WIQAR AHMAD, J. Petitioner herein was defendant No.1 in the suit earlier brought by respondents No.1 & 2 before civil court Balakot. Respondent No.3 was defendant No.2 in the suit before the court below . Respondents No.1 to 3 are brothers inter-se while petitioner is their uncle i.e. brother of their father namely , Muhammad Akbar Khan. In the suit brought before civil court, plaintif fs / respondents No.1 & 2 had prayed for declaration to the effect that they were owners of the property (described fully in the heading of their plaint) to the extent of their ownership in possession, being legal heirs of Muhammad Akbar Khan, and that mutation No. 10671 attested on 26.09.1997 whereby property of one Kanal had been shown mutated in favour of defendant No.1 / petitioner was wrong, illegal, collusive and ineffective upon their rights . In para "Bay" of the plaint, they had prayed for grant of a decree of mandatory injunction for correction in the revenue record and cancellation of the above mentioned mutation.
Defendants were summoned by learned civil court. Both the defendants appeared before the court and filed their separate written statements. Both the defendants contested claim of plaintif fs as raised in their plaint. Issues were framed in the case on 13.01.2014, whereafter parties were put to evidence and on conclusion of proceedings in the suit, learned civil court Balakot decreed the suit as prayed for vide judgment and decree dated 30.06.2008. Feeling aggrieved therefrom, petitioner filed an appeal before learned Additional District Judge Balakot which was dismissed vide judgment dated 04.05.2009. Petitioner has then filed the instant civil revision with the following prayer: - "It is, therefore, most humbly prayed that on acceptance of this Revision petition the judgments and decrees of both the courts below may graciously be set aside and suit of respondents No.1 & 2 be dismissed with cost."
2. Learned counsel for petitioner contended that judgments and decrees of the two courts below were result of non- reading and mis-reading of evidence. In this respect, he referred to, parts of plaintif fs' evidence (wherein their witnesses had admitted the earlier transa ction of giving land for construction of a mosque by their predecessor as well as defendant No.1 i.e. petitioner namely , Abdur Rehman Khan) and contended that the plea raised in Para-3 of written statement of defendant No.1 had been admitted by witnesses of plaintif fs / respondents No.1 & 2, but such evidence could not be read by two courts below at all. He then referred to petitioner 's evidence and contended that he had produced an impartial and natural witness namely , Maulana Muhamma d Siddique Siddiqui as well as Muhammad Fayyaz both of whom had been marginal witnesses of the mutation but such evidence had also been discarded by the two courts but for implausible reasons. In order to bolster his submissions, he placed reliance on judgments delivered in the cases of "Muhammad Hayat & 06 others Vs. Muhammad Nawaz" reported as 1971 SCMR 414, "Mst. Yaqoot Begum & 02 others Vs. Muhammad Hasham & another" reported as PLD 1985 Peshawar 05, "Sarfraz Ahmad & 36 others Vs. Mst. Sakina Bibi & 35 others" reported as PLD 1985 Journal 121, "Barkat Vs. Fazal Elahi & others" reported as 1993 CLC 2400 , "Syed Sardar Shah & 02 others Vs. Qazi Masood Alam & 05 others" reported as 2003 CLC 857, "Ashraf Ali through his legal heirs & others Vs. Maryam Bibi & 04 others" reported as 2004 SCMR 1536 , "Riasat Ali Vs. Additional District Judge Kehrore PACCA & 02 others" reported as 2005 MLD 1013 , "Muhammad Amir & others Vs. Mst. Beevi & others" reported as 2007 SCMR 614, "Mst. Sabiha Begum through Legal Heirs Vs. Mst. Ummat-ul-Islam through Legal Heirs" reported as 2007 MLD 653, "Manzoor Ahmad & others Vs. Muhammad Anwar Khan & another" reported as 2011 YLR 2232 , "Pir W ali Khan & others Vs. Niaz Badshah & others" reported as 2013 MLD 1 106 [Peshawar], and "Munir Alam & 02 others Vs. Mehboob Alam" reported as 2015 YLR 500 .
3. Learned counsel appearing on behalf of respondents No.1 & 2 contended that the two courts below have concurrently decreed the suit after appreciating evidence in its true perspective. He also added that petitioner was beneficiary of the disputed mutation and therefore onus of proving mutation as well as the underlying transaction was entirely on petitioner , but he had failed to prove such transaction and therefore the two courts below had rightly set-aside the disputed mutation. He place d reliance on the judgments delivered in the cases of "Ahmad Din & 04 others Vs. Faqir Sain alias Muhammad Sain" reported as 2002 MLD 1730 [Lahore], "Rehmatullah & others Vs. Saleh Khan & others" reported as 2007 SCMR 729, "Mst. Zohra Bai Merchant through L.Rs & others Vs. Mst. Fatima Khanum & 03 others" reported as 2007 CLC 64 [Karachi], and "Amjad Ikram Vs. Mst. Asiya Kausar & 02 others" reported as PLJ 2015 SC 148 .
4. I have heard arguments of learned counsel for the parties and gone through the record.
5. Perusal of record reveals that the two courts below have concurrently decided the case in favour of respondents No.1 & 2 but findings and conclusion drawn from evidence had clearly been the result of misreading and non- reading of evidence. It is true that scope of a revisional court condenses in cases where the two courts below returns judgments on question of facts concurrently , but even then where such concurrent findings are found by revisional court to be the result of non-reading or misreading of evidence, it becomes duty of a revisional court to correct such a wrong course adopted by the two courts below . Reliance in this respect may be placed on the judgment delivered by Hon'ble Supreme Court of Pakistan in the case of "Abdul Hameed & others Vs. Khalid & others" reported as 2007 SCMR 938, wherein it has been held that findings of courts below could not be held to be sacrosanct for a revisional court if same were the result of misreading or non-reading of evidence. Further reliance in this respect may also be place d on the judgment of Hon'ble Supreme Court of Pakistan delivered in the case of "Abdul Sattar Vs. Mst. Anar Bibi 7 others" reported as PLD 2007 SC 609 .
6. Since this court has found judgments of the two courts below not justifiably concluded, therefore, re-appraisal of evidence would be required in the instant case but before embarking upon such re-appraisal of evidence, plea of petitioner as raised in his written statement is important to be mentioned herein. In response to the challenge raised to mutation No. 10671 attested on 26.09.1997 petitioner had stated in Para-3 of his written statement that in the year 1961-62 father of respondents No.1 & 2 as well as one of their brother i.e Murshad Ali Khan (defendant No.2) and petitioner who was uncle of the respondents had sold out two Kanals of property for construction of a mosque for Ahl-e-Hadees sect. Muhammad Akbar Khan, father of respondents, had agreed to sell out one Kanal of land to the Masjid while defendant No.1 / petitioner had also agreed to sell one Kanal of land out of his share to said Masjid. At the time of entry and attestation of two Kanals of land in favour of the mosque, father of respondents had lost legal capacity to transfer his one Kanal land for which he had already received consideration.
He was not competent for the reason that vide gift mutation No. 8328 he had mutated all his property in favour of his sons on 23.08.1986. He had, therefore, requested petitioner to transfer two Kanals of land in favour of the mosque (one for himself while another one Kanal of land for the amount received by Muhammad Akbar Khan) with the promise that his sons would mutate one Kanal of land in favour of the petitioner after acquiring age of maturity .
He has stated that accordingly mutation No. 10671 was attested in his favour on 26.09.1997 in consideration of amount received by their father at the time of selling land in favour of Ahl-e-Hadees mosque.
7. It has been an admitted fact between the parties through evidence that at the time of sale of land in favour of Ahl-e-Hadees mosque i.e. 1961-62 a mutation had also been entered in favour of Ahl-e-Hadees mosque by predecessor of respondents and petitioner but said mutation could not be attested because of resistance offered by numbers of other sects which have historically been living in the area in overwhelming majority and that it was for said reason that the mutation could only be effected in favour of the mosque. Plaintif fs had although shown total unawareness about the disputed mutation in their plaint and stated that same had been the result of fraud and collusion of the revenue officials and that they had not effected any mutation in favour of petitioner but while appearing in the court as witness, plaintif f No.2 took a different stance and admitted the attestation of mutation but had denied receipt of consideration. Defendant No.2, who was brother of petitioner , had contested the suit of plaintif fs / respondents No.1 & 2, owned the entry and attestation of mutation and supported the stance of petitioner / defendant No.1 as raised in written statement of the latter . While appearing in court as DW-05 he had however taken a dif ferent stance.
8. Plaintif fs had produced four (04) witnesses before the learned civil court. A brother of respondents No.1 to 3, who had not been arrayed as party in the suit was examined as PW-2. In his examination-in-chief he has stated that property in dispute was falling in Khasra No. 898 which was commercial in nature and that petitioner / defendant No.1 had transferred property from his share in favour of Masjid Ahl-e-Hadees and received consideration therefor but had wrongly mutated property of one Kanal from the plaintif fs in his favour and that also without any consideration. In his cross-examination, this witness has stated that the plaintif fs had been literate as both of them had studied school till matric . Age of Shafqat Khan was told to be 25 years approximately while age of other witnesses was disclosed to be that of 20 / 22 years. He also stated that on the property in dispute Masjid Ahl- e-Hadees had been constructed. Regarding knowledge of mutation, he stated that he had got knowledge of the fraudulent mutation first and had then disclosed same to plaintif fs after two (02) years of attestation of the mutation and that earlier plaintif fs had not been in knowledge of entry or attestation of mutation. This witness has also admitted the basic transaction which had first been narrated by petitioner / defendant No.1 in his written statement.
Said part of his cross-examination is reproduced below for ready reference:- This witness has also admitted that their father and petitioner had earlier entered a mutation No. 3103 dated 28.03.1961 to the extent of two Kanals of land in favour of Masjid Ahl-e-Hadees. Said mutation could not be attested, as explained earlier.
9. Plaintif f No.2 namely , Mazhar Ali Khan has appeared in the witness box as PW-4. In his very examination-in- chief he took a departure from contents of his plaint by stating that he had been present in shop of his brother i.e. Murshad Khan, wherefrom he was called to court premises and told to affix his signatures on some papers. He also stated that his other brother i.e. plaintif f No.1 (Shafqat Ali Khan) as well as both the defendants and Khateeb Jamia Masjid Ahl-e-Hadees namely , Maulana Muhammad Siddique Siddiqui, had also been present there. It was further asserted that their signatures were obtained by stating that they had been procuring land for the mosque and that they had not been paid any compensation in cash or coin for such transaction. In cross-examination this witness has also stated as under:- When he was asked about the fact whether his father had given one Kanal of land for the mosque, he showed his lack of knowledge. Categorical admissions made in the statement of PW-3, as mentioned and reproduced above, could not be read by the two courts below. The attestation of mutation in presence of plaintiffs as well as affixation of their signatures thereupon in the presence of Maulana Muhammad Siddique Siddiqui had also been admitted by none else but plaintiff No.2 himself, who had also been testifying as special attorney for plaintiff No.1.
10. Maulana Muhammad Siddique Siddiqi, one of marginal witness of he mutation has been produced by defendants as DW-2. In his examination- in-chief he has supported stance of petitioner / defendants regarding the earlier transaction of sale of land by two brothers in favour of Masjid Ahl-e-Hadees as well as the subsequent transaction of attestation of mutation in favour of petitioner / defendant No.1. This witness was not only independent but reliable as well. Witnesses of plaintif fs and plaintif f No.2 himself had stated about the noble character of this person. Such testimony in favour of this witness and the fact that this person was neutral and unbiased, makes his testimony as absolu tely reliable. He had got no axe of his own to be grinded in the matter , hence, there was no reason why have his testimony been discarded by the two courts below . The other marginal witness of mutation namely , Muhammad Fayaz, has also been produced as DW-3, who has also given testimony in support thereof. Nothing beneficial to the case of plaintif fs / respondents No.1 & 2 could be brought from mouths of either of the two witnesses. Petitioner has himself appeared as DW-4 where he had narrated all the transactions but nothing beneficial to the case of plaintif fs / respondents No.1 & 2 could be solicited from his mouth during the course of his cross-examination. Defendant No.2 has testified in the case as DW-5 where he had taken a total departure from contents of his written statement and had given a different statement in favour of plaintif fs / respondents No.1 & 2. It is important to be noted here that till last he had not filed any application before the civil court for making any amendment in his written statement. His testimony in the case being a total departure from his written statement makes him an unreliable witness.
11. From the above analysis, it became clear that following facts stood proved and well established from evidence: - (a). that petitioner and father of respondents No.1 to 3 had earlier sold two Kanals of land in favour of Ahl-e-Hadees mosque in the year 1961-62 but in respect thereof a mutation could not be attested in favour of the mosque despite the fact that said mutation had been entered with Patwari Halqa at relevant time from both the brothers to the extent of one Kanal of land each.
(b). That subsequent mutation No. 10671 attested on 26.09.1997 had been attested by the plaintiffs in favour of petitioner / defendant No.1 in the presence of two marginal witnesses."
12. After finding the above mentioned facts this court would like to discuss the issue of non-payment of consideration at the time of mutation and proof in respect thereof. While giving its findings on Issue No. 08, the learned Civil Court had held that defendant No.1 had failed in proving the factum of consideration. The learned appellate court has also made this fact as main basis for returning the judgment. The main reason that prevailed with the two courts below in setting aside the disputed mutation was that payment of consideration had not been proved by the petitioner / defendant No.1 and, therefore, petitioner had failed in establishing the underlying transaction of mutation No. 10671 atteste d on 26.09.1997. While holding so, the two courts below had not been able to read the well established fact that father of plaintif fs had earlier sold one Kanal of land in favour of Ahl-e- Hadees mosque beside one Kanal of land sold to such mosque by petitioner / defendant No.1. The two courts below had not been able to read categorical admissions of witnesses of plaintif fs in respect of the earlier sale transaction as well as entry of mutation in Patwar Khana. Said mutation No. 3103 entered on 28.03.1961 has though been owned by Patwari Halqa in his statement recorded as PW-1 but same could not be exhibited in his statement as the civil court had ordered on 22.06.2006 that attested copy of such mutation should be produced instead of brining and exhibiting said rejected mutation (Parth) in statement of Patwari Halqa. The fact remains that such transaction had categorically been admitted in closing lines of cross-exam ination of PW-2 as discussed above. Vide mutation No. 8895 attested on 15.06.1988 in Mauza Balakot petitioner had transferred an area of two Kanals in favour of Masjid Ahl-e-Hadees. Said mutation had been entered on the information of Muhammad Akbar Khan (late) who was also a marginal witness thereto. Defendant No.1 / petitioner had stated in his written statement that father of petitioner had directed him to execute mutation in favour of mosque for the amount of consideration that had also been received by him and this fact had stood proved by giving cumulative effect to all the pieces of evidence which also included admissions of plaintif fs' witnesses. This was not difficult to discern, on the basis of preponderant evidence, as what was the actual consideration due to which all the three (03) brothers i.e. respondents No.1 to 3 had attested mutation in favour of petitioner . Respondent No.3, who was defendant no.2, in the suit had also given similar narrations in his written statement against his own interest which written statement had also been owned by him and exhibite d in his statement as Ex.PW -5/1 before stating that mutation in favour of petitioner had wrongly been entered and attested. Such averments in his written statement may well be considered for the reason that such written statement has not been disowned by the witness while appearing as DW-5. Same had rather been owned by exhibiting it as Ex.DW -5/1. Besides, plaintif f No.2, while appearing in court has admitted affixation of signatures on the mutation while deposing as PW -05.
13. It has no doubt been a settled proposition of law that proof of consideration is an important ingredient for proving of underlying transaction of a mutation and that in case a mutation is challenged then the beneficiary is under onus to prove factum of the underlying transaction which includes payment of consideration and in this respect reliance of learned counsel for the respondents on the judgment of Hon'ble Supreme Court of Pakistan in the case of "Rehmatullah & others Vs. Saleh Khan & others" reported as 2007 SCMR 729 is also not beyond the mark, but it is equally important to be noted that consideration for a transaction may not always be in terms of money changing hands. For example, it may be exchange of certain land, giving of certain moveable property like vehicle etc and so many other things in consideration for transfer of ownership of land. Same is the case with releasing liability of a dead father as in the case in hand. Meaning and impact of the word consideration cannot be restrained to payment of money . Consideration has been defined in clause (d) of Section 2 of the Contract Act, 1872 as follows; "When, at the desire of the promisor , the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise."
Hon'ble Sindh High Court while giving its judgment in the case of "Hafeezullah Khan & 02 others Vs. Al-Haj Chaudhri Barkat Ali & 02 others" reported as PLD 1998 Karachi 274 has held that concept of consideration would not necessarily mean or imply a monetary benefit or anything susceptible to an accurate valuation in terms of money . Relevant observations of the Hon'ble Court given in said judgment are reproduced for ready reference:- "The concept of "consideration" in a contract, as envisaged in section 2(d) of the Contract Act, does not, necessarily , mean or imply a monetary benefit or any thing susceptible to an accurate valuation in terms of money .
It means and signifies any abstinence, forbearance, detriment or responsibility shown, suffered or undertaken by a promisee or any other person at the instance or desire of the promisor which, in turn, gives rise to a corresponding right, interest, benefit or profit to the promisee. Speaking, tentatively , for this is still an interim stage in the proceedings, the appellants plaintiffs were restricted to ply their vehicles within specific periods of time, with a matching advantage to the respondent-defendant No. l to have a free-play for the remainder of the time span, by honouring the restrictions undertaken and suffered at the level of the appellants. What is more, the venue of such operation was also clearly stipulated, as quoted. It, therefore, follows that the postulation were both as regards the timings agreed upon and the place to be touched for the journey . This ex facie, was sufficient consideration. Even if it is conceded that the use of the defendant's premises was in the nature of a licence, as found by the learned single Judge, the fact remains that the license was a concomitant and possibly inseparable part of the contract and if the contract was to be allowed to be worked upon, the elements of time and space should have been allowed the necessary inter -play ."
Similar interpretation had also been made by Hon'ble Sindh High Court while giving its judgment in the case of "LAL BUX & another Vs. Abdul Rasool through legal heirs & another" reported as 1994 CLC 138 [Karachi].
In the case of "Pakistan Steel Mills Corporation (Private) Limited Vs. Karachi Water & Sewerage Board through Chief Executive & 02 others" reported as 2012 CLD 396 [Sindh] the Hon'ble Court had also held that consideration may not always be moving from the promisee and that it could come from any other person as well.
Relevant observations of the Hon'ble Court are also reproduced for ready reference; "Thus, the act (or omission) which serves as the consideration for the promise need not come from the promisee; it may move from "any other person". It is quite clear from the record, including the 1994 Agreement itself that the Province (the putative owner of the water) is quite content to supply , and continue supplying, water to the plaintiff.
As noted above, the Additional Chief Secretary not merely mediated the dispute between the parties, but was also a signatory to the 1994 Agreement. Nothing was stated at the bar at the time of the hearing of this application by learned A.A.-G. as would negate, refute or qualify this position. In my view therefore, prima facie, the 1994 Agreement is fully supported by lawful consideration and cannot therefore be faulted on this basis, nor can the plaintiff be permitted, at least at this stage , to raise the plea that the agreement has failed or is void on account of a failure of consideration. It follows therefore, that the 1994 Agreement was binding on the parties, and continues to remain so. It is this agreement which regulates matters insofar as the water charges are concerned."
A court of fact should not steal eyes from peculiar nature of particular transaction due to which a party attest mutation in favour of another . Sometime s, at the time of entry and attestation of mutation, parties are unable to describe the underlying transaction in detail but if evidence of such a transaction is brought before a court of law then the court would not be justified in ignoring such a transaction for the only reason that same has not been mentioned in the mutation. The object of establishing courts is to ensure doing of justice between competing parties, which should no doubt be according to law but principles of law should not be interpreted so stringently as to cause injustice in a particular case despite the fact that the very evidence recorded in the case makes the matters manifestly clear before the court of law. Doing justice should be the focus and object of every legal system.
Hon'ble Supreme Court of Pakistan while delivering judgment in the case of "Hafeez Ahmad Vs. Civil Judge Lahore" reported as PLD 2012 SC 400 has held that rules of procedure should not be used as a stumbling block but stepping stones for doing justice between the litigating parties. In the case of "Imtiaz Ahmad Vs. Ghulam Ali" reported as PLD 1963 SC 382 it has been held that all technicalities creating hurdle in the way of doing justice had to be avoided unless it was essential to comply with them on ground of public policy . Further reliance in this respect may also be placed on the judgment of Hon'ble Supreme Court of Pakistan given in the case of "Manager , Jammu and Kashmir , State Property in Pakistan Vs. Khuda Yar & another" reported as PLD 1975 SC 678.
14. In light of what has been discussed above, this court reaches the inescapable conclusion that judgments and decrees of the two courts below were the result of misreading and non-reading of evidence. Same are set-aside by allowing the instant revision petition. Resultantly , suit filed by respondents No.1 & 2 before the learned civil court Balakot, wherefrom the impugned judgments have arisen, stands dismissed.