This judgment will dispose of R. S. As. Nos, 182 of 1970 and 185 of 1970. The parties are common. Most of the facts are common and a common question of law is involved.
2. Major Muhammad Yusaf Khan of Sikandarpur, Tehsil Haripur, District Hazara, was owner of land comprised in Khasra Nos, 11,1, 1325, 1327, measuring 324 kanals 15 marlas and Khasra Nos, 1326/1 and 1326, measuring 6 kanals 15 marlas. The last mentioned two khasra numbers are under mortgage.
Major Muhammad Yusaf died, and vide inheritance mutation No, 1758, attested on 26-11-67, his inheritance devolved on Mst. Bibi 11am Taja widow, Qazi Abdul Latif, Muhammad Sharif, Muhammad Azam, Muhammad Nauroz and Muhammad Hanif, sons, and Mst. Bibi Masuda Asmat and Mst. Bibi Tahira daughters. By mutation No, 1760, attested on 27-1-68 Qazi Muhammad Azam, a son of Major Muhammad Yusaf, sold his share to the extent of 7/48 shares, out of the five khasra numbers mentioned above, in favour of Sarwar and Ashraf, sons of Kamun Khan. By another mutation No, 1794, attested on 27-1-1968, Qazi Abdul Latif, another son of Major Muhammad Yusaf, sold his 7/48 shares to Rehmat Shah, Rasul Shah and Maqbul Shah, sons of Bodla Shah. Mst. Bibi Ilam Taja, widow of Major Muhammad Yusuf also sold her 1/8th share out of the 5 khasra numbers to Rehmat Shah, Rasul Shah and Muqbul Shah, sons of Bodla Shah by mutation No, 1798, attested on 4-3-1968.
3. Sarwar and Ashraf, sons of Kamun Khan sued (Suit No, 54/1 instituted on 25-1-69) Rehmat Shah, Rasul Shah and Maqbul Shah for possession by pre-emption of the land sold to the vendees by mutation No, 1794, attested on 27-1-68 In respect of 7/48 shares sold by Qazi Abdul Latif out of suit Khasra Nos, 1111, 1325, 1327, 1326/1 and 1326.
4. Sarwar and Ashraf, sons of Kamun Khan, also sued (Suit No, 55/1 instituted on 25-1-69) Rehmat Shah, Rasul Shah and Maqbul Shah for possession by pre-emption of 1/8th share sold by Mst. Bibi Ilam Taja by mutation No, 1798; attested on 4-3-68, out of suit Khasra Nos, 1111, 1325, 1327, 1326/1 and 1326.
5. In both the suits the trial Civil Judge, Haripur by two separate judgments dated 1-7-1969 and the appellate Court, also by two separate judgments, dated 26-1-70, held that the plaintiff-pre- emptors have become co-sharers in the suit land by virtue of mutation No, 1760, attested on 27-1- 68, and hence they have superior right of pre-emption with respect to the suit lands as against the vendees. In both the suits decree for possession by pre-emption was granted in favour of the plaintiffs. The defendants' appeals in both the suits were dismissed.
6. The defendants in both the suits have come up on second appeal.
Mr. Muhammad Nazirullah Khan, Advocate for the appellants and S. G. A. Bokhari, Advocate for the respondents heard. Record perused. Sarfaraz Patwari Halqa Pind Hasham Khan, Nartopa, was examined by me as a Court-witness on 14-6-71 to find out if there is any entry in the Roznamcha Waqiati with respect to the sales effected by mutation No, 1760, attested on 27-1-68 and mutation No, 1794 also attested on 27-1-68. The Patwari stated that the Roznamcha Waqiati contains no entry of sale with respect to both the mutations. R. S. A. No, 182 of 1970, arising out of Suit No, 54/1
7. The learned counsel for the defendant-appellants argued that the lower Courts have acted illegally and with material irregularity in holding that the respondent-plaintiffs have acquired the superior right of pre-emption, in spite of the fact that mutation No, 1760, by which the pre-emptors became owners in the suit land, and mutation No, 1794 by dint of which the vendee-appellants have purchased the suit land, were attested on the same date viz. 27-1-58. The principal point is whether the sale effected by mutation No, 1760 attested on 27-1-68, has been completed and transferred title in the suit land in favour of the plaintiff-respondents earlier than the sale mutation No, 1794, also attested on 27-1-1968. The two Courts below have held that mutation No, 1760 was prior in serial Number to mutation No, 1794 though both attested on the same day; the plaintiffs had become co-sharers in the suit land by mutation No, 1760 attested on 27-1-68 and, therefore, had superior right of pre-emption of the suit land sold by mutation No, 1794 attested on 27-1-68.
8. The right of pre-emption means the right of a person who acquires agricultural land or village immovable property or urban immovable property in preference to other persons. It is well settled that the plaintiff-pre-emptor should possess superiority of pre-emptive qualification at the time of sale which is the subject-matter of the pre-emption suit. By mutation No, 1760, in the present case, Qazi Muhammad Azam son of Major Muhammad Yusaf sold his share out of the suit khasras to Sarwar and Ashraf vendees. According to column No, 12 of mutation No, 1760 (attested copy Exh. C.
W. 1/1), the sale by Qazi Muhammad Azam in favour of Sarwar and Ashraf was a transaction of oral sale. This mutation of oral sale was entered by the Patwari on 16-11-67. The mutation came up before the Revenue Officer Circle on 12-12-1967 at Pind Hasham Khan in Jalsa-i-am. Qazi Muhammad Azam vendor was present. He admitted the sale of his 7/48 shares out of the five suit khasra numbers in favour of Sarwar and Ashraf vendees. The sale mutation came up before the Revenue Officer at Nartop a in Jalsa-i-am on 27-1-68. On this day, with reference to the Revenue Officer's order dated 12-12-67, the mutation was attested with respect to 7/48 shares of Qazi Muhammad Azam in the suit khasra number in favour of Sarwar and Ashraf vendees.
By mutation No, 1794 Qazi Abdul Latif, son of Major Muhammad Yusaf, sold his 7/48 shares to Rehmat Shah, Rasul Shah and Maqbul Shah, sons of Bodla Shah. According to column No, 12 of this mutation (copy Exh. C. W. 1/2), it was an oral sale. This mutation of oral sale was entered by the Patwari on 12-1-1968. The mutation came up before the Revenue Officer at Nartopa in Jalsa-i-am on 27-1-68, in the presence of Qazi Abdul Latif vendor. Qazi Abdul Latif admitted the sale of his 7/48 shares out of the five suit khasras in favour of Rehmat Shah, Rasul Shah and Maqbul Shah. The mutation was, therefore, attested on the same day, viz. 27-1-68.
9. The question for determination is whether the sale transaction effected by mutation No, 1760 on behalf of Qazi Muhammad Azam in favour of Sarwar and Ashraf plaintiffs had completed on the attestation of the mutation on 27-1-68 or earlier when this mutation was entered on account of oral sale on 16-11-67 or on 12-12-67 when the sale was admitted by Qazi Muhammad Azam in favour of Sarwar and Ashraf plaintiffs before the Revenue Officer. Mutation simply means alteration of an entry in the revenue record with the object of bringing the latter up-to-date. A mutation by itself does not confer any title. The mutations are maintained for fiscal purposes; but when the facts recorded are facts which it is the duty of the Revenue Officer to record, then this record is important evidence, though not conclusive, of those facts, in view of section 35 of the Evidence Act and illustration (e) to section 114 of this Act. Entries in mutation proceedings can, therefore, be accepted as evidence, even without the revenue official who sanctioned them to be produced as witness. Reliance is placed on Nizamuddin v. Fateh Din . Thus the entry of title in the revenue records as the result of mutation proceedings is merely the recognition by the revenue officers of a title which they believe to exist. However, the method of transfer by mutation in the revenue record is recognised as a valid method of transfer of agricultural land. But it depends upon the intention of the parties to the transaction as to when the transfer or sale is to be deemed com pleted. A transfer of ownership takes place immediately when the alienation is complete. Reading the entries in column No, 12 and the entry of mutation in column No, 15 of mutation No, 1760 (copy Exh. C. W. 1/1) together, the oral sale on behalf of Qazi Muhammad Azam of his 7/48 shares in favour of Sarwar and Ashraf had completed on the day when this mutation was entered on 16-11-67. The oral sale was admitted again by Qazi Muhammad Azam before the Revenue Offier Circle on 12-12-67. The attestation of this mutation on 27-1-68 merely amounts to the recognition by the Revenue Officer of the title which existed in favour of Sarwar and Ashraf on behalf of Qazi Muhammad Azam. I am also supported in this view by the judgment in case, Jangi v. Jhanda and others , where it is held :-- "Sale of land shall be deemed to have been completed on the day on which it was effected and not on the date on which mutation in the revenue records was sanctioned about it. Title in the property passes when the transaction of sale is completed and is not postponed till the attestation of the mutation in the revenue records."
In this view of the law, the plaintiffs in the present suit had already become co-sharers in the suit land by virtue of mutation No, 1760 when mutation No, 1794, impugned in the suit, was attested on 27-1-68, and as such they had superior right of preemption with respect to the suit land in comparison with the defendant-appellants.
Agreeing with the concurrent finding of the two Courts below, this second appeal has no merit and is, therefore, dismissed. parties to bear their own costs. R. S. A. No, 187/50, arising out of Suit No, 55/1
10. As discussed above, the plaintiff-respondents had become co-sharers in the suit land by virtue of mutation No, 1760, attested on 27-1-68, and had, therefore, superior right of pre-emption with respect to the sale of land transferred by impugned mutation in the suit (No, 1798) attested on 4-3- 1968. The concurrent finding of fact with respect to the superior right of pre-emption of the plaintiff- respondent by the two Courts below, therefore, does not merit any interference. This second appeal is also dismissed. Parties to bear their own costs. 41 P L R 308 PLD 1961 B J 341 2 1 2
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