IJAZ UL AHSAN, J.--This appeal arises out of a judgment and decree of the Lahore High Court, Lahore, dated 18.04.2018 through which a Civil Revision bearing No.3833 of 2012 filed by the Respondents was allowed and the judgment and decree passed by the Additional District Judge, Pattoki dated 07.12.2012 was set aside. The judgment and decree of the trial Court dated 24.09.2011 decreeing the suit of the Respondents for declaration was restored.
2. The brief facts necessary for the decision of this appeal are that the Appellant is the real brother of Mst.
Sardaran Bibi, Mst. Khurshid Bibi, Mst. Sakina Bibi and Mst. Rasheed Bibi, who were owners of land measuring 77 kanals 15 marlas. This land was allegedly transferred to the Appellant through an oral sale mutation No.68 dated 24.06.1984 against a consideration of Rs.50,000/-.
3. On 08.07.2004, Mst. Sakina Bibi, Mst. Sardaran Bibi and two sons of Mst. Khurshid Bibi instituted a suit for declaration 'against the Appellant. They sought confirmation of their title to the extent of their respective shares.
They also sought cancellation of the aforesaid oral sale mutation with the assertion that neither any transaction of sale was effected nor did they appear before the Revenue Officer and that no consi deration was paid to them. They alleged that their thumb impressions were procured on the false pretext of obtaining a loan for purchase of Tractor and that the impugned mutation was a result of fraud, misrepresentation and impersonation. It was also alleged that the entire transaction was engineered by the Appellant to deprive the respondents, his sisters, of their valuable property . The suit was contested by the Appellant and some other defendants through a joint written statement. The said written statement did not contain any details or particulars regarding time, date, month, year or venue of the alleged sale. The names of witnesses in whose presence the alleged sale transaction, which constituted basis for the impugned mutation took place. The trial Court decreed the suit to the extent of plaintif fs Nos.2 to 4 vide judgment and decree dated 24.09.201 1. Mst. Sakina Bibi one of the sisters had already withdrawn her suit having compromised with the Appellant receipt of the sale consideration for her share.
4. Aggrieved, the Appellant filed an appeal which was heard and decided by a learned Additional District Judge, Pattoki, who vide his judgment and decree dated 07.12.2012 allowed the appeal and dismissed the suit of the Respondents.
5. The Respondents, feeling aggrieved of the said judgment and decree approached the learned High Court .by way of a Civil Revision Petition which was allowed, vide the impugned judgment and decree dated 18.04.2018, whereby judgment and decree of the trial Court dated 24.09.201 1, whereby the suit of the respondents was decreed, was restored. Hence, this appeal.
6. Learned ASC for the Appellant submits that Haji Muhammad Saeed and Mst. Arshad Bibi could not have filed a suit as their predecessor Mst. Khurshid Bibi never challenged mutation No.68 dated 24.06.1984. Further , Haji Muhammad Saeed, Respondent No.5, after dismissal of his suit by the learned Additional District Judge never challenged the same before the High Court. He further maintains that the suit was barred by time as the same was filed 20 years after mutation No.68 dated 24.06.1984 was sanctioned. Learned counsel further submits that Mst.
Sakina Bibi one of the sisters of the Appellant whose suit was not decreed appeare d as PW-1 and admitted that the factum of attestation of mutation No.68 dated 24.06.1984 came to her knowledge about 25 years earlier . This admission totally negated the stance of the ,plaintif fs that the mutation came to their knowledge two months before filing of the suit. He, therefore, maintains that the High Court has erred in law in not dismissing the suit on the ground of limitation. He adds that since thumb impressions on the mutation had been admitted by PW-2 Mst.
Sardaran Bibi, the counter story was to be proved by the plaintif fs' side and the High Court erred in shifting the onus to the beneficiaries. He finally argues that the mutation and transaction embodied therein stood fully proved by virtue of the evidence produced by the plaintif f.
7. The learned counsel for the Respondents on the other hand has defended the impugned judgment.
8. Arguments heard. Record perused. At the very outset, we have noticed that the written statement filed by the Appellant was completely silent with regard to essential details of the oral sale transaction. Further , there was no mention of the value at which the land was allegedly purchased by the Appellant. It is settled law that a party is not allowed to improve its case beyond what was originally setup in the pleadings. It is also clear and obvious to us that the Respondents were illiterate village ladies, who were unaware of the technicalities and worldly affairs of this nature. The Appellant, real brother of the Respondents was in position of a fiduci ary on whose advice they were relying. We are in no manner of doubt that their confidence and reliance was betrayed by the Appellant. He admitted in his cross- examination that neither the children nor husband of any of the ladies was present when the mutation in question was sanctioned. This fact casts serious doubts about the validity of transaction and the sort of advice (if any) that the ladies received and their understanding of what was being transacted.
8(sic). We further notice that DW-2 who attested the mutation being one of its marginal witnesses expressed his ignorance about whether the sale consideration was paid before the Attesting Officer or at home. He frankly conceded that it was not paid in his presence and also conceded that posse ssion was not delivered to the Appellant in lieu of the transaction rather he was exclusively enjoying possession of the property in question from the day of death of father of the parties.
9. We have also noticed that the most material witnesses namely the Revenue Officer and Halqa Patwari , who entered and attested the impugned mutation, were withheld and no effort was made to produce them in Court. The learned counsel for the Appellant has asserted that 20 years had lapsed since the mutation and it was likely that they would have retired or even passed away . However , nothing was produced to show any effort on the part of the Appellant to summon them. We are therefore of the view that the learned High Court was justified in drawing an adverse inference to the effect that had the best evidence been produced the witnesses would has not testified against the Appellant. We also find that the statement of DW-3 was totally contradictory to the version of the Appellant.
10. As far as the question of thumb impressions on the impugned mutation are concerned, the sisters of the Appellant admitted the same but explained that they were defrauded into placing their thumb impressions by their brother who informed them that the same were required to take out a loan for purchase of Tractor . Admittedly , the Respondents were illiterate village ladies and it was their case that the Appellant who was their real brother had procured their thumb impressions to obtain a loan for purchase of the Tractor . Therefore, the thumb impressions would not ipso facto prove that they had knowingly and volun tarily put their thumb impressions on the documents pursuant to sale of property in favour of the Appellant. This is specially so cons idering that there is nothing on record to show that the ladies had any independent advice available to them at any stage. Illiterate village women are to be treated at par with Parda Nasheen ladies and where a transaction involves any thing against their apparent interest, it must be established that independent, impartial and objective advice was available to them and the nature, scope, implication and ramifications of the transaction they were entering into was fully explained to them and they understood the same.
11. As far as the argument of learned counsel for the Appellant that some of the PWs had admitted having appeared before the Revenue Officer is concerned, we do not find the argument persuasive because if at all any admissions were made, such admissions being self incriminatory and contrary to their own interest had to be examined carefully and with circumspection considering that makers of such admissions were illiterate village ladies, keeping in view their exposure to worldly affairs and their capacity to understand the same. Seen from that angle, the argument of the learned counsel for the Appellant is misconceived and the alleged admission cannot be used against the Respondents so as to dismiss their suit.
12. As far as the question of limitation is concerned, the contention of learned counsel for the petitioner is that the suit was barred by time having been filed 20 years after the mutation was sanction ed. We find this argument to be devoid of substance. Since the Appellant failed to prove the very transaction on the basis of which the mutation was effected, we are of the view that the appellate Court had clearly and patently misconstrued the entire evidence produced by the parties and failed to appreciate that the oral sale and mutation were required to be independently proved. It misread the evidence and drew the wrong conclusions. Learned ASC for the petitioner has laid great stress on the fact that Mst. Sakina Bibi had withdrawn her suit. We however notice that the suit in question was withdrawn on the ground that the Appellant had paid her share of the sale price after filing of the suit on the basis of which she had entered into a compromise and withdrawn the suit to her extent. Mst. Sakina Bibi who appeared as DW.3 was voluntarily examined by the Appellant and her statement was binding upon him. No doubt, she was declared hostile, but only by making the aforenoted statement, there was no doubt left that the impugned mutation was neither honestly nor genuinely attested and that no consideration had passe d, to any of the sister , nor were they aware of the fact that they were executing a sale transaction.
13. In order to enforce a sale of immovable property , it is imperative for the vendee to establish that the transaction was undertaken with a title holder , there was an offer made which was accepted, the parties had no incapability , there was consensus ad idem and that it was settled against valid consideration and that it was accompanied by delivery of possession. Mere attestation of mutation by itself does not furnish proof of sale and whenever any such transaction is questioned, the onus lies on the beneficiary to prove the transaction and every ingredient thereof as well as the documents if executed for its acknowledgment. There is no cavil with the proposition that a mutation is always sanctioned through summary proceedings and to keep the record update d and for collection of revenue such entries are made in the relevant Register under Section 42 of the Land Revenue Act, 1967. It has no presumption of correctness prior to its incorporation in the record of rights. It is also settled law that entries in mutation are admissible in evidence but the same are required to be proved independently by the persons relying upon it through affirmative evidence. An oral transaction reflected therein does not necessarily establish title in favour of the beneficiary . A mutation cannot by itself be considered a document of title, and may have been attested as an acknowledgment of a past transaction. The past transaction in the case in hand was an oral sale. The written statement of the Appellant was completel y silent with regard to details of the oral transaction. Besides, it was also deficient in so far as it did not mention the price on which the land was purchased and how such purchase price was paid.
14. We further notice that the Appellant appearing as DW.1 in his statement claimed to have purchased' the property by paying Rs.50,000/- each to his four sisters, meaning thereby that he had paid an aggregate sum of Rs.2,00,000/-. As opposed to this, perusa l of Exh.P1 shows that it was attested against a sale price of Rs.50,000/- only. The appellant appearing as a witness further disclosed that entire consideration was paid before the Tehsildar .
However , no evidence was forthcoming to support such assertion. Further , DW.2 Muhammad Rashid who is brother in law of the Appellant and was an attesting witness of the mutation categorically stated that he was unaware whether the sale consideration was paid before the Attesting Officer or at home. He further stated in clear terms that such amount was not paid in his presence nor was possession delivered to the Appellant in lieu of transaction. Ch. Muhammad Jabbar , the other signatory of Ex.Pl being an attesting witness was not produced on account of his death. However , admittedly no one familiar with his signatures was examined to verify his signatures available on the impugned mutation as per requirements of Article 80' of the Qanun-e-Shahadat Order , 1984. We are therefore in no manner of doubt that the Appellant miserably failed to prove the sale which constituted basis of the mutation or even the mutation. Having failed to do so and sale as well as the mutation having been challenged being fraudulent had no foundation to stand on and was correctly struck down by the trial Court as well as the Revisional Court. Even otherwise the evidence produced was riddled contradictions and hence credibility .
15. As far as the question of limitation is concerned, it has been argued that limitation for filing of a suit for declaration is six years under Article 120 of the Limitation Act. We notice that the Respondents prayed for a declaration that the mutation in question was illegal and had fraudulently been entered into the revenue record.
Each entry in the revenue record gives a fresh cause of action to an aggrieved person and adverse entries in the revenue record even if allowed to remain unchallenged do not have the effect of extinguishing the rights of a party against whom such entries had been made. Even otherwise, cancellation of the disputed mutation, which is not a document of title would result in reversion of the respective shares of the Respondents to them and admittedly there is no limitation in this regard barring co-sharers to do so. In addition, any transaction/document which is the result of fraud or misrepresentation can neither be perpetuated nor can it be protected on the ground of expiry of the period of limitation, whenever such transaction is assailed in a Court of law .
16. As far as the arguments of learned counsel for the petitioner that the responde nts could not have filed a suit in view of the fact that their predecessor in interest never challenged the mutation during his life time is concerned, we find the same is totally misconceived. There is nothing on the record to indicate that the father of the parties had knowledge of the mutation and it has all gone in the case of the respondents that the petitioner had fraudulently obtained thumb impression of their decea sed father who was eighty years old on the false pretext of obtaining the loan for the purchase of Tractor . We have already held that the transaction was not proved and it has nowhere been established that the deceased was aware of the impugned transaction. Further , fraud and mis-representation was specifically alleged and in view of our findings recorded above, accepting the arguments of learned counsel for the petitioner would be unjust and constitute grouse miscarriage of justice.
17. In support of his contentions, the learned counsel for the Appellant has relied upon cases' Ghulam Abbas and others v.Mohammad Shafi through LRs and others' (2016 SCMR 1403 )'Noor Din and another v. Additional District Judge, Lahore and others' (2014 SCMR 513), 'Muhammad Rustam and another v. Mst. Makhan Jan and others' (2013 SCMR 299) and 'Jamila Khatoon and others v. Aish Muhammad and others (2011 SCMR 222). We have carefully gone through the case law cited by learned ASC for the Appellant and find that each case is distinguishable on facts as well as law, and is of no help to the case of the Appel lant. Even otherwise, it is settled law that each case is to be decided on its own peculiar facts and circumstances. A perusal of the case law cited by the learned counsel shows that it is clearly and obviously not attracted to the peculiar facts and circumstances of the case in hand.
18. or reasons recorded above, we do not find any merit in this appeal. It is accordingly dismissed throughout with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.