MUHAMMAD NASIR MAHFOOZ, J.- Impugned herein are the judgments and decrees dated 20.3.2015 and 28.11.2012 passed by learned District Judge, Karak and learned Civil Judge-II, Karak, whereby they had concurrently decreed the suit of the respondents/ plaintiffs.
2. Brief facts of the case are that respondents/plaintiffs instituted a suit for specific performance of the contract dated 10.7.2003 and 23.7.2003 with regard to the landed property fully detailed in the head note of the plaint. That the suit property was ownership of defendant No.1 who sold it to the plaintiffs at the sale consideration of Rs.
2,82,000/-. On 24.6.2003. Roznamcha No.349 was entered but inadvertently the price was entered as Rs.
82,000/- but after getting knowledge of the same, Roznamcha No.369 dated 10.7.2003 was entered and the defendant had signed the said Roznamcha in the presence of witnesses. On the basis of above referred Roznamcha, mutation No.1376 was entered and the defendant had executed power of attorney but despite the same, sale deed was not signed and thereafter the defendant disappeared. Subsequently, on appearance of defendant, the plaintiffs demanded for registration of sale deed but from perusal of revenue record, it revealed that mutation had been cancelled by the revenue authorities and the defendant No.1 was later on asked to enter mutation in favour of plaintiffs but he refused, hence the suit was filed.
Petitioners appeared. Pro and contra evidence was recorded.
3. I have heard arguments of learned counsel for the parties and perused the record.
4. The suit of respondents was rightly decreed by the Courts below, wherein it has been held that the respondents/plaintiffs have proved their case to the extent of grant of decree for specific performance of contract.
The essential pre-requisite for the grant of specific performance of contract is applicability of section 53-A of the Transfer of Property Act, which provides that a transferee who has taken possession under the contract is entitled to defend the transfer . The said provision read together with section 12, section 21 and section 22 of the Specific Relief Act proves the entitlement of respondents/ plaintif fs.
5. After entering into transaction Patwari Halqa was approached for entering the sale transaction which was duly recorded in Roznamcha Waqiati (daily diary No.349 dated 24.6.2003) Ex.PW1 /2, wherein an amount of Rs.
82,000/- is stated to be paid by respondents/ plaintif fs to the present petitioner . This fact further gets support from another Roznamcha Waqiati recorded by Patwari Halqa bearing No.369 on 10.7.2003 Ex.PW1/3, wherein total amount of Rs. 2,82,000/- is shown to be received by the vendor/petitioner and the same is entered on mutation No.1376. This mutation is Ex.PW1/4, but was later on rejected in view of denial of present petitioner . These documents Ex.PW1/2 to Ex.PW1/4 are ample proof of the fact that the respondents/plaintif fs had paid the sale amount and were willing to enforce their part of the contract but the petitioner was not willing to perform his part of the contract. Reference is also made to Ex.PW3/1, which is a special power of attorney executed by the present petitioner in the name of Fazal-ur-Rehman PW-3 for executing the sale transaction. This power of attorney is dated 23.7.2003 duly signed by Abdul Majeed PW-4 and Aseel Khan Advocate as PW-5. All these witnesses have deposed in support of the execution of sale transaction in favour of the respondents/plaintif fs.
6. According to section 43 of the Khyber Pakhtunkhwa Land Revenue Act entries in the record of rights or in periodical record by Patwaries is to be made with respect to dispute and undisputed acquisition of any interest in the prescribed manner. The prescribed manner is provided in section 42 of the ibid Act. For ready reference section 42 is reproduced below:- "42. Making of that part of periodical records which relates to landowners.
(1) Any person acquiring by inheritance, purchase, mortgages, gift, or otherwise, any right in an estate as a landowner , or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the patwari of estate, who shall--
(a) record such report in the Roznamcha to be maintained in the prescribed manner;
(b) furnish a copy to the report so recorded, free of cost, to the person making the report; and
(c) send a copy of the report, within a week of its receipt by him, to the [''office of the Union Administration'] within which the estate is situated.
(2) If the person acquiring the right is a minor, or is otherwise unable to report, his guardian or other person having charge of his property shall make the repot to the patwari.
(3) The patwari shall enter in his register of mutations every report made to him under subsection (1) or subsection (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which repot should have been made to him under either of those subsections and has not been so made.
(4) The report made to the patwari under subsection (1) or subsection (2) or recorded by him under subsection
(3) shall be displayed in such manner as may be prescribed.
(5) If the patwari fails to record or to display a report made to him under subsection (1) or subsection (2); the person making the report may make the report, in writing, to the Revenue officer concerned and the [''Union Nazim of the Union'] in which the estate is situated, by registered post acknowledgement due and he Revenue of ficer shall thereupon cause such report to be entered in the register of mutations.
(6) A Revenue office shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.
(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order of decree of a court, the Revenue office shall make the order under subsection (6) I the presence of the person whose right has been acquired, after such person has been identified by two respectable of [''Zila Council, Tehsil Council or Town Council'] concerned, whose signatures or thumb-impression shall be obtained by the Revenue of ficer of the register of mutations.1 2 3
(8) An inquiry or an order under subsection (6) shall be made in the common assembly in the estate to which the mutation, which is the subject matter of the inquiry , relates.
(9) Where a Revenue officer makes an order under subsection (6) in regard to the acquisition of any right, and entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of ay entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct.
(10) If within three months of the making of a report of the acquisition of a right under subsection (9) or subsection (2), or the recording by the Patwar of an entry in the Roznamacha under subsection (3) respecting the acquisition of any right, no order is made by the Revenue officer under subsection (6), he shall report the cause of delay to the Collector in he prescribe in the prescribed manner.
(11) The Revenue officer shall, in the prescribed manner, sent or cause to be sent, he gist of an order made by him under subsection (6), to the person whose right is acquired, and also to the [''office of the Union Administration'] in which the estate is situated."
Under section 42(3) the Patwari shall enter in his register of mutations every report made to him and shall make an entry in the Roznamcha and in the register of mutations.
In the instant case while entering Roznamcha Patwari Halqa has duly followed the ibid provision, because he had every reason to believe that the parties have entered into a sale transaction. Reference is also made to a judgment reported as (PLD 1985 SC 41) titled "Haji Ilahi Bakhsh Vs. Noor Muhammad and others", wherein it has been held as under:- "The two Courts were correct that the documents (Exhs. P. 1 and P. 2) which are reports made to the Patwari have no statutory presumption of correctness attached to them. All the same neither the trial Court. nor the first appellate Court examined the effect of statement of Ghulam Muhammad then a Patwari who recorded these reports and proved the admissions of the vendor and the vendee and also the sale transaction. His oral evidence gets corroboration from a document contemporaneously prepared in discharge of his official duties at a time when no dispute over the property had arisen. The two taken together were sufficient to establish unless there was strong, evidence in rebuttal."
In another judgment reported as (PLD 2007 SC 582) titled "Zulfiqar and others Vs. Shahadat Khan", wherein it was held as follows:- "As noted above, copy of the Roznamcha Waqiati was neither produced nor the vendor or the Parwari was examined. Therefore, the entry in the mutations referring to the report recorded in Roznamcha Waqiati was not the primary evidence. Although Roznamcha Waqiati is required to be maintained under the West Pakistan Land Revenue Rules, 1968 and entry made during the course of performance of official duty is admissible yet if the report contains the statement of a private individual, it is required to be proved to establish its correctness. It may also be noted here that under section 42 of the West Pakistan Land Revenue Act, 1967 it is the person acquiring a right in the land who has to make such a report to the Patwari Halqa. However, in the case in hand the report was made by the vendor and, therefore, within the scope of section 42, it is even doubtful whether such a report, at the instance of vendor (a person alienating his right) could be said to have been recorded by the Patwari in the discharge of his official duty."
7. In view of the above discussion, I find no illegality , irregularity , misreading and non-reading in the impugned judgments, therefore, the same are maintained and the instant revision petition being devoid of merit is hereby dismissed.