MUHAMMAD NAEEM ANW AR, J.---- This civil revision under section 115 of the Code of Civil Procedure, 1908, has been directed against the judgment and decree dated 24.04.2010 of learned Additional District Judge-VII, Mardan whereby , on dismissal of appea l filed by the petitioners, the judgment and decree of learned trial court dated 29.06.2009 was maintained.
2. Facts, succinctly , leading to this litigation are that a suit for declaration was filed by the petitioners against the respondents alleging therein that a chunk of land, measuring 110 kanals, situated in the estate of Manga, District Mardan, was purchased by them from the respondents by paying the entire sale consideration to them and possession was also delivered since year 1978, therefore, cancellation of mutations bearing Nos. 452, 453 and 454, entered on 08.08.2001, by the Revenue Officer on 26-04-2003 are wrong and against the fact, claim of respondents of their ownership is collusive and unwarranted which is in-operative upon their rights, thus, they are entitled for attestation of mutation and correction of the entries in their favour . The suit was contested by the respondents by filing written statement wherein they absolutely denied the claim of the petitioners by asserting that neither they nor their predecessor have sold the disputed property to anyone else nor received sale consideration, so, at this juncture, the learned trial Court when sensing the matter to be one of ambivalent, framed nine issues from pleadings of the parties and directed the parties to adduce their pro and contra evidence. In order to prove their case, the petitioners produced Sher Farzand, AOK, as PW-1, Jehanzeb Patwari Halqa as PW-2, Faqir as PW- 3, Sahib Rehman as PW-4 and Sarfaraz as PW-5, while the respondents produced only Saifullah as DW-1. On closure of evidence of the parties, the learned trial court, after hearing the parties, non-suited the petitioners, vide judgment dated 29.06.2009. Feeling aggrieved from the judgment and decree of the learned trial court, the petitioners filed appeal which too was dismissed by learned Additional District Judg e, Mardan, ,vide judgment dated 24.04.2010. Still not satisfied, the petitioners have filed the instant civil revision.
3. Learned counsel for the petitioners contended that the judgments of both the courts below are based on non- reading and mis-reading of evidence as the important piece of documentary evidence in shape of statement of Mian Haji Ahmad Shah, the predecessor in interest of the respondents, made before the Revenue Court to the effect that he had sold the disputed property to Madar . Khan, received the sale consideration coupled with delivery of possession which admission has completely been ignored by the courts below , therefore, the impugned findings are liable to be reversed and suit of the petitioners may be decreed, while, on the other hand, learned counsel for the respondents supported the impugned findings by submitting that the impugned judgments are well reasoned and all the important facts have been discussed in detail by the learned trial Cour t while deciding Issues Nos.1, 5 and 7, therefore, warrants no interference by this court.
4. I have considered submissions of both the learned counsel for the parties and gone through record of the case.
5. The gist of the petitioners' claim is that they had purchased the disputed property from the respondents by paying the entire sale consideration to them coupled with delivery of possession and, thus, have become owners in possession of the property . To buttress their claim, they also made reference to the entries in revenue papers as 'bila lagan bawaja bey' and order of learned Additional Commissioner , Mardan, dated 30.11.1979. The crucial point in the lis is as to whether the sale as alleged by the petitioners keeping in view the evidence adduced by them is proved.
6. The definition of Sale has been given in section 54 of the Transfer of Property Act, 1882, which is "a transfer of ownership in exchange for a price paid or promised or part paid part promised ", thus, according to the above definition, the consideration and exchange of money is an essential element of the sale. Hon'ble the apex Court in a case titled Ali Muhammad v. Chief Settlement and Rehabilitation Commissioner (1984 SCMR 94) has laid down the essential elements of sale which are (i) the parties, (ii) the subject matter , (iii) the transfer or conveyance and
(iv) price or consideration. On the touchstone of the above, I have perused the contents of plaint which reveal that no where the petitioners have disclosed the details of the sale, i.e., from whom they had purchased the disputed land, on how much sale consideration, how and through whom the sale consideration was paid to the vendee, because it was allegedly an oral sale. The petitioners have only mentioned in the plaint that they had purchased the disputed property from the responden ts whereas the disputed property is still recorded in the name of Ahmad Shah, the predecessor in interest of the respondents. Sarfaraz, the petitioner No.1, who is also attorney of the remaining petitioners, appeared as PW-5 but he totally deviated from the contents of plaint by narrating different story by stating that the landed property was, in fact, purchased by his father Madar Khan in year, 1976-77 from one Ahmad Shah Khan, the predecessor in interest of the respondents. He in cross-examination admitted that the suit property is still in the name of Haji Ahmad Shah and his father during his life time had not entered. any mutation in this regard. According to his statement, the property was purchased by their predecessor from the predecessor in interest of the respondents and they both are no more in this transient world but during their life time, no mutation was registered regarding the transaction. He also admitted that mutations bearing Nos. 452, 453 and 454 were entered at his instance but the same were dismissed by the Revenue Officer. While for delivery of possession, he stated that the suit property was in possession of the tenant, namely , Rehman Shah but since he was not in a position to deliver possess ion of the suit land after its purchased, therefore, the matter went to a litigation between his father and Rehman Shah the then tenant and in this respect decision of the Additional Revenue Commissioner dated 30.11.1979 was produced which is marked as Ex. PW 5/2. In support of their stance, the petitioners also produced Faqir (PW-3) and Sahib-ur-Rehman (PW-4). The former stated that the suit land was promised with Madar Khan in consideration of some money which he did not remember but the whole amount was paid to Ahmad Shah. He further stated that the suit land was in possession of a tenant and for its dispossession Madar Khan gave money to him as consideration for giving up the possession of the suit land and, thereafter , the possession of the property was handed over to Madar Khan, while PW-4 stated that the property was purchased by Madar Khan from Ahmad Shah and the whole payment was made to him. He further stated that the disputed property was in possession of tenant Rehman Shah and he being mediator patched up the matter between Madar Khan and Rehman Shah and due to compromise Madar Khan gave money to Rehman Shah, so the land came in possession of Madar Khan. Both the witnesses, namely , Faqir and Sahib-ur-Rehman (PW-3 and PW-4) have not uttered a single word regarding payment of sale consideration to the vendee. The testimony of PWs, 3, 4 and 5 was not in line to each other and were blowing hot and cold, while, on the other hand, Saifullah as DW-1, on contrary , stated that possession of the disputed property was given to Rehman Shah as tenant and after taking possession from him as he was land grabber , its possession was handed over to the plaintif fs being their relatives as tenant and in year, 2001, they came to know about attestation of fraudulent mutations by the petitioners with regard to their landed property , therefore, filed an application to DRO, resultantly , the mutations were cancelled, thereafter , they demanded for the return of possession from the petitioners, consequently , the instant suit was filed.
7. As obvious from the evidence produced by the petitioners, the alleged bargain is of year, 1976-77 and after about more than four decades, the petitioners out of the blue came forward claiming to have become owners of a chunk of land, measuring 110 kanals, and that too by not giving any details of the property , i.e., khasra number , date of bargain, price and its payment. It is also established from the record that parties to the alleged bargain have departed to eternal life, therefore, are no more in the world but during their life time, neither the petitioners nor their predecessor had claimed ownership of the property , nor entered and attested any mutation as a result of any bargain or sale nor reduced it in black and white nor there is any witness in whose presence the sale consideration was paid either to the respondents or their predecessor , thus, the sale as alleged by the petitioners cannot be said to be a sale in the eye of law. Insofar as the stance taken by the petitioners regarding admission of Ahmad Shah made in another proceeding, marked as Ex.PW5/4, with respect to the alleged sale is concerned, which document has neither been certified nor attested by any official nor its original has been produced before the court and even otherwise, a statement made before another proceedings, cannot be stretched to equate the same to sale or its proof, as such could not made base for attestation of mutation.
8. There is another aspect of the caF The petitioners have stated in their plaint that they have purchased the suit property from respondents but during recording of their evidence they introduced another story and that is purchase of the disputed property by their predecessor from the predecessor in interest of the respondents, therefore, deviated from the contents of the plain. Hon'ble the apex Court in a case titled Muhammad Nawaz alias Nawaza and others v . Member Judicial Board of Revenue and others (2014 SCMR 914 ) has observed that:- "It is, indeed, a clear drift rather an outright departure from what has been pleaded in the plaint. Granted that averments made in pleadings do not constitute evidence but the evidence led in their support must. be consistent therewith. Anything stated outside the scope of such averments cannot be looked into. The rule of secundum allegata et probata, not only excludes the element of surprise, but also precludes the party from proving what has not been alleged or pleaded. This Court, in the cases of "Government of West Pakistan (Now Punjab) through Collector , Bahawalpur v. Hail Muhammad) (PLD 1976 SC 469), "Messrs Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Co-operative Bank Ltd., Jaranwala" (1968 SCMR 804), "Binyameen and 3 others v. Chaudhry Hakim and another" (1996 SCMR 336) and "Major (Retd.) Barkat Ali and others v. Qaim Din and others" (2006 SCMR 562), held that no party can be allowed to lead evidence on a fact which has not been specifically pleaded nor can any evidence be looked into which is outside the scope of pleadings."
Similarly , in the case titled Messrs Essa Engineering Company (Pvt.) Ltd. and another v. Pakistan Telecommunication Company Limited and another (2014 SCMR 922 ) the august Supreme Court observed that:- "The importance of the pleadings cannot, of course, be ignored, because it is the pleadings that lead to the framing of issues and a trial in every civil case has inevitably to be confined to the issues framed in the suit. The whole object of framing the issues would be defeated if parties are allowed to travel beyond them and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. But cases may occur in which though a particular plea is not specifically included in the issues, parties might know that in substance the said plea is being tried and might lead evidence about it."
In the case of Combined Investment (Pvt.) Ltd. v. Wali Bhahi and others (PLD 2016 Supreme Court 730) it has been held that none of the parties to a judicial proceeding could be allowed to adduce evidence in support of a contention not pleaded by it and the decision of a case could not rest on such evidence.
9. Turning to the other submission of learned counsel for petitioners that there is an entry of "bila lagan bawaja bey" in revenue papers to corroborate their stance, suffice it to say the status of petitioners in revenue papers is that of tenant at will so in order to prove it otherw ise strong and convincing evidence was required as it is settled principle of law that whenever there is conflict in column of cultivation and column of lagan the entries of column of cultivation shall prevail. Reliance is place d on case titled Dilawar Shah and others v. Janat Gul through legal heirs (PLD 2004 SC 59) has held that "the law on the subject was settled by this Court in several cases including Tehmas and 16 others v . Dawar Khan (PLD 1990 SC 629 ) wherein it was held that:- "entry in the column of Lagan would not be preferred over an entry in column of possession/cultivation or for that matter the column of ownership and the party relying on column of Lagan as against the cultivation column would be entitled to produce, evidence in depending of the entry itself to show that the entry in the column of Lagan had separate contemporaneous support from other reliable evidence, which of course, together with disputed entry , would have to be put in-juxtaposition to the entry of column of cultivation." The said view was reiterated for Ali Akbar and others v. Malook and others (1991 SCMR 829), Hakim Shah v. Sawab Khan and 17 others (PLD 2002 SC 200). Muhammad Salim Shah v. Aziz-ur-Reh man Shah (PLD 2002 SC 280) and Gul Muhammad v. Allah Yar Khan ( 1993 SCMR 2330 ).
10. Likewise, impugned herein are the concurrent findings of facts, which can be interfered with only when the petitioners succeeded to show some misapplication of law or misreading or non-re ading of evidence on the part of Courts below as laid down by the Supreme Court in Abdul Matten and others v. Mst Mustakhia (2006 SCMR 50) and in Mst. Zaitoon Begum's case (2014 SCMR 1469 ) but in the case in hand neither such flaw or misapplication of law has been highlighted not learned counsel for the petitioners has been able to point out any material irregularity or infirmity in the impugned judgments and decrees passed by the courts below , therefore, no case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C. has been made out and when so, the instant petition being without any merit is hereby dismissed, leaving the parties to bear their own costs.