MIANGUL HASSAN AURANGZEB, J:- Through the instant civil revision petition the petitioner, Muhammad Shabbir, impugns the judgment and decree dated 28.04.2016 passed by the Court of the learned Additional District Judge, Islamabad, whereby his appeal against the judgment and decree dated 23.02.2016 passed by the Court of the learned Civil Judge, Islamabad was dismissed.
Vide the said judgment and decree dated 23.02.2016, the learned Civil Court had dismissed the petitioner's suit for declaration, cancellation of mutation and permanent injunction ("the Suit").
2. The record shows that on 08.06.2005, the petitioner filed the Suit seeking a declaration to the effect that mutation No.441, dated 15.09.1994, whereby land measuring 10 kanal, 03 marla in khasra numbers 818/511, 817/511 and 203/1485 in Revenue Estate Ladhiot, Tehsil and District Islamabad ("Suit Land") was transferred from the petitioner's name in favour of Overseas Pakistanis Foundation ("OPF"), is unlawful and ineffective on the petitioner's rights over the Suit land. The primary ground taken in the said suit for challenging the said mutation was that the petitioner had never entered into any transaction with OPF for the sale of the Suit land and that he had not signed the said mutation.
3. OPF's stance in the proceedings before the learned Courts below was that the petitioner had sold the Suit Land to OPF for a sale consideration of Rs.5,58,250/- and had affixed his signatures and thumb impression on mutation No.441.
4. The trial culminated in the judgment and decree dated 04.12.2012, whereby the petitioner's suit was dismissed. The Appellate Court allowed the petitioner's appeal against the said judgment and decree vide judgment and decree dated 03.04.2014 and remanded the matter to the learned Trial Court with the direction to record the evidence of the Halqa Patwari as a Court witness. In the post- remand proceedings, the Halqa Patwari of Revenue Estate Ladhiot was summoned. Halqa Patwari, Muhammad Miskeen, appeared and gave evidence as CW-1. Neither party cross-examined CW-1.
Vide judgment and decree dated 26.02.2015, the suit was dismissed once again. The petitioner's appeal against the said judgment and decree was allowed by the learned Appellate Court vide judgment and decree dated 12.05.2015 and the matter was remanded once again with the direction to the learned Trial Court to permit the parties to cross-examine CW-1. After the matter was remanded, CW-1 in his evidence deposed that mutation No.441 had not been attested by him but by Halqa Patwari, Malik Muneer. This caused the learned Trial Court to summon Halqa Patwari, Malik Muneer, who appeared as CW-2 and gave evidence. Both the contesting parties cross- examined CW-2. The trial culminated in the judgment and decree dated 23.02.2016, whereby the suit was dismissed for the third time. The petitioner's appeal against the said judgment and decree was dismissed by the learned Appellate Court vide judgment and decree dated 28.04.2016. The said concurrent judgments and decrees have been assailed by the petitioner in the instant civil revision petition.
5. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant civil revision petition, submitted that the petitioner had not signed mutation No.441; that the said mutation does not fulfill the requirements of Section 42 of the Land Revenue Act, 1967 which requires two persons, preferably a Lumberdar or a member of the Union Council, to witness the mutation; that the testimony of the Halqa Patwari, Muhammad Miskeen (CW-1) was of no significance as he was not the Halqa Patwari of Revenue Estate Ladhiot when mutation No.441 was attested; that a copy of mutation No.441 (Exh.P1) produced by the petitioner does not bear the signature of any seller; that mutation No.441 (Exh.D6) bears forged signatures; that the possession of the Suit Land is still with the petitioner; and that no consideration for the sale of the Suit Land has been paid to the petitioner. Learned counsel for the petitioner prayed for the civil revision petition to be allowed and for the concurrent judgments and decrees passed by the learned Courts below to be set-aside.
6. On the other hand, learned counsel for OPF submitted that the suit instituted by the petitioner was grossly time barred; that the disputed mutation (i.e. mutation No.441) was attested on 15.09.1994 whereas the suit was instituted by the petitioner on 08.06.2005; that in and around Revenue Estate Ladhiot OPF had purchased more than 800 kanals of land for the purpose of establishing a housing society; that OPF had also purchased land in the same Revenue Estate from the petitioner's brother, Muhammad Siddique through mutation No.440; that the petitioner never pressed for the framing of an issue regarding the cancellation of the disputed mutation; that the petitioner had not been able to discharge the onus of showing that he is entitled to get a declaration as to the ownership of the suit land in his favour; that the Khasra Girdawari (Exh.P/2) prepared after the attestation of the disputed mutation shows OPF as the owner of the Suit Land; that the disputed mutation which was produced in evidence as Exh.D1 clearly shows that the petitioner had received sale consideration amounting to Rs.5,58,250/- for the Suit Land; that when Exh.D1, which is Part Patwar, was produced by the Deputy Director of OPF, he was not cross- examined on whether the petitioner's signatures on the said mutation was forged; and that this Court ought not to interfere with the concurrent findings of facts recorded by the learned Courts below. Learned counsel for OPF prayed for the revision petition to be dismissed.
7. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraph 2 to 4 above and need not be recapitulated.
8. The first issue framed by the learned trial Court was whether the plaintiff / petitioner was entitled to get a decree for declaration as prayed for in the suit. In the suit, the petitioner had sought a declaration to the effect that mutation No.441 attested on 15.09.1994 in favour of OPF is unlawful and liable to be set aside. Indeed, the petitioner was seeking to question mutation No.441 attested on 15.09.1994 through a suit for declaration etc. filed on 08.06.2005. Article 120 of the Schedule to the Limitation Act, 1908 provides for a limitation period of six years for filing a suit for declaration from the date when the right to sue accrues. .
9. In the cases of Rehman Vs. Yara etc. (2004 SCMR 1502) and Muhammad Nazir Vs. Ahmad Din (PLD 2004 Lahore 585, it was held that a suit for declaration as to a right or interest in the immovable property could be filed within six years from the date on which the right to sue accrued to the plaintiff.
10. In the case at hand, the right to sue accrued to the petitioner on 15.09.1994 when mutation No.441 was attested showing OPF as the purchaser of the Suit Land and the petitioner as its seller.
As justification for delay in the institution of the suit, the petitioner, in the suit has pleaded inter alia that he came to know about the disputed mutation a few days before the institution of the suit when he went to check the record for transferring the Suit Land to somebody else. Although this pleading lacks particularity, the petitioner had appeared as PW-1 and had deposed that when he applied to the revenue authorities for a copy of the revenue record with respect to the Suit Land, he gained knowledge as to the disputed mutation. He did not specify the date on which he came to know about the disputed mutation.
11. Since the suit was filed more than ten years after the attestation of the disputed mutation, it was prima facie time barred. In such scenario, it was obligatory on the petitioner to have filed an application for condonation of delay under Section 5 of the Limitation Act, 1908 specifically pleading therein that he had no knowledge of the disputed mutation until a certain date which would make his suit within time (within the six-year limitation period for filing a suit for declaration).
It is when such an application is filed that the Court will fix the terminus a quo from the date of knowledge. In the instant case, since the petitioner had alleged fraud against OPF, the limitation was to start from the date of knowledge and not from the date of the alleged fraud. As the petitioner had not filed an application for condonation of delay, I am not inclined to interfere with the concurrent findings of the learned Courts below that the suit instituted by the petitioner was barred by time.
12. OPF claims to be the owner of the Suit Land on the basis of the transaction recorded in the disputed mutation in the year 1994. It is well settled that mutation per se is not a title deed but is indicative of some previous oral transaction of sale between the parties. Entries in mutation are fiscal in nature and do not conclusively establish ownership. Whenever any right or title is asserted on the basis of mutation, heavy burden lies on the beneficiary of the transaction to prove the valid attestation of the same as well as the original transaction. Reference in this regard may be made to the law laid down in the judgments reported as Muhammad Younas Khan Vs. Government of N.-W.F.P. (1993 SCMR 618), Muhammad Akram v. Altaf Ahmad (PLD 2003 SC 688), Fida Hussain v.
Murid Sakina (2004 SCMR 1043), Muhammad Munir v. Muhammad Saleem (2004 SCMR 1530), Fida Hussain v. Abdul Aziz (PLD 2005 SC 343), Muhammad Afzal v. Matloob Hussain (PLD 2006 SC 84), and Ahmad Ali v. Bashir Ahmed (2013 YLR 1870).
13. The transfer of property through mutation in the revenue record is recognized as a valid method of transfer of ownership in agricultural land. A mutation is relevant to determine the date on which the transaction reported therein was effective and the transferee was vested with ownership rights in the property. Mutation entry when incorporated in the record of rights carries a presumption of truth. An entry in the revenue record in accordance with the law is entitled to a rebutable presumption of correctness. Reference in this regard may be made to the law laid down in the judgments reported as Muhammad Amir etc Vs. Mst. Beevi etc. (2007 SCMR 614), and Hakim Khan Vs. Aurangzeb etc..(1979 SCMR 625).
14. OPF's case is that it purchased the Suit Land from the petitioner through an oral transaction recorded in mutation No.441. It also relies on the sale consideration mentioned in the said mutation as well as the petitioner's thumb impression on the said mutation as testimony of the fact that a sale transaction with respect to the disputed mutation had taken place.
15. As mentioned above, after the matter was remanded by the learned appellate Court vide judgment and decree dated 03.04.2014.The learned Civil Court had summoned Malik Muneer, who was the Halqa Patwari of Mouza Ladhiot at the time when the disputed mutation was attested. He appeared before the learned Civil Court as CW-2 and deposed that OPF had acquired / purchased about 800 kanals of land in Revenue Estate Ladhiot for the purpose of establishing a housing scheme, and that he had attested mutation No.441 dated 11.08.1994, which bears his signatures. He also deposed that he knew the petitioner, who had affixed his signature and thumb impression on mutation No.441. Additionally, he deposed that the petitioner's brother, Muhammad Siddique, had also sold his own land to OPF through mutation No.440, which was attested on the same day as mutation No.441.
16. When mutation No.441 (Exh.D6) was produced in evidence, the same was taken on the record without any objection from the learned counsel for the petitioner. If OPF was claiming to be the owner of the Suit Land on the basis of the said mutation, it was essential for the petitioner to have at least taken an objection to the authenticity of his thumb impression on the said mutation. The petitioner did not do so. It is apt to mention that in the case of Sar Haji Sar Buland Khan Vs. Fazal Muhammad (2014 YLR 1712), it was held that if the Tehsildar did not obtain the signature of the donor on the mutation in question the same would not be of any help to the party challenging the mutation because paragraph 4.7 of the Land Record Manual does not require the signature / thumb impression of the parties on the mutation. Law to the said effect was also laid down in the case of Manzoor Hussain Vs. Raja Shah (1992 CLC 602).
17. Mutation No.441 which was produced by the petitioner as Exh.P1 bears the names and signatures of the two witnesses namely (1) Qazi Iftikhar Ahmed and (2) Muhammad Siddique (who is admittedly the petitioner's brother). Exh.P1 is an attested copy of the said mutation / Part Sarkar, whereas Exh.D6 produced by OPF is also a copy of the said mutation / Part Patwar/maintained by the Halqa Patwar.
18. The transaction recorded in mutation No.441 was also reflected in the Jambandies / periodical record of rights for the years 2001-2002 (Exh.D4) and 2005-2006 (Exh.D5). In these Jambandies, OPF has been recorded as the owner of the Suit Land whereas the petitioner has been recorded as a tenant at will. In the case of Khuda Bakhsh Javed Vs. Ahmed (2013 YLR 2576), it was held that "when a mutation is incorporated in the Jamabandi and being document of title presumption is attached to that Jamabandi then it is the duty of the person who challenges the validity of the Jamabandi to prove the position otherwise than mentioned in the Jamabandi. ..."
19. Given the preponderance of evidence in favour of OPF, I am not inclined to interfere with the concurrent findings of the learned Courts below. Consequently, the instant civil revision petition is dismissed with no order as to costs.