' CH. MUHAMMAD MASOOD JAHANGIR, J.---This revision petition under section 115 of the Code of Civil Procedure, 1908 is directed against judgment and decree dated 4.10.2005 passed by learned trial court and judgment and decree dated 25.9.2009 delivered by learned lower appellate court, through which, declaratory suit as well as appeal filed by present petitioner was dismissed respectively.
2. The brief facts of the case are that petitioner on 18.7.2001 filed a declaratory suit before learned trial court against respondent/defendant with the assertion that subject land measuring 22-kanals 4-marlas situated in Mauza Tibbi Jond Singh, Tehsil Pakpattan was owned by him and respondent wanted to get the same mortgaged by paying Rs,50,000/- and they went to Aman Ullah, Halqa Patwari to enter a Rapt in this regard, where respondent paid an amount of Rs,7000/- to petitioner.
The remaining mortgage money was to be paid before Tehsildar at the time of attestation of mutation and delivery of possession to respondent. Thereafter, it was heard by petitioner that oral sale mutation No,501 (Ex:P8) had been got attested by respondent through connivance of revenue officials, while getting benefit of his illiteracy; that neither the disputed land was sold nor any sale consideration was received as no bargain of sale was struck among the parties, which being result of fraud, misrepresentation and collusion was assailed. The said suit was contested by respondent and learned trial court after capturing the disputed area of fact, framed the following issues:-- "1. Whether the suit of the plaintiff is liable to be dismissed due to non-affixing of court fee? OPD
2. Whether the plaintiff has filed a false and frivolous suit just to harass defendant and in case of dismissal the defendant is entitled to recover Rs,25000/- as special costs? OPD
3. Whether the plaintiff is estopped by his act and conduct to file the suit? OPD
4. Whether the mutation of sale No, 501 dated 24.5.2001 is result of fraud and against the facts? OPP
5. Whether the plaintiff is entitled to decree of suit as prayed for? OPP 5-a. Whether the plaintiff is in possession of the property in dispute? OPP 5-b Whether any contract of mortgage was agreed upon between the parties? OPP 5-c Whether the plaintiff received amount of Rs,7000/- as earnest money, in view of agreement of mortgage? OPP 5-d Whether the plaintiff got registered Rapt Roznamcha Waqiati in favour of defendant and mutation of sale No,501 dated 24.5.2001 is with consideration and lawful? OPD
6. Relief."
3. The learned trial court after collecting stock of evidence of the parties dismissed the suit and the same was maintained when appeal tiled by the petitioner was disallowed by learned lower appellate court vide judgment and decree referred in para 1 ante.
4. Learned counsel for the petitioner has submitted that petitioner is an illiterate person and respondent while practicing fraud got attested impugned mutation; that respondent being beneficiary of mutation and transaction neither appeared himself nor produced the revenue officer, who attested Ex:P8, but both the courts below without capturing the said aspect of the case erred in law while dismissing the suit of the petitioner. He while drawing attention of this court toward the statement of Mohammad Hussain, DW5 submitted that the said witness was neither signatory of the mutation nor as per his own deposition, he was available at the time of alleged transaction, but even then, is the learned courts below while relying upon his statement were wrong to hold that the respondent succeeded to prove the sale transaction. He also highlighted that Sakhi Mohammad, cousin of the respondent being DW4 did not mention that Mohammad Yasin, DW8 was also present at the time of transaction, but without considering the said portion of the statement of DW4, the learned courts below erred in law while relying upon the statement of DW8; that the statement of concerned Patwari being PW4 and DW3 left no room to believe that 'Rapt Roznamcha Waqiati' qua the entry of transaction in the relevant register was not made by him, but the learned courts below while misinterpreting the evidence available on record passed the impugned judgments and decrees which are not sustainable.
5. Conversely, the learned counsel for respondent while supporting the impugned judgments and decrees submitted that respondent through production of qualitative and quantitative evidence not only succeeded to prove valid attestation of mutation, but also payment of sale consideration.
He emphasized with great vehemence that the concurrent findings rendered by the learned two courts below could not be checked by this court while exercising jurisdiction under section 115 of the Code of Civil Procedure, 1908.
6. Arguments heard. Record perused.
7. Before embarking upon merits of the case and to proceed with the determination of respective stances of the parties, I feel it appropriate to comment on the principle dealing with oral transfer of immovable property effected through mutation. It is well established by now that mutation is always sanctioned through summary proceedings and is intended to keep the record update for the collection of land revenue. Such entries are made in the register concerned under section 42 of Land Revenue Act, which attains no presumption of correctness prior to incorporation in the record of rights. No doubt that the entries in the mutation are admissible in evidence in a case, but these require to be proved by the person relying upon it independently through affirmative evidence because an oral transaction reflected therein neither confers the title in favour of its beneficiary nor can establish the same.
8. Reverting, now to the merits, it is the basic case of the petitioner as embodied in the plaint that subject property had been mortgaged in favour of respondent against a consideration of Rs,50,000/-, who after paying Rs,7000/- fraudulently got attested disputed mutation of oral sale and to discharge the onus, he himself while appearing as PW1 stated on oath in lines with the contents of plaint. Nothing adverse could be brought on record despite lengthy cross-examination by respondent. The moment petitioner made statement on oath and alleged commission of fraud in attestation of disputed mutation and denied the transaction reflected-therein, the onus was shifted upon its beneficiary relying upon the entries of mutation to prove the valid attestation as well as transaction embodied therein and for this purpose he examined Sakhi Mohammad (DW4) one of the attesting witnesses of the disputed mutation, who admittedly was cousin of respondent and deposed that on 23.5.2001 bargain among the parties was settled in his house in his presence against a consideration of Rs,4,12,500/-, which was paid to petitioner through him by respondent. It is interesting to note that his deposition is silent to the extent that Mohammad Yasin (DW8) and Nazir Ahmed (DW5) were also present at that. Stage. However, he added that Mohammad Anwar and Mohammad Yasin along with Nazir Ahmed also accompanied them, When they approached the Patwari for entry of 'Rapt Roznamcha Waqiati', who on the statement of the petitioner made an entry in the daily diary, issued the challan for deposit of transfer fee, which was deposited by the respondent on the same day and it was delivered to the concerned Patwari on 24.5.2001 when he along with the Revenue Officer and Qanoongo came at the dera of Hakim Ali. Then after recording statement of petitioner in the presence of Mohammad Anwar, Hakim Ali, Yasin and Nazeer besides him the mutation was attested. It is eye catching that said star witness did not 'depose that on 23.05.2001 when the entry was made in the daily diary, the patwari also entered the mutation, but the perusal thereof divulges that it was also entered on that day.
9. The petitioner also produced Nazir Ahmad, DW5, who admittedly is not an attesting witness of the questioned mutation and in his statement-in-chief it was straightaway admitted that he was not present at the time of settlement of sale transaction, rather he explained that sale consideration was paid after 2/3 days prior to the settlement of bargain. The statement of Nazir Ahmad is contradictory to the deposition of Sakhi Mohammad, DW4, who deposed that on 23.05.2001 the transaction was settled at his residence and entire sale consideration was paid then and there. The deposition of DW5 is also militant to the documentary evidence i,e, Rapt Roznamcha Waqiati (Exh.P 3/3) and mutation in dispute (Exh.P8). As per Exh. P3/3 the sale price was paid on the day when it was entered i,e, on 23.05.2001 whereas, as per Exh.P8, which was attested on 24.05.2001 the said price had already been received by the petitioner. If statement of DW5 is admitted as correct, then it would be presumed that sale consideration was paid to the petitioner on 25th or 26th day of May, 2001, meaning thereby that till attestation of mutation, no amount was paid to the vendor. So the statement of Nazir Ahmad, DW5 has totally dislodged the case of the respondent.
The statement of Haji Mohammad Yasin, DW8, who is also not signatory of mutation under challenge in any capacity, is also contrary to the stance of respondent when he deposed in opening lines of his cross-examination that transaction was settled 3/4 days prior to the attestation of mutation, meaning thereby that it was struck on 20th or 21st day of May, 2001. He also admitted that he was not present when it was struck. No other witness was examined for the proof of settlement of bargain and payment of alleged sale consideration. No doubt, some of the official witnesses were brought into the witness-box by respondent, who had no direct nexus with the transaction, which was to be proved independently. Whereas, Mohammad Anwar, the other witness of the disputed mutation could not be examined by respondent as prior to recording of evidence he had already passed away. It is notable that learned trial court at prior point of time after initiating ex parte proceedings against respondent recorded ex parte evidence of petitioner and at that stage said Mohammad Anwar was alive, who put his appearance as PW2 and fully supported the stance of petitioner while deposing that subject property was mortgaged with respondent and no sale was effected among the parties, but unfortunately the said witness thereafter could not appear on account of his death. In such situation it was sine qua non for the beneficiary to produce any person familiar to his thumb impression to verify it on the disputed mutation, but such exercise was not done.
10. After thrashing the statements of private witnesses of respondent it is concluded, without shadow of doubt that he failed to prove the payment of alleged sale price to petitioner and if payment of consideration of alleged sale has not been proved on the record, then there can be no sale in the eye of law. The respondent has not been able to establish on record the essential elements of valid sale and if any of the ingredients is missing, then the respondent has to suffer as it was his duty being beneficiary of the transaction to prove the sale. In arriving at this view, I am fortified by the dictum laid down in the judgments reported as "Mst. Hameeda Begum and others v.
Mst. Irshad Begum and others (2007 SCMR 996) and "Khan Muhammad v. Muhammad Din through L.Rs," (2010 SCMR 1351) wherein it has been held that there is left no cavil with the proposition that in case of transfer of immovable property executant having denied the transaction, onus of proof would shift to the beneficiary of the instrument.
' In the present case, the respondent also failed to produce the revenue officer, who had allegedly attested the mutation (Ex: P8) in his favour. He was the best person, who could prove the valid attestation of the mutation, wherein; even the alleged transaction of sale was incorporated, but the said best evidence was withheld by him.
11. The argument of learned counsel for the respondent that the revenue officer at the time of recording of evidence was not available, rather he had gone abroad, is not tenable. Neither any documentary evidence was available on the record in this regard nor any application for summoning him or to appoint local commission for recording his statement by the respondent was tabled and only statement of DW4, one of the attesting witnesses was not sufficient to declare that respondent succeeded to prove valid attestation of mutation. Furthermore, there is no cavil with the preposition that it is the duty of the parties knowing whole circumstance of the case to give evidence on their behalf and to submit them for cross-examination. The respondent's nonappearance in the witness box would be strongest possible circumstances going to discredit the truth of his version. By nonappearance, therefore, he failed to discharge the onus and to reverse the onus of the pivotal issues to the petitioner despite the fact that he was available. The contention of learned counsel for the respondent that due to his ailment, he could not appear before the learned trial court is also without any substance. It is vivid from the statement of his attorney DW9 that on 17.09.2005, the respondent purchased the stamp paper from the stamp vendor and got executed power of attorney (Mark-A) in his favour. If respondent was able to approach the stamp vendor and the deed writer for execution of (Mark-A), then he could also appear before the learned trial court on 26.09.2005 when statement of his attorney being DW9 was got recoded before the court. No documentary proof regarding his ailment was produced on the suit file. Moreover, if it is presumed that the respondent was not able to approach the court, then through an application, the local commission could be got appointed for recording his statement but he deliberately avoided facing the cross-examination. In such state of affairs, the non- appearance of the respondent has created many doubts regarding attestation of oral sale mutation. Reliance is placed upon the case reported as "Feroze Khan and others v. Mst. Waziran Bibi" (1987 SCMR 1647), "Roshan Din and others v. Abdul Qayum and others" (PLD 1979 Supreme Court 890) and HO Abdullah Khan and others v. Nisar Muhammad Khan and others" (PLD 1959 Peshawar 81). In the former judgment it is observed as under:-- "So far as the other defendant-appellants are concerned, none of them appeared in the witness- box except Mir Afzal Khan. It is a Settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. By non-appearance, therefore, the defendant-appellants except Mir Afzal Khan failed to discharge the onus or shift the onus on to the plaintiffs."
' The statement of Muhammad Sharif, DW9, special attorney is also liable to be ignored as neither he was attesting witness of the sale mutation nor any other DW uttered a single word qua his presence when the alleged bargain was finalized.
12. The other argument of learned counsel for respondent that petitioner had admitted his thumb impression over the mutation (Ex:P9), therefore, the respondent was not required to prove it, is misconceived. It is the stance of petitioner that he along with respondent had approached the revenue Patwari for entry of 'Rapt Roznamcha Waqiati' qua mortgage transaction, but they while practicing fraud got attested oral sale mutation and in such scenario, the admission if any that petitioner affixed his thumb impression on a revenue paper that cannot be considered sufficient to declare that the same was obtained for attestation for oral sale mutation. Reliance in this respect is placed upon the judgment reported as "Abdul Hameed v. Mst. Aisha Bibi and another" (2007 SCMR 1808). Para No,5 of the said judgment is relevant which is reproduced hereunder:--
5. After hearing the learned counsel for the parties and perused the record with their assistance, we find that sole question requiring determination would be whether the admission of vendor of his thumb-impression on the agreement to sell was sufficient to prove its execution and contents, the answer is in the negative as the document purporting to create a right in the property must be proved to have been actually executed by the person who allegedly executed such document. It appears from the record that Din Muhammad was an illiterate person and without being aware of the contents of the document put his thumb-impression on it at the instance of his son in good faith with the "understanding that it was compound deed. This is a matter of common sense that in the normal circumstances, father would certainly trust his son and may act on his advice and thus in these circumstances, the inference drawn by the High Court that the vendor having no knowledge of the contents of the document, affixed his thumb-impression at the instance of his son with the impression that document pertained to the settlement regarding encroachment of the house was quite natural and denial of Din Muhammad to have put his thumb-impression on blank paper, would seriously reflect upon the genuineness of the agreement in question. In view thereof, the admission of Din Muhammad of his thumb-impression on the agreement in question, would not ipso facto prove its contents to raise the presumption of it being a genuine document to have the legal force. This may be seen that High Court having discussed the evidence in detail has held that the agreement to sell was not proved to have been executed by Din Muhammad and we in the given facts have no reason to differ with the conclusion drawn by the High Court.
The learned counsel for the appellant has not been able to satisfy us that on the basis of evidence brought on record and in the facts and circumstances of the case, an equitable relief of specific performance could be granted to the appellant or the findings arrived at by the High Court was suffering from any mis-reading or non-reading of evidence or there was any other legal defect in the impugned judgment calling for interference of this Court.
13. The next contention of the learned counsel for respondent that petitioner in explicit terms through his pleadings and deposition averred/stated that it was Amanullah, Patwari who entered the Rapt, Roznamcha Waqiati, in his diary while practicing fraud and it was incumbent for him to produce him, but he failed and an adverse inference under Article 129(g) of Qanun-e-Shahadat Order, 1984 has to be drawn against him is also not tenable. As per available record, petitioner examined Abdul Ghaffar Patwari as PW4 who deposed that charge was handed over to him by Amanullah Patwari on 12.5.2001 and Rapt No,395 was entered by him in his register/diary on 23.5.2001. At this juncture, the learned counsel for the petitioner while claiming that the Rapt was not entered by PW4 requested the court for declaring him as hostile, which was acceded to and PW-4 was cross-examined by learned counsel for the petitioner, who conceded that there was difference of handwriting against the entries bearing Nos.398, 399 and 397 with the handwriting made against entries No,407 of his daily register, who further voluntarily stated that it might have been caused due to the change of pen. The learned trial court at this stage of cross-examination of its own procured two samples of the handwriting with different pens of PW-4, but prior to conducting its comparison, the respondent himself produced the said official as DW3 in his evidence and in response to first question of his cross-examination, he straightaway conceded that Rapt No,407 was not made by him in the relevant diary rather it was authored by his student on his dictation, which has left nothing to believe that the entry of Roznamcha Waqiati, was not made by the Patwari holding the charge at that relevant time. The student, who allegedly made the said entry was also not produced by the respondent to prove its contents. It is also visible from the perusal of the said entry (Ex-p-3/3) that it did not bear signatures of the alleged vendor or the vendee, which was a requirement of law. Reliance can be placed on the judgments reported as "Mst. Raj Bibi and others v. Province of Punjab through District Collector Okara and 5 others" (2001 SCMR 1591), "Messrs Islamabad Farming Cooperative Society and others v. Ghulam Abbas Khan and others" (2011 SCMR 153). It is also well established principle by now that Rapt Roznamcha Waqiati, attains no presumption of truth unless and until its maker is produced to prove the same.
Reliance is placed on the judgments reported as "Shahid and 2 others v. The State and others"
(1996 SCMR 1386), "Zulfiqar and others v. Shahadat Khan" (PLD 2007 SC 582). As a result of probe of the evidence of the respondent, this, court is of the considered view that he failed to prove recording of event of his sale in the Register Roznamcha Waqitai, attestation of oral sale mutation as well as alleged transaction of sale and both the courts below committed material irregularity and illegality while concluding otherwise, whose findings being outcome of misreading and non- reading of evidence are not sustainable in the eye of law.
14. At the fag end of his arguments, learned counsel for the respondent has argued that concurrent findings recorded by both the courts below cannot be interfered with by this Court while exercising revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908 is also misconceived.
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 of the Code of Civil Procedure, 1908 if courts below appeared to have either misread evidence on record or while assessing evidence 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 SCMR 1139) and the relevant portion thereof is reproduced as under:-- "6. Before considering the contentions 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 on the basis of the evidence on record."
' This question has also been dealt with by the august Supreme Court of Pakistan in the judgment report as "Muhammad Anwar and others v. Mst. Ilyas Begum and others" (PLD 2013 Supreme Court 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 alone. So, this court can decide in which cases the interference is warranted.
15. Consequently, the instant civil revision is allowed impugned judgments and decrees passed by learned courts below being outcome of misreading and non-reading of evidence are hereby set aside and suit filed by the petitioner stands decreed with no order as to costs.