RASAAL HASAN SYED, J.---This judgment will decide civil revision which assails judgment and decree dated 23.12.2016 of the learned Addl. District Judge Okara, whereby the judgment and decree dated 27.6.2014 of learned Civil Judge, Okara, was set aside.
2. Facts pertinent to decision of this case are that the petitioner (Muhammad Yar) filed a suit for declaration with consequential relief, praying that he should be declared owner-in-possession of the suit-property, and that mutation No. 1104 dated 22.11.2003 in respect of the alleged sale of suit- property in favour of the respondents be declared to be illegal, a result of fraud and collusion, without consideration and as such inoperative against petitioner's rights. As consequential relief it was prayed that the respondent be restrained from interfering in possession of the petitioner. The petitioner alleged that on the demise of his father, mutation of inheritance No. 1103 dated 22.11.2003 was attested; that at the time when the patwari was approached for inheritance mutation, he secured signatures of petitioner on certain papers but it later transpired that, in conspiracy with respondent, the patwari had entered a mutation of oral sale of 05 kanals in favour of Qasim Ali, etc. and allegedly sought its attestation; though in point of fact no sale was ever made nor the petitioner ever received any consideration or appeared before the tehsildar for attestation of any sale mutation; and that the entire proceedings of mutation of sale No. 1104 dated 22.11.2003 were illegal, fraudulent and inoperative qua the rights of the petitioner.. It was added that the petitioner continued to be in possession of suit-property and came to know of the disputed mutation when the respondents started claiming that they had allegedly purchased the land. In result the petitioner sought declaration that the mutation be declared to be inoperative.
3. The suit was resisted by respondents who claimed to have purchased the land. It was asserted that the suit was filed by the petitioner as a counter blast to the suit for partition instituted by the respondents; and that the petitioner was requested through punchiayat to deliver the possession but instead of doing the needful the suit was filed to challenge the sale mutation.
4. After issues and evidence the suit was decree on 25.2.2013 by the learned Civil Judge and the judgment was challenged in appeal which was accepted by the learned District Judge Okara vide judgment dated 4.1.2014 whereby the case was remanded for decision afresh, after framing proper issues.
5. In post-remand proceedings the learned trial court after re-framing issues, recorded further evidence and finally vide judgment dated 27.6.2014 decreed the suit of petitioner. In appeal filed by the respondents, the learned Addl. District Judge, Okara, set aside the judgment and decree of the learned trial court, and dismissed the suit vide judgment and decree dated 23.12.2016, which has been impugned in the present revision petition.
6. Learned counsel for the petitioner argued with vehemence that the findings recorded by the learned trial court were based on correct analysis of the evidence, the reasoning recorded for declaring the mutation as invalid, were illegal; but the learned Addl. District Judge, completely overlooked the material evidence on which the findings of the trial court were based and proceeded to reverse the judgment in oblivion of the evidence on the record. It was added that the appellate court completely misread the material evidence, in result the findings in appeal stood vitiated. As against these arguments, learned counsel for the respondents, supported the impugned judgment and submitted that the same was well-reasoned and that the learned Addl.
District Judge. had correctly reversed the judgment of the trial court in view of certain errors in the appreciation of evidence by the said court and as such the findings of fact recorded in appeal could not be disturbed in the revisional jurisdiction.
7. The submissions from both sides have been considered in the light of the oral as well as documentary evidence of parties. Case set up by the petitioner was that he did not sell his land; there was no sale agreement with the respondent; no consideration was ever paid; the petitioner had never agreed for the attestation of any sale mutation; and that he had only instructed the patwari to enter the mutation for inheritance of his father so as to record entries of succession; but the patwari in conspiracy with respondents, fraudulently inserted the mutation of oral sale No. 1104.
It is also the stance of petitioner that he is in cultivating possession of suit-property which proves that no sale was ever made.
8. With a view to establish his case, the petitioner appeared as PW 1 and reiterated all the facts and circumstances by deposing that fraud was committed by revenue officials in conspiracy with the respondents; and that he never sold his land nor ever received the alleged amount of Rs.50,000/-.
It was added that he never made any statement before the patwari or tehsildar for the attestation of mutation of oral sale. In the cross-examination his statement could not be contradicted nor any dent could be made therein. PW2, Liaqat Ali, supported the petitioner. As against the evidence of the petitioner the respondents produced D.W.1 to D.W.5 in the pre-remand proceedings, while they produced D.W.6 to D.W.9 in the post-remand proceedings.
9. The learned Civil Judge after in depth scrutiny of the evidence, took note of the contradictions in the testimonies of witnesses produced by the respondent, and observed that all the three witnesses contradicted each other on the payment of consideration, and that transfer of possession had never taken place. He accordingly held that no sale could be established and in result the mutation was deemed to be untenable.
10. Strange enough the learned Addl. District Judge while reversing the judgment of the learned trial court did not advert to the contradictions in the evidence of the respondent nor kept in view that there was material evidence on the record which established beyond doubt that the oral sale could not be proved. Strangely enough it was observed by the learned Addl. District Judge that the revenue officers do not attest the mutation on the spot rather they do such transaction like business in their office and that the parties could not be punished for the irregularity committed by them, as the Deputy Commissioner did not take any action against the revenue officers who perform the duties of attesting mutation. It was completely ignored that the wires of the mutation are to be attested on the touchstone of the mandatory provision in the Land Revenue Act and also the rule as interpreted by the Superior Courts and therefore, if the court while examinir the issue of legality or otherwise of mutation, A reaches the conclusion that the concerned revenue officer had completely overlooked the instructions in law or proceeded in derogation to the provision of the Land Revenue Act, such illegality could not be countenanced by the court.
11. The two judgments when placed in juxtaposition and examined, it is manifest that the learned Civil Judge recorded valid reasons to conclude that the oral sale could not be established and that the respondents were unable to prove the payment of consideration, transfer of possession or the existence of any such deal between the parties. Careful scrutiny of record reveals that the respondents, in their written statement simply took the stance that the petitioner allegedly transferred the suit-property through oral sale; he allegedly appeared before the revenue officer; and allegedly received the payment upon which the mutation was attested on 22.11.2003. The petitioner had on oath denied the transaction or receipt of any consideration. Being so the onus was upon the respondents to prove the oral transaction of sale and payment of consideration. The evidence of the respondent was self-contradictory A inasmuch as the patwari claimed payment before the tehsildar on 22.11.2003, D.W 4 Muhammad Saeed also stated that the payment was made at the tehsildar's table. The respondent Zulfiqar deposed as D.W 5 that the payment was made before the tehsildar. The three statements were contradicted by the tehsildar who did not claim any payment in his presence.
12. It is also noteworthy that all the statements pertaining the mutation and alleged payment in pre-remand proceedings claimed that the entire transaction was completed on 22.11.2003, and that the mutation was entered, which was allegedly attested and the payment was made. While in the post-remand proceedings the respondents came up with altogether different stance inasmuch as they produced D.W 6 who claimed that entries in roznamcha waqiayati 190, 191 and 192 were recorded on 12.11.2003 and that thereafter the mutation was entered. D.W.7 patwari also claimed that the roznamcha entries were made on 12.11.2003, while the mutation was attested on 22.11.2003. He admitted in cross-examination that the sale price was never paid in his presence. DW 4, Muhammad Saeed, came up with the new stance that on 12.10.2003, Rs.50,000/- were paid for the clearance of the dues of Agricultural Bank; the petitioner after receiving payment left to clear the dues, got a letter from the bank whereupon the mutations were attested on 22.11.2003.
13. Notwithstanding the fact that the entire stance taken in the post-remand evidence by the respondent were never incorporated in the pleadings nor they were ever asserted in the earlier depositions and in law the respondent could not even be permitted to produce evidence for which there was no foundation in the pleadings. As ruled by the august Supreme Court in "Abdul Haq and others v. Shaukat Ali and others" (2003 SCM R 74) and "Sardar Muhammad Naeem Khan v.
Returning Officer" (2015 SCM R 1698) evidence beyond pleadings would be inadmissible, but also this subsequent stance, vitiated the entire oral evidence and also the pleadings in the post- remand proceedings where the respondents' stance was that the alleged payment was made on 23.11.2003. So much so that in both pre and post-remand evidence of the D.Ws it was not denied that the possession was never transferred. D.W4, Muhammad Saeed, claimed that because of the standing crop the possession was given later while the respondent Zulfiqar appearing as D.W5 claims that petitioner forcibly continued the possession.
14. It is appreciable that the learned Civil Judge had correctly taken note of all these factors and recorded a finding that oral transaction could not be proved inasmuch as the payment of consideration and the transfer of possession was never established. The learned Addl. District Judge was persuaded by the existence of mutation of oral sale little appreciating that where the mutation is questioned on the plea that no oral sale was ever made, the beneficiary of the transaction is under obligation to prove the oral sale by credible evidence. In "Muhammad Akram and another v. Altaf Ahmad" (PLD 2003 SC 688) it was observed by the august Supreme Court that "... it is settled principle of law that a mutation confers no title. Once a mutation is challenged, the party that relies on such mutations is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute. This oft repeated principle of law is quite logical because a mutation not being a title deed is merely an evidence of some original transaction between the parties that had been struck by someone prior to the entry of mutation. Respondent Altaf Ahmad has utterly failed to revert back to any transaction and bring on record any oral and documentary evidence thereof. The burden squarely lay on him to prove the transaction because the existence thereof has throughout been alleged by him in affirmative. He was bound to sell in the event of non proof transaction until the trial court resiled it..."
15. In "Fida Hussain through Legal Heirs Muhammad Taqi Khan and others. v. Murid Sakina" (2004 SCM R 1043) it was observed by the August Supreme Court that "it is known principle of law that a mutation is not a deed of title and is merely inductive of some previous oral sale between the parties. This principle being in view, whenever any mutation is challenged, the burden squarely lies on the beneficiary of the mutation to prove not only the mutation but also the original transaction which he is acquired to fall back upon". Similar view was taken in "Abdur Rasheed through L. Rs and others v.Manzoor Ahmad and others" (PLD 2007 SC 287).
16. In the instant case the respondents' evidence was found to be self-contradictory, the respondents could not prove the payment of consideration, there was divergent evidence as to when and where the alleged bargain was settled, the plea of payment of consideration on 22.11.2003 was also vitiated by the subsequent evidence of the D.Ws, and also the roznamcha waqiayati produced by the respondents themselves where the entry Nos. 190 and 191 occurred, revealed that after payment of Rs. 54,100/-the bank had confirmed the clearance of charge, whereupon the mutation of redemption was attested on 12.11.2003.
17. For the reasons supra, the judgment of the learned appellate court cannot be sustained as it suffers from material illegalities and also misreading and non-reading of the evidence on record.
The revision petition therefore succeeds, the impugned judgment dated 23.12.2016 of the learned Addl. District Judge, Okara is set aside and the judgment and decree dated 27.6.2014 of learned Civil Judge Okara is restored; in result the suit of the petitioner will stand decreed. No order as to costs.