1. ' SHAFIUR RAHMAN, J.-Leave to appeal was granted to a vendee-defendant to examine the following questions of law arising out of a judgment of the Lahore High Court, Lahore, dated 14-11- 1973 whereby the plaintiffs' revision against the concurrent finding of the two Courts below was accepted and their suit was decreed :-
(i) Whether the High Court was right to hold that presumption of correctness attached to the entries, Exhs. P. 1 and P. t in the Roz- A namcha Waqiati ? And
(ii) Whether the learned Judge in exercise of the revisional jurisdiction of the High Court under section 115, C. P. C. Was right to reverse the concurrent finding of the Courts below on a question of fact ?
2. ' Allah Bakhsh was the owner of land in village lehangirabad, Tehsil Multan. Ghulam Muhammad (P.
3. W. 3) was the Patwari of the Halqa before whom on 25-11-1945 a report (Exh. P. 1) was made.
4. According to this report, Allah Bakhsh admitted having sold the land measuring 3 Kanals 17 Marlas a part of which is now in dispute, to Hussain Bakhsh the father of the plaintiff-respondent. He also admitted having delivered the possession and tnat Hussain Bakhsh had constructed a house in that land. He admitted the receipt of Rs, 400 the price for it. The vendee Hussain Bakhsh was also present at that time according to the report and admitted this fact. A Mutation No, 680 was entered by the Patwari on the basis of this report. Another report was made on the 12th of June, 1947. This time Allah Bakhsh appeared along with Dilawar Lambardar and admitted before Ghulam Muhammad Kanoongo (P. W. 3) that he had sold 3 Kanals 5 Marlas of land already the subject- matter of earlier report for Rs, 400 in favour of Hussain Bakt,sh and his fi e sons including the three plaintiff-respondents and had received the consideration which was Rs, 400, that the construction had already been raised by the purchasers and that they were residing in it. Again a Mutation No, 753 was entered on the basis of this report. It appears from the proceedings of mutation that a factual inquiry was got conducted by the Revenue Officer at the spot and not svith standing the fact that the land happened to be building site and was being utilised for that purpose since before the sale was reported to the Patwari. It was held to be hit by section 3 of the Punjab Land Alienation Act and the necessary permission was refused. The mutation was not attested.
5. ' In 1966 taking advantage of the entries in the revenue record Allah Bakhsh sold the disputed land measuring 3 Kanals 4 Marlas by a registered deed in favour of the appellant for Rs, 7,000. The deed was executed on 11-6-1966 and registered the same day.
6. ' The plaintiff-respondents instituted a civil suit on 8-2-1967 seeking a declaration that the. Were the owners in possession of the property and that the appellant was not entitled to interfere with their title or possession over the property. The suit was contested by the appellant and also by Allah Bakhsh and the following issues were framed on the pleadings of the parties "(1) Whether the suit is properly valued for the purposes of court-fee and jurisdiction ? 0. P. P.
(2) Whether the suit is not maintainable in the present form (based oh ' preliminary objection No, 2 of written statement) 0. P. D.
(3) Whether the defendant is a bona fide purchaser for value without notice of the suit property ? If so, with what effect ? 0. P. D. No, 2.
(4) Whether defendant No, 2 is entitled to compensatory cost under section 35-A of the C. P. C. ?
(5) Whether the plaintiffs are the owners in possession of the suit property ?
(6) Relief ?"
7. ' The trial Court after recording evidence held that the suit was not properly valued and it was maintainable in the form in which it had been filed, that the appellant was a bona fide purchaser of land for value without notice and hence protected, that the appellant was not entitled to compensatory costs and that the plaintiffs were not the owners in possession of the suit property.
8. The suit was, therefore, dismissed.
9. ' On appeal the Additional District Judge found that the suit was properly valued for the purposes of court-fee and jurisdiction, that the issue with regard to appellant beine a bona fide purchaser did not arise out of the pleadings but held that the plaintiffs had not proved themselves to be the owners of the property and upheld the decision of the trial Court.
10. ' In civil revision a learned Judge of the High Court after consideration of the entire evidence came to the conclusion that the material evidence had been ignored and the legal effect of evidence on record had not been considered at all. On these grounds the revision was allowed and the suit decreed.
11. ' The learned counsel for the appellant contended that as noticed in the leave granting cider, a finding of fact had been interfered with and there was hardly any justification for it. Besides, it was contended that the earlier sale about which reports had been made to the Patwari stood rejected under the Punjab Land Alienation Act and that those orders had attained finality and were not open to question. The appellant had purchased the property by a registered deed and the revenue record was consistently in favour of Allah Bakhsh the owner from whom the appellant had purchased the property.
12. ' The learned counsel for the respondents on the other hand contended that the property which was the subject-matter of sale being already built up, it was not land for the purposes of .Punjab Land Alienation Act and there was no statutory bar to its sale even to a non-agriculturist.
13. According to him, the refusal of the Revenue Officer to sanction that sale is of no legal effect that law being inapplicable. It was further contended that the two reports made to the Patwari were not just entries of revenue record raising no statutory presumption of correctness. There was more to it.
14. Ghulam Muhammad Kanoongo who had recorded that report had appeared as P. W. 3 and had stated about the admissions made by the owner Allah Bakhsh and the vendee Hussain Bakhsh.
15. This evidence of Ghulam Muhammad Kanoongo stands by itself and had to be examined as such.
16. It got added support from a contemporaneous document prepared in discharge of his official duties.
17. ' For examining the contentions of the parties, it is necessary to examine how the Courts dealt with the crucial points involved in the case. The trial Court held as follows :- "Appraisement of evidence led by the plaintiffs tends to show that sale transaction purported to have been effected between the plaintiffs and Allah Bakhsh, defendant No, 1, is not supported by any sale-deed or mutation. Copies of Roznamcha Exh. P. 1 and Exh. P. 2, are not record of rights and do not carry much evidentiary value. Sale of property in dispute for a sum of Rs, 400 required compulsory registration as contemplated by section 54, Transfer of Property Act, read with schedules 17 and 49 of Registration Act. Copies of Roznamcha Exh. P. 1 and Exh. P. 2, do not convey any title to the plaintiffs. Malik Dilawar Lambardar, in whose presence the oral sal.: is alleged to have been effected, has not been produced as witness. Non-production of this material evidence leads to an adverse influence. Parol evidence led by the plaintiffs is hearsay, and is belied by excerpt of Jamabandi Exh. D-2."
18. ' The same matter was dealt with by the first appellate Court which held as follows :- "The entries of the Roznamcha are not documents of the transaction of sale. They were made for the purposes of entering the mutations. They are only relevant under section 35 of the Evidence Act to show that fact of alienation was mentioned herein but they are not sufficient to prove the alienation. Therefore, the entries P. 1 and P. 2, cannot be regarded as the proof of the alienation of the suit property in favour of appellants."
19. ' As regards the oral evidence the first appellate Court held as follows :- "The solitary statement of Noor Muhammad one of the appellants cannot advance their case any further. He stated that sale took place in the presence of Malik Dilawar who was not produced by the appellants as their witness. His non-production will lend to an inference that if he had been produced he would not have supported tilt:, appellants. The evidence of other P. Ws. Is also not helpful to the appellants."
20. ' The learned Judge in the High Court examined in detail the evidence and observed as follows :- "I am of the view that the finding of fact given by the learned Additional District Judge is based upon ignoring the evidence on record particularly Exhs. P. 1 and P. 2 regarding the transaction as such and the statement of P. W. 3 about the death of Dilawar. If Exhs. P. 1 and P. 2 had been given the weight to which they were entitled, all the other defects found by the learned Additional District Judge would have been solved. The learned Additional District Judge has also not considered that the petitioners are admittedly in possession of this property and the evidence of duration of their possession given by Allah Bakhsh and Ilahi Bakhsh both, is discrepant in material particulars. While according to Allah Bakhsh the possession of the petitioners dated back to 5/6 years, as per statement of Ilahi Bakhsh, the duration of this possession was fixed at 10 years. He has also ignored the important circumstances that according to the admissions of Allah Bakhsh and Ilahi Bakhsh both, there were houses in evidence on the land in dispute although Allah Bakhsh had sold to Ilahi Bakhsh by Exh. D. 1 only the land and not the houses."
21. ' The learned Judge in the High Court also held on the basis of revenue record to which statutory presumption of correctness attached that the land when sold had a house built upon it by the father of the plaintiff-respondents and Punjab Land Alienation Act did not bar its sale.
22. The two Courts were correct that the documents (Exhs. P. 1 and P. 2) which are reports made to the Patwari have no statutory presumption of correctness attached to them. All the same neither the trial Court nor the first appellate Court examined the effect of statement of Ghulam Muha nmad then a Patwari who recorded these reports and proved the admissions of the C vendor and the vendee and also the sale transaction. His oral evidence gets corroboration from a doc invent contemporaneously prepared in discharge of his official duties at a time when no dispute over the property had arisen. The two taken together were sufficient to establish unless there was strong evidence in rebuttal.
23. The High Court has correctly observed that statutory presumptions arising out of the entries of the revenue record were not given due recognition. Jamabandi of the year 1942-43 had been put in evidence as Exh. P. 5 and Ghair Mumkin Abadi was shown over the disputed land. The mutation entry also in the first seven columns showed that before its sale the land was Ghair Mumkin Abadi.
24. This would take the disputed property out of the definition of land and consequently Revenue Officer's orders would not stand in the way. The subsequent Jamabandis on which the learned counsel for the appellant wants to rely for raising a statutory presumption are in this case of no avail to him because the antecedent transaction effectively rebutted the statutory presumption arising therefrom and can be explained by reference to section 18 of the Punjab Land Alienation Act in view of the orders passed by the Revenue Officers by reference to that Act.
25. ' The non-production of Dilawar Lambardar which was made a basis for recording a finding against the plaintiff respondents was on erroneous assumption that he was alive and yet was not produced. This assumption on the statement of Ghulam Muhammad Kanoongo which was not questioned, was incorrect and so was the presumption raised by reference to it.
26. ' We find that the High Court could justifiably in a civil revision petition interfere with such a finding recorded by the two Courts and the order is unexceptionable. This appeal is dismissed with no order as to costs.