IKRAMULLAH KHAN, J.- Through the instant Civil Revision petition, petitioners have challenged the impugned Judgment dated 31.10.2012, rendered by the learned Additional District Judge-II, Nowshera, whereby, appeal filed by the petitioners against the Judgment/Order dated 25.01.2003 of the learned Trial Court, was dismissed.
02. Brief facts as per petition in hand are that a suit for declaration and possession in respect of Khasra(s)
No.6967 & 6979, situated at Nowshera Kala, was filed by the predecessor in interest of petitioners, before the civil Court at Nowshera, which was contested by the respondents by filing their written statements. The learned Trial Court, after framing of issues, recording evidence and hearing arguments of both the parties, dismissed the said suit vide its Judgment dated 25.01.2013. Feeling aggrieved from the said Judgment dated 25.01.2003 of the learned Trial Court, predecessor in interest of petitioners preferred appeal before the Appellate Court but the same was also dismissed vide Judgment dated 21.07.2004 by the learned Additional District Judge, Nowshera. Against which, petitioners filed Civil Revision No.1273/2004 before this Court, which was accepted vide Judgment dated 21.05.2012 and the case was remanded to the learned Appellate Court with directions to decide the case afresh in accordance with law.
3. After remand of the case, the learned Appellate Court below re-heard arguments and vide Judgment dated 31.10.2012 dismissed the appeal. Hence, the instant Civil Revision petition.
4. Learned counsel for the petitioners contended that the impugned Judgment is against law and facts on record; that respondents are tenant at well, while petitioners were recorded as owner of the suit land, in column of ownership but learned Courts below have not properly appreciated the legal proposition; that no preference shall be given to entries recorded in column of Lagan over entries recorded in column of tenancy and as well as in column of ownership; that petitioners are bonafide vendees and they were protected under principle of law envisaged thereunder Section 4 of the Transfer of Property Act.
5. On the other hand, learned counsel for respondents argued that respondents got no cause of action and the re-sale of the suit property, without delivery of possession, was based on malafide and no legal right had accrued to petitioners, through sale mutation allegedly executed by a person, who had no any proprietary rights, in the suit property; that the suit of petitioner was also time barred, despite the fact that respondents had openly improved the suit property by making construction thereupon the suit land; that concurrent findings on facts, rendered by the competent Court of law could not be interfered with by this Court in its revisional jurisdiction.
6. I have heard learned counsel for the parties and have gone through the record.
7. The suit property had transferred in column of tenancy by one Said Amir to Sarbiland Khan vide sale mutation No. 320 dated 23.12.1930. Although Said Amir was recorded as owner to the extent of half of the suit property in column of ownership, but as the suit property was holding by him as a whole, being owner in possession of the suit property, he sold out the whole suit property measuring 05-Kanal 15-Marla.
8. The record reveals that on death of Sarbiland, his legal heirs were incorporated vide inheritance mutation No.3002 & 3652 as vendee but in column of tenancy. Legal heirs of Sarbiland sold out their title over the said land to present contesting respondents vide various suit mutations, duly mentioned and chalked by petitioners in their pleadings.
9. The record further reveals which is also verified by petitioners themselves that the suit property had fully developed and improved by contesting respondents and had constructed a Petrol Pump and Service Station etc.
10. The possession of the suit property is in continues possession of vendees, right therefrom the year 1930 till date.
11. On other hand, as legal heirs of Said Amir, were holding field in column of ownership, they sold the suit property to petitioners through dif ferent sale mutations ef fected to, in Revenue record in column of ownership.
12. In the year 1993, petitioners filed an application for demarcation of the suit property however, the same was dismissed by Member Board of Revenue vide its Judgment dated 18.10.1999 and petitioners were directed to approach civil Court for declaration of their title.
13. Petitioners, thereafter filed the instant suit in the year 2000.
14. The only legal proposition involved herein, is as to whether, Said Amir had permanently parted with all rights including the ownership rights in the suit property or he had transferred his right for a limited purpose.
15. The record reveals that Sarbiland Khan, the original vendee, had permanently purchased the suit land, as the entries in column of rent had also changed being "Belagan Bawaja Begh"
16. It is general law of evidence, envisaged thereunder Article 117 of the Qanun-e- Shahadat Order, 1984 that burden of proof lies on the shoulder of the person, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts but the provisions of Article 126 of the Qanun-e-Shahadat Order, 1984, is an exception to the general rule of evidence and in cases of ownership claim, it is the burden of the person, claiming to be owner, not in the possession of suit land, which reads as: "126. Burden of proof as to ownership. When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner ".
Reliance be placed on case titled "Syed Tawakal Hussain and others Vs. Mst. Shamim Fatima Rizvi and others" ( 1999 MLD 1).
17. In case in hand, it was the obligation and responsibility of the petitioners that how respondents were in continues peaceful possession of the suit land, which they had fully developed and improved, but they did not discharge their legal obligation in this regard, in view of Article 126 of the Qanun-e-Shahadat Order, 1984.
18. On the other hand, respondents had proved that they were bonafide vendees.
19. The connotation defined thereunder Section 54 of the Transfer of Property Act, 1882.
"54. "Sale defined" Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
Sale how made.- Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property , of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property .
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.- A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property ".
20. The provisions contained in Section 44 of the West Pakistan Land Revenue Act, prescribe that any person, who acquires any interest in an estate, shall communicate, such acquisition of rights to the concerned revenue authorities, who therefrom verification of the information from the transferor shall record the same in the relevant register of mutation.
21. The attestation of mutation in column of tenancy or column of ownership was official responsibility of Revenue officials. If a person permanently acquired ownership rights in a land, his name shall be entered in column of ownership through proper execution and attestation of mutation but if for any reasons, a sale is incorporated and sale mutation is attested in column of tenancy, it would not affect the sale or rights of vendee in the said land.
22. Acts performed by public authorities deserve due regard by Courts and every possible explanation for their validity should be exploded and whole government powers in pursuance to which they act or perform their function and discharge their duties should be examined.
23. Presumption of regularity is attached to of ficial acts.
24. The sale effected in column of tenancy , could not be given any other meaning, except a permanent transfer of ownership in immovable property, where the possession is also delivered thereof. Reliance be placed on Judgment of the Apex Court, rendered in case titled "Amir Shah Vs. Ziarat Gul" (1998 SCMR 593), wherein it is held: - "9. The only point that survived for determination before us, therefore, is as to whether the sale out of a particular Khasra number finding its way in the column of cultivation confers a status of co-sharership on the vendee. It does not require much discussion on the point because this Court in the precedent case of Muhammad Muzaffar Khan v. Muhammad Yusaf Khan (PLD 1959 SC (Pak.) 9) has already held that the vendee of a co-sharer who owns an undivided khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor is in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the area in question does not exceed the share which the transferor owns in the whole property. It was further held that alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers".
25. It is not denied by both the parties that in the year, 1947, after partition of India, the Hindos' properties were separated as a result of general partition of the Muza, in which the suit property , exclusively came into ownership of Said Amir and as such predecessor in interest of respondents became full owner of his land, being owner in possession over the suit land, before partition of the Muza.
26. As, respondents' possession was in pursuance of the sale mutations No.8562 & 8563 effected in column of tenancy, on mere account that at the time of sale, the first vendor Said Amir was only owner to half of the suit land but he could not sell the whole suit property in column of ownership, therefore, the sale of the suit property was effected in column of tenancy with delivery of possession, which always is adjustable, when the possession of whole other joint property take place. But in case in hand, after partition of the country, official partition of muslims and non-muslims lands were effected and the suit property came in ownership of the vendor Said Amir, therefore, vendee, Sarbiland Khan was not disturbed therefrom the possession of the suit land, and became full owner, accordingly.
26. The first vendor Said Amir, never challenged the possession of vendee Sarbiland Khan over the suit property nor his legal heirs.
27. Petitioners were not vigilant by baying suit property without proper inquiry and consultation of Revenue papers, could not be termed as bonafide vendee, where, the suit property was already fully developed and improved by respondents.
28. I did not find any illegality or irregularity in the concurrent findings of learned Courts below , rendered on facts.
29. For the reasons mentioned hereinabove, this Civil Revision petition, being devoid of merit, is dismissed accordingly.