' ABDUL LATIF KHAN, J.---This civil revision has been directed against the judgment and decree dated 11-7-2006 of learned District Judge/Zila Qazi, Bunir, at Dagar, vide which appeal of the petitioner filed against the judgment and decree dated 20-6-2005 of the learned trial Court was dismissed.
2. The respondents/plaintiffs instituted a suit against defendant/petitioner for declaration, which was contested by filing written statement. Learned trial Court after framing of issues from pleadings of parties, recording evidence and hearing the parties, decreed the suit vide judgment and decree dated 20-6-2005. Feeling aggrieved, the petitioner filed an appeal, which was dismissed by learned District Judge/Zila Qazi, Bunir at Dager, vide judgment and decree dated 11- 7-2006, hence, the present revision.
3. Arguments heard and record perused.
4. It is evident from the record that petitioner has purchased the property from one Majid vide Mutation. No, 94 attested on 29-1-1997 against which respondents/plaintiffs filed a suit challenging the attestation of mutation in favour of the petitioner through a declaratory suit on the ground that the said Majid son of Said Nawaz has already transferred the property through a decree dated 16- 12-1992 on the basis of compromise arrived at in a case FIR No 267/1990, under sections 302/34, P.P.C., registered at Police Station, Dager, who was left with no right to transfer the property by dint of disputed mutation. It was also averred that plaintiffs/respondents were inducted into possession and since then they are in possession of the property as owners. Apart from the mortgage on behalf of Majid in favour of predecessor of the plaintiffs/respondents in lieu of amount outstanding against Ibrahim and half of mortgage amount was paid to said Majid apart from compromise arrived at, culminated into decree in favour of predecessor of the plaintiffs. The defendant/petitioner contested the suit and took the plea that mutation was rightly attested, however, denied any compromise arrived at between the parties.
5. The scanning of evidence produced by the parties, available on record, reveals that, though, the defendant has denied the existence of decree in favour of predecessor of the plaintiffs, however, admitted by defendant/petitioner, Zahir Shah, in his cross examination that application under section 12(2), C.P.C. Was filed by the title of Zahir Shah v. Yoreed, wherein decree passed on 16-12- 1997 was challenged under section 12(2), C.P.C. The copy of which has been produced by the petitioner/defendant which was allowed as withdrawn in year 1998, however, during this period entry and attestation of Mutation No 94, which was allegedly attested on 29-1-1997, has not been bought on A record to the effect that he has purchased the property from Majid by dint of Mutation No, 94 which shows the conduct of the petitioner/defendant and the plaintiff was kept in dark about the attestation of this mutation. Needless to mention that the mutation is not a title document which bestows no right upon the beneficiary. The defendants have not produced the attesting witnesses i.e,, Patwari Halqa, the attesting Officer/Revenue Officer of the circle, who has attested the B mutation and being most important entity, the beneficiary, the defendant/ petitioner, was under obligation to produce them to prove that the mutation was validly attested.
Reliance can be placed on PLD 2003 Supreme Court 688 which is reproduced for convenience.
"In connection with the attestation of a mutation, most important entities are the Patwari Halqa who happens to enter the mutation and the Revenue Officer who happens to attest the same.
Both of them were not produced and examined in Court. In the absence of these two officials, the mutations cannot be said to have been proved."
A look at the above referred observation reveal that the Patwari IC Halqa and Tehsildar being important entity were to be produced by the beneficiary in support of valid attestation of mutation which is lacking in the instant case. Moreover, mutation is not the title document and is making only for fiscal purposes and no presumption of truth is attached to it and, as such, the evidence is lacking in support of mutation to have been validly attested. Moreover, as compared to the decree passed by the court the mutation is in lower pedestal even if considered a valid one and has no legal sanctity even otherwise decree passed in year 1992, which is prior in time to attestation of mutation attested in year 1997, and on this score too, the decree passed by the court of competent jurisdiction has got preference over it and would be at higher pedestal over the mutation and, as such, plea of the defendants/petitioner was no legal effect to the extent of attestation of mutation in favour of predecessor of plaintiff and have no binding effect on the plaintiffs/respondents.
6. The plea of the petitioner was to the effect that the decree passed on 16-121992 was not a valid decree as under the Jirga Laws the Deputy Commissioner was to refer the matter to Jirga and could not decide the matter of his own, which is misplaced. No doubt, Deputy Commissioner has to refer the matter to Jirga where the parties are at issue whereas in the instant case compromise effected and there was nothing left to be referred to the Jirga for decision, therefore, compromise arrived at between the parties culminated into decree by the court of competent jurisdiction and, as such, cannot be termed as decree as invalid decree. Deputy Commissioner has rightly passed the decree in accordance with law having powers under Civil Regulation, 1975, and Assistant Commissioner being delegatory powers having the same powers under the law.
7. The plea of learned counsel for the petitioner to the effect that from the divergent pleadings of the parties formal issues were not properly framed and only three issues were framed, however, to this effect no objection was raised at the relevant time as it was the bounden duty of the parties to raise objection that the issues were not properly framed and even otherwise issues reveals that whole of the matter was confined to the issues already framed by the trial court. It is by now settled that if the parties are alive of the situation to produce in support of their respective claims made in their pleadings then the question of non-framing of any particular issues cannot be raised in such a belated stage. Reliance can be placed on the case Muhammad Akram alias Raja vs. Muhammad Ishaque (2004 SCM R 1130) wherein it has been held as under:-- "Although no specific issue was framed but the parties being aware about the controversy have led evidence in this behalf on the basis of which finally the case was decided. In this behalf reference can be made to the judgment reported as the Province of East Pakistan v. Maj. Nawab Khawaja Hasan Askary and others PLD 1971 SC 82 wherein it has been held that if a specific issue is not framed but allegations are made in the plaint and the parties challenged in the written statement, it is open to the court to allow the parties to lead evidence on such point and to give decision on it without framing any issue".
Wisdom is also sought from the case of Malik Safdar All Khan and another v. Public at large and others (2004 SCM R 1219) it has been held that:-- "The evidence adduced by the parties was exclusively geared towards this issue; therefore, the parties were well aware of the question involved in this case. The non-framing of specific issue on the point of religion of respondents Nos. 6 to 8 has not caused prejudice to any of the parties."
8. A look at the above observation of the apex Court qua the evidence available on file no case is made out from interference in the concurrent findings of the courts below as the courts below have decided the lis pending before them with conscious and application. Of independent mind. For the aforesaid, reason, this petition is dismissed.