ASIM HAFEEZ, J. This Civil Revision is directed against concurrent decisions, whereby, suit for declaration and perpetual injunction, instituted on 07.05.2010 by one Muhammad Shafi (respondent No.1), now represented through legal heirs, was decreed by the trial court vide judgment dated 05.05.2014, which decision was affirmed by the Appellate court through its judgment dated 07.11.2014.
2. Facts of the case are simple. Muhammad Shafi, owner of the suit property, sued for seeking declaration of invalidity against various Mutations, bearing Nos. 880, 881, 883 dated 30.06.1998 and No.893 and 894 dated 20.08.1998, pursuant to the recordings done on the register - Roznamcha- waqiati. Case of respondent No.1 was that he neither negotiated alleged transactions of sale and nor facilitated recording of details on Roznamcha-waqiati or had executed impugned mutations.
Claim was contested by the petitioner and beneficiaries thereof; latter are arrayed as pro-forma respondents. Issues were framed and evidence recorded. Upon conclusion of trial suit was decreed. And appeal preferred by the petitioner was dismissed. Hence, this Civil Revision.
3. Learned counsel for the petitioner primarily agitated question of limitation - during arguments emphasis was on applicability of Article 91 of the Limitation Act 1908 ('Act') and while submitting written submissions it was pleaded that even the lis instituted was beyond the limitation prescribed under Article 120 of the Act. It is explained that mutations impugned were executed in or about summer of 1998 [variously on 30.06.1998 & 20.08.1998], which were initially challenged by Muhammad Shafi through first suit, instituted on 22.03.2007, which was withdrawn on 10.04.2010 with permission to file fresh suit. And subsequent suit was filed on 07.05.2010. It is emphasized that second suit was beyond the period of limitation prescribed under Article 91 of the Act, if date of knowledge is reckoned from 22.03.2007 - date on which first suit was filed. Adds that Article 91 of the Act would otherwise apply to the case(s), where cancellation(s) of voidable transactions was sought - context being acknowledged transactions and execution of mutations. It is emphasized in written submissions that even Article 120 of the Act, extends no support to legitimize a time barred claim - since mutations were executed in June - August 1998 and period of limitation had to be reckoned therefrom. Adds that non-appearance of Shafi Muhammad as witness suggests adverse inference - instead his daughter appeared as PW-1, being his attorney. Reference is made to following decisions; "BIBI SAKINA and 7 others Vs. Haji Asmatullah and 2 others" (2012 YLR 1454), "Abdul Zahir Vs. Khuda-e-Dad and others" (2016 YLR 188), "Mst. Rabia Gula and others Vs. Muhammad Janan and others" (2022 SCMR 1009), "Ashiq Muhammad and others Vs. Mst.
Suhagan" (2023 SCMR 1171), "Rasool Khan and 5 others Vs. Fazal Wadood and 15 others" (PLD 2021 Peshawar 8), "Mian Muhammad Amin and another Vs. Mst. Khursheed Begum alias Naseem Begum through legal heirs" (PLD 2006 Lahore 371), "BIBI MOASHARA Vs. SAHIB JAN and 10 others" (2020 MLD 491), "Wahid Bakhsh and another through legal heirs Vs. Ghulam Muhammad through legal heirs" (PLD 1990 Lahore 193).
4. Conversely, learned counsel for respondent No.1 submits that mutation is not an instrument for the purposes of attracting Article 91 of the Act, hence, Article 120 of the Act is applicable. Adds that suit was instituted within six years of the accrual of cause. Adds that no contrary evidence was brought on record to substantiate that suitor had previous knowledge of mutations. It is argued that while filing previous suit, knowledge alleged was on 17.03.2007, and when reckoned from said date suit is within prescribed period of six years. Further submits that respondent No.1 had filed suit under section 42 of the Specific Relief Act 1877, seeking declaration qua the proprietary rights in the property against void transactions - not negotiated. Following decisions are cited, "Mst. Hamida Begum Vs. Mst. Murad Begum and others"(PLD 1975 Supreme Court 624), "Mst. Hameeda Bibi and 3 others Vs. Ch. Atta Ullah, Advocate" (PLD 1998 Lahore 183), "Abdur Rehman and others Vs. Maskeen and others" (2001 CLC 1298), "Fida Hussain and others Vs. Abdul Aziz" (PLD 2005 Supreme Court 343), "Zaffar Ullah Khan and others Vs. Abdur Rehman and others" (1985 MLD 1574), "Khalid Hussain and others Vs. Nazir Ahmad and others" (2021 SCMR 1986), "Mst.
Makhmuran Vs. Mst. Arzumana and others" (1972 SCMR 629).
5. Heard. Record perused and written submissions examined.
6. Both the courts had decided issue of limitation against the petitioner - notably no evidence was brought on record to substantiate knowledge qua impugned mutations, before 07.03.2007 - when knowledge qua impugned mutations was alleged in the first suit. Plaint depicts that declaration, based on proprietary rights in the property, was claimed and invalidity of mutations was sought as part of declaration. Respondent No.1 had denied carrying of sale transactions, payment of consideration and consequent execution of impugned mutations - seemingly it was claimed that transactions, subject matter of impugned mutations, are void and not voidable, simplicitor. Title of respondent No.1 is not disputed. Hence, suit was for declaration substantially and not specifically for seeking cancellation of mutations.
7. Is lis barred by limitation? Some facts need sharper focus. Previous suit was instituted on 22.03.2007, for and on behalf of respondent No.1, by his daughter, claiming that respondent was Fatir-ul-Aqal (state of mind characterized by lack of sound judgment or state of insanity) - plaint is Exhibit P-17, wherein alleged knowledge of impugned mutations was statedly acquired on 07.03.2007. First suit was withdrawn on 10.04.2010 on the ground that respondent No.1 regained sanity / senses, as a consequence of medical treatment. No contrary evidence was led on behalf of the petitioner to show that respondent No.1 had knowledge of alleged mutations even before 07.03.2007. It is not disputed that first suit was withdrawn on 10.04.2010 on the premise that respondent No.1 regained sanity, if that is so why not the cause of action would commence from 10.04.2010, upon gaining sanity, when, in-particular, no contrary evidence is available to dispute this fact. It appears that multiple causes of action are available and even if cause of action is taken from 07.03.2007, pleaded as the date of having knowledge of impugned mutations, still suit was within six years, and Article 120 is attracted.
8. Analysis that why Article 91 of the Act is not attracted? Mutation is not an instrument in the context of Article 91 of the Act. Mutation records the effect of change in the ownership in fact caused by virtue of a legal transaction, effected through written document for the purposes of Article 91 of the Act. Mutation is not the document of title but evidence thereof. Mutation in-fact embodies a transaction and an effect extended thereto for the purposes of revenue record. In essence Mutation is the progeny, cause and effect of the transaction(s) and not predecessor thereto. Aforesaid attribute(s) of Mutation(s) is a settled proposition of law and no tweaking is required. Reference is made to the case of Fida Hussain V. Abdul Aziz (PLD 2005 Supreme Court 343) and the case of Privy Council Appeal No.23 of 1924, titled, Thakur Nirman Singh and others vs. Thakur Lal Rudra Partab Narain Singh and others, (AIR 1926 P.C. 100) observations at paragraph 20 thereof are reproduced hereunder as;
20. The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh, at page 482 of the Record, leads their Lordships to think that its judgment is to great degree based on the mischievous but persistent error that the proceedings for the mutation of names is a judicial proceeding, in which the title to and the proprietary rights in immoveable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immoveable property may be put into occupation of it with the greater confidence that the revenue for it will be paid.
[Emphasis supplied] Hence, Mutation is not an instrument and Article 91 of the Act is not attracted to this case.
9. There is another aspect of the matter. Facts alleged depict that declaration was sought against void and unenforceable transaction(s) of sale, which transactions, in wake of denial, are not classifiable as voidable transactions under the scope of sections 19 & 19-A of the Contract Act 1872 - factum of extending consent to alleged transactions and execution of mutations in the first place was not alleged. Since declaration, being the primary and fundamental relief, was sought therefore section 42 of the Specific Relief Act 1877 and not the section 39 thereof is attracted.
10. Declaration of rights, allegedly prejudiced upon execution of mutations, was sought and that is within six years of the accrual of case of action - bringing Article 120 in focus. Case-laws cited by counsel for the petitioners are distinguishable, primarily on two counts; firstly, Article 91 of the Act is not attracted, - mutations are not the instruments. And secondly, transactions impugned were void and not voidable - attracting Article 120 and cause would accrue from 07.03.2007 - which brings suit within six years. Case of Abdul Zahir Vs. Khuda-e-Dad and others (supra) contained no discussion that whether mutation is an instrument for the purpose of Article 91 of the Act - and in that case one of the issues framed was whether rights claimed under section 42 of the Specific Relief Act 1877 are claimable, contrary to this case where title of respondent No.1 is not disputed.
Case of BIBI SAKINA and 7 others Vs. Haji Asmatullah and 2 others (supra) is inapplicable, wherein no discussion is found that whether mutation qualified as an instrument for the purpose of Article 91 of the Act. Case of BIBI MOASHARA Vs. SAHIB JAN and 10 others is not applicable because in the case at hand suit was filed within six years of accrual of case of action. Case of "Rasool Khan and 5 others" (supra) is distinguishable in wake of filing of suit within the scope of Article 120 of the Act. Case of "MIAN MUHAMMAD AMIN and another" is not attracted on the premise that respondent No.1 had sought declaration and not cancellation, as primary relief. Case of "Wahid Bakhsh and another through legal heirs" is not applicable because instant suit was filed within prescribed period of limitation.
Conversely ratio settled in the case of Khalid Hussain and others V. Nazir Ahmad and others (2021 SCMR 1986) is applicable and respondent No.1 had rightly sought declaration against void transactions.
11. On merits, evidence of official witnesses is not convincing enough to dislodge allegations of fraud and deception exercised for procuring execution of impugned mutations regarding underlying transactions of sale. Petitioner failed to prove underlying transactions, payment of consideration, recording of Roznamcha-waqiati and execution of mutations - aforesaid requirements become more pressing in the context that respondent No.1 was an illiterate person, who, admittedly, was not accompanied by any of his relative at the time of noting on Roznamcha- waqiati and execution of mutations. Proof of possession, delivered or acquired pursuant to claimed transactions, is an equally important relevant fact - respondent No.1 claimed that possession of the land was with their lessee(s) and this was controverted by the petitioner, who were required to prove delivery of possession in context of alleged transactions. Petitioner produced uncertified copies of Khasra Girdawari's through statement of counsel after completion of evidence and cross examination of the witnesses produced, which are inadmissible in evidence. Even otherwise the official witnesses were produced but copies of Khasra Girdawari's were not produced through them. This suggests an adverse inference, supposedly in absence of any contrary / rebuttable evidence. Case of "Mst. Rabia Gula and others" (supra) is distinguishable because in instant case petitioner failed to prove that possession was delivered pursuant to alleged transactions of sale or upon being mutated. Case of Ashiq Muhammad and others" (supra) is not applicable since petitioner failed to prove acquisition of possession in lieu of or pursuant to the disputed transactions.
12. There is another demerit of petitioner's case. Petitioner alleged execution of agreement to sell of 04.05.1998, purportedly a precursor arrangement to the recording of details in Roznamcha-waqiati and execution of mutations. Payment of consideration under said agreement was not proved - DW-8 admitted that no payment was made under the agreement. Relevantly, lawfulness of the agreement and exchange of consideration thereunder are relevant facts, which go against the petitioner. Once underlying transaction was not proved, simplicitor, impugned mutations are ineffective and insufficient to refute the title of the respondent No.1. This manifest terminal failure on the part of the petitioner. I find no illegality in concurrently passed decisions, therefore, exercise of revisional jurisdiction is unwarranted and declined.
13. Instant Civil Revision is devoid of merits and same is, hereby, dismissed. No order as to the costs.