1. ZAFFAR HUSSAIN MIRZA, J.--The dispute in this case relates to a Katcha house on Khasra No.662/658/187, in Motjai Chasham Khudo, Mauza Kasi, Tappa Saddar Quetta, measuring 1361 sq. Ft.
2. The appellants are the heirs and legal representatives of one Mst: Gran Naz, who had purchased the aforesaid property in dispute from its previous owner Haji Khan on 24th April, 1974, as per mutation No.351 entered in the revenue record in favour of the said Mst. Gran Naz. Respondents No.1 and 2 alongwith their father Paind Khan, since deceased, were in occupation of the disputed property. Mst. Gran Naz called upon them by means of legal notice to hand over vacant possession of the property as she intended to occupy it herself. However, the said persons did not respond to the legal notice and did not comply with the request contained therein. After unsuccessfully attempting to evict the aforesaid occupants under the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959, for lack of jurisdiction, Mst. Gran Naz filed a suit on 8th March, 1975, for declaration and possession of the disputed property, against respondents Nos. 1 and 2 and their father deceased Paind Khan. Mst. Gran Naz died during the pendency of the proceedings and was substituted by the present appellants as her legal representatives. Subsequently Paind Khan also died and the present respondents Nos. 3 and 4 were also brought on record as his remaining legal representatives. The respondents contested the suit and denied the ownership of Mst. Gran Naz and set up a rival claim to title in the disputed property on the plea that the previous owner Haji Khan had sold the same to Paind Khan for a consideration of Rs.1,000. The respondents also raised certain legal issues which are no longer material at this stage. The main issue on which the parties went to trial related to the question of title in the disputed property. The learned Senior Civil Judge, Quetta, after hearing the evidence of both parties held that on a preponderance of evidence, the appellants had proved their title, primarily on the basis of mutation entries in the revenue record which constituted better evidence as compared to the evidence produced by the respondents in support of their claim to ownership which consisted of oral and hearsay testimony. Accordingly by judgment dated 30th December, 1980, the suit was decreed.
3. The respondents challenged the decree passed by the trial Court in an appeal which was disposed of by the learned Additional District Judge, Quetta, who reversed the finding recorded by the trial Court on the following reasoning:- "The learned Senior Civil Judge has relied upon a piece of evidence which is a mutation entry in the revenue record in favour of the respondents. The legal position is while creating a title in an immovable property which is worth more than Rs.100 registration of the same is compulsory under law. Mutation entry in revenue record may be used for other purposes except creating a legal title is an immovable property. In the present case, mutation entry in favour of the respondents is not favour of the respondents shall not go in other details of the appeal on its merits and set aside the decree passed in favour of the respondents while accepting the appeal."
4. The appeal was accordingly accepted and the decree passed by the trial Court was set aside vide judgment dated 8th June, 1981.
5. Being dissatisfied the appellants approached the High Court of Baluchistan, Quetta, in its revisional jurisdiction under section 115 of the C . P. C . It was contended before the High Court that no question of non-registration of the transaction by which the property was transferred in favour of the predecessors-in-interest of the appellants arose in this case, as there was no document or instrument of transfer so as to attract the provisions of section 17 of the Registration Act. The statement of the seller before the revenue authorities that he had transferred the property in favour of the purchaser is not an instrument so that it could attract the provisions of section 17 of the Registration Act. The learned Single Judge of the High Court who decided the revision application, however, took the view that entries of mutation in the revenue record are not sufficient to create title but are mainly intended for fiscal purposes. In this view of the matter the learned Judge agreed with the view taken by the first appellate Court that the appellants cannot claim title on the basis of mutation entries. Additionally the learned Judge also held that in the absence of the evidence of sellers, who are not examined, there was nothing to prove even an oral transaction.
6. Upon the aforesaid grounds the learned Single Judge dismissed the revision filed by the appellants herein by judgment dated 6th November, 1982.
7. The appellants then came up before this Court and leave to appeal was granted to them to examine the contention "that the statement of the vendor Haji Khan which he had made for self and on behalf of Mst. Noor Bibi before the Naib-Tehsildar, Quetta was produced before the trial Court which was also proved through Hazoor Bakhsh who had identified the vendor," consequently the case of the appellants was not solely based on the mere entries on the record of rights.
8. We have heard Mr. Khalid Malik learned counsel appearing for the appellants and respondent No.1 in person. On behalf of the appellants learned counsel resurged the aforementioned contention and challenged the view taken by the learned Additional District Judge on the grounds urged before the High Court as noted above. In support of his submission he placed reliance on a recent judgment of the Baluchistan High Court reported as Dilbar Hussain v. Muhmoodul Hassan and others PLD 1986 Quetta 198. In this judgment two well-recognized propositions of law were reiterated. It was laid down that under section 42 of the West Pakistan Land Revenue Act, 1967, as applicable to the Province of Baluchistan, entries in the mutation record maintained by the revenue authorities, would raise re-buttable presumption in favour of their correctness. It was further held that in order to attract sections 17 and 49 of the Registration Act, existence of a document in writing in respect of the transaction would be necessary therefore, conversely, non-existence of any such document would be sufficient not to attract these provisions. These dicta are fully attracted in the present case, inasmuch as, the appellants in support of their case, besides oral evidence placed reliance on the entries in the mutation record, which had the effect of shifting the onus of proving the contrary, upon the respondents. Also it is no body's case that in regard to the transaction in favour of Mst. Gran Naz any instrument in writing was executed, therefore, there was no question of registration of the transaction under section 17 or the bar contained in section 49 of the Registration Act being attracted. The Transfer of Property Act not being applicable to Quetta, it would follow that the transaction of sale even in respect of the property worth more than Rs.100 in value can be legitimately made in a mode other than section 54 of the Transfer of Property Act.
9. Having regard to all these circumstances it was quite plain that the balance of preponderance of evidence was tipped in favour of the appellants, who had produced the presumptive evidence of the entries in the revenue record, as compared to mere oral assertion on the other side that Haji Khan had sold the land to Paind Khan. In this view of the matter the reasons that prevailed with the learned Additional District Judge to set aside the decree passed by the trial Court in favour of the appellants, are untenable and unsustainable and ought to have been held so by the High Court in its revisional jurisdiction. As the respondent 'was appearing in person he was unable to make any argument on the legal aspect of the case and merely asserted that his father had purchased the house in dispute from the previous owner.