' Mst. Badro and her two sisters sued their brother Anwar Khan for a declaration that they were owners in possession of 3/10 share in the land measuring 1,006 Kanals 10 Marlas and that the entries in the Jamabandi as well as Mutation No, 3189 attested on 9-8-1943 were ineffective against their rights. They, in the alternative, prayed for possession of the said land. It was on 28-2- 1978 that a degree was passed to the extent of 330 Kanals 15 Marlas of the suit land but in appeal the suit was dismissed on 3-12-1980. Aggrieved from the judgment and decree of the learned appellate Court the plaintiffs have now come on revision to this Court.
2. The gravamen of the claim of the plaintiff-petitioners was that their brother Abdur Rehman had died issueless and his estate devolved on them, their mother and brother Anwar Khan, the respondent. On the death of their mother they and the respondent succeeded her. A portion of the suit land was acquired in connection with the construction of Tarbela Dam and the compensation therefor was received by the respondent. They made an enquiry about their entitlement and came to know that he had, in their absence and without their knowledge, got relinquishment Mutation No, 3189 attested in his favour on 9-8-1943. They had not, in fact, relinquished their rights and had been in possession of a part of the suit land throughout. The respondent, on the other hand, denied their allegations altogether and averred that they had relinquished their rights in his favour and he had prescribed title to the suit land. The learned lower Court upheld the claim of the petitioners but the pleas of the respondent prevailed with the learned appellate Court.
3. A perusal of the record shows that Anwar Khan and Abdur Rehman were joint owners of the land and on the death of the latter his inheritance Mutation No, 2989 was attested on 15-3-1942 in favour of his mother Mst. Basindaji, brother Anwar Khan and sisters Mst. Badro, Karim Jan and Sikandar Jan. The mother and the sisters purported to relinquish their right in favour of Anwar Khan per Mutation No, 3189 attested on 9-8-1943. This mutation was incorporated in the subsequent Jamabandis and Anwar Khan was recorded as sole owner of the entire land. It was on 7.6-1972 that the sisters brought the present suit and assailed the aforesaid mutation of relinquishment alleging that the same had been attested without their knowledge and in their absence. Anwar Khan stoutly denied their allegation and averred that his mother as well as sisters had transferred their shares in his favour voluntarily. A look at Mutation No, 3189, copy Exh. P. W. 2/2, shows that it was entered on the strength of the statement of Anwar Khan and when it came up before the Revenue Officer in "Jalsa-e-Aam" on 18-2-1943 the ladies were not present and he appointed Lambardar Ghulam Jan as a Commissioner for enquiry and report. Ghulam Jan recorded the statement of the ladies who admitted the factum of relinquishment and had no objection to the attestation of the mutation.
Their thumb-impressions on the statement and the signature of Ghulam Jan on his report appeared whereupon the mutation was attested. Mst. Basindaji is dead and she had not questioned the validity of the mutation during her lifetime. The learned trial Court appointed a Commissioner for recording the statement of the ladies and obtaining their thumb-impressions.
The thumb-impressions and the mutation in original were sent to the Finger Print Bureau for examination and it was reported by the Experts that the impressions on the mutation were not clear for comparison. The allegation of the petitioners had been that Lambardar Ghulam Jan was illiterate whereas the 'respondent asserted that he was literate. They produced oral evidence in support of their respective claim with regard to the fact whether Ghulam Jan was literate or illiterate. The respondent who had entered the witness-box in the post-remand proceedings produced documents Exhs. RDW-2/1 to 6 showing the signature of Ghulam Jan thereon. No objection was raised by the petitioners with regard to the admissibility of these documents nor the respondent was cross-examined in this context. The controversy with regard to Ghulam Jan is resolved by these documents and it can be said that he knew how to write and sign.
4. The learned counsel for the petitioners strenuously contended that a mutation per se did not create title. Now it is well-settled principle that a mutation is not a document of title, it by itself does not confer any title and the burden of proof lies on the party who seeks to establish the genuineness of the transfer. Reference in this context can be made to Mst. Aisha Bib! And others v.
Muhammad and others (I), Jamsher and others v. Abdul Jaltl and others (2), Mst. Bib! Mukhtiar v.
Mst. Amrezan and another (3), Samuel v. Mehr Muhammad Sadiq and another (4) and Firdaus Khan v. Azam Shah and 14 others (5). It was, however, remarked in Rehmat Shah and 2 others v.
Sarwar and another (6) that a mutation by itself does not confer any title but transfer of property by mutation in revenue record is recognized as a valid method of transfer of agricultural land.
4. In Mst. Nur Jehan Begum v. Muhammad Ahsan Ullah Khan and others (7) the observation was that although the Record of Rights are not {{FOOT NOTE}}
5. (1) PLD 1957 Lab. 371 (2) PLD 1964 Pesh. 159
(3) PLD 1968 Pesh. 169 (4) 1968 SCMR 842 (1)
(5) PLD 1970 Pesh. 141 (6) PLD 1971 Pesh. 205
(7) P L- D 1960 Lab. 181 {{FOOT NOTE}} ' instruments of title but they are certainly presumptive pieces of evidence to prove a person's title.
By virtue of section 44 of the Land Revenue Act a presumption of truth was attached to such entries. Reference was made to Nizam Din and others v. Goder and others (1) wherein it had been laid down that in view of the entries in the Record of Rights and the mutation order, the plaintiffs in that case who were challenging the entries, could not succeed unless they established that the entries were false. The question of the evidentiary value of mutation registers came up for consideration in Haft Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan
(2) and it was observed that it is true that entries in mutation registers are by themselves not conclusive evidence of the facts which they purported to record but they are, nevertheless, not an "unimportant part of the testimony as to a fact which is available". It was remarked in Abdul Ahad and others v. Roshan Din and 36 others (3) that "when a mutation gets incorporated in the Jamabandi (1,e. Annual record) then as held in Bhagwan Das v. Mangal Said (4) Jamabandi carries a presumption of truth and the said Jamabandi and its corresponding supporting mutation could not be ignored. In the instant case to the disputed mutation, as remarked above, was incorporated in the Jamabandi and did carry a presumption of truth which the petitioners signally failed to rebut by cogent evidence. Moreover, the respondent did his best to prove the disputed mutation and the thumb-impressions of the petitioners obtained for comparison with those on the mutation were referred to the Expert but the latter could not give a definite opinion.
6. The conduct of the petitioners shows that after relinquishing their rights in favour of the respoh(lt,:it they exhibited no interest in the suit land for a number of years. The mutation was attested in August, 1943 whereas, they brought the suit in June, 1972, i,e, after about 29 years. There is nothing on the record to show that they had during this period exercised proprietary rights qua the suit land or had been in possession of it as co-sharers with the respondent. It is said that Hurmat, husband of the plaintiff-petitioner Mst. Badro (since dead), had been in possession of one field on their behalf and had been sharing the produce with them. A look at the revenue record shows that in the Jamabandis 1947-48 and 1950-51 the respondent was recorded as sole owner of the entire suit land and had been in possession either himself or through his tenants. It was in the Jamabandi 1955-56 that a field bearing Khasra No, 5248-5249 etc. Measuring 416 Kanals was in cultivating possession of Anwar Khan, Hurmat and Mir Ghazan with 1/4, 1/2 and 1/4 share, respectively. Hurmat was in possession of half of this field as a tenant under Anwar Khan. This entry appeared in the Jamabandis 1959-60 and 1963-64 too. A look at the Khasra Girdawari, Exh. P. W.
1/10 shows that Hurmat was replaced by his son Shad Muhammad. In the post-remand stage the respondent produced Khasra Girdawari, Exh. R. W. 1/2 showing that since 'Rah? 1972 he had been in possession of the entire field and the same entry appears in the Jamabandi 1971-72, Exh. R. W. 1/4. It can be said that Hurmat and after him his son Shad Muhammad had been cultivating half of this field as a tenant under the respondent and there is no evidence worth the name, apart from the bare allegation made in the plaint and the solitary statement of Shad Muhammad, that it is the petitioners on whose behalf Hurmat had been cultivating the land and paying the produce to them. It can, therefore, be {{FOOT NOTE}}
(1) AIR 1934 P C 40 (2) PLD 1971 SC 376
(3) P L I) 1979 $ C 890
(4) AIR 1929 Lah. 93 {{FOOT NOTE}} ' said that the petitioners ceased to be in possession of any part of the suit land after the attestation of the disputed mutation. Mst. Basindaji had inherited beer son Abdur Rehman but on her death her inheritance mutation does not seem to have been attested. It appears that after the disputed mutation she ceased to be a co-owner in the suit land and no mutation on her death was attested in favour of her legal heirs.
7. Another significant fact which may be spotlighted is that the petitioners produced, Exh. P. W. 2/1 copy of Mutation No, 3659 attested on 13-2-1945 and Exh. P. W. 2/2, copy of Mutation No, 3577 attested on 12-2-1945. A look at the latter shows that inheritance Mutation No, 2989 pertaining to the estate of Abdur Rehman had been attested but some land had been omitted in it. It was the omitted land which by mutation No, 3577 was mutated in favour of the brother, mother and sisters of the deceased. Subsequent to this mutation the revenue authorities entered Mutation No, 3659 with regard to the relinquishment of their share by the petitioners in favour of the respondent in the land which had been omitted in the previous Mutation No, 3189 which forms the subject-matter of this suit. It is pertinent to note that when Mutation No, 3659 came up before the Revenue Officer on 12-2-1945 Subedar Ghulam Hussain was appointed a Commissioner to make enquiry from the Parda Nasheen ladies and to submit his report. It was on 13-2-1945 that Subedar Hussain recorded the statement of the ladies who admitted the factum of relinquishment and affixed thumb- impressions on the statement. Subedar Ghulam Hussain made his report and on its strength the mutation was attested in favour of the respondent the same day. The petitioned, curiously enough, did not challenge the genuineness of this mutation which pertained to relinquishment of their share in favour of the respondent. This mutation too was incorporated in the Jamabandi and the were never shown in possession of any part of the land effected thereby. The fact that they have not assailed this mutation goes a long way to show that they were consenting party to the previous relinquishment Mutation No, 318 and in continuation thereof they had relinquished their rights per Mutation No, 3659 in the land which had been omitted in the former mutation. The copy of this mutation was placed on the record by the petitioners in the post-remand proceedings and their agent Shad Muhammad did not utter al single word against the said mutation nor asserted that it was a forged one! Or had been attested without the knowledge of the petitioners.
8.It is in the plaint that a portion of the suit land had been acquired in connection with the construction of the Tarbela Dam for which the respondent had received compensation and on checking the revenue record they came to know of Mutation No, 3189. The petitioners addicted no evidence to show as to when the respondent had received compensation for the acquired land and there is nothing on the record to indicate as to when the cause of action had arisen to the petitioners. Had there been acquisition proceedings initiated with regard to any part\ of the suit land it was incumbent upon the petitioners to have set up their claim before the Land Acquisition Collector. They took no steps for the redress of their grievance in the Court of the Acquisition Judge nor have sought a relief against the respondent in the instant suit with regard to recovery of their share in the compensation amount. It follows that the respondent had come in exclusive possession of the suit land on the foot of the impugned mutation and the transfer in his favour by his sisters and mother was a valid one.
9.The next question that arises is whether the suit was within time and the respondent had been in adverse possession of the suit land for more than 12 years. There is no denying the fact that be has been in continuous, exclusive possession of the suit land under the impugned mutation since 1943.
He had been exercising proprietary rights over the suit land and had been paying land revenue for it. There is nothing on record to show that the petitioners had been paying the land revenue for or dealing with the suit Ian as their own property. It is true that possession of one co-sharer is ordinarily possession of and on behalf of all the other co-sharers but it is equally true that the co- sharer in possession can convert his possession, into adverse possession by an overt act. In the instant case the petitioners, their mother and the respondent had inherited the estate of Abdur Rehman and their possession would have been as co-sharers but, as remarked above, the petitioners did not take possession, either symbolical or actual, of any part of the estate inherited by them. They had, in fact relinquished their rights in favour of the respondent who subsequent to the relinquishment never acknowledged them as co-sharers with him. The attestation of the impugned mutation as well as mutation No, 3659 attested on 13-2-1945 which has not been impugned by them would, in my view, tantamount to an overt act b the respondent and ouster of the petitioners from the realm of proprietorship. I am in this view of the matter fortified by the observation made in an unreported judgment of the Supreme Court delivered on 22-11-1969 in C. P.
S. L. A. No, 37-P of 1969, Mst. Magbool Jan alias Mst. Manzara v. Faqir Muhammad and 22 others and it reads as under :- As regards the other proposition it is now well-settled that adverse possession can be claimed even against a co-sharer as from the date of the ouster of a co-sharer. Some overt act is necessary to make the title of another co-sharer hostile. In the present case this overt act was furnished by the mutation entry in the name of Faqir Muhammad. This was attested before the village and, therefore, was in the knowledge of the plaintiff. If in spite of that she did not object or take any steps to have the mutation corrected until 1955, she cannot now complain if her brother claim the property by adverse possession.
' It can, therefore, be said that the respondent had prescribed title to the suit, land by adverse possession. A similar view has been expressed in Muhammad Nazir and another v. Karamat Hussain Shah and 6 others (1) wherein it is remarked that the transfer of land from the joint Khewats ignoring the name of the respondent-co-owners appearing therein clearly was an overt act and the transferor had never admitted them as co-owners in the Khewats in question.
10. Assuming for the sake of argument, without conceding, that the impugned transfer was invalid the question to be determined is about the nature of possession of the respondent. An answer to this question is furnished in Mir Laik Ali v. Standard Vacuum 011 Company and another (2) wherein their Lordships observed as follows :- ' When there is an invalid transfer in favour of a person and be holds possession of the property transferred as transferee, his possession in his own right and adverse to the transferor. If he continues in possession of immovable property for more than twelve years he will acquire an indefeasible title. Of course it is open to a transferee if he finds the transaction in his favour to be invalid not to treat the property as his own, but that will be where he accepts the invalidity of {{FOOT NOTE}}
(1) 1981 CLC 812 (2) PLD 1964 SC 220 {{FOOT NOTE}} ' the transfer and henceforth proposes to hold the property on behalf of the transferor. If it be his claim that he holds it by virtue of a transfer which he regards as valid he is obviously holding in his own right and not on behalf of the transferor in trust for him.
The respondent Anwar Khan had been treating himself as an exclusive owner of the entire suit land on the basis of a transfer which he claimed to valid and he was in exclusive possession of the land in his own right. Hi possession would obviously be adverse in character and being for more that 12 years the suit brought by the petitioners was not within time. The petitioners being not in possession the suit for a declaration was no sustainable in law nor was within time. It follows that the conclusion arrived at by the learned appellate Court are well-founded and merit n interference.
' As a result of the foregoing discussion the revision fails and is dismissed with costs.