' In this civil revision petition under section 115, C.P.C. Haq Nawaz defendant-petitioner had challenged the judgment and decree, dated 30-5-1981 of Sardar Muhammad Raza District Judge, D.I. Khan whereby accepting the appeal of the plaintiff-respondent he decreed his suit. Earlier the suit filed by the plaintiff-respondent had been dismissed per order, dated 29-11-1980 of Mr. Muhammad Ayaz Khan, Civil Judge, D.I. Khan.
2. Facts of the case in brief are that Ghulam Qasim plaintiff respondent instituted a suit for declaration that he is owner in possession of the land in dispute and that the defendant-petitioner has got no concern whatsoever with the same and that sale Mutation No, 85 attested on 19-6-1971 was the result of fraud, was fictitious, void, collusive without consideration and that the mother of the plaintiff had never sold the suit land to the defendant and hence the entries in the revenue record are incorrect and liable to cancellation. In the alternative, he prayed for permanent injunction against the defendant-petitioner restraining him to refrain from claiming himself the owner and in possession of the suit land. This suit was hotly contested by the defendant-petitioner and the trial Court on the basis of the pleadings of the parties framed the following issues for the final adjudication of the suit:--
(1) Whether the plaintiff has a cause of action?
(2) Whether the plaintiff is estopped to bring the present suit?
(3) Whether the suit is maintainable in its present form?
(4) Whether the plaintiff has raised contradictory pleas in his suit, if so to what effect?
(5) Whether Mutation No,85 in question is fraudulent, collusive and void and has no effect whatsoever on the rights of the plaintiff?
(6) Whether the plaintiff is entitled to the decree as prayed for?
(7) Relief?
' After recording the evidence of the parties pro and contra the trial Court decided Issues Nos.1, 5 and 6 against the plaintiff, Issue No,2 in favour of the defendant and Issues 3 and 4 in favour of the plaintiff. As result of his findings on Issues Nos. 1, 5 and 6 he dismissed the suit for the plaintiff.
Feeling dissatisfied by the said order of dismissal of his suit the plaintiff-respondent went in appeal in the Court of the District Judge, D.I. Khan who, however, per his judgment referred to above decreed the suit of the plaintiff by setting aside the judgment and decree of the trial Court.
Aggrieved by the said judgment and decree of the learned District Judge the defendant petitioner has approached this Court through the instant civil revision petition for his redress.
3. I have heard the arguments of the learned counsel for the parties and have examined the record of the case.
4. It is not disputed that the plaintiff-respondent is the son of Mst. Basho Bibi and is her sole legal heir. It is equally admitted that the defendant-petitioner is the step-brother of the deceased lady. It was on the basis of Mutation No,85 attested on 19-6-1971 that the land in suit was mutated in the name of Haq Nawaz defendant-petitioner ostensibly on payment of Rs,2,800 as sale consideration having been paid to Mst. Basho Bibi. Mst. Basho Bibi died somewhere in 1977-78. The plaintiff- respondent being the sole heir of the deceased lady when failed to get the property in suit which in the ordinary course he was to inherit, he brought the instant suit challenging the validity and admitted principle of law that to prove a sale having validly taken propriety of the sale in favour of the defendant-petitioner. It is an place the payment of consideration therefor is a prerequisite. Faiz Muhammad (D.W. 1), Haji Malik Abdur Rashid (D.W.2) and Sheikh Muhammad Mukaram (D.W. 3) have all admitted that the sale consideration had not been paid in their presence. On the other hand Haq Nawaz defendant-petitioner while appearing as D.W. 4 admitted that he had obtained no receipt whatsoever from Mst. Basho Bibi against his payment of the sale 'consideration. He also admitted that while Rs,1,400 or 1,500 he, had paid to Mst. Basho before the entrance of the mutation, he paid the rest of the sale consideration before recording of the statement of Mst. Basho by the Local Commissioner. He stated that statement of Mst. Basho by the Local Commissioner was recorded in presence of Haji Rashid andfSheikh Muhammad Mukaram. Firstly the defendant- petitioner is himself not sure as to how much money he had paid before the entrance of the mutation and how much, he paid before the recording of the statement of Mst. Basho. This much he admits that the rest was paid before the recording of the statement of Mst. Basho. If the statement of Mst. Basho was recorded by the Local Commissioner in the presence of Haji Rasheed and Sheikh Muhammad Mukaram naturally the balance of the sale consideration might also have been paid before these witnesses. These D.Ws. Have, however, totally denied of any sale consideration having taken place in their presence. Haq Nawaz defendant-petitioner in his statement in clear words admitted that neither of the relation of the lady was present at the time of recording her statement. Sheikh Muhammad Mukaram D.W. Has stated that neither the son of the lady nor the brother of the husband of the lady was present at the time of recording statement.
Moreover, it is the defendant evidence that Mst. Basho Bibi was a 'Pardanashint lady and at the time of recording her statement she was in 'Parda'. In this situation the .Question of identification of the lady becomes very pertinent, particularly when despite her surviving close relations, particularly her son, none of the relation of the deceased lady was present on that occasion. The bona fide of the attestation of the mutation and the recording of the statement by the Local Commissioner becomes more doubtful when I fined that although the lady belonged to village 'Teekent and in the ordinary course her statement should have been recorded in her village in the presence of her relatives who were in a position to identify her, her statement was recorded in city D .I. Khan in the house of Sheikh Zikria who in no manner was related to the lady. Similarly, her statement was recorded in the presence of such persons who too had no relationship with the lady.
5. It has been contended that the mutation was attested in 1971 and the suit was brought in 1979.
Learned counsel for the petitioner argued that the silence of the lady over the change of the entries o the revenue record for about six years was a sufficient evidence to consider that she was satisfied in view of her having sold the land to the defendant-petitioner. In this context I must say that Mst. Basho was an illiterate 'Pardanashin' lady and so was her son. It appears B that the change of entries in the revenue record did not come into the knowledge of the lady or her sole heir during her life time. When, however, she expired and her son, the plaintiff in the instant litigation did not get the property left by his deceased mother attested in his name he came to know of all the facts and sought the aid of the Courts for his interrupted title. Undoubtedly presumption of correctness is attached to mutation proceedings but at the same time these entries are rebuttable. In Rahmat Shah and 2 others v . Sarwar and another PLD 1971 Pesh. 50 it was held:-- ' 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 Nazamuddin v. Fateh Din 41 PLR
308. 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 completed.
6. On the view of the matter that I take I fully concur with the findings of the learned District Judge.
There is, therefore, no force in this civil revision petition which is hereby dismissed with costs.