SYED ARSHAD ALI, J. Muhammad Ayub and others, the legal heirs of the Muhammad Usman plaintiff in Suit No. 288/1, through the instant petition, have challenged the concurrent findings of both the courts below, whereby their suit was dismissed.
2. Brief facts of the case are that on 12.08.1999 Muhammad Usman son of Muhammad Yaqoob Resident of Sheikh Muhammadi, the predecessor of the present petitioners had instituted a suit seeking declaration to the effect that he is owner and in possession of the suit property on the basis of an acknowledgment agreement deed dated 30.05.1991 in respect of the suit property executed by Mst. Shamim Akhtar defendant No.7, real and true owner of the property confirming the sale of disputed property in his favour and as such, Mutation No.9076 dated 16.08.1993 whereby the disputed property in favour of Hashim Khan, the predecessor of defendants Nos. 1 to 6 has been transferred is illegal and without lawful authority. He also sought a decree for perpetual injunction in this respect.
3. It is alleged in the plaint that Mst. Shamim Akhtar become owner of, the disputed property on the basis of Mutation No.8115 dated 10.08.1967. This property was then Mortgaged by Mst. Sharnim Akhtar to one Shah Jehan son of Abbas through a registered mortgage deed No. 160 Volume No. 114 Page-386/389 dated 26.01.1970 against an amount of Rs. 2000/-. Later an agreement was executed between the plaintiff and defendant No.7 for sale of this property on 12.04.1991 against total sale consideration of Rs. 125,000/-. The said amount was paid to defendant No 7 though instalment as evident from acknowledgment deed dated 30.05.1991. The plaintiff then redeemed the suit property from Shah Jehan, therefore, the subsequent sale of the said property to the predecessor of defendants Nos.1 to 6 Hashim Khan through the impugned mutation is illegal and without lawful authority. The plaintiff had approached the revenue forum for cancellation of the said mutation, however, the revenue forum had advised the plaintiff to approach the Civil Court and accordingly he filed the suit before the Civil Court.
4. Defendants Nos. 1 to 6 the legal heirs of Hashim Khan contested the suit through their written statement wherein they have raised certain legal as well as factual issues, however, it is their claim that their predecessor had purchased the suit property against sale consideration.
5. Defendant No.7 Mst. Shamim Akhtar, who is the real owner of the property had filed a cognovit before the learned trial Court acknowledging the sale of the suit property to the plaintiff against sale consideration of Rs. 1,25,000/- and has specifically denied the execution of any mutation in favour of the predecessor of defendants Nos.1 to 6. Accordingly, the learned trial Court had framed the following issues from divergent pleadings of the parties.
1. Whether the plaintiff has got a cause of action?
2. Whether the suit is time barred?
3. Whether the plaintiff is valid owner of the suit property?
4. Whether the mutation No. 9076 attested on 16/8/1993 is bogus, fraudulent and illegal therefore ineffective upon the right of the plaintiff?
5. Whether the suit is bad for mis joinder and non-joinder of parties?
6. Whether the suit is based on male fide therefore, the defendants are entitled to special costs?
7. Whether the plaintiff is entitled the decree for declaration and permanent injunction as prayed for?
8. Relief?
The parties were, accordingly, allowed to produce their respective evidence.
Petitioners/Plaintiff's evidence Sibghatullah Office Kanungo, Peshawar appeared before the Court as PW-01, who produced the disputed Mutation No. 9076 attested on 16.08.1993 Ex.PW.1/1/. In cross-examination, he confirms that this mutation was attested pursuant to an order of Additional Deputy Commissioner, Peshawar.
Malik Ghulam Ahmad, a Deed Writer appeared before the Court as PW-02, who states that he is the scribe of deed dated 30.05.1991 (Ex.PW.2/1) whereby Mst. Shamim Akhtar had acknowledged the sale of the suit property in favour of the plaintiff. He also produced the extract of the concerned Register (Ex.PW.2/2), where at Serial No. 59 the deed was registered in his Register. In cross- examination, he confirms that only thumb impression of Mst. Shamim Akhtar is impressed on the Register and her CNIC is not mentioned.
Daud Khan Patwari Halqa Mauza Sheikh Muhammadi appeared before the Court as PW-03. He produced the extracts of Fard Jamabandi from the years, 1978-79, 1982-82, 1986-87, 1990-1991, 1994-95 (Ex.PW.3/1). He also produced Register Girdawari from khariff 19% to 2002, which was exhibited as Ex. PW.3/2. He has also confirmed in cross-examination that pursuant to the disputed mutation, on the death of Hashim Khan, his inheritance mutation was also registered.
Syed Ismail Shah Moharrir Mohafiz Khana appeared before the Court as PW-04. The purpose of production of this witness was to create a doubt on the execution of an unregistered deed dated 26.02.1978, according to which, the disputed property was purchased by predecessor of the defendants Nos. 1 to 6. According to the statement of this witness through the stamp paper having No. 3056 (Ex.PW.4/2) was issued to Mian Ahmad Shah through Muhammad Shan Jehan whereas another register of the similar period a stamp paper having No. 3056 (Ex.PW.4/3) valuing Rs. 4/- was issued to Rahmanuddin. According to his statement, no stamp paper was sold on 10.12.1978 and 11.12.1978 to the predecessor of respondents Nos.1 to 6.
The statement of Mst. Shamim Akhtar was recorded through Commission, who states that she was a true owner of the property which she had sold to the plaintiff through deed Ex.PW.5/1 and she had not sold the disputed property to anyone except the plaintiff. In cross-examination, she admits that she has four sons and three daughters.
Muhammad Farooq son of Shah Jehan appeared before the Court as PW-06, who at the relevant time was holding power of attorney on behalf of the plaintiff. He has stated in his court deposition that through deed dated 22.04.1991 (Ex.PW.6/3) and subsequent deed dated 30.05.1991 (Ex.PW.6/4) the property was purchased by Muhammad Usman and accordingly mutation No. 9076 in favour of defendants is illegal. He has also questioned the validity of stamp paper of the year, 1978 on the basis of which this mutation was attested is also incorrect. He has produced the order dated 16.05.1993 of Tehsildar whereby the sale of the property of the year 1978 through an unregistered deed was initially rejected. He also produced the photocopy of the order of revenue forum advising them to approach the Civil Court.
Respondents/Defendants' evidence.
Muhammad Sharif son of Hashim Khan appeared before the Court as DW-01. He is the attorney on behalf of the rest of the defendants. It is his claim that through deed No. 3056 dated 11.02.1978 the property in question was purchased by his father on the basis of which Mutation No. 9076 dated 16.08.1993 was registered/attested pursuant to the order of the Additional Deputy Commissioner, Peshawar. The Mutation No. 7745 was initially rejected against which his father had filed an appeal before the Deputy Commissioner and accordingly pursuant to the order of Additional Deputy Commissioner, the disputed mutation No. 9076 dated 16.08.1993 was registered/attested. Against this order Muhammad Usman had filed an appeal before the Collector, which was dismissed on 11.11.1996. Similarly, an appeal was also filed by Mst. Shamim Akhtar, which was also dismissed by the Collector on 11.11.1996. He had placed on file the photocopies of the said orders. He denied the execution of any deed between the plaintiff and defendant No. 7.
Fazal Maula, ADK appeared before the Court as APW-01 before the Court on 25.11.2008, who produced two mutations No. 7745 and 7746 (Ex.APW.1/1 and Ex.APW.1/2) which were rejected on 16.05.1993. According to mutation No. 7746 the sale in favour of Muhammad Usman by Mst.
Shamim Akhtar was rejected as no body had appeared before the revenue officer on the date fixed for attestation.
Amjad Naveed Chishti appeared before the Court as APW-02, who produced relevant Register maintained by his father wherein a deed dated 22.04.1991 (Ex.APW.2/1) was written, according to which Mst. Shamim Akhtar had agreed to sell the property in favour of plaintiff.
Sanaullah Incharge Mohafiz Khana, Peshawar appeared before the Court as APW-03, who produced the register through which the stamp vendor had sold stamp paper from 29.01.1991 to 08.10.1991, according to the same, the stamp paper (Ex.APW.3/1) at serial No. 2214 was issued to Mst.
Shamim Akhtar.
The learned trial Court has dismissed the suit mainly on the plea of limitation holding that the disputed mutation was attested on 16.08.1993 whereas the suit was filed on 03.09.1999 and further on the point that no decree could be granted as the deed in favour of plaintiff was not registered despite the fact that the original owner had confirmed the sale of the property to the plaintiff in her written statement as well her statement before the Court.
6. The following are the legal issues for determination of this Court. i. Limitation. ii. The legality of the mutation No. 9076 dated 16.08.1993 and whether the respondents/beneficiary had established the transaction on the basis of the said mutation when admittedly the vendor is denying the execution of any transaction with the predecessor of the respondents. iii. Whether the suit of the plaintiff on the basis of agreement dated 22.4.1991 and the subsequent acknowledgment deed dated 30.05.1991 which though admitted by the vendor, the trial Court could pass a decree for declaration. iv. Whether in the circumstances mentioned above, the trial Court was not required to have moulded the relief by granting a decree for specific performance of the agreement in order to cloath the plaintiff with the marketable title. i. Limitation
7. In the present suit, the plaintiff claims his title on the basis of deed dated 30.05.1991 as well as has challenged the validity of Mutation No. 9076 which was attested on 16.08.1993. It is evident from the record that the disputed mutation was attested on 16.08.1993. The respondents themselves have placed on file photocopy of the order of the Collector dated 11.11.1996 whereby appeal filed by the plaintiff-petitioner, against the mutation in question was dismissed on 11.11.1996. Similarly, the appeal allegedly filed by Mst. Shamim Akhtar against the said mutation was also dismissed on 11.11.1996 for want of prosecution by the Collector. The suit was filed by the plaintiff before the Court on 12.08.1999 as evident from the order sheet of the Civil Judge (MOD), Peshawar. In such circumstances, the law is clear that period of limitation challenging the validity of mutation would be governed by the residuary Article i.e. 120 of the Limitation Act, 1908. Ahmad Din v. Muhammad Shafi and others (PLD 1971 Supreme Court 762) and Mst. Zeba and 12 others v. Member-Ill Board of Revenue Balochistan and 2 others (1986 CLC 233). Therefore, when admittedly the mutation in question was attested on 16.08.1993 and the suit was filed on 12.08.1999 which falls within the period of limitation of six years. The learned courts below have indeed misread the record. It has presumed the date of filing of the suit on 03.09.1999 instead of 12.08.1999. The record shows that the suit was initially filed during summer vacations before the Duty Judge on 12.08.1999 and thereafter it was placed before the Court of Senior Civil Judge on 03.09.1999; hence, the findings of both the courts below are materially incorrect on the point of limitation as the suit was filed within the period of six years. ii. The legality of the Mutation No. 9076 dated 16.08.1993 and whether the respondents/beneficiary had established the transaction on the basis of the said mutation when admittedly the vendor is denying the execution of any transaction with the predecessor of the respondents.
8. Admittedly, Mst. Shamim. Akhtar was the owner of the suit property. Since both the parties claim title from her, therefore, the fact that she is the true owner of the property is admitted by both the parties. The legal heirs of Hashim Khan claims title of the property on the basis of an unregistesred deed No. 3056 dated 11.02.1978 and Mutation No.9076 attested on-16.08.1993. The vendor in her written statement as well in her statement before the Court had denied the execution of any sale with Hashim Khan the predecessor of defendants Nos. 1 to 6. The plaintiff was able to produce PW- 04, who from the official custody had produced the relevant Register, according to which, no stamped paper was issued to the predecessor of respondents Nos. 1 to 6 rather through the said serial number stamped paper was issued to Mian Ahmad Shah on 26.02.1978 and another stamped paper with the same serial number was issued to Rahmanuddin on 28.12.1978; thus, evidence remained un-rebutted which casts serious doubts on the authenticity of the said deed.
Furthermore, the defendants could not produce a single marginal witness of the said deed.
However, the main reliance of the respondents on the Mutation No.9076 dated 16.08.1993, whereby the suit property was transferred in favour of the predecessor of respondents Nos.1 to 6. The close perusal of this mutation would reveal that on the basis of an order of the Additional Deputy Commissioner and report of Girdawar dated 01.08.1993, this mutation was attested. Needless to mention that neither the date of the order of Additional Deputy Commissioner, Peshawar is mentioned in the mutation nor any such order was produced during the evidence despite ample opportunity was given to the respondents.
The mode of transfer making changes in the revenue record has been provided under Section 42 of the West Pakistan Land Revenue Act, 1967 ("Act") and Section 45 of the said Act restricts variation of entry in revenue record except in the manner and mode as provided under the law. Both the provisions of law for ready reference are as under:-
42. Making of that part of periodical records which relates to landowners. (1) [a person] acquiring by inheritance, purchase, mortgages, gift, or otherwise, any right in an estate as a land- owner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition report his acquisition of right to the patwari of the estate, who shall. -
(a) record such report in the Roznamcha to be maintained in the prescribed manner;
(b) furnish a copy of the report so recorded, free of cost, to the person making the report; and
(c) send a copy of the report, within a week of its receipt by him, to the [respective Local Council] within which the estate is situated.
(2) If the person acquiring the right is a minor, or is otherwise unable to report, his guardian or other person having charge of his property shall make the report to the Patwari.
(3) The Patwari shall enter in his register of mutations every report made to him under subsection
(1) or subsection (2) and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those sub-sections and has not been so made.
(4) The report made to the Patwari under subsection (1) or subsection (2) or recorded by him under subsection (3) shall be displayed in such manner as may be prescribed.
(5) If the Patwari fails to record, or to display a report made to him under subsection (1) or subsection (2); the person making the report may make the report, in writing, to the Revenue Officer concerned and [the Nazim of the Village Council or Nazim of the Neighbourhood Council as a case may be] in which the estate is situated by registered post acknowledgement due and the Revenue Officer shall there-upon cause such report to be entered in the register of mutations.
(6) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.
(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection
(6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of [Union Committee, Town Committee] or Union Council concerned, whose signatures or thumb- impressions shall be obtained by the Revenue Officer on the register of mutations.
(8) An inquiry or an order under subsection (6) shall be made in the common assembly in the estate to which the mutation, which is the subject matter of the inquiry, relates.
(9) Where a Revenue Officer makes an order under subsection (6) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct.
(10) If within three months of the making of a report of the acquisition of a right under subsection
(1) or subsection (2), or the recording by the Patwari of an entry in the Roznamcha under subsection (3) respecting the acquisition of any right, no order is made by the Revenue Officer under subsection (6), he shill report the cause of delay to the Collector in the prescribed manner. (11) The Revenue Officer shall, in the prescribed manner, send or cause to be sent, the gist of an order made by him under sub section (6), to the person, whose right is acquired, and also to the [Village Council or Neighbourhood Council] in which the estate is situated.
(12) Notwithstanding anything contained in the foregoing sub-section, the Revenue Officer shall in cases of transfer by registered deeds, have the mutations entered and attested within a period of thirty days, on receipt of the registration memorandum along with a photo copy of the registered deed, without summoning the parties.
45. Restriction on variations of entries in records,---Entries in a record-of-rights or in a periodical record, except entries made in periodical records by Patwaris under clause (a) of section 43 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in subsequent records otherwise than by-- making entries in accordance with facts proved or admitted to have occurred;
(b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties; and
(c) making new maps where it is necessary to make them.
Indeed, it is settled law that entry in the revenue record/registration of the mutation are made for fiscal purposes and does not confer any title on the beneficiary, the beneficiary has to independently establish the transfer of the property in his favour through any arrangement preceding the attestation of mutation. Needless to mention that the burden to establish the title which he acquires on the basis of mutation is on beneficiary which he has to establish in a manner and mode as provided under Article 79 of the Qanun-e-Shahadat Order, 1984. Muhammad Hussain and others v. Wahid Bakhsh (deceased) through Legal Heirs (2004 SCMR 1137), Mst.
Suban v. Allah Ditta and others (2007 SCMR 635), Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729), Muhammad Amir and others v. Mst. Beevi and others (2007 SCMR 614) and Abdul Rasheed through L.Rs. and others v. Manzoor Ahmad and others (PLD 2007 Supreme Court 287).
In the present case, the respondents-defendants did not produce any evidence in support of the said mutation, which too was entered and attested in a manner completely alien to the enabling provision (Section 42 of the West Pakistan Land Revenue Act, 1967). Resultantly, the findings of both the courts below upholding this mutation are incorrect and thus are liable to be set aside. iii. Whether the suit of the plaintiff on the basis of agreement dated 22.4.1991 and the subsequent acknowledgment deed dated 30.05.1991 which though admitted by the vendor, the trial Court could pass a decree for declaration.
9. The plaintiff claims that they have purchased the suit property through deed dated 22.04.1991 (Ex.PW.5/1). The perusal of this deed would show that it was attested by two witnesses. Similarly, the plaintiff also claims his title on the basis of two deeds, the first was executed on 22.04.1991 and the second was attested on 30.05.1991. I have no doubt in my mind that these deed in terms of Article 17 of the Registration Act, 1908 was required to be attested by two witnesses but also requires its mandatory registration in terms of Section 49 of the Act and Section 54 of the Transfer of Property Act, 1882, therefore, mere writing an agreement in absence of registration would not create any right, title or interest in immovable property in favour of beneficiary of the said deed despite the fact that the entire sale consideration is paid by the vendee on the basis of this deed. Muhammad Iqbal and others v. Mst. Baseerat and others (2017 SCMR 367). Therefore, the suit for declaration in terms of Section 42 of the Specific Relief of Act, 1988 ("Act") was not maintainable on the basis of these deeds (Ex.PW.6/3 and Ex.PW.6/4). Zafar Ahmad v. Mst. Hajran Bibi (PLD 1986 Lahore 399).
Needless to mention that in terms of Section 53-A of the Transfer of Property Act, 1882, the transferee of land through unregistered deed will cloath the transferee to protect his possession on the basis of unregistered deed subject to fulfilment of two conditions, firstly, existence of an agreement to transfer the said property and secondly the transferee had been put in possession of the said property in part performance of the agreement, however, the said provision of Section 53- A can be used as a shield and not a sword. Placed reliance on Muhammad Yousaf v. Munawar Hussain and 05 others (2000 SCMR 204). However, in the present case, who is in possession of the property is not forthcoming from the record, therefore, the findings of the trial Court on this issue are legally correct but subject to the finding of this Court in the forthcoming issue. iv. Whether in the circumstances mentioned above, the trial Court was not required to have moulded the relief by granting a decree for specific performance of the agreement in order to cloath the plaintiff with the marketable title.
10. As stated above, Mst. Shamim Akhtar is the true owner of the property. The plaintiff claims that he had purchased this property from Mst. Shamim Akhtar through an unregistered deed dated 22.04.1991 (Ex.PW.5/1). According to this deed, Mst. Shamim Akhtar had agreed to sell the disputed property to the plaintiff against the total sale consideration of Rs.1,25,000/-, out of which, she had received Rs.10,000/- whereas the remaining amount was payable within one month. Similarly, through an agreement deed dated 30.05.1991 (Ex.PW.5/2) Mst. Shamim Akhtar had acknowledged the receipt of the remaining amount. The perusal of these two deeds would show that it was witnessed/attested by three witnesses, namely, Barkat Ali Shah, Ali Zaman and Ghulam Sarwar in terms of Article 17 of the Qanun-e-Shahadat Order, 1984 ("Order, 1984"). Although the attesting witnesses were not produced by the plaintiff before the Court as required under Article 79 of the Order, 1984, however, the vendor has not only confirmed the sale of disputed property through the deed in favour of plaintiff in her written statement but she also deposed before the Court this fact when her deposition was recorded through Commission, therefore, in view of mandate of Article 81 of the Order, 1984, the execution of these documents stood established and proved.
11. As stated above, no decree for declaration could be granted to the plaintiff on the basis of this unregistered deed, however, his suit in the circumstances, when he has paid the sale consideration of the entire property and the vendor admits the said sale, he could not be-denied the equitable relief of specific performance of this agreement provided his suit is within the period of limitation.
Order VII, Rule 7 of the C.P.C. empowers the Court to grant such relief on the conclusion of the trial as it may think just to the same extent as if it had been asked for but the Court of equities while administering civil justice have never remained mistresses of rules and procedure. Reliance is placed in the case of Imtiaz Ahmad v. Ghulam Ali and others (PLD 1963 SC 382). In such circumstances, the learned trial Court could mould the relief by decreeing the suit of the plaintiff for specific performance of the agreement dated 30.05.1991 (Ex.PW.5/2) as legally the suit of the plaintiff for declaration was not maintainable. The apex Court in the case of Akhtar Sultana (PLD 2021 SC 715) has eloquently approved this rule in para-40 of the judgment in the following manner:- "Such an objection has earlier been agitated before, and decided by, the superior Courts of our jurisdiction in several cases. And the judicial consensus that has evolved is that courts are to look at the substance of the plaint not its form, and in appropriate cases the courts can mould the relief within the scope of the provisions of Order VII, Rule 7, Code of Civil Procedure Code, 1908 ("C.P.C."). The courts are empowered to grant such relief as the justice of the case may demand, and for purposes of determining the relief asked for or the relief to which the plaintiff is entitled, the whole of the plaint is to be looked. The provisions of Order VII, Rule 7 of the C.P.C. empowers the courts to grant an effective or ancillary relief even if it has not been specifically prayed for ".
The suit for specific performance of agreement/contract is governed by Article 113 of the Limitation Act, 1908, which reads as under:- 1 2 3
111. For specific performance of a contractThree yearsThe date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.
12. Since in the present case, both the parties have not given any date for registration of the deed, therefore, in such a circumstances, the limitation would run from the date when it was noticed by the plaintiff that vendor had refused to perform her part of obligation i.e. attestation of mutation or execution of registered deed. Thus, the suit of the plaintiff against Mst. Shamim Akhtar if considers as a suit for specific performance is not barred by any period of limitation, therefore, his suit for specific performance of agreement is hereby decreed against Mst. Shamim Akhtar with direction to her to execute the registered sale deed with the plaintiff within a period of three months from the date of judgment of this Court.
13. As far as while exercising revisional jurisdiction, this Court has ample power to correct the judgments of the Subordinate Courts wherein unreasonable view has been taken in disregard of the established legal position or the evidence has been incorrectly appreciated as held by the apex Court in the case of Abdul Sattar v. Ansar Bibi (PLD 2007 SC 609), Mubarak Ali through legal heirs v. Amro Khan through legal heirs (2007 SCMR 1714), Muhammad Bakhsh v. Ilahi Bakhsh (2003 SCMR 286).
This petition is disposed of in the above terms.