' This is second appeal from the judgment of learned Ist Additional District Judge, Sukkur, dated 30th October, 1974 in Civil Appeal No, 63 of 1971, whereby he had affirmed the judgment and decree of Civil Judge 1st Class, Sukkur, dated 30th April, 1971 in Suit No, 85 of 1967.
2. Appellant Ahmad Yar had filed a suit for declaration, possession and cancellation of sale transaction against the respondent in respect of agricultural land situated in Taluka Ghotki. His suit was that this land was transferred to him in lieu of his claim. He had executed a power-ofattorney in favour of respondent No, 1 to look after this land. Respondent No, 1 is Murshad of the appellant, therefore, he had full confidence in the former. This power-of-attorney is, dated 20th June, 1964 and it is alleged that respondent No, 1 fraudulently obtained signature of the appellant on this power-of-attorney saying that it was only for managing the land, whereas the appellant came to know later, that it also contained a clause anthorising respondent No, 1 even to sell this land on behalf of the appellant.
3. In August, 1964 the appellant came to know that respondent No, 1 had sold his land on his behalf to respondent No, 2 for Rs, 30,000. Respondent No, 2 on the other hand is alleged to have sold away this land to other respondents. All these sale transactions were effected not by any registered document, but only by giving statements before Mukhtiarkars, on the basis of which statements mutations were changed in favour of the vendees.
4. When the appellant came to know of the fraud, he sent notice to respondent No, 1, who is alleged to have specified him and kept him under false hopes. The appellant, therefore, sought following reliefs in his plaint :- "(1) That it be declared that the said power-of-attorney was obtained through fraud and misrepresentation hence has absolutely no legal force.
(ii) That the sale in favour of defendant No, 2, by defendant No, 1 on the strength of abovesaid power-of-attorney is void, inoperative and not binding on plaintiff.
(iii) That possession of the said land be restored to the plaintiff, who is the legal owner of it.
(iv) Any other equitable relief which this Hon'ble Court deems fit may be awarded to the plaintiff.
3415 (v) Costs of the suit be awarded to the plaintiff."
8 5. In his Written statement respondent No, 1 has admitted that he is Murshad of the appellant, but denied that the general power-of-attorney was got executed by him from the appellant by fraud or misrepresentation. The power-of-attorney is on registered document which, according to this respondent, the appellant had voluntarily executed and got registered by Sub-Registrar, Bahawalpur. However, respondent No, 1 has denied that he has sold this land to respondent No, 2.
He has, therefore, contested the claim of the appellant only to the extent of cancellation of the general power-of-attorney. So far as the other reliefs claimed by the appellant are concerned, this respondent has supported the appellant.
6. Respondent No, 2 is the main contesting party, who has alleged that he had purchased the suit land measuring 55 Acres 17 Ghuntas from respondent No, 1 for Rs, 30,000. He further stated that he has sold away this land to other respondents namely Pir Bux, Muhammad Qassim, Din Muhammad and Shaukat Ali. He has also raised legal pleas, which will be evident from the issues which were settled by the Court. The remaining respondents, excepting Ghulam Muhammad, have filed joint written statements that they have purchased the suit land from respondent No, 2, who had purchased the same from respondent No, 1 under valid power-ofattorney.
7. Respondent Ghulam Muhammad has filed a separate written statement which is a bare denial of the appellant's claim. On the above pleadings following issues were settled by the Court :-
(1) Whether the suit is not maintainable according to law ?
(2) Whether this Court has no jurisdiction to try the suit ?
(3) Whether the suit is bad for non-joinder of necessary parties ?
(4) Whether the defendant No, 1 was the general attorney of the plaintiff and was duly authorised to sell the land ?
(5) Whether the sale of suit land by defendant No, 1 in favour of defendant No, 2 and by defendant No, 2 in favour of other defendants is valid ?
(6) What should the decree be ?
8. After recording evidence of the parties the learned Senior Civil Judge came to the conclusion that the appellant had executed a valid powerof-attorney in favour of respondent No, 1 and that the latter had, on the basis of the above power-of-attorney, sold the suit land to respondent No, 2 for Rs, 30,000. On this finding the suit of the plaintiff was dismissed with cost. This judgment was upheld by the learned first appellate Court as stated above.
9. In support of his case appellant Ahmed Yar has examined himself as Exh.
92. He has produced certified copies of the registered power-ofattorney as Exh. 93, notice to respondent No, 1 as Exh. 94, reply of respondent No, 1 as Exh. 95, certified copy of extract showing sale of suit land by respondent No, 2 to other respondent as Exh. 96 and certified copy of statement of respondent No, 1 before Mukhtiarkar Ghotki purporting to sell the suit land to Molvi Ghulam Hussain for Rs, 30,000 as Exh.
97.
10. Next witness of the appellant is Sher Muhammad. He is attesting witness of the power-of- attorney (Exh. 93) and has stated that by this power of-attorney the appellant had not authorised respondent No, 1 to sell his land.
11. In rebuttal there is evidence of respondent No, 2 Ghulam Hussain (Exh. 100) in which he states that he has purchased the suit land from respondent No, 1 Hassan Ali on the basis of general power-of-attorney executed by the appellant in favour of Hassan Ali. He further states that he had paid Rs 6,000 to Hassan Ali at the time of sale agreement and Rs, 24,000 were paid later when he got possession of the land. This transfer was effected, according to the witness, by statement given by Hassan All before Mukhtiarkar. He further states that he did not obtain any receipt from Hassan Ali either for the advance payment of Rs, 6,000 or for the final payment of Rs, 24,000.
12. The next witness of respondent No, 2 is Muhammad Siddiq (Exh. 101), who has deposed that he was present when respondent No, 1 Hassan Ali had made statement before Mukhtiarkar about the sale of the suit land to Molvi Ghulam Hussain on the basis of the power-of-attorney. This witness had identified Hassan Ali before the Mukhtiarkar. He does not state that Rs, 24,000 were paid to Hassan Ali in his presence. He further states in cross-examination that he is resident of Bahawalnagar, which is 300 miles away from Ghotki, where the respondent No, 1 had given statement regarding sale of the suit land before the Mukhtiarkar.
13. The next witness of respondent No, 2 is Haji Qassim (Exh. 102). He is supposed to be a witness of sale of the suit land by Hassan Ali to respondent No,
2. He states that he did not appear before Tehsildar (Mukhtiarkar Ghotki) at the time of the transaction, but his statement was recorded by Tapedar. In cross-examination he states that he does not know respondent Hassan Ali.
14. D.W. Pir Bux (Exh. 103) has given the same evidence as D.W. Haji Qassim. He also does not know respondent No,
1. His statement was also recorded by a Tapedar. He states that no payment was made by the respondent No, 2 to Hassan All respondent No, 1.
15. The next witness is Muhammad Hanif (Exh. 104). He is the attesting witness of the power-of- attorney (Exh. 23). He has deposed that by this power-of-attorney the appellant had authorised respondent No, 1 even to sell the suit land on his behalf. This witness resides 145 miles away from Bahawalpur and does not say that the appellant was known to him before and that he had identified the right man before the Sub-Registrar.
16. The last witness is Noor Muhammad Tapedar (Exh. 108), who has deposed that the statement of Hassan Ali regarding the sale of this land to Molvi Ghulam Hussain (Exh. 97) was recorded by the Tapedar and not by the Mukhtiarkar. He, however, does not know the name of the Tapedar, who had recorded the statement.
17. The main question for consideration in this case is whether t appellant had validly executed power-of-attorney in favour of responder No, I, authorising the latter to sell the suit land. The appellant has alread admitted that respondent No, 1 is his Murshad. This respondent has als admitted that he is Murshad of the appellant. It is, therefore, clear that the respondent No, 1 was in a position to dominate the will of the appellant. If the allegation of the appellant is that the document was got execute from him by respondent No, 1 by fraud and misrepresentation, then the burden will be upon respondent No, 1 to prove that it was executed without any undue influence or fraud.
Reference in this connection may be made to section 16 of the Contract Act, subsection (3) of which reads as under : "(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such-contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other."
' It is unfortunate that none of the Courts below has applied its mind to this aspect of the case.
Respondent No, 1 has been admittedly Murshad of the appellant and was in a position to dominate the will of the appellant. It is specifically pleaded by the appellant in his plaint as well as in his deposition that he never authorised respondent No, 1 to sell his land and that his signature on the power-of-attorney was obtained by respondent No, 1 by misrepresentation and fraud by giving the impression to him that the power-of-attorney was only for management of the land. There is no rebuttal of this evidence. Respondent No, 1 Hassan Ali has failed to appear in the witness-box to rebate this allegation and to prove that the power of attorney was executed without any fraud or misrepresentation. The document Exh. 93 at the face of it appears to be unconscionable inasmuch as the appellant purports to give him unlimited powers to dispose of the suit land in any way he chose. It is, therefore. Apparent that the burden was upon respondent No, 1 to prove that the general power-of-attorney was got executed by him without exerting any undue influence or fraud upon the appellant. Respondent No, 1 has failed to discharge this burden. Both the Courts below have committed material irregularity and illegality in placing the burden upon the appellant to prove the due execution of the power-of attorney (Exh. 93). They have not adverted to the relationship of Murshad and Mureed, between respondent No, 1 and the appellant. It is well-known C that in this part of the world illiterate people, as the appellant is, have blind faith in their Murshads and will go to any extent in entrusting their affairs to their Murshads. I, therefore, hold that due execution of power-of-attorney (Exh. 93) has not been proved by respondent No, 1 upon whom the burden was to prove its due execution.
18. In view of the above finding alone the appellant's suit was liable to be decreed, but there are further reasons which support the appellant's claim.
19. Even if the power-of-attorney is deemed to be genuine, the question is whether agricultural land, the value of which is more than Rs, 100 can be sold by a simple statement before Revenue Mukhtiarkar or by getting mutation changed in the record of rights. Several authorities have been cited by learned counsel for the appellant in support of the plea that mutations in the record of rights do not create any title nor extinguish any title. See Allah Bux v. Ghalam Hussain (1), Muhammad All Hevani v. Custodian of Evacuee Property (2), Lal and others v. Miandad and another
(3) and Mian Ghulam Anwar v. Muhammad Sarwar and others (4). The latest decision on the above point is in the case of Mst. Karim Jan and
(1) PLD 1975 Lah. 139 (2) P L,D 1916 Kar. 109
(3) 1968 SCMR 842 (2) (4) 1968 SCMR 537 ' 3 others v. Anwar Khan and another (1) in which the learned Single Judge has held that mutation in the record-of-rights, is not a document of title and by itself does not confer any title and that burden of proof lies on the party who seeks to establish genuineness of the transfer. In support of the above: view the learned Judge has relied on the case of Mst. Aisha Bibi and others v.
Muhammad and others (2), Jamsher and others v. Abdul Jalil and others (3), Mst. Bib. Mukhtiar v.
Mst Amrezan and another (4), Samuel v. Mehr Muhammad Sadiq and others (5), Firdos Khan v.
Syed Azam Shah and 14 others (6), Rehmat Shah and 2 others v. Sarwar and another (7), Mst. Nur Jahan Begum v. Muhammad Ahsan Ullah Khan and others (8), Nizam Din and others v. Goder and others (9), Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan (10), Abdul Ahad and others v. Roshan Din and 36 others (11) and Bhagwan Das v. Mangal Said (12).
20. In all the above decisions it has been held that title cannot be created by entries in the mutation register nor such entries are prima facie proof of ownership of the record-holder. The title of the record-holder is to be proved before a civil Court. The entry in the revenue record by itself does not prove that the record-holder is the owner of the land.
21. Reference has been made by Mr. S. M. Abbas, learned counsel for the respondents to section 135
(j) of the Bombay Land Revenue Code in which it has been held that entries in record of rights shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.
There is a corresponding provision in West Pakistan Land Revenue Act, 1967 whose section 52 lays down that an entry made in record of-rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this chapter (Chapter V) and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.
22. The provisions do not say that a title in immovable property can be created by simple mutation or entry in the record-of-rights. The question whether the entries in the record-of-rights itself have been made in accordance with law, depends upon a valid transaction. If the entry has been effected on the basis of a valid transaction, it shall be presumed to be a proof of ownership of the record-holder and the forum to prove the basis of the entry is civil Court and not the Revenue Court. The presumption which attaches to an entry in record-of-rights is rebuttable. In the present case the presumption has been rebutted by the appellant as well as by Hassan Ali himself that no sale was effected by giving any statement before' Mukhtiarkar. Respondent Hassan Ali never appeared before Mukhtiarkar to transfer the appellant's land to respondent No,
2. Even the witnesses who are said to have identified Hassan Ali before Mukhtiarkar, have denied that they had appeared before Mukhtiarkar or that they had identified Hassan Ali. The identifying witnesses did not even know Hassan Ali.
(1) PLD 1984 Pesh. 111 (3) PLD 1964 Pesh. 159 (5) 1968 SC NI R 842 (1) (7) PLD 1971 Pesh. 205 (9) AIR 1934 P C 40 (11) PLD 1979 SC 890
(2) PLD 1957 Lab. 371 (4) PLD 1968 Pesh. 169 (6) PLD 1970 Pesh. 141 (8) PLD 1960 Lab. 181 (10) PLD 1971 SC 376 (12) A 1 R 1929 Lah. 93 ' Their statements were recorded by Tapedar. Hence the very fact that Hassan Ali respondent No, 1 sold this land to respondent No, 2 is doubtful. Respondent No, 2 has not produced any receipt for the amounts alleged to have been paid from time to time by him to Hassan Ali. It is unbelievable that Ghulam Hussain would pay Rs, 6'000 on one occasion and Rs, 24,000 on another occasion to respondent 'Hassan Ali without obtaining any receipt. There is no evidence whatsoever of these payments. Usually the balance is paid before the Officer in whose presence the sale transaction is completed. In the present case. According to Ghulam Hussain, the transaction was completed as soon as Hassan Ali gave statement (Exh. 97) before Mukhtiarkar. There is no evidence that any amount was paid before Mukhtiarkar. In fact the vendor and the vendee never appeared before Mukhtiarkar. It is, therefore, not known as to who was the person who had given the statement (Exh.
97). Even the Mukhtiarkar who purports to have signed this statement has not been examined.
' For the above reasons neither the sale transaction by Hassan Ali in favour of Ghulam Hussain is proved nor the transaction by way of any statement, even if made by respondent Hassan Ali before Mukhtiarkar, can be deemed sufficient to create title in the suit land in favour of Ghulam Hussain.
Both the Courts, therefore, have committed error of facts as well as of law in dismissing the suit of the appellant. Consequently the appeal is allowed with cost and the judgments of the Additional District Judge and the Senior Civil Judge are set aside and the suit of the appellant is decreed as prayed.