SHAKEEL AHMAD, J.Through this petition filed under section 115, C.P.C., the petitioners have challenged the concurrent judgments and decrees, i.e., the consolidated judgment and decree of the learned trial court dated 21.9.201 1 vide which petitioners suit for declaration and permanent injunction was dismissed while respondents suit for declaration etc. was decreed and also the judgment and decree dated 2.3.2014 vide which petitioners appeal against the afore-referred judgment met the same fate and the judgment and decree of the trial court was affirmed.
2. Briefly stating facts giving rise to instan t petition are that the respondent No.1 Muhammad Bakhsh filed Suit No. 169/1 on 16.02.1997 for declaration etc. against Ghulam Yaseen etc. stating therei n that he is owner-in-possession of the suit property measuring 31 Kanals and 14 Marlas situated in Mauza Hafizabad Paharpur , D.I. Khan, the details whereof was given in the head note of the plaint and that defendants have got no concern with the suit property; that the suit mutations Nos. 30, 60, 95 and 192 attested on 07.02.196 8 and mutation No. 378 dated 10.12.1970 allegedly executed on behalf of Muhammad Bakhsh/plaintif f in favour of Ghulam Yaseen is illegal, forged and fictitious, based on fraud, without consideration, against the law and ineffective upon rights of respondent No.1 plaintif f in Suit No. 169/1) and the same are liable to be cancelled, he had also prayed for issuance of permanent and mandatory injunction restraining the petitioners from posing themselves to be owner of the suit property or making interference in his possession, in alternative, he sought possession of the suit property .
3. Petitioners also filed a counter civil suit for declaration on 05.4.1997 suit contending therein that predecessor-in- interest of the petitioners namely Ghulam Yaseen was owner of landed as well as constructed property situated in Mauza Hafiz Abad Tehsil Paharpur; that whereabouts of the said Ghulam Yaseen is not known for the last 17/18 years, at that time he was aged about 80/85 years; that the petitioners left no stone unturned to search him, but in- vain; that petitioners are the legal heirs of Ghulam Yaseen and now they are satisfied that he is no more alive; that petitioners Nos. 1 to 3 are real sons and petitioners Nos.4 and 5 are his daughters, whereas the mother Mst.
Fatima Bibi has already met her natural death; that respondents/defendants were asked to admit the claim of the petitioners, but in-vain, which necessitated to file the suit. It is pertinent to mention here that the official respondents submitted cognovits and the suit was decreed Ex parte, which was assailed by the respondents by filing revision petition before the Additional District Judge, which was accepted and impugned Ex parte judgment was set- . aside vide judgment dated 29.10.2002 and case was remanded back to decide the same in accordance with law .
4. Both the suits were consolidated; both the parties contested the suit by way of filing written statements. In terms of the divergent pleas of the parties the following consolidated issues were framed and parties were directed to produce their evidence : - i- Whether the plaintif f in suit titled Muhammad Bakhsh v . Ghulam Yasin etc . has got cause of action?OPP ii- Whether the plaintif fs in suit titled Hafiz Kalu etc. v . Muhammad Bakhsh have got cause of action?OPP iii- Whether the disputed property is the ownership and in possession of the plaintif f Muhammad Bakhsh?OPP iv) Whether the suit property has been sold by the plaintif f Muhammad Bakhsh upon Ghulam Yasin?OPD v) Whether the impugned mutations are illegal, fictitious, fraudulent, without consid eration and ineffective upon the rights of plaintif f Muhammad Bakhsh? OPP vi) Whether the whereabouts of the predecessor of the defendants namely-Ghulam Yasin. Are unknown for the last 17/18 years and at that time his age was 80/85 years and now inheritance mutation can be attested in favour of his legal heirs ?OPD vii) Whether the suit of the plaintif f Muhammad Bakhsha is within time?OPP viii) Whether the rights of defendants (Hafiz Kalu etc). are protected under section 41 of the Transfer of Property Act, 1882?OPD ix) Whether the plaintif f Muhammad Bakhsh is entitled to the decree as prayed for?OPP x) Whether the plaintif fs Hafiz Kalu etc are entitled to the decree as prayed for?OPP
(xi) Relief?
5. During trial, the respondent No.1/plain tiff produced PW-1 Rozi Khan Patwari, who produced Goshwara Milkiat Ex.PW -1/1, record of revision Ex.PW -1/2, copy of register of Scheme No. 77/1 for the year 1978-79 Ex.PW -1/3 and copy of Khasra Girdawri Ex.PW -1/4. PW-2 is Sher Ali Shah, who produced mutation No. 60 Ex.PW -2/2, mutation No. 95 attested on 07.02.1968 Ex.PW -2/3, mutation No. 192 attested on 07.02.1968 Ex.PW -2/4, mutation No. 378 attested on 10.12.1970 Ex.PW -2/5. PW-3 is Abdul Haq, who appeared as special attorney of respondents who stated that suit property belongs to respondent/plaintif f, he is owner of the same since last hundred years, the petitioners/defendants have no concern with it, the suit mutation allegedly executed in favour of the petitioners. are forged and fictitious; it was neither signed nor thumb impressed by him nor by its identifier . PW-4 is Raza Muhammad, who stated that he never saw Ghulam Yaseen and others while cultivating the suit land. PW-5 is Ghulam Jilani and PW-6 is Muhammad Ramzan, they narrated the same facts as disclosed by PW-4 and closed their evidence.
6. Petitioners/defendants produced DW-1, Hafiz Kalu (petitioner No.1) he appeare d as special attorney of rest of the petitioners, who stated that Ghulam Yasin is their father , who had purchased the suit property from petitioner No.1, Muhammad Bakhsh during the year 1968 to 1970, however , it was not incorporated into mutation, whereabouts of his father is not known at that time he was aged about 80/85 years during life time of his father the suit property was in possession of son of Ghulam Hussain namely-Ahmad Hussain as Ghair Dakhilkar , besides Ata Muhammad alias Atta was also their tenant, at the instance of Muhammad Bakhsh, they committed default, and taking advantage of the same he filed the instant suit, he prayed for dismissal of the suit filed by respondent No.1 and sought decree in their favour . DW-2, Ahmad gave evidence that Ahmad Hussain and Ramzan were his tenants after missing of Ghulam Yaseen, the respondents referred to pay produce to his legal heirs and that petitioners are his legal heirs. DW -3 Alam Sher stated the same facts as narrated by DW -2 and closed their evidence.
7. Learned counsel for the petitioners in support of the petitioner has submitted that concurrent judgments and decrees suffer from mis-reading and non-reading of evidence on record, in as much as, both the courts below failed to appreciate Ex.PW2/1 to Ex.PW -2/5, the mutations produced in the statem ent of PW-2. On the question of jurisdiction he argued that neither issue was framed nor any finding was recorded by both the courts below despite the fact that it was specifically taken in the written statement by the petitioners, which resulted in gross miscarriage of justice, therefore, warrants interference. In support of his contention he read out Section 26 of West Pakistan Consolidation of Holdings Ordinance, 1960.
8. On the other hand, learned counsel for the respondents/plaintif fs defended the impugned judgments by submitting that concurrent judgments and decrees do not reflect any mis-reading or non-reading of evidence, which could warrant interference in revisional jurisdiction of this Court. On the question of jurisdiction he submitted that civil courts under Section 9, C.P.C. were competent to try all suits of civil nature except those, which were ousted from their jurisdiction either expressly or by implication and concluded his arguments by arguing that judgments of the learned lower fora do not suf fer from jurisdictional defect.
9. I have heard learned counsel for the parties at length and perused the record of case thoroughly .
10. The crucial issues in the instant case are Issues Nos. 3, 4 and 5. Perusal of the record reflects that Halqa Patwari PW-1 tendered in his evidence Scheme No. 77/1 Ex.PW -1/1, Goshwara Milkiat after review of respondent Muhammad Bakhsh Ex.PW -1/2 and register Scheme No. 77/1 for the year 1978-79 Zair-e-Kar of the suit property copy whereof was produced as Ex.PW -1/3 wherein respondent. No.1/plaintif f has been recorded as a mortgagor in the column of ownership, while Centra l Government as mortgagee, the said witness also produced Khasra Girdawri Ex.PW -1/4 and Ex. PW-1/5 , wherein respondent No. 1/Muhammad Bakhsh has been shown in possession of the property in dispute, Halqa Patwari also produced the Pert Patwar of the impugned mutations and tendered it, in his evidence as Ex.PW -1/7 to Ex.PW -1/11. Admittedly , all the above mutations were sanctioned/entered during consolidation proceedings, the relevant documents relating to consolidation proceedings were produced as Ex . PW-1/12 to Ex . PW -1/15 . The impugned mutation Nos. 40, 69. 95, 192 and 378 were produced as Ex.PW2/1 to Ex.PW -2/5 in the statement of PW-2 Patwari/Naib Dafter Qanungo. He deposed that consolidation proceedings are still in progress in Mauza Hafiz Abad. I also found in his deposition that those mutations were attested without prior permission of consolidation Officer. As no permission from consolidation Officer was sought prior to attestation of mutations in question, as required under section 24 of the West Pakistan Consolidation of Holdings Ordinance, 1960, therefore, courts below rightly held those mutations to be invalid. It will be advantageous to reproduce Section-24 of the West Pakistan Consolidation of Holding Ordinance, 1960, which reads as under:- "24. T ransfer of property during consolidation proceedings.--- When an application for the consolidation of holdings has been made, no land-owner or tenant having a right of occupancy upon whom the scheme will be binding shall have power , without the sanction of the Consolidation Officer , during the pendency of the consolidation proceedings, to transfer or otherwise deal with any part of his holding or tenancy so as to affect the rights of any other land-owner or tenant having a right of occupancy therein under the scheme of consolidation."
11. A plain reading of the ibid section reveals that it places an embargo on the transfer of land during consolidation proceedings without permission/sanction of consolidation officer, so it was rightly held by the courts below that attestation of impugned mutations during consolidation proceedings without seeking permission of Consolidation Officer are invalid. In this behalf reliance can well be placed on the judgment reported as Abid Arif Nomani and others v . Chief Administration Auqaf Punjab and others (2004 SCMR 1050 ) wherein it was held as under:- "(a) W est Pakistan Consolidation of Holdings Ordinance (VI of 1960)--- S. 24---W est Pakistan Consolidation of Holdings Rules, 1960, R. 27--- Consolida tion proceedings--- Sanction by Additional Deputy Commissioner/Collector (Consolidation) for exchange of waqf land with private land---V alidity--- Landowner could not alienate his holdi ng during consolidation proceedings without sanction of Consolidation Officer---Registrar or Sub-Registrar would refuse registration of document relating to transfer of land or any interest therein without written permission, of Consolidation Officer allowing such transf er---Neither Waqf deed was in existence nor exchange of Waqf land had been authorized by Court of competent jurisdiction---No sanction or permission had been obtained from Consolidation Officer being a competent authority---Sanction by Additional Deputy Commissioner/ Collector (Consolidation.), held, was invalid in circumstances. "
12. Another interesting feature of the case is that the suit mutations Nos. 30, 60, 95 and 192, neither carry thumb impression nor signature of the vendor Muhammad Bakhsh nor that of marginal witnesses.
13. Respondent No.1 in his plaint and PW-3 (Abdul Haq) as his special attorney , in his statement recorded before the learned trial court, specifically challenged the validity of these mutations stating that these are fraudulent forged and fictitious. It is by now settled that mutation does not confer title, it indicates previous sale between the parties and whenever a mutation is impugned, the burden always not only lies on its beneficiary to prove its validity , and also the transaction, which was incorpora ted in the mutation through positive evidence. The petitioners miserably failed to prove the same. Their claim is based on oral assertions. They could not prove that sale money/price which was actually paid to vendor Muhammad Bakhsh. They neither produced, the Patwari who entered the mutations in question nor the revenue official who attested the mutations. The revenue record also reflects that petitioners have not been recorded as possessors of the land in dispute; rather respondents have been shown in possession of the same. The petitioners never attempted to restore possession of the suit property through suit till filing of suit by the respondent No.1, therefore, I hold that findings of the courts below on these issues are correct and needs no interference.
14. Coming to question of limitation, it was specifically pleaded in the plaint that Muhammad Bakhsh respondent learnt about impugned mutations on 11.3.1996, thereafter , he obtained copy of the same and brought the suit on 16.02.1997; so it was rightly held by the courts below that the suit of respondent No.1 being governed by Article- 120 of the Limitation Act is well within time. In this behalf reliance can be placed on the judgment reported as Mst.
Sharifan Bibi v. Mst: Barkat Bibi (2008 YLR 653) wherein it was held that suit for declaration against sanctioning of mutation can be filed within a period of six years from the date when the right to sue accrued.
15. Regarding, application of the petition ers for permission to produce additiona l evidence, this application was submitted during pendency of appeal, no cogent reason was given by the petitioners for submitting this application at a belated stage, therefore,( it was rightly dismissed by the appeal court even other-wise it would serve no purpose, and aimed to lock the parties in a protracted trial.
16. The last question, which arises for consideration in the case, whether the civil court was competent to examine validity of mutations attested in favour of petitioners during consolidation proceedings on the ground of fraud? No doubt Section 26 of the Consolidation of Holdings Ordinance, 1960, barred the jurisdiction of civil court. The relevant portion is reproduced for ready reference as under:- "26. Jurisdiction of Civil Court barred as regards matters arising under this Ordin ance.--- No Civil Court shall entertain any suit or application to obtain a decision or order in respect of any matter which,- Government or the Board of Revenue or any of ficer is, by this Ordinance, empowered to determine, decide or dispose of"
17. A bare reading of ibid section makes it crystal clear that matter arising under Consolidation of Holdings Ordinance, 1960, i.e., adjustment of land or share distribution in consolidation operation fell within the exclusive jurisdiction of consolidation authorities and civil court cannot sit in appeal on them, but it is equally true that the respondent No.1 had not challenged the consolidation proceedings or matter arising under the Consolidation of Holdings Ordinance before the civil court. He had specifically pleaded that impug ned mutations were attested by practicing fraud during consolidation proceedings.
18. It is by now settled that civil court being the court of plenary jurisdiction, was competent to inquire into the question, whether impugned mutations were attested by practicing fraud and if it is so, it has the jurisdiction to declare the same to be void, the civil court under section 9, C.P.C., can try all suits of civil nature except those of which their jurisdiction is barred either expressly or by necessary implication. In this context reliance can be placed on the case reported as Muhammad Jameel Asghar v. The Improvement Trust Rawalpindi (PLD 1965 SC 698) wherein it was held that where the ques tion of fraud, misrepresentation or want of jurisdiction is raised, the civil court has jurisdiction to adjudicate upon the same.
19. In the instant case, the petitioner had proved that impugned mutations were attested by practicing fraud, thus, the provision of Section-26 of the Ordinance is not attracted to the present case, therefore, I hold that no prejudice was caused to the petitioners due to non-framing of issue on the question of jurisdiction in the light of discussion made hereinabove. Even other-wise, there are concurrent findings of fact recorded by the two courts below (trial court and appeal court), and it is by now settled that the court is always reluctant to interfere with the concurrent findings of fact recorded by the courts below, unless it is established that the judgm ents of the two courts below are without jurisdiction or the two courts below acted illegally or with material irregularity resulting into miscarriage of justice. In this behalf reliance can be made on the cases reported as Mst. Kulsoom Bibi and another v. Muhammad Arif and others (2005 SCMR 135) Shah Wali v. Muhammad lqbal PLD 2005 Lah. 214) and Civil Aviation Authority Karachi v. Rist Consultants (Pvt.) Ltd. Lahore (1998 SCMR 2393 ), wherein it was observed that question of fact already decided by the lower court is not open for examination. Reference may also be made to the cases reported as Muhammad Sharif v. Mst: Fajii alias Phaji Begum through Legal heirs and others (1998 SCMR 2485 ), Muhammad Azan v. Inayat Shah (1998 SCMR 1356 ) and Mazhar lqbal v. DCO Toba Tek Singh and others (2008 SCMR 863 ).
20. The learned counsel for the petitioners has not been able to point-out that either the impugned judgments suffer from jurisdictional defect or result of mis-reading or non-reading of evidence or the same have been recorded by committing any illegality or irregularity resulting in miscarriage of justice.
21. The upshot of above discussion is that the revision petition being bereft of merits is hereby dismissed with no order as to costs.