SYED ARSHAD ALI, J.----Through the instant revision petition, petitioners have impugned the consolidated judgment and decree dated 26.04.2010 of learned Additional District Judge-III, Abbottabad, whereby appeal filed by respondent No,1 was accepted and the judgment and decree dated 30.10.2009 passed by learned trial Court was set-aside.
2. Brief, but relevant, facts of the case are that Mst. Irum-un-Nisa and others, the petitioners/plaintiffs had challenged mutation No,8707 attested on 25.02.1982 through which respondent/defendant No,1 had transferred land measuring 05 kanals 06 marlas to respondent /defendant No,2 through suit No,191/1 on 05.4.1988. It was averred in the plaint that the aforesaid sale was in excess of the share of respondent/defendant No,1 as reflected in the revenue record. On being summoned respondent/defendant No, 2 appeared and contested the suit by filing her written statement. She had stated in her written statement that through impugned mutation she purchased property for valuable consideration and the vendor i,e, defendant No,1 was competent to transfer her property to her. She also took a specific plea that vendor/defendant No,1 was recorded as true owner of the suit property as reflected from the fact that on her demise, inheritance mutation was also attested in favour of her husband and daughter on 04.12.1991. During trial, the relevant revenue record was produced by Muhammad Ayub Khan Patwari Halqa, Jehanzeb Patwari Halqa as PW-1, Muhammad Abbas, SOK PW-2 and Muhammad Daud SOK PW-3.
One of the petitioners/plaintiffs namely Firdos Khan appeared as PW-4 in support of their plaint.
Against that, Nadeem Alam, attorney of defendant No,2, appeared as DW-1. On the conclusion of trial, the learned trial Court partly decreed the suit by annulling the impugned mutation in Khasra Nos,1526 and 1636 to the extent of 04 kanals 19 marlas whereas dismissed the suit of the plaintiff to the extent of 07 marlas in Khasra No,1196. Both the parties feeling aggrieved of the judgment and decree dated 30.10.2009 filed separate appeals before learned District Judge, Abbottabad, which were assigned to learned Additional District Judge-III, Abbottabad for adjudication. The learned appellate Court accepted the appeal of respondent No,1 (Mst. Naz Parwar) by setting aside the judgment and decree of the learned trial Court, whereas appeal of the present petitioners was dismissed. The present petitioners have called in question the aforesaid judgment and decree, before this Court .through instant revision petition.
3. Arguments heard and record perused.
4. Through impugned Mutation No,8707 dated 25.2.1982 Mst. Sarwar Jan had transferred land measuring 04 kanals 19 marlas in Khasra No,1526 and 1636 and land measuring 07 marlas in Khasra No,1196 for total consideration of Rs, 1,80,000/- in favour of Mst. Naz Parwar. PW-3 produced Goshwara Malkiat Ex: PW-3/3 of Mst. Sarwar Jan in the entire revenue estate of Nawasher Shumali District Abbottabad. According to the aforesaid Goshwara Malkiat, vendor was recorded as owner in the entire revenue estate to the extent of 23 Kanals 11 Marlas whereas she had sold land measuring 30 Kanals 06 Marlas in Khana-i-Kasht (column of possession in periodical record). It is also evident from the record that vendor had transferred land measuring 06 Kanals 15 Marlas in excess of her total entitlement/ownership in the aforesaid revenue estate which includes the impugned Khasra number.
5. The moot question for determination before this Court is whether the vendor Mst. Sarwar Jan, when she had earlier sold land in Khana-i-Kasht more than her due share as per her ownership reflected in the column of ownership of the periodical record, could further alienate the suit property through impugned mutation by transferring her share. In this regard learned counsel for respondents has argued that even after the sale of land by her vendor she was still recorded owner in the column of ownership (periodical record), therefore, vendor could rightly sell the property. This Court is not in consonance with the arguments of the learned counsel for the reason that while the vendor, being joint owner in a particular Khata and in exclusive possession of the land, which is more than her share as reflected in the column of ownership of the periodical record, can validly transfer the land in her possession, however, the same transaction should not exceed her/his entire ownership in the revenue estate/whole property. In Muhammad Muzzafar Khan's case (PLD 1959 SC 09), the august Supreme Court of Pakistan elaborately propounded aforesaid view in the following words:- "It will thus be seen that the cases from which assistance was sought to be derived by the learned Judicial Commissioner afford no solid foundation for the position adopted by him. A plain consideration of the nature of the transaction in the circumstances of this case could, in our opinion, lead to but one conclusion. The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor in the property no more and no less. If the vendor was 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 joint property, to the extent of the area purchased by him, provided that area in question does not exceed the share which the transferor owns in the whole property. 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. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner, in an undivided Khata, does not become a co-sharer in that Khata. It may be pointed out that the mutations in favour of the appellant, which are on" the record, describe the sale transactions in his favour as hissadari sales of the joint Khata in suit. The view taken by the learned Judicial Commissioner in these cases, cannot be supported, on any rational principle. We, therefore, allow these two appeals set aside the orders passed by the learned Judicial Commissioner in revision, and restore those of the first two Courts. We leave the parties to bear their own costs in this Court as the respondent did not engage a counsel and did not personally raise a contest in these appeals on the merits. Appeals allowed."
The said view has been reaffirmed by august Supreme Court of Pakistan in Solid Khan v. Aya Khan (1986 SCM R 356), Mst. Noor-unNisa v. Ghulam Sarwar (1994 SCM R 2087) and Abdur Rehman v.
Saved Sultan Ali Shah (1998 SCM R 1589).
6. Thus, the law is clear that a co-sharer could not alienate the property more than his share in the whole property in the garb of Hissadari possession. The Revenue Officer as per normal practice, when attesting a mutation for transfer Hissadari possession of land from vendor to vendee attests the mutation showing the transfer of Hissadad possession from vendor to vendee but does not alter corresponding entries in column of ownership of the periodical record. Thus, the vendor, despite the fact that he/she has transferred his/her property in column of cultivation still his/her name appears as owner of the land in column of ownership. Therefore, through impugned mutation the sale by Mst. Sarwar Jan, could not he termed as a valid sale.
7. It is a settled principle of law that entries in the revenue record/mutation do not confer title on the person who is recorded owner in the column of ownership in the revenue record. The revenue record is maintained for fiscal purposes. Similarly, mutation is not a title document and is attested/executed pursuant to acquisition of a title by any person in a property through inheritance, purchase, mortgage, gift or otherwise in estate as landowner. Therefore, mutations are entered and attested under section 42 of the Land Revenue Act, 1967 pursuant to preexisting acquisition of the aforesaid rights in estate or immoveable property. Reliance is placed on Khalil Ahmed v. Abdul Jabbar Khan (2005 SCM R 911). Whereas 'sale' has been defined in Merriam Webster Dictionary as "the transfer of the ownership and title of the property from one person to another for a price". Similarly, under section 54 of the Transfer of Property Act, 1882, 'sale' has been defined as the "transfer of ownership in exchange fora price paid or promised or part paid or part promised". A four member bench of august Supreme Court of Pakistan in the case of Ali Muhammad v. Chief Settlement and Rehabilitation Commissioner (1984 SCM R 94) while defining sale, laid down the essential elements of sale as (i) the parties, (ii) the subject matter, (iii) the transfer or conveyance and (iv) price or consideration. Before entering into what constitutes a valid sale, it would be pertinent to mention the basic ingredient of sale which is that the seller should be full and absolute owner of the property to be sold as it is established principle of law that no person can transfer better than he/she owns himself/herself.
8. As stated above, the entries in the revenue record are made for specific purposes and it is a common practice that when a vendor is in possession of a particular property more than his/her share as recorded in the column of ownership, the revenue officer allows the transfer in column of cultivation without altering in the column of ownership. This entry in the column of ownership does not mean that the said person who has already sold his hissadari possession can again transfer land in favour of a 3rd person. The impugned mutation is thus illegal and is the result of collusion by vendor and vendee with the revenue official which is not sustainable. The learned trial Court has upheld the sale only to the extent of 07 Marlas in Khasra No,1196, the said view of the learned trial Court is also not correct because corresponding allotted Khasra No,1196 is 1727 and in the said Khasra the vendor, Mst. Sarwar Jan, is recorded as owner to the extent of 6-1/2 marlas whereas she had sold land measuring 13 marlas which is in excess of her share. Even otherwise if in the entire revenue estate the vendor, Mst. Sarwar Jan, had sold land measuring 06 Kanals 15 Marlas in excess of her entitlement then the impugned mutation whereby 05 Kanals 06 Marlas land has been transferred, is obviously illegal.
9. In view of the above, both the judgments and decrees passed by learned lower Courts are not sustainable, which are accordingly set aside, resultantly, the suit of the plaintiff is decreed as prayed for.