' This revision petition calls in question the legality and propriety of judgment and decree dated 07.10.1992, passed by trial Court/ Senior Civil Judge, Peshawar and that of learned Appellate Court/ Additional District Judge, Peshawar dated 18.05.1998, whereby suit of the plaintiff-respondents has been concurrently decreed by both the Courts blow.
2. Succinctly stated the facts forming the background of the instant revision petition are that, plaintiff-respondents Mehmood Jan etc (sons and daughters of Muhammad Akram Khan), filed a suit Bearing No, 412/1 of 1980 against Major General (Rtd) Habib Ullah Khan and others, defendant- petitioners, for declaration to the effect that they are owners in possession of 100 Kanals of land in suit Khasra numbers, mentioned in detail in the heading of the plaint, situated within the revenue estate of Moza Haryana Payan Peshawar and the defendant-petitioners have no concern whatsoever with the same, hence, entries in the revenue record in favor of the defendant- petitioners on the basis of Mutations No, 637, 638, 643 and 644, by virtue of alleged un-registered sale-deeds being the result of fraud and collusion, are liable to be cancelled.
3. The suit was contested by the defendant-petitioners by filing written statement, raising therein variety of objections, legal as well as factual. From the controversial pleadings of the parties, the learned trial Court formulated issues, upon which both the parties led their respective evidence. On conclusion of trial, the learned trial Court, vide judgment dated 07.10.1992, by setting aside the impugned mutations, passed a partial decree to the extent of land measuring 72 Kanals 01 marla in favor of the respondent-plaintiffs, however, rest of their claim was dismissed.
4. Feeling aggrieved from the judgment and decree of the trial Court, defendant-petitioners, filed Civil Appeal No, 265/13, before the learned Additional District Judge, Peshawar, who by allowing the appeal vide judgment and decree dated 13.02.1993, set-aside the judgment and decree of the learned trial Court and remanded the case to the trial Court for decision afresh after recording evidence on the additional issues framed by the learned Appellate Court.
5. Both the parties assailed the judgment of the learned Appellate Court by filing separate revision petitions before this Court, which were disposed of on mutual consent of learned counsel for the parties that there was no need of framing additional issues and remanding the case to the trial Court for decision afresh. Consequently, this Court by setting aside the judgment and decree of the learned Appeal Court dated 13.02.1993, remanded the appeal to it for decision afresh, on merits, on the available evidence and record. On receipt of the record, the learned Appellate Court after hearing both the sides, vide judgment 18.05.1998, dismissed the appeal of the petitioner- defendants and maintained the judgment and decree of the learned trial Court dated 07.10.1992, hence, this revision petition.
6. Learned counsel for the petitioner-defendants argued that the suit of the respondent-plaintiffs is hit by the principle of resjudicata; that though this ground has not been taken specifically in the written statement, but being pressed during arguments before the two Courts below as well as discussed in the impugned judgments coupled with the fact that it being a pure question of law, can be agitated at any stage; that the findings of the two Courts below on the principle of resjudicata are bad in law. He while referring to order dated 08.10.2012 of this Court contended that during pendency of the instant petition, the petitioner-defendants filed application for amendment in the written statement, but the application was not pressed on the agreement of the learned counsel for thd respondent-plaintiffs who conceded and agreed that petitioner-defendants may agitate and argue the applicability of principle of resjudicata before this Court.
' He next argued that Suit No, 175/1 of 1960 decided on 28.4.1962, in respect of partition was filed by Major General (Rtd) Habib Ullah (father of the petitioner-defendants) in which Muhammad Akram (father of the respondent-plaintiffs) was Defendant No, 3; that judgment of the appellant Court in the said suit in favor of predecessor of the petitioner-defendants to the extent of his entitlement of 232 Kanals and 10 marlas land, has attained finality, therefore, the instant suit of the plaintiff- respondents being in respect of the same subject matter/ suit land and between the same parties, is hit by the principle of resjudicata, hence, was liable to be dismissed on this sole ground; that about 40/50 years back the petitioner-defendants purchased the aforesaid property through various un-registered sale-deeds as well as Court decrees, followed by attestation of the impugned mutations which have been duly incorporated in the revenue record; that sufficient revenue record has been produced and exhibited by the petitioner-defendants which supports their stance coupled with the long standing un-rebutted entries in the revenue record in their favor, but both the Courts below, without adverting to these crucial aspects of the case, landed in the field of error by granting decree in favor of the respondent-plaintiffs, who have badly failed to discharge the initial burden of proving their claim through cogent and confidence inspiring evidence, therefore, the impugned judgments and decrees being the result of misreading and non-reading of evidence, are liable to be reversed.
7. Conversely, learned counsel for the plaintiff-respondents argued that Suit No, 175/1 of 1960 was decided on 28.04.1962 and appeal there-against was decided on 21.10.1964, whereas the impugned mutations vide which the ownership and entitlement of the plaintiff-respondents has been reduced were attested on 29.11.1966, i,e, much after the aforesaid suit; that it was after 29.11.1966, when a fresh cause of action accrued in favor of the plaintiff-respondents, hence, the instant suit has rightly been filed; that cause of action and subject matter of the previous suit were altogether different from the instant suit, therefore, the principle of resjudicata does not attract in the circumstances. On merits, learned counsel contended that plaintiff-respondents have proved their entitlement and ownership of the suit property through sufficient documentary evidence in the shape of revenue record and pre-emption suits vide which the suit land was acquired by Muhammad Akram Khan (predecessor of the plaintiffs); that the suit property was, later on, mortgaged with Defendant No, 3, but in presence of said entries, fake, fictitious and fraudulent entries with the collusion of the revenue officials, by way of impugned mutations were made in favor of Defendant No, 1, therefore, the learned trial Court has rightly cancelled the impugned mutations and passed decree in favor of the plaintiff-respondents to which no exception can be taken.
8. Learned counsel for the parties were heard and record of the case was perused with their able assistance.
9. Since, the principle of resjudicata was pressed vehemently by the learned counsel for the petitioner-defendants therefore, this Court would like to take the same first.
' Since the question of resjudicata normally becomes a mixed question of facts and law, hence, before going to determine the legal aspect of application of this question, one has to consider its factual aspect first and then its legal implication. This Court is also aware of the fact that the question of resjudicata was not taken as a defence in the written statement, however, was argued before the trial Court, but was not considered simply for the reason that the same was not part of the pleadings, but in appeal it was argued and considered by the learned Appellate Court by holding that this principle is not applicable in the circumstances. During pendency of this civil revision, much effort was made to agitate the question of resjudicata and vide order dated 08.10.2012, it was settled that it being.a question of fact and law can be raised at any stage.
' Record of earlier Suit No, 175/1 of 1960, was requisitioned by this Court on the request of the learned counsel for the petitioner-defendants, which proved to be very fruitful in deciding the controversy in hand. The said suit had been filed by Maj. General (Rtd) Habib Ullah (father of the present petitioner-defendants), against Muhammad Saeed and 10 others defendants, in which Muhammad Akram (father of the present plaintiff-respondents) was Defendant No,
3. Declaration in respect of 236 Kanals and 13 marlas land was sought by the plaintiffs in the said suit along-with a prayer to declare the partition as null and void, conducted by the Revenue hierarchy Peshawar on 02.01.1956. A partial decree to the extent of 232 Kanal was granted in favor of the plaintiff Maj. General (Rtd) Habib Ullah by the learned Senior Civil Judge, Peshawar vide judgment dated 28.04.1962 while his claim to the extent of partition proceeding was 'dismissed. Muhammad Saeed etc defendants in the said suit assailed the judgment of the learned trial Court in C.A. No, 286/13 of 1964. The learned Appellate Court while deciding the appeal, modified the judgment and decree of the trial Court in the manner that plaintiff Maj. General (Rtd) Habib Ullah was held entitled to the extent of 232 Kanals and 10 marlas land vide judgment dated 21.10.1964. Rests of the findings of the learned trial Court were maintained. The judgment of the learned Appellate Court got finality as the same was not challenged by either party.
10. In the earlier round of litigation, partition proceedings and partition mutation were questioned, whereas the plaintiff-respondents by feeling themselves aggrieved from different mutations entered and attested at their back on 29.11.1966, much after final adjudication of the earlier suit, have filed the instant suit. Though, parties in both the litigations, are same, but the matter, directly and substantially in issue, is not the same. In the present suit, the matter directly and substantially in issue, is the sale mutations being attested much after the final judgment in the earlier suit. These mutations were entered and attested at the back of the plaintiff-respondents, which gave them a fresh cause of action, and they accordingly, challenged the same by way of this suit. So it can.
Safely be held that the instant suit is not hit by the principle of resjudicata and is maintainable.
11. Plaintiff-respndents have questioned the transfer of property by way of Mutations No, 637, 638, 641, 642, 643 and 644, alleging the same to be the result of fraud and collusion inter-se the defendant/petitioners. In support of their claim, Mina Dad Patwari Halqa was produced as PW. 1, who produced revenue record for the year 1929-30 upto 1979-80 (Exh.PW.1/1 to Exh.PW.1/2), Khasra Girdawri since Kharif 1968 till Kharif 1983 Exh.FW.1/13 and Mutations No, 252 attested on 12.01.1951 on the basis of registered deed No, 485 dated 03.03.1948, Mutation No, 246 attested on 12.01.1951 on the basis of registered deed No, 248 dated 06.06.1947. Abdul Rahim Plaintiff No, 2 appeared as PW.2 and supported the averments of the plaint.
12. It appears from the record that Muhammad Akram (predecessor of the plaintiff-respondents) became owner of 20 Kanals land on the basis of a pre-emption decree in his favor in Suit No, 450/1, instituted on 24.05.1948 and decided on 01.06.1949 (Exh.PW.2/1), sold by Abdul Jalil (predecessor of Defendants No, 4 to 6 and 16 to 18) and Behram Khan (predecessor of Defendants No, 7 to 12).
Similarly, on the basis of another pre-emption decree in his favor in Suit No, 451/1 of 1947, decided on 16.06.1949 (Exh.PW.2/2), he got 25 Kanals land, sold by Abdul Jabbar Khan, Abdul Ghaffar Khan sons of Mst. Muntaha daughter of Fateh Muhammad Khan. The aforesaid land falling in Khasra Nos.719, 721 and 722, was transferred in the name of Akram Khan (predecessor of the plaintiff- respondents) and duly incorporated in the revenue record. Worthwhile to mention here that the vendees of the above said two pre-emption suits, transferred the suit properties in the name of predecessor of the defendant-petitioners, who was accordingly impleaded as defendant in those suits, which were ultimately decreed in favor of the predecessor of the plaintiff-respondents, namely, Muhammad Akram Khan. Again an important aspect is that these sales were effected through unregistered sale-deeds dated 31.08.1942, on the basis of (Qabala Panchaiti) and impugned mutations are also on the basis of the same sale-deeds. This fact alone is sufficient to establish the stance of plaintiff-respondents. In this way Muhammad Akram, became the owner of 45 Kanals land on the basis of aforesaid pre-emption decrees, while he purchased some property vide Mutation No, 771 in Khasra No, 719. Mst. Muntaha (predecessor of Defendant No, 15), transferred her share in the suit property to Ghulam Sarwar (predecessor of Defendants No, 19 to 22), who later on, transferred and abandoned his share to Muhammad Akram. Similarly, land in Khasra No, 889/674, 804/674, fell in the entitlement of predecessor of the plaintiff-respondents in partition.
13. It appears from the record that partition Mutation No, 384 attested on 04.11.1956, was incorporated and acted upon in Jamabandi for the year 1963-64, on the basis whereof, predecessor of the plaintiff-respondents has been shown owners of 58 Kanals and 6 marlas land.
He was very much satisfied with the partition mutation and never questioned the same. It seems very strange that all of a sudden in next Jamabandi for the year 1967-68, the entitlement of the plaintiff-respondents was reduced to 13 Kanals and 13 marlas, instead of 58 Kanals and 6 marlas.
This decrease in the entitlement of the plaintiff-respondents occurred by virtue of disputed Mutations No, 637, 638, 643 and 644 attested on 29.11.1966, and these mutations are the bone of contention in the instant suit.
14. Record would further reveal that on the basis of an unregistered sale-deed dated 31.08.1942, predecessor of the plaintiff-respondents has been shown to have transferred about 23 Kanals 14 Marias land to one Mian Muhammad (predecessor of Defendants No, 23 and 24), vide Mutation No, 637 attested on 29.11.1966, who, on the same day transferred the said property in favor of predecessor of defendant-petitioners, vide Mutation No, 638. Similarly, an area of 20 Kanals 11 marlas, has again been shown to have been transferred by the predecessor of plaintiff- respondents to above named Mian Muhammad vide Mutation No, 643 and then it goes to predecessor of defendant-petitioners vide Mutation No, 644 dated 29.11.1966. Strange to observe that the alleged sales pertain to year 1942, but has been given effect in the year 1966 by way of impugned mutations. Then on the same day mutations are attested in the name of predecessor of the defendant-petitioners and sale in his favor has been shown by way of registered deeds, but the same being public documents have not been proved in accordance with law. Law on the subject is very much clear and settled that the petitioner-defendants being beneficiaries of the transactions, were legally bound to prove the same through cogent and reliable evidence, but they have failed to discharge their burden. No doubt, longstanding entries in the revenue record are in the names of defendant-petitioners, but the same would be of no help to them when the very foundation of these entries becomes doubtful. So, mere reliance on mutations without any other supporting evidence would not be sufficient for defendant-petitioners to establish their claim. It is very much settled that mutations are prepared for fiscal purposes and to maintain the record of rights up-to- date. These can never be held as documents of title and cannot create any title. Entering a mutation or reporting a factum of acquisition of any right in the property with Patwari is a ministerial act which cannot confer or extinguish any right in the property unless the very acquisition of any right is established through evidence. The factum of proof lacks in the case of defendant-petitioners, so, the suit was rightly decreed in favor of the plaintiff-respondents.
Reliance in this regard can be placed on the case of "Khalil Ahmad vs. Abdul Jabbar Khan and others" 2005 SCM R 911 citation (b). It will not be out of place to repeat for further clarification that these were the sale transactions in favor of Maj. Rtd. Habib Ullah Khan, the predecessor of defendant-petitioners, during pendency of pre-emption suits by the predecessor of the plaintiff- respondents and said Habib Ullah Khan was impleaded as defendant in the said suits. Said pre- emption suits, as earlier discussed, were decreed in favor of predecessor of the plaintiff- respondents and then the property was accordingly incorporated in the Revenue Record during partition proceedings. So transfer of said property again in the name of predecessor of the defendants in the year 1966, is alone sufficient to hold that these sale mutations have been based on fraud and collusion and were rightly held so by the Courts below.
15. The impugned judgments of the two Courts below being well reasoned and based on proper appreciation of evidence are not open to any interference by this Court in its revisional jurisdiction.
Resultantly, this revision petition being meritless stands dismissed.