This appeal is directed against the judgment and decree of the District Judge, Sahiwal dated 15th of December, 1967, whereby he while reversing the decision of the trial Court dated 4th of July, 1967 decreed the suit filed by Mst. Jannat, respondent herein.
2. The suit out of which this appeal has arisen was filed on 31st of March, 1966 in which it was alleged that she had never alienated her 1/14th share in the land in dispute measuring 200 kanals situate in Chak No. 15/1-AL Teshil & District Okara and that mutation of sale No. 56 attested on 26th of September, 1963 in favour of appellants Nos. 1 to 5 was illegal, unlawful, void and fraudulent. The suit was resisted by the appellants who in their written statement repudiated all the allegations made in the plaint. The learned trial Court framed 4 issues which were all inter connected. The parties produced their evidence after which, as already indicated the suit of the respondent was dismissed by the trial Court but has been decreed by the learned District Judge.
3. The learned counsel appearing in support of the appeal has contended that the learned District Judge has erred in setting aside the judgment and decree of the trial Court and that the evidence produced by the respondents could not have been relied upon by the learned District Judge as it was not worthy of any credit. According to the learned counsel the evidence produced by the appellants was more weighty and as such the learned District Judge while accepting the appeal has erred in discarding the same. I am afraid that none of these contentions can be examined in second appeal brought under section 100 of the C.P.C. It is well settled that in second appeal the evidence cannot be re-appraised nor can the judgment and decree of the lower appellate Court be set aside merely because another view of evidence is possible. No misreading of evidence or non- A consideration of any material on the record has been pointed out by the learned counsel for the appellants and as such the findings of fact recorded by the learned District Judge are not liable to be interfered with in this appeal.
4. However, since the judgment of the District Judge was at variance with that of the trial Court, I have examined the two judgments for their respective merits and have come to the conclusion that the judgment of the learned District Judge is sound and is duly supported by the evidence on the record. The dispute between the parties, centres around the question as to whether Mst.
Jannat, respondent herein had sold her share to appellants Nos. 1 to 5 after receiving due consideration and whether she had appeared before the Revenue Authorities admitting sale. It may be noticed that Mst. Jannat is real sister of appellants Nos. 6 & 7, Faiz Muhammad and Said Muhammad while appellants Nos. 1 to 5 are their sons. It is well settled that mutation proceedings do not have any presumption of truth attached to them. The onus of issues Nos. 1 & 2 regarding the sale of land and payment of consideration was on the appellants. The learned trial Court while dismissing the suit had noticed the statements of D.W. 4 Muhammad Sadiq and Mst. Sairan D.W. 2 and the report of the Patwari, Ex. D-1, only and had not adverted to the other evidence on the record. Similarly the cross-examination of the two witnesses was also not taken into account . . . . . . . .
5. The case of the appellants was that the land had been sold jointly by -three sisters namely, Mst.
Jannat, Mst. Aisha and Mst. Sairan. Mst. Aisha Bibi appeared as P.W. 2 and stated that though she had sold her share in the land to the appellants but no such sale was made by Mst. Jannat and that Mst. Jannat had never appeared before any Revenue Officer nor received any amount. Mst.
Jannat appeared as P.W. 1 and denied having sold the land or received any consideration. The appellants examined D.W. 1, Muhammad Yaqoob who stated that he had identified Mst. Jannat, Mst. Sairan and Mst. Aisha before the Patwari at the time when report Ex. D-1 was entered by him in his daily diary. He, did not depose about the payment in his presence of any amount of consideration, however, one of the vendees namely, Faiz Muhammad while appearing as his own witness as D.W. 3 had stated that the consideration was paid in the presence of Muhammad Yaqub. This contradiction was duly noticed by the learned District Judge. Similarly, according to the statement of Mst. Sairan D.W. 2, at the time of payment of consideration a receipt was executed by all the three sisters which was produced before the Patwari. Faiz Muhammad D.W. 3, however, deposed that no receipt was executed to record payment of consideration. Another important fact to be noticed is that according to the statement of D.W. 1 Muhammad Yaqub, the vendors had affixed their thumb impressions on the report entered by the Patwari . . . . . . This statement is belied by Muhammad A.I Patwari who appeared as D.W. 6 and categorically stated that no thumb impressions were affixed on the report. Another discrepancy in the evidence which was noticed by the learned District Judge was that while according to D.W. 2, Mst. Sairan, consideration had been paid about 10/15 days before the report made to the Patwari, Faiz Muhammad D.W. 3 had stated that it was only two days before making the report that the payment was made to the vendees. In this state of evidence, the learned District Judge was justified in holding that the appellants had failed to prove the sale in their favour and payment of due consideration. There are other characteristics of the case which also support the findings arrived B at by the learned District Judge. Although, admittedly, the land is situate in. Chak No. 15/1-Al, the mutation was attested not in the open assembly held in the same or in a nearby village, but at Okara. Furthermore, although it is admitted by P.W. 6 that there are two Lambardars namely Raja Muhammad Sarwar and Allah Bakhsh of the village in which the land is situate but none of them identified the vendors at the time of attestation of mutation. It is also in evidence of D.W. 6 that earlier the appellants had managed to have a mutation of gift with regard to the same land in then own favour entered on 2-11-1963 which was, however, rejected by the Revenue Officer. Thereafter, the mutation of the disputed sale was entered. The derision of the learned District Judge is amply supported by the evidence on the record and no valid exception can be taken thereto.
There is no force in this appeal. It is dismissed with no order as to costs.