ATHAR, MINALLAH, J.---Through this consolidated judgment I shall decide the instant civil revision alongwith C.R. No, 236 of 2015 (Muhammad Sadiq v. Irshad Mahmood, etc.] and C.R. No, 237 of 2015 (Muhammad Akram v. Irshad Mahmood, etc.], directed against the consolidated judgment dated 22.1.2015, passed by the learned Civil Judge 1st Class (East), Islamabad and judgment dated 25.5.2015, passed by the learned Additional District Judge-III (East), Islamabad.
2. The facts, in brief, are that the petitioners filed two separate suits seeking declaration, cancellation of document/ Mutation and permanent injunction in respect of land measuring 2 Kanals, 18 Marlas, situated in Khasra No, 409, Khewat No, 1048, Khatooni No, 1950 in Mouza Sehala, Tehsil and District, Islamabad (hereinafter referred to as the "Property"). The petitioners asserted that they were joint owners in possession of the Property. Muhammad Anwar was the father of respondents No, 1 and 2/defendants No, 1 & 2 and a close relative of the petitioners. It was alleged that the said Muhammad Anwar, in connivance with the revenue officials, had entered Mutation No, 3734 dated 31.1.1996 in the name of the respondents No, 1 & 2/defendants No, 1 & 2. The latter had also filed a suit in respect of the Property, claiming to be the owners in possession. The three suits were consolidated by the learned Trial Court. From the divergent pleadings, seven issues were framed vide order dated 7.1.2013. The parties contested the suits and the learned Trial Court, after affording an opportunity to the parties to adduce their respective evidence, oral as well as documentary, dismissed all the three suits vide judgment dated 22.1.2015. The respondent's No, 1 & 2/defendants No, 1 & 2 assailed the judgment of the learned Trial Court and their appeal was allowed by the learned Additional District Judge-III, Islamabad vide judgment and decree dated 25.5.2015. The two separate suits of the petitioners were dismissed, while the suit of the respondent's No, 1 & 2/defendants No, 1 & 2 was decreed in their favor.
3. The learned counsel for the petitioners has argued that; the learned Appellate Court has misread and misconstrued the evidence; the learned Appellate Court did not take into consideration the settled principles and law relating to proving a mutation by the beneficiary; the respondents No, 1 & 2 were not able to produce any cogent and reliable evidence to prove the transaction; the factum of sale of property nor the possession could be proved; the payment of consideration could also not be proved; the evidence of DW. 1 read with the testimony of DWs.2 and 3 have been misread; the witnesses produced by the respondent No, 1 & 2/defendants No, 1 & 2, besides having failed to prove possession, admitted as being with the respondent No, 3; the relevant documents such as Jamabandi etc. Were not produced by the petitioners.
4. On the other hand, the learned counsel appearing on behalf of the respondents No, 1 & 2 has argued that; the judgment and decree passed by the Appellate Court is in accordance with the law; the learned Appellate Court has rightly observed that the contradictions were of a minor nature; the suit filed by the petitioners is barred by time; attesting witnesses were produced by the respondents; the thumb impressions were confirmed by the relevant authority as is evident from Mark-A, Reliance has been placed on "Niaz Rasool through Muhammad Bilal v. Mst. Parveen Ikram and others" [2013 SCM R 397], "Martand Pandharinath Chaudhry v. Radhabai Krishnarao Deshmukh"
[AIR 1931 Bombay 97], "State v. Muhammad Ismail Butt and another" [PLD 1982 S.C. AJK 76] and "Hakim Khan v. Aurangzaib and another" PLJ 1980 S.0 131].
5. The learned counsels have been heard and the record perused with their able assistance.
6. There is no cavil to the proposition that the jurisdiction of this Court under Section 115 of the Civil Procedure Code is of limited scope. The scope of revisional jurisdiction is limited and discretionary and not to be exercised if substantial justice has been done between the parties. However, gross misreading of evidence or ignoring material evidence, patent errors of law and material irregularities are grounds for interference. In the instant case, the judgment rendered by the learned Trial Court and the Appellate Court are at variance. The dispute relates to Mutation No, 3734 dated 31.3.1996 in respect of the Property. The learned Trial Court held that the respondents No, 1 & 2/defendants No, 1 & 2 were not able to prove the transaction, while a contrary view was taken by the learned Appellate Court. The question, therefore, for consideration is, whether the learned Appellate Court had taken into consideration the settled principles and law relating to the onus to prove the entries in a mutation, particularly when it has been challenged. In order to answer the question it would be advantageous to examine the precedent law in this regard.
7. In "Hakim Khan v. Nazeer Ahmad Lughmani and 10 others" [1992 SCM R 1832], the august Supreme Court has held that mutation by itself does not create title and that the person deriving title thereunder has to prove that the transferor had actually parted with the ownership of the property i,e, subject of the mutation in favor of the transferor. The obligation to prove that the mutation was duly entered and attested was also on the transferee. It has been further elucidated that the person who has acquired title through a mutation has to bear the burden to prove the transaction embodied in the mutation. It has been further observed that mutations are entered and attested for bringing the record up-to-date for fiscal purposes of recovery of land revenue and/or not effecting title in immovable property. The principle and law enunciated by the august Supreme Court in "Abdul Majeed and 6 others v. Muhammad Subhan and 2 others" [1999 SCM R 1245] is, inter alia, to the effect that everything which is mentioned in the revenue record cannot invariably be accepted without proof of their execution, genuineness and authenticity. It was thus observed and held in the context of a mutation as follows:--- "Similarly, a mutation although acted upon in Revenue Record, would not be 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 or 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. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document".
8. In "Fida Hussain through Legal Heirs Muhammad Taqi Khan and others v. Murid Sakina" [2004 SCM R 1043], it has been held as follows:--- "It is a known principle of law that a mutation is not a deed of title' and is merely indicative of some previous oral sale between the parties. This principle being in view, whenever any mutation is challenged, the burden squarely lies on the beneficiary of the mutation to prove not only the mutation but also the original transaction which he is required to fall back upon".
9. In "Siraj Din through L.Rs, and 2 others v. Akbar Ali and others" [2005 SCM R 921], the august Supreme Court has held that the sanction of mutation of inheritance in the Settlement or Revenue Record as such is neither conclusive proof of the right of a person in inheritance nor is it denial thereof.
10. The principles and law were reiterated by the august Supreme Court in "Abdul Rasheed through L.Rs, and others v. Manzoor Ahmed and others" [PLD 2007 S.C. 287] as follows: "We are in respectful agreement with the proposition laid down by this Court in the, precedent cases the fact, however, remains that, notwithstanding, presumption of correctness attached to entries in the record-of-rights by way of mutation, such entries are always rebuttable and open to correction. It has been consistently laid down by this Court that a mutation, per se, is not a deed of title and is merely indicative of some previous oral sale between the parties. This principle being in view, whenever any mutation is challenged the burden squarely lies on the beneficiaries of the mutation to prove not only the mutation but also the original transaction, which he is required to fall back upon".
11. In "Rehmatullah and others v. Saleh Khan and others" [2007 SCM R 729], the august Supreme Court, apart from reaffirming the consistent view regarding the evidentiary value of mutation and the onus of proof embodied in mutation, has held that a mutation must be recorded in the presence of the parties with their consent or upon due notice to them. Furthermore, elucidating and reaffirming the law laid down in Muhammad Shafi's case [PLD 1986 S.C. 519], it has been further held that absence of proof of payment of price would tantamount to there being no sale in the eyes of the law.
12. The above precedent law was reiterated by the august Supreme Court in "Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs," [2008 SCM R 855] as follows:--- "Before entering into appreciation of evidence, we may recall that this Court on numerous occasions has categorically held that the mutation proceedings are not judicial proceedings and mutations do not at all happen to confer title. That, therefore, whenever the genuineness of any such mutation is challenged, the burden squarely lies on the parties relying upon the mutation , to prove the actual transaction".
Reliance is also placed on "Nabi Bakhsh v. Fazal Hussain" [2008 SCM R 1454].
13. In "Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others [2010 SCM R 1370] the august Supreme Court has succinctly highlighted the ingredients regarding onus of proof of transaction embodied in mutation and has held that it is essential upon the beneficiary to establish that the transaction was a result of the conscious application of the mind of the donor and not under influence or fraud played with him/her.
14. Lastly, it would be pertinent to refer to the judgment of the august Supreme Court in Muhammad Akram and another v. Altaf Ahmad" [PLD 2003 SC 688] Wherein the apex Court, besides reiterating the principles and, law laid down in the above-mentioned precedent law, has held, in the context of an exchange that if it has taken place through mutation then the party relying thereupon is bound to prove both the transactions Moreover, the apex Court has further held as follows:- In connection with the attestation of a nation, 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".
15. The principles and law deduced from the above precedent law may, therefore, be summarized herein below:-
(i) Mutation is not a deed of title, but is merely a sign or indication of some previous oral transaction between the parties e.g.sale or exchange.
(ii) The Proceeding relating to mutation are not in the nature of being judicial.
(iii) The entries in mutation registers are by themselves not conculusive evidence of the facts which are recorded therein. (iv) An attested mutation carries a rebuttable presumptions.
(v) Mutation has to be recorded in the presence of the parties with their consent or upon due notice to them.
(vi) Burden of proof is on person who acquires the title through the mutation i.e. the beneficiary.
(vii) The beneficiary has to prove the transaction embodied in the mutation that the transferor had parted with the ownership voluntarily and out of free will that the mutation was duly entered and attested the factum of payment of sale consideration.
(viii) In the context of attestation of a mutation the most important persons are the Patwari Halqa who enters the mutation and the Revenue Officers who attests the same. In the Absence of the said two officials, the mutation cannot be said to have been proved.
16. I am afraid that in the instant case the learned Appellate Court has not taken into consideration the above-settled principles and law enunciated by the august Supreme Court. The respondent's No, 1 & 2/defendants No, 1 & 2 had failed to prove sale or the factum of payment of consideration.
Irshad Mehmood i,e, the respondent No, 1 appeared in the witness-box as DW.1 and deposed in his examination-in-chief that the payment was made in the presence of two witnesses, namely Muhammad Riyasat and Ameer Ahmed. However, in cross-examination he had deposed and contradicted himself by stating that the payment was made at the residence of the petitioners in the presence of the former's brother, namely Asad Mehmood. Muhammad Riyasat appeared as DW.2 and further contradicted the statement made in the examination-inchief by the respondent No,
1. Likewise, Ameer Ahmed who appeared as DW.3 also failed to lend any support in establishing the transaction i,e, sale or payment of sale consideration. The emphasis of the learned counsel for the respondents has been on 'Part Patwar' and Mark-A. Neither the relevant Jamabandis were tendered in evidence nor 'Part Sarkar'. Most importantly, no Revenue Officer was produced as a witness so as to establish the mutation. The emphasis on `Mark-A' is also misplaced. It is by now settled law that a document which has not been produced and proved in evidence but only "Marked", then the same cannot be taken into account by the Court as a legal evidence of fact.
Reliance is placed on "State Life Insurance Corporation of Pakistan v. Javaid Iqbal" [2011 SCM R 1013].
The order dated 22.1.2015 of the learned Trial Court is well-reasoned and it rightly concluded that the respondents No, 1 & 2/defendants No, 1 & 2 had failed to prove the genuineness of the transactions entered in the mutation.
17. For the above reasons, the judgment and decree dated 25.5.2015, passed by the learned Additional District Judge-III (East), Islamabad is, therefore, set aside and consequently the order dated 22.1.2015, passed by the learned Trial Court consequently stands restored.