SHAHID BILAL HASSAN-J: Succinctly, the respondents No.1 to 4 instituted a suit under sections 39 & 42 of the Specific Relief Act, 1877 alongwith consequential relief, contending therein that they purchased land measuring 117 Kanals 17-Marlas from one Mehboob Elahi son of Mian Muhammad Akram vide sale deed No.449 registered on 19.10.1988 for a consideration of Rs.2,400,000/-; that after purchase, the possession of the land was delivered to them at the site; that a mutation for sale on the strength of the said sale deed at Sr.No.1057 of the register of mutations pertaining to village Ghazipur, Tehsil Ferozwala District Sheikhpura and the same was sanctioned in favour of the respondents on 27.12.1988. However, the said sale was pre-empted by Iftikhar Ahmad, respondent No.5. Simultaneously, Sheikh Faqir Ullah son of Mian Muhammad Aslam of Sharaqpur Sharif also instituted a suit for possession through pre-emption against the respondents No.1 to 4. During pendency of both the suits, both the pre-emptors opted for the suit land against the payment of Rs.2,400,000/- and persuaded the respondents No.1 to 4 that the suit for pre-emption be decreed for a consideration of Rs.2,400,000/-. Later on, due to the change of law of preemption, both the pre-emption suits were likely to fail. Iftikhar Ahmad, respondent No.5 alongwith other, therefore, approached the respondents No.1 to 4 and offered to purchase the disputed land for a consideration of Rs.2,400,000/- outside the Court and the bargain was struck, a token money of Rs.160,000/- was received by the respondents No.1 to 4 and respondent No.5 persuaded the respondents No.1 to 4 to put their respective signatures on blank papers as well as certain other papers with the assurance that the sale shall be reduced into an agreement. Allegedly, Iftikhar Ahmad, respondent No.5, being sitting Member of Punjab Assembly, belonging to ruling party was a resourceful and influential person at that time. He after procuring the signatures of respondent No.1 to 4 over number of blank papers and certain printed proformas and stamp papers withdrew his suit for possession through pre-emption regarding the disputed land. Respondents No.1 to 4 requested him repeatedly to pay the remaining sale amount and get the sale deed executed and registered in his favour but the respondent No.5 postponed the matter. Meanwhile, respondent No.5 and his accomplice Muhammad Anwar son of Fazal Din and Khairat son of Abdullah took forcible, illegal an unauthorized possession of the disputed property with ulterior motive and nefarious designs during month of November 1989. Respondents No.1 to 4 called upon Iftikhar Ahmad to restrain alongwith his accomplice from the above act but they were made to wait. Respondents No.1 to 4 instituted suit for redressal of their grievance and restoration of possession of the suit land which was decreed in their favour and against respondent No.5 etc. on 13.03.1991 by the learned trial Court. Respondents No.1 to 4 filed execution petition on 27.07.1991 and the learned executing Court called upon respondent No.5 and others to submit their reply. At that stage, Iftikhar Ahmad respondent No.5 broke the news that he suit land had been transferred to his brother Roshan Iqbal, the present petitioner but did not disclose the nature of transaction. Iftikhar Ahmad, respondent No.5, later on filed application under Order IX, Rule 13, Code of Civil Procedure, 1908 on behalf of Khairat son of Abdullah and also got filed application under section 47, Code of Civil Procedure, 1908 on behalf of the present petitioner, challenging the jurisdiction and authority of the executing Court. Application under section 12(2), Code of Civil Procedure, 1908 was also got filed by respondent No.5 against the respondents No.1 to 4 wherein it was disclosed for the first time that the suit land had been transferred in favour of Roshan Iqbal, the present petitioner, vide mutation No.1173 dated 11.07.1990 in exchange of land measuring 147-Kanals 12-Marlas owned by the present petitioner, situated at Khewat No.63 of village Rorha, Tehsil Ferozewala and mutation No.168 dated 17.07.1990 was attested in this regard. Entry of this mutation of land of village Rorha in favour of respondents No.1 to 4 and of course entry of mutation No.1173 dated 11.07.1990 of the disputed land had been result of fraud, forgery, misrepresentation, undue influence, without appearance of the respondents No.1 to 4 and without any consideration. These mutations of exchange had been attested without any authority and the same were result of misrepresentation, undue influence, want of consideration and were illegal, unlawful and void ab initio. Respondents No.1 to 4 asked the present petitioner and respondent No.5 not to claim anything in respect of land of respondents No.1 to 4 and not to pose themselves to be owners of the land in disputed but they did not submit to their rights. Possession of the suit land was not transferred under mutation of exchange No.1173 dated 11.07.1990. Respondents No.1 to 4 did not take possession of the alleged exchanged land as the same was lying with the present petitioner. Respondents No.1 to 4 came to know after inquiry that respondent No.5 as MPA of ruling party prevailed upon the revenue field staff as well as the office of ADBP Sharaqpur Branch to enter mutation No.1172 dated 11.07.1990 about redemption of suit land which had been mortgaged with the ADBP and the consequent mutation of exchange. The respondents No.1 to 4 contended that they were being harassed and threatened and the present petitioner and respondent No.5 refused to admit their rights; hence, the suit.
2. The present petitioner and respondent No.5 contested the suit by submitting separate written statements and while controverting the averments of the plaint prayed for dismissal of the suit. The divergence in pleadings of the parties was summed up into issues and evidence of the parties in pro and contra was recorded.
3. On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 08.12.2006 decreed the suit in favour of the respondents No.1 to 4 and against the present petitioner and respondent No.5. Appeal was preferred by the petitioner which was accepted on 22.12.2010 and suit of respondents No.1 to 4 was dismissed. The respondents No.1 to 4 preferred R.S.A. No.46 of 2011, which was accepted with the consent of the learned counsel for the parties on 20.05.2014 and while setting aside the judgment and decree dated 22.10.2010 passed by the learned appellate Court, remanded the case to the learned appellate Court for decision of appeal afresh. After remand, the learned appellate Court heard the parties' counsel and vide impugned judgment and decree dated 02.07.2014 dismissed the appeal preferred by the present petitioner; hence, the instant revision petition.
4. Learned counsel for the petitioner has argued that the impugned judgments and decrees are against law and facts of the case; that the learned courts below have failed to discuss evidence on record especially when the respondents No.1 to 4 have failed to discharge the onus placed on their shoulders; that the learned Courts below have appreciated evidence in a slipshod manner and overlooked the admissions made by the respondents No.1 to 4 in the course of evidence regarding the exchange deed; that the impugned judgments and decrees suffer from misreading and non- reading of evidence; that it is a settled law that evidence beyond pleadings cannot be considered being inadmissible and when allegation of undue influence, fraud and forgery was not attributed to the present petitioner in pleadings rather to the brother of the petitioner i.e. respondent No.5, who has nothing to do with the matter in hand, the evidence in respect of fraud and undue influence against the present petitioner cannot be considered; that the evidence of D.W.6 has been misread by the learned appellate Court; that there are material contradictions in evidence of the respondents No.1 to 4 but the same have been overlooked; that the suit was also bad because no possession was sought for because the possession of the suit land was with the petitioner and not with the respondent No.5 from the date of attestation of the exchange mutation as is evident from Khasra Girdawri Ex.D/34 and the respondents No.1 to 4 are in possession of the exchanged property, photocopy of Khasra Girdawri was produced on record in this regard but the same was overlooked; that revenue officer and officials appearing as D.Ws. have supported the stance of the petitioner and no ill-will or enmity was attributed to them therefore, there evidence was an independent piece of evidence but the same was discarded for no reason by the learned Courts below while passing the impugned judgments and decrees; that material illegalities and irregularities have been committed by the learned Courts below while have resulted in miscarriage of justice; therefore, the impugned judgments and decrees are not sustainable in the eye of law.
The same may be set aside by allowing the revision petition in hand and suit of the respondents No.1 to 4 may be dismissed with costs throughout.
5. Naysaying the above said submissions, the learned counsel, representing the respondents No.1 to 4, has, by supporting the impugned judgments and decrees, concurrent in nature, prayed for dismissal of the revision petition in hand.
6. Heard.
7. Article 117 of Qanun-e-Shahadat Order, 1984 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on existence of facts which he asserts, must prove that those facts exist. Moreover, Order VI, Rule 4 of the Code of Civil Procedure, 1908 enunciates that, 'in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items necessary) shall be stated in the pleadings.' However, in the case in hand, the respondents No.1 to 4 could not substantiate the stance taken up in the plaint and could not chain the links of alleged fraud and misrepresentation because the same was pleaded against the respondent No.5 and not against the present petitioner, who is beneficiary of the exchange mutation; therefore, any evidence led by the respondents No.1 to 4 pertaining to fraud, purportedly committed by the present petitioner, cannot be considered being inadmissible as the same was not pleaded in their plaint because a party cannot go beyond its pleadings as has been held in judgments reported as Sh. Fateh Muhammad v. Muhammad Adil and others (PLD 2008 SC 82), Hyder Ali Bhimji v.
Additional District Judge Karachi South and another (PLD 2012 SC 279) and Muhammad Aslam and others v. Muhammad Anwar (2023 SCMR 1371). Furthermore, the respondents namely Nazar Muhammad and Muhammad Ahmad, while appearing in the witness box as P.W.3 and P.W.4 have categorically admitted, during cross examination, that the disputed exchange mutation No.1173 bear their signatures and thumb impressions of their brothers and they did not agitate or protest at the time of attestation of the disputed mutation and even they did not move any application before the competent authority for initiation of proceedings against the present petitioner and respondent No.5 for purported fraud, forgery and misrepresentation, which shows that they were satisfied with the transaction at the relevant time. P.W.3, during cross examination, deposed that after taking of possession by the petitioner and respondent No.5, the respondents No.1 to 4 did not pay Abiyana. This witness further deposed that they did not institute suit for recovery of mesne profit and share of produce and also did not interfere in possession of the petitioner. Had the possession over the disputed property been made by the petitioner otherwise that in pursuance of exchange mutation, the respondents No.1 to 4 would have agitated the matter before any forum but no such exertion was ever made by them and even at the time of attestation of exchange mutation they did not protest. Even P.W.4 during cross examination admitted that they (three brothers) and 3/4 other persons went for the purpose of mutation No.1173, which speaks volume and proves the stance of the petitioner that the exchange mutation No.1173 was validly entered and executed and the respondents No.1 to 4 voluntarily exchanged their land with the land of petitioner.
In judgment reported as Abdul Ghafoor and others v. Muhammad Murad and others (2022 CLC 1713), it has been held that:- '8. Admittedly the suit land was mutated in the record of rights in the names of respondents/ defendants at the time of final attestation. The petitioners/plaintiffs had raised no objection. There is no evidence on record that the petitioners/ plaintiffs were not present at the time of final attestation. Under section 52 of the West Pakistan Land Revenue Act, 1967 (Act 1967) the mutation carries presumption of truth.'
In addition to the above, it is not the case of the respondents No.1 to 4 that they are illiterate persons and do not know the pros and cons of the transaction rather it is admitted on record that P.W.4 was serving as Hawaldar at that time and his brother namely Ishaque, who executed general power of attorney in favour of P.W.4, was serving in rangers. When the position is as such that the respondents No.1 to 4 have failed to discharge the initial burden of proving alleged fraud, forgery and misrepresentation, the burden of proving the valid execution of exchange mutation was not shifted upon the petitioner.
8. However, the petitioner produced D.W.1-Abdul Ghaffar, Bill Clerk, D.W.2 Naseer Ahmad Malik, Manager ADBP, D.W.3 Shakil Tariq, Registry Moharrir, D.W.4 Mubarak office Qanoongo, Tehsil Ferozwala, who produced Part Sarkar of mutation No.1173, D.W.5 Safdar Ali Patwari, who produced Part Patwar of mutation No.1173, D.W.6 Nazeer Ahmad, who is Pattidar in Ghazipur who supported the stance of the petitioner that the respondents namely Nazar Muhammad, Muhammad Ahmad and Liaqat Ali came for exchange mutation [(No. 1173 (Ex.D1)] in the office of Patwari in his presence and he also deposed that on 11.07.1990 Naib Tehsildar Bashir Ahmad Bhatti came in the village in his presence, where 40/50 other persons were also present and Nazar Muhammad, Muhammad Ahmad, etc. on query made by Naib Tehsildar admitted the exchange mutation and change of possession of the exchanged land. This witness negated the suggestions that Nazar, Liaqat and Muhammad Ahmad, did not appear either before Bashir Bhatti or any other revenue officer and also negated the suggestion that the said person did not appear before Ishaque Patwari for incorporating the mutation rather under influence of Iftikhar Bhango affixed their thumb impressions. D.W.7 Muhammad Nawaz also supported the stance of the petitioner as well as deposition of D.W.6. Ishfaq Ahmad, son of Muhammad Ishaque (Patwari) appeared as D.W.8, who deposed that Muhammad Ishaque Patwari was his father, who died on 1st July, 1997 and he was posted as Patwari in the year 1990 at Ghazi Pur. D.W.9 Jamal Din, Naib Tehsildar produced original Part Sarkar of mutation No.168, which was incorporated in the Register Haqdaran Zameen for the year 1990-91. D.W.10-Muhammad Aslam Patwari, who was posted as Patwari Halqa Rohra in July 1990 and this witness deposed that mutation No.168 was entered by him, which was got entered by Roshan Iqbal, Nazar Muhammad, Muhammad Ahmad and Liaqat Ali. Naib Tehsildar called him with record and he produced the same at Ghazi Pur where Muhammad Ishaque Patwari, Naib Tehsildar Bashir Ahmad Bhatti and Muhammad Idrees Qanoongo were present. The contents of mutations were read over to Roshan Iqbal, Nazar Muhammad, Liaqat Ali and Muhammad Ahmad and after inquiry the revenue officer sanctioned the mutations. D.W.11-Iftikhar Ahmad is landlord of the area, who deposed that Roshan Iqbal purchased plants of guava for plantation on his land measuring 13-Killas. D.W.12 Bashir Ahmad Bhatti, who was Naib Tehsildar at the relevant time of Sharaq Pur Sharif and he deposed that he validly sanctioned Ex.D1 and Ex.D2 after thorough inquiry from the parties and during cross examination he remained unscathed and affirmed his deposition on oath.
D.W.13-Noor Ahmad is contractor, who constructed Dairy Farm on the exchanged property on the asking of Roshan Iqbal, the present petitioner. D.W.14-Muhammad Zubair deposed about visit of Naib Tehsildar on 11th July, 1990. This witness is son of Ch. Karamat and grandson of Jalal Din. His father has died, who was attesting witness of the disputed mutation and on the asking of this P.W. his father told him about the exchange transaction. D.W.15-Mansha son of Muhammad alias Malla, who deposed that he is cultivating 2 1/2 acre land at Mauza Rohra, which has been received by him from Nazar and Ahmad on the share of produce basis. He deposed that Nazar, etc. have 18 1/2 acres of land and remaining half land is being cultivated by Nazar, etc. Through this witness, it has been established by the petitioner that respondents No.1 to 4 are in cultivating possession of the exchanged land. D.W.16-Faqir Muhammad deposed that he has land in Ghazi Pur and his father was ancestral owner in the area. His father died in the year 1988 and he became owner in 1989. This witness deposed that he has seen the disputed property which is in possession of Roshan Iqbal since 1990, which was exchanged by him with Nazar, Ahmad, Liaqat and Ishaque. D.W.17-Sakhawat Ali, who is witness of visit of Naib Tehsildar and he deposed that he was present there when exchange mutations were sanctioned. Muhammad Afzal Manager NBP has been produced as D.W.18 who deposed about the statement of accounts of Liaqat Ali son of Haji Barkat Ali by producing the same as Ex.DW18/2. He deposed that on 23.06.1990 Rs.550,000/- were deposited in PLS Acctt.N.1425-8. D.W.19-Haji Iftikhar Ahmad (respondent No.5) who deposed that he has nothing to do with the disputed land and also negated the allegations of undue influence and pressure upon the respondents No.1 to 4/plaintiffs for obtaining their signatures on blank papers. Roshan Iqbal, the present petitioner appeared as D.W.20 and deposed in line with his written statement and during cross examination upon D.W.19 and D.W.20, the learned counsel for the respondents No.1 to 4 could not shatter their standing rather they both affirmed their depositions and remained unscathed despite cringe-making questions put to them during cross examination. Even if it is admitted that certain shortcomings and contradictions took place in the depositions of the D.Ws. the same are natural and are not too fatal to disbelieve the same. Even otherwise, the party (in the present case, the respondents No.1 to 4) has to stand on its own legs and any shortcoming or discrepancy in the evidence of the rival party cannot extend benefit to the other party. In the present case, as discussed above, the respondents No.1 to 4 have failed to discharge the initial burden and they have also failed to show any ill-will and mala fide on the part of the revenue officer and officials, who are independent witnesses and have supported the stance of the petitioner, which prompted them to depose against the respondents No.1 to 4/plaintiffs.
9. Pursuant to the above, it is observed that the learned Courts below have failed to adjudicate upon the matter in hand by appreciating law on the subject; therefore, the Courts below have misread evidence of the parties and when the position is as such, this Court is vested with authority and ample power to undo the concurrent findings while exercising revisional jurisdiction under section 115, Code of Civil Procedure, 1908, as has been held in Nazim-Ud-Din and others v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24), Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630), Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001) and Habib Khan and others v. Mst. Bakhtmina and others (2004 SCMR 1668).
10. The crux of the discussion above is that the revision petition in hand succeeds and the same is allowed, impugned judgments and decrees are set aside, consequent whereof the suit instituted by the respondents No.1 to 4 stands dismissed. No order as to the costs.