated in Mouzia Ghotia, there is no ambiguity left that the petitioners/ plaintiffs were not enjoying the possession of the land in question as authorized persons on behalf of the respondents/ defendants. The stance of Muhammad Yaqoob (respondent No,1) that revenue cess was being paid by him, stood negated by Niaz Ali (DW-4) who admitted that the same was being paid by Hazoor Bakhsh and Rasool Bakhsh. Moreover, Allah Bachaya (DW-3), in his statement, relevant portion whereof has been reproduced above, categorically stated that the petitioners/ plaintiffs remained in physical possession of the land in dispute throughout and the revenue cess was being paid by them.
' Furthermore, the claim of the respondents/defendants in respect of possession mainly hinges upon Exh.D/1 and Exh.D/2. A perusal of Exh.D/1 shows that the same was witnessed by Chaudhary Muhammad Yousaf, Saddar-ud-Din and Haji Allah Bakhsh but neither any of them nor the scribe of the said General Power of Attorney was produced in evidence nor any reason for their non- production has been advanced despite the fact that after surfacing of the question as to whether the said document was executed qua the suit land or not, their testimony became inevitable.
Moreover, respondents/ defendants produced Muhammad Hanif (D.W-1)to establish the sale of the land in question by the petitioners/plaintiffs in their favour and execution of General Power of Attorney by the respondents/defendants in favour of the petitioners/plaintiffs but the said witness while admitting that he is putting up in the city Khanpur on permanent basis stated that the deal was not struck between the parties in his presence; that he was not present at the time of attestation of the mutation; that Power of Attorney was not executed by the respondent/defendants in favour of the petitioners/plaintiff in his presence and at the time of handing over of share of produce he was not there. Thus, it remained unproved that Exh.D/1 was executed regarding the suit land, so the same could not be relied by the appellate Court while passing the impugned judgment and decree. The discussion in the preceding paragraphs, leads to indubitable conclusion that the respondents failed to establish transfer of possession in lieu of sale.
The authenticity of sale where possession has not been delivered on completion of the same, has been discarded by the apex Court of the country in the cases reported as Ashraf Ali (deceased) through L.Rs, and others v. Maryam Bibi and 4 others and (2004 SCM R 1536) and Hakim Khan v.
Nazir Ahmad Lughmani and 10 others (1992 SCM R 1832).
15. Now, taking up the second limb of the proposition that as to whether a person who is enjoying the possession of a piece of land as an Attorney of somebody else, can his name be incorporated as owner in the revenue record, I am of the opinion that though a person can manage property on behalf of somebody else in different capacities but insofar as the revenue record is concerned, while incorporating the name of the person possessing the land, it is inevitable for the revenue authorities to incorporate the name of the original owner as well. A perusal of the documents produced by the petitioners/plaintiffs in the shape of revenue record relating to different years shows that neither the names of the respondents/defendants are appearing in the revenue record as owners nor they had made any effort to get corrected the same despite the fact that the impugned mutation also came under review subsequent to its attestation. Moreover, Khasra Gardawaris for the period in question establishes the possession of the petitioners/plaintiffs on the suit land and that too, in the capacity of owners. In this scenario, the assertion of the learned counsel for the respondents/ defendants that the names of the vendees could not be incorporated in the revenue record just for the reason that petitioners/ plaintiffs were possessing the suit land as their Attorneys, seems to be worthless.
16. The learned appellate court while disagreeing with the findings of the learned trial court under Issues Nos.2, 5 and 5-A, has inter alia relied on the statement of Ch. Shah Muhammad (DW-6). The appellate court in paragraph No,3 of the judgment observed that mutation in question was attested by him. The said observation does not seem to be in line with the statement of said witness inasmuch as while responding to a question as to whether the mutation in dispute was attested by him, he replied in negative by stating that though order dated 5-7-1968 was passed by him but the original mutation was not presented before him. He further admitted that he did not compare the mutation in question with the jamabandi. The said admissions on the part of DW-6 coupled with his statement in his examination-in-chief that mutation in fact was presented before Sh. Ulfat Hussain are fatal for the respondents/defendants. This being the position, the observation of the appellate court on the said point is not sustainable.
17. During the course of scanning the judgment of the appellate court, I have seen that while reversing the findings of the trial court, the appellate court has held that suit filed by the petitioners/plaintiffs was time barred. In this regard, I do not find myself in agreement with the finding of the appellate court for the reason that in the suit where a transaction, especially oral in nature, has been challenged on the basis of fraud and misrepresentation, the period of limitation would start from the date of knowledge of the plaintiff. In this regard, I stand guided by the judgment of the Hon'ble Supreme Court of Pakistan in the case of Laloo and another v. Ghulama (2000 SCM R 1058) wherein, while clinching the issue under discussion, the apex Court of the country has inter alia held as under:- "As far as the plea of limitation is concerned, the same is devoid of force. Under Article 120 of the Limitation Act, one can challenge the transaction of sale within six years of the sale of the land, which of course is the date of knowledge thereof. In this case, the suit was instituted within six years of the knowledge acquired by the lady...."
' Insofar as the case in hand is concerned, in Para-7 of the plaint, the petitioners/ plaintiffs averred in unequivocal words that cause of action arose in their favour two years prior to the filing of the suit. This shows bona fide on the part of the petitioners/plaintiffs inasmuch as instead of adopting the routine plea that they came to know about the impugned mutation a few days prior to the institution of the suit, they made it clear that after coming to know about two years prior to the filing of the suit, they in the first instance filed review petition before the revenue authorities. No evidence has been led by the respondents/ defendants to establish that the petitioners/ plaintiffs were in knowledge of the J impugned mutation from the date of its attestation. Thus, I feel no hesitation to hold that while deciding the Issue of Limitation, the learned appellate court proceeded on self assumed facts and circumstances.
18. While going through the judgment of the appellate court, I have observed that by reversing the findings of the trial court, learned appellate court has put much emphasis on the fact that mutation in question being pretty old, presumption of genuineness was attached to it. In this regard, I am of the view that mere attestation of a mutation in favour of a person does not create any title favour until and unless the same is supported by a valid transaction. Reference in this regard is made to the case reported as Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCM R 1245) and Rahmatullah's case (supra). In the case of Abdul Majeed and 6 others (supra), the august Supreme Court, while dealing with the proposition regarding evidentiary value of revenue entries, has laid law to the following effect:- "11. The learned counsel further argued that the registered sale-deed, mutation and Revenue Record are admissible in evidence and as the plea of the appellant finds support from all these documents, therefore, the High Court was not correct in discarding them. He referred to several cases to support his viewpoint. This is a sweeping and very wide argument and it is not so that everything which finds mention in the registered deed or Revenue Record must invariably be accepted without proof of their execution, genuineness and authenticity. It is axiomatic principle of law that a registered deed by itself without proof of the - execution and the genuineness of the transaction covered' by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction to which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source.
In the case in hand, the mutation is admittedly based on oral sale and until and unless the same is proved by the respondents/defendants being the ultimate beneficiaries, the same cannot be considered as immune from interference by a court of law. There is no cavil with the proposition , that entries in the revenue record relating to ancient times carry presumption of truth but the said presumption is not absolute rather when the said entries are found baseless the same can be knocked down by the competent forum. Even otherwise, mutation in question was attested in the year 1968 whereas the suit was filed in the year 1976 thus at that time the same did not fall within the category of documents mentioned under Article 100 of Qanun-e-Shahadat Order, 1984, therefore, without proof by the beneficiaries, presumption of truth cannot be attached to it.
19. According to the case of Fazal Din (supra) being relied upon by the learned counsel for the petitioners, provision of section 54 of the Transfer of Property Act, 1882 were very much applicable in the erstwhile State of Bahawalpur. According to the said section, any transaction basing an oral sale, is inconclusive. Further, according to the case-law in the cases reported as Imam Din v. Bashir Ahmad (PLD 2005 SC 468) Muhammad Siddique v. Abdul Raul and 10 others (2012 CLC 1734) no sanctity can be attached to an oral sale until and unless the same, is proved.
20. Now,coming to the case-law cited by the learned counsel for the respondents/defendants, I am of the view that the same is not applicable to the facts and circumstances of the instant civil t) revision for the reason that in the case of Muhammad Amin etc (supra), it has been held that any transaction in violation of section 54 of the Transfer of Property Act, 1882 is not sustainable when the conduct of the vendor himself is dubious, the said transaction cannot be upset on the move of said vendor: As far as the case of Khiali Khan (supra) is concerned, in pith and substance, the Hon'ble Supreme Court of Pakistan has held that a transaction cannot be declared unlawful just due to the violation of any regulation for the reason that the vendor was also part of the said violation, he can not call in question the vices of the said transaction on the said ground.
21. For what has been discussed above, I have no doubt in my mind to hold that the appellate court, while upsetting the findings of the learned trial court, proceeded on hypothesis and has deviated from the settled principles to adjudge the validity of an oral. Consequently, this revision petition is accepted and the impugned judgment and decree passed by the learned Additional District Judge is set aside and that of the trial court is restored. There shall be no order as to cost.
22. Before parting with this order, it is made clear that though Civil Miscellaneous Nos.3565/12 and that of 663/13 were disposed of vide order dated 17-2-2014 but the same have inadvertently been listed out for hearing by the office today, therefore, there is no need to pass any order on these applications.