SYED MUHAMMAD ATTIQUE SHAH, J.---Through this single judgment, this Court shall also dispose of Revision Petition No.145-A/2018 titled 'Major (Reid) Faisal Shah v. Haji Muhammad Younas etc.', as both are outcome of the consolidated judgment and decree dated 20.02.2018 passed by the learne d Additional District Judge-III, Abbottabad whereby , the Appeals filed by petitioner/ plaintif f, Mst. Farukh Sultan in the instant revision petition and Major (Retd) Faisal Shah, petitioner/defendant in Civil Revision No.145-A/2018 against the judgment and decree dated 07.01.2015 passed by Civil Judge-II, Abbottabad, were dismissed.
2. Brief facts of the case are that petitioner , Mst. Farukh Sultan filed suit No.267/1 of 2009 for declaration, permanent injunction and possession against respondents on 22.06.2009 to the effect that she along with defendant No.3 (petitioner in C.R. No. 145-A/2018) and proforma respondent No.7 are owners-in-possession of suit property bearing 'Khasra' No.1366 measuring 4 'Kanals'
7. 'marlas' along with bungalow built thereupon, situated in Mauza Mir Pur, Tehsil and District Abbottabad being legal heirs of their mother , Mst. Surriya Ashraf and sale Mutation No.3477 attested on 15.10 .1989 on behalf of their mother , was wrong, against law, based on mala fide and fraud, fictitious, and predecessor of the petitioner and defendant No.3 and proforma defendant No.7 has never transferred any property to respondents Nos.1 and 2 and entries on the basis of said mutation in revenue record were ineffective and void on the rights of the petitioner etc, which mutation is liable to be cancelled and respondents Nos.4 to 6 are bound to correct the entries in the revenue record. The respondents were summoned, who appeared and contested the said suit by submitting their written statement. The learned trial Court framed the following issues arising out of the divergent pleadings of the parties.
"ISSUES
1. Whether plaintiff has got cause of action? OPP
2. Whether suit of plaintiff is maintainable in its present form? OPD
3. Whether plaintiff is estopped to sue? OPD
4. Whether suit of the plaintiff is time barred? OPD
5. Whether defendants Nos. I and 2 purchased property from parents of plaintiff and defendant No.3? OPD
6. Whether plaintiff has not affixed court fee and therefore her suit is liable to rejection? OPD
7. Whether property in question is inherited property of plaintiff and proforma defendants Nos.3 and 4? OPP
8. Whether mutation No.3477 dated 15/10/1989 is fake, forged and fictitious? OPD
9. Whether property in question fell in the share of defendant No.3 as result of private partition? OPD
10. Whether plaintiff is entitled to the decree as prayed for? OPP
11. Relief?
3. The learned trial Court recorded evidence of the parties. The petitioner/ plaintif f, Mst. Farukh Sultan in support of her suit recorded statement of Haji Ali Akbar Khan as PW-1, who being Chairman 'Musalihati' Committee, made decision Ex.PW 1/1 on the application of petitioner submitted before SSP, Abbottabad; petitioner/ plaintif f, Mst.
Farukh Sultan herself appeared as PW-2, who reiterated the averments made in the plaint and has challenged the validity of mutation No.3477 dated 15.10.1989 on the ground that the same was illegal, as their mother had never alienated the property in question in favour of respondents Nos.1 and 2. On the other hand, the learned trial Court also recorded statement of DW- I Muhammad Shabbir SOK, who brought on record copy of mutation Nos.138 and 3477 as Ex.DW 1/1 and Ex.DW 1/2; DW-2 Musthaq Ahmad, Registry Moharrar , who brought on record copy of Bahi No.4, Jild No.192, page No.179 as Ex. DW 2/1 and pages Nos.182 to 184 as Ex.DW 2/2; DW-3 Moharrar Police Station City, who Produced copy of FIR No.387 dated 13.08.2012 as Ex.DW 3/1; Col.(Retd) Muhammad Mohsin, attorney of respondents Nos. 1 and 2/defendants appeared as DW-4 and recorded his statement in support of the stance of the respondents. The learned trial Court has also recorded statement of Major (Retd.)
Faisal Shah, respondent No.3/defendant as DW-5. The learned trial Court after hearing learned counsel for the parties, dismissed the suit vide judgment and decree dated 07.01.2015. The said judgment and decree of the learned trial Court were challenged by petitioner , Mst. Farukh Sultan and respond ent/ defendant Major (R) Faisal Shah in their separate Appeals before the learned Appellate Court, which were subsequently dismissed vide consolidated judgment and decree dated 20.02.2018, hence these revision petitions.
4. Arguments of the learned counsel for the parties heard and record perused with their valuable assistance.
5. Perusal of the record reveals that one Mst. Surriya Ashraf wife of Major (Retd) Ashraf Ali Shah was mother of petitioner/plaintif f, who was owner in possession of the property in question, which was transferred in favour of respondents Nos.1 and 2 vide mutation No.3477 attested on 15.10.1989. The petitioner challenged the validity of the mutation on the ground that neither her mother Mst. Surriya Ashraf received any sale consideration nor any mutation was attested by her in favour of respondents Nos.1 and 2. The respondents denied the contentions of the petitioner in their written statement and in support of their contentions they recorded the statement of DW-1 SOK, who brought on record copy of impugned mutation 3477 Ex.DW 1/1 (Part Patwar) under objection from other side.
In his cross- examination he clearly admitted that the said document does not bear the signature or thumb impression of Mst. Surriya Ashraf; vendor and the witnesses. The respondents in support of their stance recorded the statement of DW-4, their special attorney . In his cross-examination, DW-4 has admitted that Ex.DW 4/1, special power of attorney has not been attested by any witness nor it has been registered in the Registrar Office. He also admitted that the same has been written on a plain paper . He also admitted that he has got no relationship with respondents Nos.1 and 2 and they are only his friends. He has stated that the sale transaction was struck between the parties for a sum of Rs.1,000,000/-, however , he has not produced any receipt of the said amount. He has also admitted that he has no knowledge regarding the mode of payment to Mst. Surriya Ashraf, vendor by respondents Nos.1 and 2. However , he stated that respondents Nos.1 and 2 informed him that payment has been made to Mst.
Surriya Ashraf through one of their friend. He has also stated that he could not say whether respondents Nos. 1 and 2 have filed any suit for possession of the suit house against the petitioner . However , self stated that at the time of purchase of disputed house, possession was given to them and they have also appointed a chowkidar . He has clearly stated that he is not aware whether respondents Nos.1 and 2 has produced any witness or chowkidar in Court regarding the said possession. He has admitted it correct that possession of the suit house is with defendant No.3, who is petitioner in C.R. No.145- A/2018 and brother of present petitioner , Mst. Farukh Sultan. He showed his ignorance that whether said Mst.Surriya Ashraf died in the suit house and her 'janaza' was also brought out from the said house. He also admitted that he was not the witness of the mutation nor he was present at the time of attestation of mutation. He has also stated that it is not in his knowledge as to who had entered the mutation.
6. DW-5, petitioner of C. R. No.145-A/2018 appeared and stated that the disputed property was purchased by his parents in the year 1983 and in this regard he referred to copy of mutation No.13 66 already exhibited, which was attested in favour of Mst. Surriya Ashraf. He has also brought on record utility bills of the house in question regarding gas, electricity , PTCL, as Ex.DW 5/1 consisting upon 36 leaves. He has denied the factum of attestation of mutation No.3477. In cross-examination, he admitted that the property in question was earlier ownership of her mother and after her death the same was devolved upon him and his two sisters. He remained in use and possession of the said house. He also clearly denied the transaction in favour of respondents Nos. 1 and 2 on behalf of her mother through the impugned mutation. He has also admitted it corre ct that the disputed house is the joint ownership of petitioners.
7. Perusal of entire record and evidence available would show that the respondents are relying upon mutation No.3477 attested on 15.10.1989 (Ex.DW 1/1). It is worth to note that only Part Patwar of the said mutation has been produced which does not bear the signature and thumb impression of the vendor, attesting witnesses as well as order of the Revenue Officer. In such circumstances, the personal appearance of the respondents Nos.1 and 2 was very essential before the Court to record their statement in support of Ex.DW 1/1. It is also worth to mention that respondents Nos.1 and 2 could not produce the Patwari Halqa, who entered the said mutation, nor Roznamcha Waqiati, as well as Girdawar Circle, who examined the impugned mutation and Revenue Officer, who attested it. Apart from above, DW-4, attorney of the respondents when appeared before the Court has admitted possession of the respondent No.3, who is real brother of the present petitioner/plaintif f. DW-4 stated that one of attesting witness of Ex.DW 1/1 was Noor Muhammad and the other witness was the husband of the vendor , however , in this respect, he could not produce any evidence. Even he could not deny the suggestion of other side that Mst. Surriya Ashraf alleged vendor had died in the said house and her 'janaza ' was brought out for burial from the said house. He has also admitted that payment has not been made in his presence as well as he is not the witness of said mutation nor he was present at the time of attestation thereof. He has also clearly stated that Ex.DW 4/1 power of attorney was not attested by the witnesses. This Court while evaluating the entire evidence on record safely reached at the conclusion that neither respondents could establish through cogent, reliable and confidence inspiring evidence the attestation of mutation in their favour nor the payment of sale consideration to the vendor , Mst. Surriya Ashraf and admitted ly they are also not in possession of the suit house, therefore, they could not get any benefit of the impugned muta tion. As by now it is well-settled that mutation is not a title deed, neither it confers any title nor can it take away any right. Reliance is placed on PLD 1983 SC 53, 2005 SCMR 1859 , 2007 SCMR 635 , 2016 SCMR 1417 and 2017 SCMR 679 .
8. In the present case it was bounden duty of the respondents/ A defendants to establish through evidence the payment of sale consideration to the vendor in terms of section 54 of Transfer of Property Act, 1882. However , they have miserably failed to prove and establish the same through cogent, reliable and confidence inspiring evidence.
Thus, the requirement of section 54 of T.P Act has also not been fulfilled in the present case. Section 54 of T.P. Act provides essential ingredients for constitution of a valid sale transaction, according to which there must be (i) a valid sale agreement; (ii) parties to sale transaction; (iii) sale consideration fixed and paid; and (iv) subject-matter of sale transaction. The main thrust and focus in the aforementioned definition of sale is given to the price, which generally called as "sale consideration". If this important and essential element is missing in a sale transaction, then the sale would not complete. In this regard, wisdom is drawn from case law titled "Ali Muhammad and others v. Chief Settlement and Rehabilitation Commissioner and others " (1984 SCMR 94). The principle enunciated in the aforementioned judgment was subsequently followed by the Apex Court in case titled "Muhammad Sadiq v.
Muhammad Ramzan and 8 others " (2002 SCMR 1821 ), wherein, it has been observed that: "The "sale" is defined in section 54 of the T ransfer of Property Act, 1882 as under:-- "54 'Sale defined.'--- Such transfer , in the case of ownership in exchange for a price paid or promised to part paid part promised.
Sale how made. --Such transfer , in the case of tangible immovable 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 valueless than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property .
Delivery of tangible immovable property takes place when the seller places the buyer , or such person as he directs, in possession of the property .
Contract of sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms of settled between the parties.
It does not, of itself create any interest, in or charge on such property ."
The sale of immovable property means transfer of an ownership on a price to be paid or promised to be paid with delivery of possession. The mere execution of sale-deed registered or unregistered without proof of payment of price and delivery of possession is not enough to pass the title of the property and thus if the sale is not, in contravention of section 54 of the Act, would be a sale in the eyes of law. Reference may be made to Ali Muhammad and others v . Chief Settlement and Rehabilitation Commissioner and others (1984 SCMR 94 )."
9. No doubt, the suit was filed after twenty years of the attestation of mutation, however , DW-4 Attorney of the respondents Nos.1 and 2 has clearly admitted the possession of the suit property with the respondent No.3', who is real brother of the petitioner . Moreover , respondent No.3 when appeared as DW-5 he brought on record utility bills of the subject house regarding gas, electricity , PTCL, as (Ex DW 5/1) 36 sheets, which fully supports the possession of the petitioner over the suit house. Therefore, repetition of every wrong entry in the subsequent jamabandi' would give them fresh cause of action. Thus, in view of above, the suit of the petitioner is held to be filed within the period of limitation. Reliance in this regard is placed on case titled 'Khan Muhammad v. Mst.
Khatoon Bibi and others' (2017 SCMR 1476 ), Younas Khan and others v. DOR&E Peshawar and others ' (2017 CLC Note 63) and 'Umar Farooq and others v . Hamid Ali and others' (2018 CLC 254 ).
10. Hence, in view of the above stated facts, circumstances and discussions made thereupon, this Court reached at the conclusion, that the concurrent findings of facts rendered by both the learned lower Courts below are illegal and not based upon correct appreciation of the evidence and material available on record of the case and the law applicable thereto, which needs interference by this Court in its revisional jurisdiction under section 115 of C.P.C.
Hence, the revision petitions are allowed and suit of the petitioner , Mst. Farukh Sultan is decreed in her favour , as prayed for .