' The facts leading to this civil revision are that Mst. Ulfat was owner of 76 Kanals of land situate in Chak No,11 Shamali, Tehsil Bhalwal, District Sargodha. On 11th July, 1963, she sold 461 Kanals of land in favour of the petitioners, Noor Muhammad and three others and land measuring HI Kanals in favour of Fazia and Khair Din alias Khairu by means of separate sale-deeds. Separate Mutations were enterea in regard to the said sales. Mutation No,736 was in respect of sale of land in favour of the petitioners while mutation No,737 was in connection with the sale in favour of Fazla and Khair Din alias Khairu. Both these mutations were rejected on 9th December, 1963 for being violate of Martial Law Regulation No, 64 (wrongly mentioned as Martial Law Regulation No,115 by the two Courts below), hereinafter referred to as the said Martial Law Regulation. Thereafter, Mst. Ulfat sold her entire holding measuring 76 Kanals in favour of the petitioners and the aforesaid Fazla and Khair Din alias Khairu by means of one sale-deed which was registered on 19th December, 1963. On the basis of this sale-deed, Mutation No,744 was entered and it was sanctioned on 14th September, 1964. Subsequently, the petitioners and the said Fazla and Khair Din alias Khairu exchanged some of the disputed land with the land of one Fajar Ali by means of Mutation No,887, dated the 26th July, 1966. The order of rejection of Mutation No,737, the sale-deed, dated 19th December, 1963, orders dated 14th September, 1964 and 26th July, 1966 relating to sanction of Mutations Nos.744 and 887, respectively were challenged by means of a civil suit. By the time of the filing of the civil suit, Khair Din alias Khairu had died and, therefore, the suit was bright by Fazla and the legal representatives of Khair Din alias Khairu, namely, Ghulam Nabi and Mst. Hajran. Sahib Din and Hassan Muhammad are legal representatives of Fazla who died thereafter. They are all respondents in the instant revision. The petitioners were defendants in the st.it. The suit was decreed by a Civil Judge. The petitioners filed an appeal against the judgment and decree passed by the learned trial Court but without success. They have, therefore, come up in revision to this Court.
2. The respondents' plea is that Mutation No,737 was collusively got entered and rejected by the petitioners by not correctly mentioning therein the land purchased by Fazla and Khair Din alias Khairu. As for the joint sale in favour of the petitioners, Fazla and Khair Din alias Khairu, recorded in the registered sale-deed, dated the 19th December, 1963, and the exchange embodied in Mutation No,887 sanctioned on 26th July, 1966 the respondents, averment is that the said sale and the Mutation were also collusive and as such they were not binding on Fazla and Khair Din alias Khairu as they were not parties thereto. For the same reason they challenged the validity of Mutation No,744 based on the joint sale. According to the respondents, the sale of 30/ Kanals of land in favour of Fazla and Khair Din alias Khairu effected on the 11th July, 1963 by means of registered sale-deed holds good and they are owners in possession 9f the said land for being the legal heirs of Fazla and Khair Din alias Khairu.
3. The petitioners' case is that the sales recorded in the registered sale-deeds dated the 11th July, 1963 were hit by the said Martial Law Regulation and were therefore, void and of no legal effect.
Thus, according to the petitioners Mutations Nos.736 and 737 relating to the said sales were rightly rejected. They maintained that subsequently the joint sale was made with the consent of the petitioners and the predecessors-in-interest of the respondents with a view to getting over the difficulty created by the said Martial Law Regulation. According to them the said sale was valid and genuine and Mutation No,744 sanctioned on the basis of that sale also did not suffer from any legal defect. It was also submitted by them that the predecessors-in-interest of the respondents were parties to the Mutation of exchange (Mutation No,887) and, therefore, the same could not be disowned by them.
4. The view taken by the two Courts below was that the predecessor-in-interest of the respondents were not parties to the joint sale and the exchange. It was also held by them that Mutation No,736 as well as Mutation No,737 were not rightly rejected. In regard to Mutation No,744 their finding was that since the joint sale on which it was based was void, illegal and ineffective, the imitation was also of no legal effect. It has also been held by the learned lower Courts that the predecessors-in- interest of the respondents were not parties to the exchange mentioned in Mutation No,887 and, therefore, it did not affect their title to the land originally purchased by them.
5. It was contended by learned counsel for the petitioners that the civil Court had no jurisdiction to examine the validity of the order by which Mutation No,737 was rejected due to its being in contravention of the provisions of the said Martial Law Regulation. In this connection, reliance was placed by him on paragraph 3 of the said Martial Law Regulation. As for the concurrent finding of the two Courts below regarding genuineness of the joint sale and the exchange it was urged by learned counsel for the petitioners that it suffered from the defect of non-reading of material evidence and was, therefore, open to inter ference by this Court.
6. It was conceded by learned counsel for the respondents that the civil Court had no jurisdiction to look into the validity of Mutation No,737, It was, however, asserted by him that the finding of the learned lower Courts regarding the joint sale and the exchange was unexceptional.
7. It is true that the joint sale recorded in registered sale-deed, dated the 19th December, 1963, copy Exh.P.3, does not bear thumb-impressions or signatures on Fazla or Khair Din alias Khairu, who were the predecessors-in-interest of the respondents, but this is of no legal consequence as it is a matter of common knowledge that a sale-deed is executed by the person selling something and not by the person in whose favour it is sold. There is ample evidence on the record showing that Fazla and Khair Din alias Khairu were parties to the joint sale. It was stated by Ghulam Muhammad (D.W.1) and Suleman (D.W.2) that Fazla and Khair Din alias Khairu were parties to the joint sale. Their statements are supported by the copy of mutation Exh.P.9, relating to the joint sale. It reveals that they had appeared before the Revenue Officer for the attestation of mutation. There is nothing in the mutation proceedings to show that they had not consented to the attestation of mutation. On the other hand, they had made an application to the Deputy Commissioner, Sargodha, requesting for the expeditious disposal of the mutation proceeded .The said application finds mention in the order of attestation of Mutation No,744 and in the statement of Suleman (D.W.2). At the time of attestation of mutation, Fazla and Khair Din alias Khairu were identified before the Revenue Officer by Hidayat All Lambardar. The respondents did not examine the said Lambardar or the Revenue Officer or the Patwari concerned to say that they were not in favour of the attestation of mutation or that they had not appeared before the Revenue Officer. According', to) the ,entries in the said mutation it was not only once that Fazla and Khair Din alias Khairu had appeared before the Revenue Officer. They had gone to him on two occasions before the one on which the mutation was attested. None of the marginal witnesses of the sale-deed relating to the joint sale or the scribe thereof was examined by the respondents to depose that the joint sale was affected at the back of Fazla and Khair Din alias Khairu. All these pieces of evidence and important circumstances were not taken into account by the two Courts below while recording a finding in favour of the respondents.
8. It seems that when the separate sales effected by Mst. Ulfat in the beginning were held to be violate of the said Martial Law Regulation the parties to those sales and Mst. Ulfat had, of necessity, decided to go in for the joint sale so as to get over the objection for which mutations relating to separate sales were rejected. By means of the joint sale, she had sold her entire holding in the estate and, therefore, no legitimate exception could be taken to that sale. The first two sales were void and of no legal effect for being in contravention of the said Martial Law Regulation and thus the title of Mst. Ulfat to the land transferred by those sales remained unaffected. In other words, she continued to be the owner of the disputed land till she had transferred it by means of the joint sale.
The joint sale could, therefore, be validly made by her.
9. The respondents produced Ali Muhammad (P.W.1), Muhammad Ismail (P.W.2), Fateh Din (P.W.4) and Fazla (P.W.5) to say that they were in possession of the land as originally purchased by them by means of sale-deed, copy Exh.P.2. Even if it was so, it will make little difference because it is not infrequently that the persons sharing a joint property continue to remain in possession of the specific portions thereof till such property is partitioned. It was out of compulsion that the petitioners and the predecessors-in-interest of the respondents had willingly pooled together the parcels of land separately purchased by them and then jointly purchased the land so pooled by means of the joint sale with a view to acquiring title thereto which had been denied to them by the rejection of mutations relating to separate sales in their favour. Therefore, the mere fact that the respondents continue to occupy the land separately purchased by them at the outset would not justify a conclusion that their predecessors-in-interest were not parties to the joint sale.
10. I may also mention here the respondents' evidence regarding joint sale. They examined Ibrahim (P.W.3), Fateh Din (P.W.4) and Fazla (P.W.5) to say that no joint sale had taken place. Their. statements stand rebutted by the depositions of the petitioner's witnesses namely, Ghulam Muhammad (D.W.1) and Suleman (D.W.2) and the copy of mutation, Exh.P.9 Fazla being a party to the suit was an interested witness. Ibrahim and Fateh Din are not marginal witnesses of the deed relating to joint sale nor they were in a position to make authentic statement regarding the genuineness or otherwise of the said sale. The evidence of Ibrahim, Fateh Din and Fazla is, therefore, of little help to the respondents.
11. In view of the above discussion I hold that the joint sale was made by Mst. Ulfat as desired by the petitioners and the. predecessors D in-interest of the respondents and therefore, the respondents or their predecessors-in-interest could not take exception to the said sale.
12. I wonder why the respondents are assailing the joint sale which is in their interest. If this sale disappears from the scene they will be left with nothing. Paragraph 24 of the said Martial Law Regulation prohibited certain sales with a view to avoiding fragmentation of holdings. Separate sales in favour of the petitioners and the predecessors in interest of the respondents had given rise to such fragmentation and were, therefore, hit by the provisions of paragraph 24. They were, therefore, void and of no legal effect. As stated above, it was also conceded by learned counsel for the respondents that the order of rejection of Mutation No,737 regarding the sale in favour of predecessors-in-interest of the respondents could not be challenged before a Civil Court. The respondents would, therefore, be well advised to abide by the joint sale instead of disowning it. If the joint sale is set aside, the parties on both sides would be deprived of the disputed land and the same would revert to Mst. Ulfat.
13. As for the exchange recorded in mutation No,887, copy Exh.D.3, it was attested in the presence of Fazla and Khair Din alias Khairu and with their consent. The respondents did not examine the Revenue Officer of the Patwari concerned or the Lambardar, who identified the parties at the time of attestation of mutation, to say that they were not present to give their consent to the attestation of mutation. In the plaint, it was admitted that some of the land in dispute was given in exchange to Fajar Ali. It was, however, explained that this exchange was made by Fazla and Khair Din alias Khairu only. There is no deed or mutation in support of their plea. The mutation of exchange was attested after E the mutation of joint sale was sanctioned. As indicated earlier, the mutation in respect of the separate sale in favour of Fazla and Khair Din alias Khairu had been rejected.
Therefore, the mutation of exchange could not be attested unless all the owners of the land in dispute, as per the mutation of the joint sale, had consented to the exchange inasmuch as according to the revenue record the land given by them in exchange was the joint property. I am, therefore, convinced that Fazla and Khair Din alias Khairu were also parties to the transaction of exchange and, there , it is no longer open to the respondents to wriggle out of that transaction.
14. In view of the above discussion I hold that the findings of the two Courts below relating to Mutation No,737, in respect of separate sale in favour of the predecessor-in-interest of the respondents, their finding regarding the joint sale and the mutation attested on the basis thereof and their findings in respect of the mutation of exchange, Exh.D.3 suffer from illegalities and material irregularities inasmuch as they had no jurisdiction to look into the order by which mutation No,737 was rejected and they had ignored material evidence and important circumstances while deciding the question relating to the validity of the joint sale and exchange. In fact, the learned Additional District Judge did not at all discuss the question of the validity of the exchange and simply dittoed the finding of the trial Court on that question. The findings of the learned lower Courts, therefore, call for interference by this Court. Accordingly, I reverse their findings and hold that Mutation No,737 was rightly rejected. I further hold that the joint sale is valid and binding on the parties and the mutation relating to that sale is also unexceptionable. I also hold that the mutation of exchange, Exh.D.3, is valid and binding on the parties. As a result, I accept this civil revision, with costs, set aside the judgments and decrees of the two Courts below and dismiss the suit giving rise to this civil revision.