CH. MUHAMMAD MASOOD JAHANGIR, J.---This revision petition is directed against the judgment and decree dated 16.12.2000 passed by learned Civil Judge, Jhang, whereby, suit for declaration filed by Nadir Hayat, respondent No.1 (herein after to be referred as plaintiff) was decreed as well as the judgment and decree dated 13.4.2005 delivered by the learned Addl. District Judge, Jhang through which the appeal filed by the present petitioners, namely, Riffat Sultana, Saima Sial, Mrs. Akhtar Sheikh and Nighat Sultana as well as respondents Nos.4, 5 and 6 as well as one Samra Sial- defendants (hereinafter to be referred as petitioners) was dismissed.
2. The brief facts are that the plaintiff filed a declaratory suit before the learned trial court on 9.10.1990 against the petitioners and other respondents-defendants while asserting that subject land measuring 384 Kanals 16 Marlas situated in village Kot Khan Tehsil and District Jhang was owned by Mst. Shamshad Begum,respondent No.2 and Nighat Bokhari, petitioner No.4; that the said respondent No.2 and petitioner No.4 orally sold out the disputed property to him against a consideration of Rs.50,000/- and possession was also handed over to the plaintiff; that Mst.
Shamshad Begum respondent No.2 and Nighat Begum, petitioner No.4, duly attested mutation No.426 dated 6.2.1984 (Exh.P-3) in favour of the plaintiff and oral agreement to sell was also acknowledged in his favour; that general attorney of defendant No.2,one of the alleged vendorwith mala fide intention and to deprive the plaintiff of his right got cancelled mutation No.426 (Exh.P3) attested in favour of the plaintiff in connivance with the revenue officials and the order for its cancellation was ineffective upon his rights and the defendants were not legally entitled to take back the said property which was duly alienated in favour of the plaintiff and that too after obtaining the sale consideration; that aforesaid Umar Hayat subsequently in order to further affect the rights of the plaintiff got attested mutation No.601 dated 11.2.89 (Exh.P1) in his own favour and thereafter mutation No.619 (Exh.P4) was got attested in favour of defendants Nos.8 and 9 and both the mutations being based on fraud and illegal were liable to be cancelled, which necessitated the plaintiff filing of the instant suit before the learned trial court. Mst. Shamshad Begum defendant No.1 and Mst. Imtiaz .Begum defendant No.7/respondents Nos.2 and 3 herein did not contest the suit by filing their independent conceding written statements before the learned trial court. However, defendants Nos.2 to 6 and 8 to 9 by filing separate written statements contested the said suit with the assertion that when mutation No.426 (Exh.P3) was cancelled on its review, the disputed property was soldout and possession thereof was also handed over to the subsequent transferee.
They also denied that any sale transaction had been affected or mutation No.426 (Exh.P3) was got attested in favour of the plaintiff and on having gained knowledge thereof, a representation for its review was moved on their part whereupon the District Collector sanctioned the review vide his order dated 14.11.1987. Thereafter in presence of the plaintiff, the Revenue Officer had cancelled the said mutation on 25.2.1988, but the plaintiff neither assailed the order of District Collector dated 14.11.87 nor filed any appeal against the cancellation of mutation No.426 (Exh.P3) and thereafter consequent transfer of the disputed land was affected, which was in the knowledge of the praintiff from the very first day. The learned trial court captured the disputed area of facts by framing the following issues:-
(1) Whether the plaintiffs are collusive with defendants Nos.1 and 7?OPD 2 to 6
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the plaintiff has no cause of action? OPD
(4) Whether the plaintiff is estopped by his conduct? OPD
(5) Whether the suit is hit by laches? OPD
(6) Whether the suit is not within time? OPD
(7) Whether the description of the suit property is defective, if so, with what effect? OPD
(8) Whether the plaintiff is entitled to get a decree as prayed for? OPP
(9) Relief.
3. Both the parties led evidence in support of their respective pleas before the learned trial court, who after analyzing the same decreed the suit. Being aggrieved, the petitioners preferred an appeal before the learned lower appellate court, which has been dismissed vide judgment and decree mentioned in Para-1 supra. Being dissatisfied, the petitioners have filed the instant civil revision.
4. Learned counsel for the petitioners has argued that plaintiff while practicing fraud got attested mutation No.426 (Exh.P3), which was later on cancelled by the revenue officer after obtaining sanction from the District Collector as per law; that the petitioners had been deprived of their valuable property by practicing fraud by the plaintiff through attestation of mutation No.426 (Exh.P3) and on gaining knowledge, the same was recalled by the revenue officer under the order dated 25.2.1988; that both the attesting witnesses of mutation No.426 (Exh.P3) i.e. Mapal (DW.1) and Muhammad Riaz (DW.8) supported the stance of the petitioners and categorically deposed that no such mutation on the basis of oral sale was attested in favour of the plaintiff in their presence; that Muhammad Nawaz in whose presence mutation No.426 (Exh.P3) was attested in favour of the plaintiff also made a statement as DW.10 and negated the stance of the plaintiff. He has lastly argued that the plaintiff failed to prove the transaction of oral sale independently as well as valid attestation of mutation No.426 (Exh.P3).
5. Conversely, learned counsel for the plaintiff has argued that by producing cogent and convincing evidence not only the transaction of sale was proved rather the attestation of mutation No.426 (Exh.P3) was also established by the plaintiff; that mutation No.426 (Exh.P3) was attested in favour of the plaintiff in the common assembly, which attained the presumption of truth, but the revenue officer without any notice to the plaintiff cancelled the said mutation against law and facts; that concurrent findings recorded by both the courts below are backed up with the material available on record and this Court while exercising its jurisdiction under Section 115 C.P.C. Cannot disturb the well-reasoned findings; that when the marginal witnesses namely Mapal (DW.1) and Muhammad Riaz (DW.8) admitted their signatures on mutation No.426 (Exh.P3), then there was left no room to further prove the valid attestation of the same. He has lastly prayed for the dismissal of the instant civil revision.
6, Arguments heard, and record , perused.
7. The basic case of respondent No.1/plaintiff as embodied in the plaint is that the disputed property was owned by petitioner No.3 and respondent No.2, who had sold the same to him against a consideration of Rs.50,000/- through oral sale, in confirmation whereof mutation No.426 (Exh.P3) was attested in his favour and thereafter the review/cancellation of the said mutation was Void, ultra vires and inoperative upon his rights hereafter further transfer of the disputed property vide mutations No.601 dated 11.2.1989 (Exh.P1) and 619 (Exh.P4 ) dated 24.5.1989 were liable to be cancelled. The perusal of plaint reveals that plaintiff-respondent No.1 had neither mentioned date for striking of bargain nor witnesses in whose presence the oral sale was arrived at between the parties. Even the terms and conditions of the said bargain are missing from the contents of the plaint. In the absence of said requisite formalities being accomplished in the seriatim, no benefit could be attained under S.51 of Transfer of Property Act, 1882. Application of S.51 of Transfer of Property Act, 1882 was not a question of law simpliciter, which could be agitated at any stage of the proceedings, rather the factual foundation within the parameters of S.51 had to be laid at the very inception of the case i.e. The pleadings of the parties so that the right conferred thereby could be legally enforced. No doubt, the plaintiff tried to improve his case by producing oral evidence and through Muhammad Aslam PW.1 and Sher Muhammad PW.2. The perusal of statements of PW.1 and PW.2 reveals that the exact date and the names of the witnesses are also missing and the deposition of the said PWs is lacking to establish the exact venue, time, date, month, year and the names of the witnesses to show that where, when and in whose presence the sale transaction was allegedly negotiated and finalized between the parties. Even otherwise, the deposition of PW.1 and PW.2 that bargain of sale was settled about 91/2 years ago at a specific place is a departure from pleadings of the plaintiff. It is well settled principle of law that the fact not asserted in the pleadings cannot be proved by producing evidence and even if an iota of evidence is led, that has to be ignored. Reliance in this respect is placed on the judgments reported as Inayat Ali Shah v. Anwar Hussain 0995 MLD 1714), Pir Wali Khan v. Niaz Badshah (2013 M LD 1106), Mir Laiq Khan v. Satfraz Jehan (2013 M LD 1449), Mst. Ghazala Yasmeen v. Sarfraz Khan Durrani (2013 CLC 1406) and Messrs Choudhary Brothers Ltd., Sialkot v. Jaranwala Central Co-operative Bank Ltd., Jaranwala (1968 SCM R 804), wherein, it has been held that no person could be allowed to prove his case beyond the scope of his pleadings. The plaintiff produced Muhammad Aslam (PW.1), who stated in his examination-inchief that the disputed property was purchased by the plaintiff from defendants Nos.1 and 2 against a consideration of Rs.50,000/-, which was received by the alleged vendor at the residence situated in Satellite Town about 91/2 years ago and possession thereof was also handed over to the plaintiff. The examination-in-chief of the said PW was got recorded on 26.10.92. He did not mention any specific date and it could not be proved that when and before wham the bargain was struck and the alleged sale consideration was paid. The plaintiff also produced Sher Muhammad PW.2 who deposed that Mst. Shamshad Begum and Mst. Nighat Begum defendants settled the bargain with the plaintiff and Umar Hayat, the attorney of the defendants, received the sale consideration about 91/2 years ago at the residence. The said witness also failed to give the exact date to prove that when the bargain of sale was affected. He in contradiction to the statement of PW.1 stated in his deposition that the sale consideration was received by Umar Hayat, whereas PW.1 stated in his examination-inchief that the sale consideration was received by defendants Nos.1 and 2. PW.2 further admitted in his cross-examination that Muhammad Aslam (PW.1) was an employee of the plaintiff. He also deposed that in sununer vacation at 8/9.00 A.M.
The bargain of sale was settled. PW.1 stated in his cross-examination that plaintiff paid the sale consideration to the defendants from pocket of his jacket whereas PW.2 deposed - in his cross- examination that the amount was paid by the plaintiff from the pocket of his shirt. He further deposed that the amount was consisting of 100/100 notes comprising of five packets. He also deposed that bargain was not struck when he appeared but only consideration was paid in his presence.
8. The plaintiff produced Jaffar Shah (PW.4), Consolidation Officer, who deposed that he had attested mutation No.426 on 6.2.84 on the attestation of Mapal and Muhammad Riaz, who also identified the vendees. He also stated in his examination-in-chief that on behalf of Mst. Nighat defendant her general attorney namely Umar Hayat appeared. He further deposed that he did not remember that who had appeared on behalf of Mst. Shamshad Begutn, defendant before him.
During his cross-examination, the said PW deposed that he did not remember that whether original power of attorney of Umar Hayat was produ6ed before him or not. He furiher admitted that power of attorney was not reflected in his order, wherein neither the presence of Mst. Shamshad Begum was recorded nor anything was mentioned therein regarding the presence of Mst. Shamshad Begum. He also showed his ignorance that the Patwari had entered the name of Mst. Shamshad Begum thereafter. Abdul Rehman was produced by plaintiff/respondent No.1 as PW.5 who deposed that Ch. Ghulam Rasul had entered Rapt No.319 in his Register Roznamcha Waqiati on 7.5.83 regarding the entry of mutation No.426 (Exh.P3). He again stated that Ghulam Rasool Patwari, who by that time died, had entered the mutation and according to the said Rapt, the mutation was entered on behalf of Umar Hayat in favour of Nadir Hayat respondent No. 1/plaintiff. He further admitted that signatures of Patwari and Naib Tehsildar were not available against the entry of saidRapt. The plaintiff himself appeared as PW.6 whose deposition is worthwhile and for ready reference an extract from his examination-in-chief is reproduced in verbatim as under:-- {{URDU TEXT}} ' PW.6 during the cross-examination further deposed as under:- {{URDU TEXT}}
9. The above referred portion from the evidence of the plaintiff proves that Umar Hayat Sial had never been shown attorney of respondent No.2 and petitioner No.4 through whom the alleged settlement of sale was struck against a consideration of Rs.50,000/- by him and his alleged appearance before the revenue authorities in relation to the attestation of mutation No.426 (Exh.P3) was of no legal effect. It is also worthwhile that plaintiff failed to produce any copy of power of attorney executed by petitioner No.4 or respondent No.2 in favour of Umar Hayat as mentioned in mutation No.426 (Exh.P3). It is admitted fact that the disputed property was jointly owned by petitioner No.4 and respondent No.2 in equal shares and Umar Hayat Sial the alleged general attorney of petitioner No.4 had alienated the land to the extent of her share and there is no mention about other owner i.e.. Mst. Shamshad Begum, but even then the entire land measuring 384 Kanals 16 Marlas had been allegedly alienated in favour of respondent No.1/plaintiff. It is also proved from the record that the alleged vendors i.e. Petitioner No.4 and respondent No.2 had never appeared before the revenue officer for the attestation of the mutation and as such the question of their identification did not arise. It is also borne out from the record that after the review/cancellation of mutation No.426 (Exh.P3), Mst. Shamshad Begum, respondent No.2 had transferred her share to the extent of 192 Kanals 8 Marlas out of the disputed property to Umar Hayat and in this regard, sale mutation No.601 was attested in common assembly by the revenue hierarchy. The perusal of testimony of plaintiff PW.6 also proves that he took a different .Stand when he deposed that the land in question was purchased through Umar Hayat and bargain was also settled with him on 7.5.1983 at his residence and the entire sale consideration was also paid to him.
The said stance of the plaintiff is a clear deviation from his pleadings and both the courts below misinterpreted the contradictory deposition of the plaintiff in this regard too.
10. The arguments of learned counsel for respondent No.1/plaintiff that respondent No.2 had filed a conceding written statement in favour of the plaintiff and admitted the oral sale as well as attestation of mutation No.426 (Exh.P3), is without any substance on the ground that admission made by the maker after transferring his/her share to someone else can be conceived as binding on such person. Although the alleged conceding written statement filed on behalf of respondent No.2 is available on the file, but respondent No.2 neither herself appeared before the learned trial court as witness to prove the contents of her written statement nor the plaintiff in whose favour the said conceding written statement was filed by respondent No.2 got summoned the said lady for the proof of his version. It is settled principle of law that the pleadings in the shape of plaint or written statement cannot be treated as a piece of evidence unless the same are proved by the production of evidence and the adversaries are afforded opportunity to rebut the same through cross-examination of the witnesses and produce the evidence. The contention of the learned counsel for the plaintiff that whenever conceding written statement is filed by the defendant, the same provides a, valid proof and no further evidence is required to prove the same might have some force in a case of single defendant, but herein respondent No.2 had filed conceding written statement against the version of her co-defendants in the suit and unless they were afforded opportunity of cross-examination to shatter the credibility of her version, the same could not be treated as a gospel truth. Even otherwise in recognition of the cancellation of mutation No.426 (Ex:P3) from the name of the plaintiff, respondent No.2 had further transferred her share out of the disputed property to Umar Hayat Sial, which was never challenged by her before any forum, therefore, mere filing of conceding written statement by respondent No.2 containing summersault plea cannot be used for the benefit of the plaintiff.
11. The evidence of the plaintiff has been fully rebutted by the petitioners/ defendants by producing Mapal (DW1) and Muhammad Riaz (DW8), the marginal witnesses of mutation No.426 (Ex.P3), who categorically deposed that no such mutationwas attested by the revenue officer in their presence.
They further categorically deposed that none out of Mst. Shamshad Begum, respondent No.2, Mst.
Nighat petitioner No.4 and Umar Hayat sold the disputed property to the plaintiff. The deposition of both of the attested witnesses of the mutation on which the plaintiff/respondent No.1 has based his claim has falsified the entire story of the plaintiff/respondent No.l. The petitioners-defendants also produced Muhammad Nawaz son of Haji Allah Ditta (DW.10), who deposed that he was the agent of the plaintiff and it was not in his knowledge that any sale was settled in between Nadir Hayat plaintiff, Mst. Shamshad Begum and Mst. Nighat. He further deposed that neither any bargain of sale was settled in his presence nor any consideration was paid before him. He further deposed that possession was also not delivered to the plaintiff before him and no mutation was attested in his presence. The order passed by the revenue officer for attestation of mutation No.426 (Exh.P3) reveals that the plaintiff was not present before the revenue officer rather his agent Muhammad Nawaz (DW.10) was shown to be present at the time of attestation of the said mutation on 6.2.1984.
The said DW.10 while appearing as a witness on behalf of petitioners has fully falsified the attestation of mutation (Exh.P3). Umar Hayat Sial, the alleged attorney of Mst. Nighat had died prior to the institution of the suit and on behalf of his legal heirs Nazir Ahmed (DW.9) being attorney appeared before the learned trial court and deposed that he had been serving with Umar Hayat Sial since 1974 to 1981 and thereafter from March 1987 to uptil now. He deposed in his examination- inchief that defendants Nos.1 and 2 (Mst. Shamshad Begum and Nighat) had never authorized Umar Hayat Sial to alienate theirproperty. He further deposed that no such power of attorney was available in the record of Umar Hayat Sial and that Mst. Nighat was still owner in occupation of her property whereas Mst. Shamshad Begum had alienated her property in favour of Umar Hayat Sial vide mutation No.601 (Exh. D2).
12. The above referred DWs produced by the petitioners have not only fully rebutted the evidence adduced by plaintiff, but the aforementioned DWs could be the best evidence for the plaintiff to prove his stance, but they were never got summoned or attempted to be produced by the plaintiff.
Conversely, they were produced by the petitioners, who fully negated the settlement of alleged bargain of sale between the parties and payment of any sale consideration as well as attestation of the disputed mutation No.426.
13. There is yet another aspect of the case that an application for review of mutation No.426 (Exh.P3) was filed and the District Collector vide order dated 14.11.1984 accorded sanction to the revenue officer for the cancellation of the said mutation in pursuance thereof the revenue officer in the common assembly cancelled the said mutation vide his order dated 25.2.1988, the copy of which is available as Exh.D1 and Nadir Hayat Khan plaintiff was also marked present in the said order, but he never challenged the said orders of cancellation of mutation No.426 before the higher forum in the revenue hierarchy for a long period and was estopped to directly file the suit in the civil court without availing the adequate remedy. It is found that the said review order was competently passed as one of the vendor never appeared at the relevant time whereas general power of attorney allegedly executed by petitioner No.4 in favour of Umar Hayat Sial was never produced even at the time of attestation of mutation as admitted by the attestation officer (PW4) nor the same has been tendered in evidence of this case, which would show that what was the authority conferred thereby on the attorney and whether he had acted accurately in accordance therewith. The non-production of such an important document on the record is also fatal to the case of the plaintiff and the inference has to be drawn against the plaintiff that either the same was non-existent or the authority conferred thereby was not acted in accordance therewith.
14. The above analysis of the evidence available on the file has proved that the plaintiff badly failed to prove the requisite essential ingredients of the sale as per law. If the payment of alleged sale has not been proved' on record then there can be no sale in the eyes of law. The entire exercise for attestation of mutation No.426 (Exh.P3) is apparently found to be bogus and frivolous, which was carried out at the behest of the plaintiff just to deprive the ladies from their property. By now it is well settled principle that mutation per se is not a deed of title, but merely an indicative of some previous oral transaction of sale between the parties and keeping in view such principle, whenever any right of title is asserted on the basis of mutation then burden heavilylies on the shoulders of beneficiary of the transaction to prove the valid attestation of the same as well as the original transaction, which he is required to fall back upon. Reliance is placed upon the judgments reported as Ahmad Ali v. Bashir Ahmed (2013 YLR 1870), Muhammad Akram v. Altaf Ahmad (PLD 2003 SC 688), Fida Hussain v. Murid Sakina (2004 SCM R 1043), Muhammad Munir v. Muhammad Saleem (2004 SCM R 1530), Fida Hussain v. Abdul Aziz (PLD 2005 SC 343) and Muhammad Afzal v. Matloob Hussain (PLD 2006 SC 84). In the present case the plaintiff badly failed to prove the basic transaction of alleged sale.
15. The other submission of learned counsel for the plaintiff that Mapal and Muhammad Riaz, the marginal witnesses of mutation (Exh.P3) while appearing as DW1 and DW8 respectively had admitted their thumb impressions on the mutation, therefore, the plaintiff was not required to further prove the transaction as well as the contents of mutation, is without any substance as it has been borne out from their testimony that they had put their signatures on the blank paper before the Patwari for exchange of their property inter se and mere admission of putting thumb impression or signatures by any person on some instrument without proving the contents thereof would not amount to prove its execution in terms of Article 78 of Qanun-e-Shahadat Order 1984. In arriving at this view, I am fortified by the verdict laid down in the landmark judgments reported as Abdul Hameed v. Mst. Aisha Bibi (2007 SCM R 1808) and Syed Shabbir Hussain Shah and others v.
Asghar Hussain Shah (2007 SCM R 1884).
16. At the fag end of his arguments,learned counsel for respondent No. 1/plaintiff has argued that concurrent findings recorded by both the courts below cannot be interfered with by this Court while exercising jurisdiction under Section 115 C.P.C., is also without any force. Although, the scope of interference with concurrent findings of fact is limited, but such findings can be interfered with by this Court under Section 115, C.P.C. If courts below appeared to have either misread evidence on record or while assessingevidence had omitted from consideration some important piece of evidence, which had direct bearing on the issue involved. In arriving at such view this court is fortified by the dictum laid down in the judgment reported as Abdul Hakeem v. Habibullah and 11 others (1997 SCM R 1139) and the relevant portion thereof is reproduced as under:- "6.Before considering thecontentions of the parties on merit, we would like to mention . Here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115,. C.P.C. Is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. Cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C. If the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. If the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below onthe basis of the evidence on record."
' This question has also been dealt with by the august Supreme Court of Pakistan in the judgment reported as Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255) while holding that it is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. It has also been held therein that Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obligated to render decisions in accordance with law and the law alone. So, this court can decide in which cases the interference is warranted.
17. The case law reported as "Daulat All through legal heirs and 2 others v. Ahmad through legal heirs and 2 others" (PLD 2000 SC 792), "Muhammad Nafeez Khan v. Gulbat Khan and others" (2012 SCM R 235), "Haji Abdul Ghafoor Khan through his L.Rs. v. Ghulam Sadiq through his L.Rs." (PLD 2007 SC 433), "Ch. Hakim Ali v. Sultan Khan and 3 others" (2001 M LD 563), "Muhammad Ashiq and 2 others v. Muhammad Aslam and another" (2004 CLC 902), "Muhammad Amir v. Khan Bahadur and another" (PLD 1996 SC 267(b)}, "Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin" (PLD 2006 SC 309), "Abdul Aziz v. Sheikh Fateh Muhammad" (2007 SCM R 336), "Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another" (2010 SCM R 817), "Muhammad Rashid Ahmed v. Muhammad Siddique" (PLD 2002 SC 293), "Fayyaz All Khan and others v., Ashfaq All Khan and others" (2004 YLR 2868), "Sardar All v. Abdul Hameed andothers" (2000 YLR 2851), "G.R.
Syed v. Muhammad Afzal" (2007 SCM R 433) and "Zaitoon and others v. Muhammad Akram and others" (2003 SCM R 1359) referred to by the learned counsel for the plaintiff being distinguishable cannot be applied to the facts and circumstance of the instant case to maintain the impugned judgments and decrees, which are found to be illegal, unlawful and perverse being the result of misreading and non-reading of the evidence on the record and surely suffered from excess of jurisdictional exercised by the learned courts below, which is exceptionable by this court in the exercise of revisional jurisdiction.
18. Consequently, the instant civil revision is allowed, the impugned judgments .And decrees passed by the learned courts below are hereby set aside and the suit filed by the respondent No.1/plaintiff is hereby dismissed with costs.