' This civil revision is directed against the judgment and decree dated 18-5-1980 passed by the learned Additional District Judge, Sheikhupura.
2. The facts necessary for the purposes of this petition briefly stated are that petitioner No. 1, Abdul Rashid predecessor-in-interest of petitioners Nos. 2-A to 2-F and petitioner No, 3 instituted a suit against the respondents in the Court of the Civil Judge, Ferozewala for a declaration to the effect that they were owners in possession of land, measuring 143 kanals 6 marlas, as detailed in the plaint, situate in Chak No, 47, Tehsil Ferozewala, District Sheikhupura, with consequential relief by way of injunction restraining the respondents from interfering in their possession and ownership of the land in dispute.
' It was asserted in the plaint that Ismail the predecessor-in-interest of the respondents had sold the aforementioned parcel of land in favour of the petitioners for consideration of Rs, 10,000 through an oral sale and that mutation pertaining thereto bearing No, 120 was sanctioned on 23-2- 1967. Review of the aforeiaid mutation was sought for by the field staff which was allowed and the mutation, after review, was cancelled and the ownership re-transferred in the name of Ismail although he had sold the same to the petitioners and the petitioners were prepared to pay the loan of the Agricultural Development Bank amounting to Rs, 5,000.
' It was also alleged that the cancellation of mutation was done in the absence of the petitioners and was thus violate of the principles of natural justice.
3. The suit was resisted by the respondents and on the divergent pleadings of the parties the following issues were framed by the learned trial Court :
(1) Whether the suit is bad for non-joinder of necessary parties?
(2) Whether the plaintiffs are owners of the suit property by way of valid sale by Ismail deceased ?
(3) Relief.
4. The parties led evidence and the learned trial Court, by its judgment dated 4-7-1978, initially decreed the suit.
5. Aggrieved by the judgment and decree of the learned trial Court dated 4-7-1978 the respondents preferred an appeal to the learned Additional District Judge, Sheikhupura, who by his judgment dated 19-2-1979, accepted the same and remanded the case to the learned trial Court for rewriting the judgment.
6. The learned Civil Judge, Ferozewala who had passed the impugned decree having been transferred the case was entrusted to Mr. Rustam Ali Malik the successor Civil Judge, Ferozewala who by his judgment and decree dated 25-10-1979 dismissed the suit. Issue No, I was found by him against the defendants respondents, whilst on issue No, 2 he returned a finding against the plaintiffs-petitioners and on the basis of his finding on this issue dismissed the suit, leaving the parties to bear their own costs.
7. Feeling dissatisfied with the judgment of the learned trial Court dismissing the suit the petitioners-plaintiffs went up in appeal to the learned Additional District Judge, Sheikhupura who concurred with the findings of the learned trial Court and dismissed the appeal with costs, by his judgment and decree dated 18-5-1980. Hence the present revision.
8. The learned counsel for the petitioners contended : ' First, that the findings of the Courts below on issue No, 2 have been recorded without appreciating the evidence brought on record. In this connection mutation Exh. P. 1 was referred to and it was asserted that Ismail deceased, the predecessor-in-interest of the respondents had appeared before the Revenue Officer and had admitted the sale and receipt of consideration which established that a valid sale had been made by him in favour of the petitioners but the same has been ignored ; ' secondly, that the mutation was not challenged by Ismail or his successors, the present respondents, and as such review thereof and ultimate cancellation on account of existence of mortgage with the Agricultural Development Bank was not warranted in law. It was urged that only those sales could be held invalid which were made after promulgation of the Loans for Agricultural Purposes Act, 1973 which was enforced on 29-6-1973 and the said Act being not retrospective in nature could not affect the sale in dispute, it having been effected on 23-2-1967. Reliance in this regard was placed on Chief Land Commissioner and another v. Mazda Dad and others 1978 SC M.
R 264 ' thirdly, that an application having been made in this Court under section 151, C. P. C. (C. M. No, 6018-C/1980) about compromise wherein there are admissions about the sale in dispute these admissions shall be binding on the other respondents as well and that the subsequent application made by the respondents (C. M. No, 191-C/1981) is of no consequence ; and ' lastly, that the claim of the petitioners having been admitted by respondents Nos. 3 to 10 before the lower Appellate Court the said Court erred in dismissing the appeal of the petitioners-plaintiffs.
9. On the other band, the learned counsel for the respondents raised the following contentions :--
(1) that issue No, 2 essentially relates to a matter of fact which was found against the petitioners by the trial Court for cogent reasons and the findings thereon having been concurred with by the lower Appellate Court which gave additional reasons as well to support its own decision the same are not open to question in a civil revision ;
(ii) assuming that the portion of the judgment of the lower Appellate Court so far as it interprets section 4(4), (5) and (6) of the Loans for Agricultural Purposes Act, 1973 is not sustainable, it would not vitiate the whole judgment ;
(iii) that the mutation of oral sale in favour of the petitioners having been cancelled and the said order of cancellation of mutation having not been challenged till date neither in appeal nor revision etc. Before the Revenue hierarchy nor through a civil suit, the said order of cancellation of mutation had attained finality and the petitioners could not claim ownership of the land in dispute on the basis of a mutation which was not in existence ;
(iv) that only one of the petitioners appeared as a witness and made a bald assertion of having purchased the land. His statement was not corroborated through. Production of any documentary or other oral evidence and therefore the oral sale was of necessity held not to have been established as a valid sale ; and
(v) that the alleged statement of respondents Nos. 3 to 10 conceding the claim of the petitioners is of no consequence as regards the contesting respondents Nos. 1 and 2 as the said respondents Nos. 3 to 10 have interest common with Abdul Ghaffar petitioner No, 3, one of them viz. Respondent No, 3 being his wife on re-marriage and the others being his step-children.
10. In reply, the learned counsel for the petitioners argued that it is incorrect to state that the cancellation of the mutation of sale in favour of the petitioners has not been challenged and in this connection he invited attention to para. 3 of the plaint. He further argued that the mutation by itself otherwise also does not confer any title in the property and is of no consequence.
' The main plank of the arguments of the learned counsel for the petitioners is that the learned lower Appellate Court wrongly relied on subsections (4), (5) and (6) of section 4 of the Loans for Agricultural Purposes Act, 1973 to hold that the suit property having been mortgaged with the Agricultural Development Bank at the time of the alleged sale could not be sold by Ismail the deceased predecessor-in-interest of the respondents as he had no marketable title therein, inasmuch as the said Act came into force on 29-6-1973 and being not retrospective in operation the provisions thereof could not have affected the rights of the petitioners acquired in the property in dispute earlier than the promulgation of the said Act.
11. Now this argument of the learned counsel for the petitioners may have had merit if the decision of the learned Appellate Court had been solely based on this ground. As it is this is just one of the factors which had been taken into consideration by the lower Appellate Court white passing the impugned judgment, and, in fact, is only an additional reason which weighed with the learned Additional District Judge. Even if this basis of the impugned judgment is set aside, it would not be totally vitiated as the mainstay thereof is the concurrence with the findings of the trial Court on issue No, 2.
12. What is therefore to be seen, now, is as to whether the findings on issue No, 2 as recorded by both the Courts below in any manner suffer from any infirmity?
13. Before dealing with the contentions of the learned counsel for the petitioners on this issue, it has to be kept in mind that the issue in question viz. Issue No, 2 is essentially one of fact and it follows from this that a finding on such an issue even in a second appeal can be successfully impugned only some illegality in the form of gross misreading of record or omission A to consider material evidence on record is established as having been committed by the Courts below.
14. The only thing pointed out in this regard by the learned counsel for the petitioners is that the mutation of sale, Exh. P. 1, has not been given due consideration in that the factum of Ismail deceased the predecessor-ininterest of the respondents having appeared before the Revenue Officer and having admitted the sale and receipt of consideration was not given due weight. These premises for assailing the judgment of the Courts below I am afraid would not be of much help to the petitioners firstly because this would not constitute misreading of record or omission to consider record evidence, but, at the most, would be a matter of misappreciation of evidence.
Appreciation of evidence in one form or the other by Courts below, especially when the findings are concurrent on an issue of fact are not open to challenge in a second appeal much less in a civil revision. This principle is so firmly enunciated that it hardly needs giving reference of any judicial precedent to support it.
15. Apart altogether from the above, I otherwise also do not find any infirmity in the findings of the Courts below on this issue. It was for the petitioners-plaintiffs to have established the acquisition of ownership of the disputed property through a valid sale made by Ismail deceased in their favour.
The only thing that the petitioners have brought on record in this regard is Exh. P. 1 the mutation of sale, Exh. P. 2 the record of rights for the year 1967-68 and the testimony of one of the petitioners, namely Abdul Gliaffar appearing as P. W.
1. It is the admitted position that the mutation of sale Exh. P. 1 had been cancelled in due process on review thereof. It has been alleged that this cancellation of mutation was illegal, but, it is the admitted position again that this cancellation has neither been challenged in appeal or revision before the Revenue hierarchy nor in the suit out of which this revision has arisen as no relief pertaining thereto has been claimed in the prayer clause. Exh. P. 2 is based on Exh. P.
1. The basis viz. Exh. P. I having been taken out of the field Exh. P. 2 by itself cannot stand.
16. Additionally, it may be observed that the testimony of Abdul Ghaffar is highly discrepant, and, in fact, it affects the veracity and correctness of the mutation of sale incorporated in Exh. P.
1. It has to be borne in mind that the alleged sale in favour of the petitioners by Ismail deceased was oral. In the plaint, it has been categorically stated that the land in dispute was purchased from Ismail for a consideration of Rs, 10,000. Abdul Ghaffar appearing as P. W. 1 in his examination-in- chief stated that it was purchased for Rs, 11,000, whilst in the mutation Exh. P. 1, the sale-price given is Rs, 1,000 only and not at one place but twice over. The attestation of mutation reads as under {{URDU TEXT}}
17. Now, there are three contradictory versions and one of these i. e. Either the contents of the plaint as to the sale-price or the statement of one of the petitioners pertaining thereto, or the averments of Exh. P. 1 are incorrect. Keeping in mind the facturn that the sale is oral the onus lay heavily on the petitioners to prove that it was a valid sale for consideration. Now if any one purchases something the consideration thereof is not likely to be erased from his mind because that is the basis of his title. If there be doubt cast as regards the quantum of consideration, especially when in the mutation it is Rs, 1,000 only and it is being asserted differently in the plaint and in the oral statement-on-oath, the contradiction has to be given due weight and it could be held that there was no valid sale. No valid exception therefore can be raised against the findings of the trial Court deciding issue No, 2 against the petitioners.
' The other factor which has persuaded me to uphold the findings of Courts below on issue No, 2 are the following contradictions brought out in the cross-examination of Abdul Ghaffar P. W. 1 : First is as regards the person who identified the parties at the time ale attestation of mutation. This witness stated at one time that it was Fatehl Muhammad Lambardar who got the mutation attested and who identified the parties and when confronted with the mutation of sale itself he had to admit that it was Masoom Ali Lambardar who got the mutation attested.
' Second is that Abdul Ghaffar P. W. 1 in his cross-examination denied that the mutation was got attested for Rs, 1,000 whilst the mutation in question, Exh. P. 1, reproduced above, shows that it was for Rs, 1,000. There is no explanation advanced by the witness for this obvious discrepancy.
' Yet another factor which is very important in this regard is the complete ignorance shown by the petitioners as indicated in the examination-in-chief of P. W. 1 that he had no knowledge about the mortgage of the property in 1G dispute. If the sale had been genuine the petitioners would have cared to know about the valid marketable title of Ismail before passing on the consideration. Now the mortgage was for Rs, 5,000 which is a considerable amount when seen in the light of the total price allegedly paid by the petitioners as consideration.
' All Sher respondent while appearing as a witness on behalf of the respondents defendants had deposed that the land in dispute remained encumbered with the Agricultural Development Bank right from 1964 to 1978 and was got redeemed on payment of Rs, 12,000 by the respondents and that the said land was for which the respondents had paid the price to the Rehabilitation Department and got a mutation pertaining thereto sanctioned in their favour. On both these points there is no cross-examination of All Sher by the petitioners which further lends support to the inference that the statement to the above effect was correct and true.
Again, the mutation of oral sale in favour of the petitioners had been cancelled on 30-12-1968 and till the institution of the suit out of which th present revision has arisen the petitioners had taken no steps to have the property redeemed on payment of the mortgage money and thus establish their bona fide title in the property afresh by seeking a further review of th cancellation of mutation by asserting that the mortgage by itself could no invalidate the sale in their favour. Their sleeping over the matter for such a long time also goes to support the finding that no valid sale in favour of the petitioners had taken place regarding the land in dispute.
' From all that has been said above it is clear that the findings of the Courts below on issue No, 2 can in no manner be successfully assailed and admit of no valid exception.
' The third and last contentions of the learned counsel for the petitioners have also no force. The civil miscellaneous pressed into service by the learned counsel for the petitioners has not been signed by all the respondents and the one who signed it also withdrew therefrom stating that his signatures were obtained by misrepresentation. In any case it would not bind the other respondents.
The last contention, suffice it to say, is of no consequence in the attendant circumstances of the case, especially the fact that respondents Nos. 3 to 10 who stately conceded to the claim of the petitioners have an interest common with the petitioners this being the admitted position that respondent No, 3 is the wife of the petitioner Abdul Ghaffar who is the most active of the petitioners and the other respondents viz. Respondents Nos. 4 to 10 are the children of respondent No,
3. Their admissions could obviously not affect the rights of the other respondents.
18. In view of the foregoing discussion I find no merit in this revision petition which is accordingly dismissed with costs. Revision .