SYED ARSHAD ALI, J. Through the instant Civil Revision filed under section 115 of the Code of Civil Procedure, 1908 ("CPC"), the petitioner has impugned the concurrent findings of learned courts below rendered in the judgments/decrees dated 15.09.2011 and 07.05.2012 and prayed that the same be set aside by dismissing the suit of plaintiff/respondent.
2. Brief facts of the case are that the respondent/plaintiff on 17.03.2007 had filed a suit bearing No.94/1 before the learned Civil Court at Swabi seeking a decree for declaration to the effect that he is owner in possession of the suit property measuring 08 kanal 91/2 marla or whatever area is proved bearing khasra No. 4888, 4893 khata No. 200/407, 201/408 situated at Mazua Sheikjana Tehsil & District Swabi on the basis of legacy of Mst. Shamalo daughter of Dheranay, however, the petitioner/defendant in connivance with the revenue officials got transferred the suit property in his name through different sale mutations bearing No. 14434 dated 12.11.1990, 14990 dated 14.10.1993 and 1169 dated 09.12.2003 which are illegal and ineffective upon his right; thus, the same liable to cancellation. In alternate, he prayed for decree for possession of the suit property.
3. On being noticed, the petitioner appeared before the Court and contested the suit by filing written statement. From divergent pleadings of the parties, nine (09) issues were framed and accordingly both the parties were directed to adduce their respective evidence.
Aurangzeb Patwari Halqa Mauza Sheikhjana appeared before the Court as PW-01 and produced fard jamabandi for the year, 2002-2003 (Ex.PW.1/1), khasra girdawari (Ex.PW.1/2), Perth Patwari of mutation No. 1169 dated 09.12.2003 (Ex.PW.1/3), goshwara milkiat (Ex.PW.1/4), Perth Patwar of mutation No. 1369 dated 26.07.2008 (Ex.PW.1/5) and Naqsha Tasveeri (Ex.PW.1/6). This witness in his cross-examination has admitted that as per Naqsha Tasveeri, land measuring 12 kanal 08 marla is in possession of petitioner/defendant, whereas land measuring 04 kanal 11 marla is in possession of Nisar, however, mutation No. 1169 dated 09.12.2003 was attested in favour of petitioner, according to which, the petitioner purchased land measuring 03 kanal 9-1/2 marla from Mst. Shamalo against sale consideration of Rs. 195,000/-.
Muhammad Zaib AOK, Swabi appeared before the Court as PW-02 and produced Jamabandi for the year, 1981-82 of khata No. 179 khasra No. 699 (Ex.PW.2/1), according to which, Mst. Shamalo is owner of land measuring 07 kanal 02 marla.
Istiraj attorney of respondent/plaintiff appeared before the Court as PW-03 and supported the contents as narrated in the plaint.
Zarshaid Khan ADK, Swabi appeared before the Court as DW-01 and produced original register of mutation in respect of mutation No. 14434 dated 12.11.1990 (Ex.DW.1/1), according to which, Mst.
Shamalo sold land measuring 04 kanal to petitioner against sale consideration of Rs. 70,000/-. He also produced mutation No. 11833 dated 25.07.1978 (Ex.DW.1/2), mutation No. 12448 dated 16.05.1982 (Ex.DW.1/3), mutation No. 14990 dated 14.10.1993 (Ex.DW.1/4), mutation No. 1169 dated 09.12.2003 (Ex.DW.1/5) , according to which, Mst. Shamalo sold property to various persons including the petitioner.
Muhammad Ishaq Retired Tehsildar appeared before the Court as DW-02 and produced mutation No. 14434 dated 12.11.1990 (Ex.DW.1/1), according to which, Mst. Shamalo sold property measuring 04 kanal to the petitioner against sale consideration of Rs. 70,000/-. This witness has also stated that Madar Khan Girdawar was appointed as local commission, who obtained thumb impression of Mst.
Shamalo along with witnesses on the mutation. According to the report of local commission, Mst.
Shamalo has received the sale consideration privately.
Ameer Bahadar Khan Retired Tehsildar appeared before the Court as DW-03 and stated that according to mutation No. 14990 dated 14.10.1993 (Ex.DW.1/4), Mst. Shamalo sold land measuring 01 kanal to the petitioner against sale consideration of Rs. 19,000/; Fazal Hakeem, Naib Tehsildar appeared before the Court as DW04 and admitted his signature upon mutation No. 1169 dated 09.12.2003, he stated that Mst. Shamalo was owner of land measuring 3 kanal 9-1/2 marla in the column of ownership, who transferred the said property in favour of Amir Muhammad through the aforesaid mutation.
Fazal Rehman Khan D.O.R. appeared before the Court as DW-05 and substantiated mutation No. 1169 dated 09.12.2003; petitioner Amir Muhammad appeared before the Court as DW-06 and stated that the suit property was purchased by him from Mst. Shamalo through various mutations by paying the sale consideration to vendor and after 3/a years of attestation of mutations she died.
This witness in cross-examination has admitted that he himself settled sale transaction with Mst.
Shamalo. On first mutation, Mera Khan and Ibrahim were the witnesses; whereas Abdul Rasheed was the witness of second mutation pertaining to property measuring 1 kanal; while Yousaf and Rajwali were the witnesses of third mutation pertaining to property measuring 3 kanal 9-1/2 marla and the sale consideration was paid to Mst. Shamalo in their presence. In support of this assertion, the petitioner also produced Faqir Muhammad (DW-07), Yousaf Khan (DW-08), Mera Khan (DW-09), Abdul Rasheed (DW-10) and Fazal Akbar (DW-11).
4. The learned trial Court after evaluating the aforesaid evidence and hearing the parties, decreed the suit of respondent/plaintiff vide judgment/decree dated 15.09.2011. The said finding was also affirmed by the learned Appeal Court vide judgment/decree dated 07.05.2012.
5. The learned counsel representing the petitioner has argued that Mst. Shamalo was issueless and during her lifetime, she had alienated the property through ten mutations; however, the plaintiff/respondent had chosen to assail only the three mutations through which the property was purchased by the petitioner. The first mutation was executed on 12.11.1990, the second was executed on 14.10.1993 and the third was executed on 09.12.2003, whereas the suit was filed in the year 2007, which was barred by time, beside, the petitioner, through confidence inspiring evidence, had established the transactions from Mst. Shamalo, therefore, the findings of both the courts below are illegal; hence, the suit was liable to be dismissed.
6. On the other hand, Mr. Muhammad Hamayun Khan, Advocate, learned counsel representing the respondents has argued that the alleged transactions were fraudulent as they were allegedly executed by Mst. Shamalo, who was a pardanasheen lady. Therefore, there was a heavy burden upon the petitioner to have established the said transactions through confidence inspiring evidence, more particularly, the passing of her sale consideration, which the petitioner has failed to establish; therefore, the findings of both the courts below are in accordance with law.
7. Arguments heard and record of the case was perused.
8. It is evident from record that the predecessor of Mst. Shamalo was Dheranay, who was the son of one Chamnay. Chamnay had two sons, Miranay and Dheranay. Miranay was survived by Harood, Shamarood and Marood. Amir Muhammad, the petitioner, is the son of Harood, whereas the suit was filed by his uncle Shamarood, claiming to be the legal heir of Mst. Shamalo, his cousin. The other brother Dheranay had three daughters, Mst. Khan Farosha, Mst. Zar Farosha and Mst.
Shamalo. Mst. Khan Farosha and Mst. Zar Farosha were married, whereas Mst. Shamalo was unmarried, therefore, she had no issues. Mst. Shamalo, during her lifetime, as per the report of ADK, had executed the following mutations: S. No.Mutation number & date of its attestationExhibit NumberArea TransferredName of SellerName of purchaserNames of witnesses of mutations
1. 11833 dated Ex.DW-1/210 marla Mst. ShamaloZaheen PariMira Khan (Lumbardar)
Mastaan 20.07.1978 2.12448 dated Ex.DW-1/303 marla Mst. ShamaloHussain ShahSarmadan Khan (Ahle Commission), Akbar Khan (Lambardar) & another 15.06.1982 3.14434 dated Ex.PW-2/D- 1 & Ex.DW- 1/14 kanal Mst. ShamaloAmir Muhammad KhanMira Khan (Lumbardar ) (DW- 9) & Fazli Akbar Advocate Sheikhjana, Swabi (DW 11) 12.11.1990 4.14468 dated 10 marla Mst. ShamaloAkhtar HussainMira Khan (Lumbardar) & Fazli Akbar Advocate Sheikhjana Swabi 22.04.1991
5. 14471 dated 08 marla Mst. ShamaloGohar BachaFazli Akbar Advocate, Sheikhjana, Swabi & Abdul Qadir s/o Qalandar 07.07.1991 6.14575 dated 10 marlaMst. ShamaloMuhammad HakeemMira Khan (Lumbardar) & Firdous Khan (Lumbardar) 21.10.1991 7.14647 dated 10 marla Mst. ShamaloZaizool s/o MujahidMuhammad Ibrahim (Lumbardar) & Wafadar s/o Muhammad Diyar Khan 20.02.1992 8.14990 dated 14.10.1993Ex.PW- 2/D-2 & Ex.DW- 1/401 kanal Mst. ShamaloAmir Muhammad KhanMuhammad Ibrahim (Lumbardar ) & Abdur Rasheed s/o Umara Khan 9.1169 dated 09.12.2003Ex.DW- 1/5 & PW 1/303 kanal 91/2 marlaMst. ShamaloAmir MuhammadYousaf Khan (DW-8), Raj Mali Khan & Faqir Muhammad (Ahle Commission) DW-7)
9. Out of the aforesaid mutations, Amir Muhammad, the petitioner, had purchased land measuring 8 kanal 9/2 marla through three mutations bearing Nos.14434 dated 12.11.1990, Ex.PW 2/D-1 & Ex.DW- 1/1, 14990 dated 14.10.1993, Ex.PW2/D-2 & Ex.DW-1/4 and 1169 dated 09.12.2003, Ex.PW1/3 & Ex.DW-1/5.
10. Shamarood, the plaintiff/respondent, filed a suit bearing No.94/1 on 17.03.2007, whereby he had chosen to challenge only the alienation of the disputed property by Mst. Shamalo through the aforesaid three mutations to Amir Muhammad. It is alleged in the plaint that Mst. Shamalo, during her lifetime, did not execute the disputed mutations and never received any sale consideration, beside she was a pardanasheen lady.
11. The evidence produced by the parties has been discussed in the aforesaid paragraphs. In support of mutation bearing No.14434 dated 12.11.1990 (Ex.DW-1/1), the defendant has produced the revenue officer who had attested the said mutation as DW-2. The other two witnesses of this mutation are Mira Khan, Lumberdar, and Fazal Akbar, Advocate, who appeared before the court as DW-9 and DW-11 respectively. Muhammad Ishaq, DW-2, who was a revenue officer/retired Tehsildar at the relevant time, has confirmed in his testimony that he had attested the said mutation on report of the Girdawar Circle, who was appointed as a local commission.
According to the commission report, Mst. Shamalo had received the sale consideration of Rs.70,000/- against the property sold.
12. Mutation No. 14990 dated 14.10.1993 was attested by Ameer Bahadar Khan, the then Tehsildar, who appeared before the court as DW-3. According to his testimony, the then Girdawar Circle Kamdar Khan was appointed as a local commission to record the statement of Mst. Shamalo and on the basis of the said report, he had attested the said mutation. Fazal Hakeem, Naib Tehsildar, Topi, who was a Girdawar at the relevant time, appeared before the court as DW-4 in support of execution of mutation bearing No.1169 dated 09.12.2003, whereas Fazal Rehman, DOR, who had attested the said mutation, appeared before the court as DW-5. It is his testimony that mutation No.1169 was attested on the basis of the commission report. The commission was Faqir Muhammad, Lumberdar, who appeared before the court as DW-7 and recorded his statement in support of the said mutation, whereas the other attesting witness Yousaf Khan had recorded his statement as DW8.
13. Under Section 52 of the West Pakistan Land Revenue Act, 1967 ("Act"), presumption of truth is attached to the revenue record notwithstanding the fact that mutation per se is not a document of title, however, if a person has to challenge any mutation on the basis of fraud or misrepresentation, the particulars of fraud and misrepresentation must be provided in the pleading. "Lal Khan through le2al heirs vs. Muhammad Yousaf through lejial heirs", (PLD 2011 SC 657), "Messrs SAZCO (Pvt.) Ltd. vs. Askari Commercial Bank Limited" (2021 SCMR 558), "Aamir Afzal and another vs. S. Akmal (deceased) throujih L.Rs. and 2 others" (2024 SCMR 1649). In the present case, no such particulars have been provided. No doubt that the owner of the property was Mst.
Shamalo, who was a pardanasheen lady and it is settled law that a transaction from a pardanasheen lady has to be established by the beneficiary through confidence inspiring evidence. However, in the present case, Mst. Shamalo had never challenged the said mutations during her lifetime. Therefore, it was the plaintiff's burden to have established that the mutations were attested on the basis of fraud and misrepresentation. The plaintiff even did not bother to appear before the trial court in support of his allegations rather he was represented by an attorney.
In order to establish that Mst. Shamalo had never executed the disputed mutations and she has never received the sale consideration, the plaintiff should have personally appeared before the court and recorded a statement on oath in support of the said allegations. ("Muhammad Rafique and another vs. Sved Warand Ali Shah and others", reported as 2021 SCMR 1068).
14. It is also evident from record that Mst. Shamalo, during her lifetime, had sold her property through nine number of mutations, whereas the plaintiff/respondent had only opted to challenge the transfer of the property in favour of the petitioner which not only appears to be based on malafide but the record would show that Mst. Shamalo, during her lifetime, had sold major portion of her property.
15. The evidence produced by the petitioner in support of his case inspires confidence. Asking the beneficiary of the mutations to establish the transaction with exactitude after a considerable period of time is not appropriate, more particularly, when Mst. Shamalo, during her lifetime, had never challenged the said mutations. The plaintiff was the cousin of Mst. Shamalo, whereas the petitioner is the nephew of the plaintiff and as evident from the evidence that the petitioner is in possession of the said property gives a clear impression that the plaintiff was in knowledge of the said transaction. In my humble view, the impugned judgments/decrees of both the courts below appear to be not only misreading of evidence but the approach of both the courts below were mechanical and they have not objectively assessed the evidence produced by the petitioner before the court. Needless to mention that when the plaintiff himself has failed to discharge the initial burden i.e., the allegation of fraud, then in such circumstances presumption of truth is attached to the revenue record in terms of Section 52 of the Act. Therefore, the findings of both the courts below decreeing the suit of the plaintiff are not maintainable.
16. In view of what has been stated above, this petition is allowed, the impugned judgments/decrees of both the courts below dated 15.09.2011 and 07.05.2012 are set aside and as a consequence thereof, the suit filed by the defendants stands dismissed with no order as to costs.