MUHAMMAD FAISAL KAMAL ALAM, J. The Appellant has challenged the judgment of 30.04.1998 and subsequent decree dated 05.05.1998 passed in FC Suit No. 55 of 1997 instituted by the present Appellant against the above named Respondents.
2. The plaint instituted by the present Appellant contains the following Prayer Clause "a) Declare that the impugned order dated 25.06.1997 passed by the Assistant Collector Grade- I/Assistant Commissioner Ghotki the Defendant No.5 is ab-initio illegal null and void and nullity in the eye of law having no binding force upon the plaintiff b) Declare too that the impugned mutation entries No.144 dated 17. 08. 1991 attested on 22.12.1991 passed by the Mukhtiarkar Ghotki and Mutation entry No.245 dated 12.05.1994 passed by the Mukhtiarkar Khangarh at Khanpur Mahar are illegal and null and void in the eye of law being in clear cut violation and disregard of legal' order dated 17.01.1985 passed by the Mukhtiarkar Ghotki. c) Direct the Mukhtiarkar Khangarh at Khanpur through the mandatory injunction of this Hon'ble Court to revert the disputed Blocks No. 77/1 and 77/2 of Deh Qazi Badal to the extent of 0-50 paisas share to the Khata of the Plaintiff from the Khata of the Defendant No.2.
Restrain the Defendant No.2, his men, person/persons, relatives, friends, associates, agent and attorneys, claiming through or under him through the permanent injunction of this Hon'ble Court to dispossess the plaintiff from the disputed land forcibly and otherwise than by due process of law. e) Award the costs of the suit to the Plaintiff. f) Award any other relief, which this Hon'ble Court may deem just and proper under the circumstances of the case."
3. From the pleadings of the parties, following Issues were framed by the learned Trial Court 1.
Whether the suit of the Plaintiff is maintainable under the law?
2. Whether Plaintiff has sold an area of 4-00 acres from S. Nos. 77/1 and 77/2 to the Defendant No. I for consideration of Rs.5,000/- (Rs: Five Thousands) vide entry No.144 dated 17.08.1991?
3. Whether on 17.01.85 Mukhtiarkar Ghotki while transferring the suit land in Dakhil Kharij Register on the basis of "A" Form had passed the order specifically that the land could not be sold till the presentation of necessary T.O. Form?
4. Whether on 17.08.1991 the Plaintiff was competent to sell any area from S. Nos. 77/1 and 77/2?
5. Whether the transfer of B.Nos.77/1 and 77/2 to the extent of 0-50 paisas share measuring 4-00 acres area by the Defendant No.1 in favour of the Defendant No.2 in favour of the Defendant No.2 is legal and lawful?
6. Whether the sale mutation entries No.144 dated 17.08.1991 attested on 22.12.91 and 245 dated 12.5.1994 kept by the Mukhtiarkar Ghotki and Khangarh are legal and lawful or violative?
7. Whether two sales of the suit land in favour of the Defendant No.1 and Defendant No.2 have been challenged if not so what its effect under the law?
8. What should the decree be?
4. Succinctly it is pleaded by the Appellant that his deceased father Illahi Bux was granted Agricultural Land of 04-00 Acres each in Blocks Nos. 76/2, 77/1 and 77/2, total 12 Acres in Deh Qazi Badal, Ghotki, now Khangarh Mahar, by the Colonization Authority, way back in 1966 on permanent tenure and "A" Form was issued and the land was transferred in the name of deceased father on 17.01.1985, containing an endorsement by the official Respondents/Mukhtiarkar Ghotki that the said land cannot be transferred without issuance of TO Form. The aforementioned land for the reference be called as "Subject Land".
5. Averred that after the death of above Illahi Bux, the subject land was transferred in the name of present Appellant through 'Foti Khata Badal' affected on 22.01.1985. It is claimed that Respondent No.1 (Naimatullah) fraudulently and collusively got transferred 0-50 share of the subject land in Block Nos.77/1 and 77/2 through bogus mutation Entry No.144 dated 17.08.1991 showing the same as a purported sale translation for Rs.5,000/- (rupees five' thousand only), where after the above portion of subject land was further fraudulently transferred to the present Respondent No.2 (Muhammad Ayoub son of Abdullah Khan) through another oral sale transaction and in this regard a bogus Entry No.245 dated 12.05.1994 was kept in the Revenue Record, which when came in the knowledge of Appellant, was challenged before the Land Revenue Authorities/Respondent No.5, though unsuccessfully.
6. It is further averred that during pendency of above Appeal, a Counter Suit No.17 of 1997 for Permanent Injunction was filed by present Respondent No.1 by concealing the fact of pendency of Revenue Appeal and through suppression of fact-an injunctive order was obtained by private Respondent No.2, which was challenged by the Appellant but the appeal was dismissed. In the intervening period, the Appeal preferred by the present Appellant before the Revenue Authority was also dismissed.
7. The learned Advocate for the Appellant has argued that the impugned Judgment has not evaluated the evidence, which resulted in miscarriage of justice. He further contended that purported transaction on the basis of oral statement is otherwise void ab initio and should have been properly considered by the learned Trial Court but apparently the impugned Judgment shows that application of judicial mind is lacking; and such a blatant illegality be set at naught in the present Appeal. He contends that the burden to prove that Appellant has in fact sold the portions of the subject land to private Respondents, lay on them, as they are the beneficiary of the disputed portions, but this material aspect was not considered by the learned Trial Court.
8. Following case law are cited by the Appellant's Advocate in support of his arguments i. 2004 YLR 563 [Lahore] [Muhammad Azam and 3 otters v. Mst. Ayesha] ii. 2004 SCMR 612 [Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others] iii. 2012 MLD 360 [Peshawar] [Mst. Zareena and others v. Jumat Khan and others] iv. 1974 SCMR 356 [Hamid Husain v. Government of West Pakistan and others] v. 1993 SCMR 618 [Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others]
9. The learned Advocate for Respondent No.2 has filed his Written Synopsis containing the case law.
It is contended that Appellant should first exhaust the remedy before the official Respondents/Revenue hierarchy and hence the above Lis filed by the Appellant, was not maintainable and rightly dismissed. Contended that present Appellant has taken contradictory stance in his above suit and the Appeal filed before the Revenue Authorities and hence the sale transaction in favour of both Respondents, are legal and stood proved. With his Written Synopsis, he has also enclosed a Notification dated 23.06.1994, which is also relied upon by the learned Additional Advocate General, whereby certain provisions of the Transfer of Property Act, 1882, are made applicable in the Province of Sindh with effect from 01.07.1994. Learned Advocate for Private Respondent No.2 relied upon follewing case law in support of his arguments i. PLD 1970 Supreme Court 180 [Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another] ii. 1998 CLC 382 [Karachi] [Hawaldar Sawar Khan through General Attorney v. Province of Sindh, Revenue Department through Deputy Commissioner, Shikarpur and 5 others] iii. 1995 CLC 695 [Peshawar] [Arbab Jamshed Ahmad and another v. Ghazan Khan and others] iv. PLD 1985 Rev. 59 [Sindh] [Jial v. Sajjan] v. PLD 1963 (W.P.) Karachi 613 [Muhammad Saleh v. Deputy Commissioner, Tharparkar at ,Mirpurkhas and others]
10. Learned Additional Advocate General for the Assistance of this Court has submitted a copy of Land Grant Policy besides above Notification, and argued that after promulgation of above referred Notification, those provision(s) of the Transfer of Property Act are made applicable, which require, inter alga, that sale transactions should be effected through written instruments.
11. The dispute is with regard to total 04:00 Acres of land out of 12 Acres, which was undisputedly granted to the father of present Appellant, deceased-Illahi Bux. The claim is that private Respondents Nos. 1 and 2 have fraudulently and surreptitiously got transferred the 04:00 Acres land, that is, 50 paisa share from Blocks Nos. 77/1 and 77/2, firstly to Respondent No.1 and then to present Respondent No.2.
12. Written Statement was filed by Respondent No.2/Defendant No.2 (Ayoub), who contested the claim and by Statement, the Respondent No.1 adopted the Written Statement of Respondent No.2.
Although, the claim of Appellant with regard to grant of above subject land to the deceased father and its subsequent transfer to the Appellant has not been disputed, so as the afore-referred ancillary litigation. In the Written Statement, issue of maintainability was raised, but the same has been decided by the learned Trial Court against the Respondents and in favour of present Appellant, which was never challenged in the present Appeal, thus the said finding has attained finality.
13. The pivotal question for determination in this Appeal is that Whether the disputed 4 acres from the Subject Land, was lawfully transferred by the Appellant to Respondent No.1? ii) If the first transaction was not lawful, whether subsequent transaction' in favour of Respondent No.2 is also adversely affected?
14. Exhibit No.33, 'which is the extract of Mutation, shows that subject land was transferred in the name of above deceased father of the Appellant, with a condition that there will be a ban on sale till the issuance of T.O. Form (Transfer Order Form).
15. Exhibit No. 35 is the Deh Form-VII, containing disputed Entry No.144 dated 17.8.1991, whereby purportedly, Appellant had transferred the 04:00 Acres land (disputed land) in Blocks 77/1 and 77/2, to Respondent No.1 (Naimatullah) for a total sale consideration of Rs.5,000/- (rupees five thousand only). The third document is Exhibit No.36, containing subsequent disputed Entry No.245 dated 12.05.1994, whereby Respondent No. 1 transferred the disputed land of 04:00 acres to Respondent No. 2, for a total sale consideration of Rs. 1,60,000 [rupees one lac and sixty thousand only].
16. The impugned Judgment has been examined. Primarily the factor that weighed with the learned Trial Court to dismiss the Suit No.55 of 1997, of present Appellant, was/is that T.O. Form was already issued on 15.06.1991 when the first disputed sale transaction was done, hence the formality was completed and the transaction is held to be a valid one. This finding is regretfully contrary to record, as the fact about non-issuance of T.O. Form by the official Respondents in respect of the disputed land, specifically asserted by the Appellant, could not be disproved. Even the contesting Respondent No. 2 Mohammed Ayuob, did not deny the suggestion that the said T.O. Form was not produced before the Mukhtiarkar, though, he voluntarily stated that it was issued; whereas, Abdul Waheed, the concerned Tapedar, in his cross-examination has admitted that T.O. Form regarding the disputed land "still not received by me".
That official Witness Manzoor Ahmed, who is a Clerk in the Office of Assistance Colonization Officer, Ghotki, has stated that TO Form was issued and in their record the photocopy of the same is available, but the same was never produced in the evidence.
The learned Trial Court has treated the Exhibit-43 as T.O. Form. This document is also considered, which is barely readable. This document is not a T.O. Form, because it is not in the Prescribed Format containing the caption 'T.O. Form' and detail of 'A Form', on the basis of which the Subject Land was granted to the Appellant's late father. Hence, even this observation of the learned Trial Court is baseless.
17. This is the First Appeal and the Appellate Court being the Court of ultimate facts, the evidence available on record has been evaluated.
18. One should be mindful of the basic rule of evidence applicable in such cases, that since mutation entries are disputed, beneficiary of which are the Respondents Nos.1 and 2, hence burden is also on them to prove that such mutation entries in their favour were validly made in the official record by the present official Respondents.
19. Issue No.3, which is reproduced in the foregoing paragraphs has been decided in Affirmative in the impugned Judgment, that the Exhibit-33 contains an endorsement/Note that there will be ban on sale till the issuance of TO Form. This Exhibit-33-a Register of Mutation, contains an Entry in favour of Appellant's father Illahi Bux, dated 17.01.1985.
20. As already discussed in the foregoing paragraphs that it has been proved that the TO Form, that is, Transfer Order Form in favour of the Appellant was not in existence at the relevant time, when the first disputed sale transaction through Entry No.144 dated 17.08.1991 was made in favour of Respondent No. 1. It means the clog on transfer of disputed land was there when the first transaction took place.
21. The Land Grant Policies in respect of agricultural land, placed on record by the learned Additional AG are also examined. The first Notification dated 27.03.1973 by the Land Utilization Department, inter alia, in respect of long-term leases for a tenant for a period of 10 years for agriculture purposes provides that priority is to be given to those persons, who are residents of the locality for a period of 10 years prior to 1st July 1970. Under Paragraph-14 there was an embargo on assigning, subletting or transfer, mortgage or parting with possession with the land. This condition that a person to whom a State Land is to be allotted should belong to the same DEH in which the land applied for is situated, was retained as Condition No. 5 in the Land Grant Policy promulgated vide a Notification dated 07.12.1989, which with some Modification still subsists:
22. One of the witnesses of Respondent No. 2, namely Mohammad Yousif [the brother of Respondent No.2], in his cross-examination has admitted that Respondent No. 1 [Naimatullah] reside at Peshawar, though voluntary stated that in the, year 1991 (when disputed transaction took place) he was residing in Society. The witness further deposed that at the relevant time he was in army but used to come to Ghotki to, supervise the land. He further acknowledged while contradicting his earlier Statement, that said Respondent No.1 was residing in the house of Appellant, being relative of his wife. The Respondent No.1 - Naimatullah was a resident of Peshawar, was also admitted in the cross-examination, by Abdul Waheed, the concerned Tapedar, whose testimony is at page-107 of the Paper Book.
It means that the first disputed transaction is also hit by another Condition of Land Grant Policy, that the purported transferee, viz. Respondent No.1, was not a resident of the same DEH, where the disputed land so also the Subject Land is situated.
23. Private Respondent No.2, who at present is the purported transferee of the disputed land has in his evidence, referred to a Statement of the Appellant allegedly given before the Assistant Commissioner and has been produced by the said Respondent as Exhibit - 50. This Exhibit 50 is at page-89 of the Paper Book and is a Statement dated 25.06.1997 before Assisstant Commissioner, Ghotki, purportedly given by Maseetullah - the Appellant, that he had stated on oath that he has transferred the disputed land in favour of Respondent No.1 - Naimatullah.
However, in his cross- examination, the said Respondent No. 2 had admitted that Appellant was neither identified by any Advocate nor anybody else while recording the afore-referred statement before the Assistant Commissioner, Ghotki. This portion of testimony of said Respondent No.2 contradicts his earlier testimony, wherein said Respondent No.2 had stated that Appellant was identified by his Advocate in the Court of Assistant Commissioner.
Further dent in the evidence of Respondent No.2 is made by the official witness/Abdul Waheed (witness No.14), the concerned Tapedar, who in his cross-examination has deposed that the Appellant did not give statement in writing in the Court of Assistant Commissioner. Earlier in his examination-in-chief, the said official witness had stated that he was present in the Court of Assistant Commissioner, Ghotki, when the afore-referred appeal filed by Appellant was heard.
24. It has also come on record as an undisputed fact that in the proceeding before the Respondent No.5 the Assistant Commissioner Ghotki, the present Attorney, Mst. Yasmeen (wife of Appellant) was representing the Appellant. Secondly, the Order of the Assistant Commissioner, which is an Exhibit-32 (available in the Paper Book) is also perused. It is mentioned in the said Order that Appellant-Maseetullah appeared before the said Respondent No.5 on 25.06.1997 and gave an Statement on Oath. It is not mentioned by the said Respondent No.5 whether on the said date it was a hearing date of the case or the said Appellant himself voluntarily appeared. No case diary of above date was produced by Respondents to corroborate their stance. Thus, this paragraph itself casts serious doubt on the illegality of the Order itself, inter alia, because it is mentioned in the opening paragraph of this Order (by the Assistant Commissioner Ghotki) that Appellant appeared through his Attorney -Mst. Yasmeen.
25. The conclusion is that the above Exhibit-50, on which the private Respondent/transferee has relied upon to strengthen his claim that the disputed land was transferred in favour of Respondent No.1 and then to Respondent No.2, by the Appellant and the said statement/Exhibit 50, which was made basis by the learned Trial Court for dismissing the suit of Appellant, was/is a bogus document and does not carry any legal value.
26. It is to be seen that whether disputed land was transferred in favour of private Respondent No. 1 in accordance with the provisions of the Sindh Land Revenue Act, 1967. Exhibit-33 is an undisputed document, which is a 'Foti Khata Badal', when the entire subject land of 12 Acres was transferred in favour of the Appellant by way of the inheritance. This document is at page-67 of the Paper Book.
Perusal of this document shows that on the reverse/back side (of this document) a Statement is recorded of two independent persons (Masheers), namely, Niaz Muhammad and Abdullah, who stated on oath that the Appellant-Maseetullah is the only surviving legal heir. Left thumb impression of both persons were obtained underneath the Statement, which is of 22.01.1985. It is counter-signed by three Tapedars, viz. of Saleh Mahar, Qazi Badal (where the subject land is situated) and Cantt. As against this the document-Exhibit No.35 [about the first disputed mutation Entry], mentions the fact that a portion of 04-00 Acres from the subject land is transferred by Appellant to transferee-Respondent No. 1, through Final Sale Deed for Rs.5,000/- (rupees five thousand only). There is no independent Statement, signatures or thumb impression of witnesses or that of the Appellant is available in record; neither the same is produced in the evidence by Respondents to corroborate this endorsement/Note contained in respect of disputed Entry No. 144.
Secondly, Subsection (7) of Section 42 of the Sindh Land Revenue Act, 1967, provides that in such cases Mukhtiarkar, inter alias, will intimate, by notice in writing to all such persons, who appear or are believed to be interested in the mutation. Admittedly, no such written intimation is served upon the Appellant and neither the same is pleaded by Respondents in their defence. It means that this basic condition is also violated in respect of the first disputed sale transaction. Thirdly, if the subject land was earlier mutated in the name of Appellant merely through Foti Khata Badal, the entire procedure was completed as discussed above, but when'a part of the subject land, that is, the disputed land, was transferred in favour of Respondent No. 1, the record is silent about completion of any procedure. The entire sale transaction is shrouded in mystery and cannot be termed as valid and genuine sale transaction. In this regard, Respondents Nos. 1 and 2 have failed to discharge the onus about their claim that the disputed land was lawfully purchased and transferred.
27. The second important factor in such type of sale transaction is the handing over of possession against a valid consideration. The Appellant, who was represented by his wife Mst. Yasmeen Saeed, herself deposed. She has made a specific assertion that possession of the disputed land never remained either with Respondent No.1 or 2. In her cross-examination, she could not be contradicted on this material aspect of her deposition.
28. Fact of the matter is that there is a period of three years between the two disputed transactions; firstly, in favour of Respondent No.1 vide Entry No.144 dated 17.08.1991 and subsequently in favour of Respondent No. 2 vide .Mutation Entry No.245 dated 12.05.1994. No supporting evidence is led by Respondents to show that after recording of first mutation entry in favour of Respondent No.1, he was handed over possession of the disputed land of four acres. The record shows that possession of Respondent No.2 was recorded in a Report of Commissioner dated 10.12.1997, at page-93 of the Paper Book, which was prepared after the site inspection was done on the orders of this Court in earlier round of litigation between the parties. This Report has been carefully considered and though it does state that, the possession rests with Respondent-Ayuob, but at the same time it is also mentioned that 'although it is not known when and how he obtained it'. No objection to this Commissioner's Report was preferred by either party. The evidence of the Appellant, that possession was forcefully taken by Respondent No.2 before the above Inspection, could not be falsified by the Respondents, in her cross-examination.
29. The concerned Tapedar in his evidence has stated that since 1994 Respondent No.2 is paying the revenue dues, but to a specific question he showed his ignorance that prior to year 1994 he has no knowledge about the payment of revenue dues. The logical conclusion is, that if the Respondent No.1 had purchased the disputed land through due process and was given a valid possession of the same, then he would have started paying the dues after obtaining cultivating possession of the disputed land, but since the transaction itself is bogus, thus there is no record that Respondent No.1 was paying cess/dues after 1991; because no lawful possession was handed over to Respondents and the same was obtained through illegal means by both the Respondents 1 and 2.
30. The conclusion of the above discussion is that the Respondents have miserably failed to prove that the disputed land was sold/transferred by the Appellant to Respondent No.1 and subsequently by the latter to Respondent No.2, after following a due process. Consequently, point of determination No.1 is answered accordingly, that the disputed land of four acres was never sold/transferred by the Appellant to the private Respondent.
31. In view of the above finding on the point for determination No.1, it is further held that since the first sale transaction was void ad initio and nullity in the eyes of law, dismissal of Revenue Appeal by the Assistant Commissioner, Ghotki will not improve the case of Respondent No. 1.
32. Gist of the case law relied upon by the Respondent No.2 is that a suit would be maintainable in special circumstances even without availing the departmental remedy. However, in this reported case of Sarwar Khan (ibid), the plaint was earlier rejected, which order was maintained in the revision. Presumption of genuineness is attached with Mutation entries, but at the same time is rebuttable presumption. In the cited case of Arbab (supra) since sale transaction was admitted by the Vendor; mutation in favour of transferee was upheld; this case law is completely distinguishable from the facts discussed above, because in the present case, neither any sale transaction has been proved by the Respondents nor any official documents is produced from the revenue record showing/containing the statement of Appellant about transfer of disputed land in favour of Respondent No. 1. In the case of Jalal v. Sajjan (ibid), which is a decision by the Member Board of Revenue, it is held that once the price is fully paid then the prerequisite of the TO From before alienation will not apply. Again this reported case is not binding on this Court, even does not have persuasive value and is distinguishable, Inter alia, as in the present case it is not only the case of non-issuance of TO Form, but a mandatory requirement under Section 42(7) has been violated by the Respondents; besides, no evidence is brought on record that the alienation/purported transfer in favour of Respondent No.1 by Appellant was duly made. The reported decision of learned Division Bench of this Court in the Saleh Case (ibid), is also distinguishable, because in the present circumstances even if the remedy as provided in the revenue hierarchy was not exhausted, yet the suit was maintainable, in view of the above discussion; besides, correctly held by the learned Trial Court, which finding was never challenged in the appeal and thus attained finality. Conversely, the Decision of Hon'ble Supreme Court handed down in Jan Muhammad Case (supra) cited by the Appellant's counsel is relevant here. Respondents (of the reported case) claimed to have been deprived of their right of inheritance through the impugned mutation entry and they alleged that the same was made by exercising fraud. Parties (of the reported case) agitated their claim before the Revenue Authorities but the Respondents also filed their Declaratory Suit and the Objections in this regard was overruled and it was held that Civil Court being a Court of plenary jurisdiction can adjudicate the question of fraud as agitated by one of the parties.
33. Conclusion of the above discussion is that since the first transaction in favour of Respondent No.1 is a nullity in the eyes of law, hence the entire edifice has to be crumbled. Consequently, Point No. 2 for determination is also answered in Affirmative and against the Respondents Nos. 1 and 2.
34. The upshot of the above discussion is that the learned Trial Court has miserably failed to evaluate the evidence, did not consider the provisions of law and without application of judicial mind, has wrongly dismissed the suit of present Appellant. Consequently, the decision of learned Trial Court is set-aside and this Appeal is allowed, inter alia, the suit of the Appellant is decreed to the extent of Prayer Clauses "b", "c", "d", and "e". All pending applications are disposed of.