' Musa Khan, the predecessor-in-interest of respondents herein, filed a suit for declaration to the effect that the property comprised in Khasra Nos. 1669, 1673 measuring 9 kanals and property comprised of Khasra numbers 1640 and 1638 measuring 1 kanal 9 marlas situated in the area of village Girlat, Tehsil Mansehra is exclusively owned by him and that the Mutation No,3466 attested on 28-1-1971, and the entries made in the Revenue record in consequence thereof, are based on fraud and thus ineffective, inoperative and void against his rights. Alternatively the suit was for the possession of the land mentioned above.
2. Defendant-petitioner herein contested the suit and the pleadings of the parties gave rise to the following issues:-
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff is estopped by his own conduct?
(3) Whether the suit is within time?
(4) Whether the suit is bad for non-joinder of necessary parties?
(5) Whether the suit is bad in its present form?
(6) Whether the plaintiff is the owner of the suit land and Mutation No,3466 attested on 28-1-1971 in the name of defendant is wrong, illegal, based on fraud and is ineffective on his rights ?
(7) Whether the plaintiff is entitled to possession of the suit land?
(8) Relief.
' After recording such evidence as produced by the parties, the learned trial Court decreed the suit vide his judgment dated 23-6-1980. Aggrieved therefrom, the petitioner preferred an appeal but his efforts appear to have been proved abortive in that his appeal, also failed and consequently dismissed vide the judgment of the learned District Judge, Mansehra dated 22-12-1983. Hence the instant revision petition.
3. I have heard. S. Abdul Salam Sarwar Advocate, learned counsel for the petitioner and Kh. Abdur Rashid learned counsel for the respondents and also gone through the record of the case with their valuable assistance.
4. It is contended on behalf of the petitioner that the impugned judgments and decrees of both the learned Courts below are based on mis-reading of evidence and that their findings on issues No,1, 6 and 7 are ill-founded for the reasons:
(a) that they have misapplied the provision of section 42 of the Land Revenue Act (hereinafter referred to as the Act) which is simply directory and any how the parties could not suffer on account of wrong acts of the Revenue officials,
(b) that the Mutation was duly given effect to in the record of rights which has a presumption of truth;
(c) that the onus to prove non-attestation of Mutation or absence of consideration was wrongly placed on the petitioner,
(d) and that the pleadings of the parties did not contain any of the grounds on which the suit is decreed.
5. On the other hand, the learned counsel for the respondents maintained that the Mutation does not give rise to title and one who relies on the genuineness of the Mutation, onus lies on him to prove the same; that record of rights when incorporated with an incorrect Mutation, the presumption of truth attached thereto is rebuttable and can be corrected accordingly and finally that once a negative assertion is made by a party on oath, as the plaintiff-respondent had done in the instant case, to the effect that he did not participate in the alleged Mutation proceedings before the Revenue officer, the burden shifts to the other party to positively prove his participation therein which, the petitioner has failed to discharge. He therefore, supported the concurrent findings of both the lower courts in this regard.
6. I have given my serious consideration to the submissions made by ;the learned counsel in support of their respective pleas.
7. A reference to the record reveals that the Mutation No,3364, regarding the sale of land measuring a total of 10 kanals 9 marlas, situated in revenue estate of Girlat, Tehsil Mansehra, was owned by the predecessor-in-interest of the respondents herein, namely, Musa Khan. The first entry regarding its sale was made, as per Mutation No, 3466 by the Patwari concerned on 7-7-1969. It was after about a year that the Naib-Tehsildar concerned recorded a note on its transfer by sale in consideration or Rs,10,000 by Musa Khan in favour of the petitioner and finally, again after about 6 months i.e, on 28-1-1971 at Balakot, the formal attestation was made by Tehsildar.
8. It appears that the possession of the land remained with the mortgagee and when proceedings were initiated by the petitioner for the redemption of the mortgagee, Musa Khan came to know of the transfer and the instant suit was instituted. During the pendency of the suit, however, Musa Khan died and was replaced by his legal representatives, namely, the present respondents.
9. I also tend to agree with the learned counsel for the respondents in that once a statement is given on oath decrying all such steps as allegedly taken by him in the mutation proceedings, the onus of proof that it was none else but the said person who took all those steps shifts to and devolves upon the opposite party, failing which he will suffer the consequences ensuing therefrom.
10. In this context of the matter I fail to understand a4 to why the petitioner did not make any efforts to produce the best evidence available in the person of the Patwari, the Naib-Tehsildar and the Tehsildar concerned whose notes recorded till the process of final attestation of mutation he has been relying upon in asserting his right of being a legitimate transferee of the land in dispute. This failure on his part alone is enough to cast clouds on The veracity of the mutation in question.
11. A reference to the judgment of both the learned lower Courts indicate that in deciding issue No,6, on which hinged the fate of this case, both the Courts relying on the evidence brought on the record arrived at a conclusive decision that not only the mutation No, 3466 is not genuine but also that the whole proceedings in this direction were against the provisions of the West Pakistan Land Revenue Act as contained in its section 42 in that the attestation was not finalized "in the common assembly to which the mutation....Relates" and as such its attestation, being not in accordance with law, cannot be sustained. Additionally, both the lower Courts concurrently held that no reliable evidence is produced to prove the genuineness of the mutation. Statement of Faridun Khan and Hakim Khan on the point of payment of consideration is found contradictory. The witnesses of the mutation were also found to be interested being closely related to the petitioner.
12. Whether mutation proceeding, as envisaged by section, 42 of the Act, is mandatory or directory in nature, is a question that needs to be answered in order to arrive at a decisive conclusion regarding the consequences of non-compliance therewith.
13. A plain reading of section 42 of the Act would show that in matters relating to the mutation proceedings, it envisages a scheme of things which is of great significance in the overall revenue system as is in vogue in Pakistan and its non-compliance, in stricto senso, is replete with hazardous consequences for, it is these proceedings which are eventually to be incorporated in the 'jamabandi' prepared under section 52 of the Act to which is attached a presumption of truth.
Therefore to call it directory, in my considered view, amounts to mitigate, nay rather negate, the very object thereof. Such being the case, I am clear in my mind, that it cannot be held but mandatory in nature and violation thereof shall be considered as unlawful.
14. In this regard, I may refer to a decision of Supreme Court in case of Gharib Shah and others v.
Zarmar Gul reported in PLD 1984 SC 188), though in the context of deciding a point relating to Limitation Act yet, fully depicting the importance and nature of section 42 of the Act with particular reference to its subsections (6), (7) and (8) thus:-- "It is obvious that subsection (8) of section 42 significantly makes it a condition precedent for any effective order that 'it shall be made only in the 'common assembly' in the estate to which the mutation relates. The argument of the learned counsel that vendors' statement recorded under subsection (6) of section 42 that they sold the land, is enough to close the proceedings and that sub-section (8) need not be complied with and that in any case it was complied with even on 26- 12-1974 when the vendors made statement in this case, is without force. The word 'attestation' used in section 31 is not the attestation by the vendoRs, It is the 'attestation of the sale' by the Revenue Officer " and that too in the form of an order" which is visualized by sub-sections (6), (7) and (8) of section 42. And the same amounts to the "attestation of sale" referred in section 31 of the Pre- emption Act. The order passed on 28-12-1974 as it shows, was not final. It was yet to be followed by another order. He was to make the attestation as Revenue Officer after the proclamation mentioned therein. The use of words and in the order of 28-12-1974 and 9-1-1975 have to be read together in order to understand their true import and the intention underlying the same".
15. Learned counsel for the petitioner has cited a decision reported in PLD 1984 A J & K 6 in favour of the propoSition that the provision of section 42 of the Act is simply directory. I have gone through the judgment and I am afraid that it hardly advances the case of the petitioner inasmuch as the real controversy between the parties in the cited case was whether the respondent had made a gift of the suit land to the appellant or not. Since the mutation is not the document which creates title, the irregularity committed by the Revenue Officer while attesting the mutation of gift, in those circumstances, were held as of no consequences.
16. Additionally, it is now a settled law that mutation in revenue record does not lay the foundation of a title inasmuch as these are admittedly neither judicial proceedings nor design to create title and that at best the mutation can be used as an item of evidence in support of transaction under the mutation. At the same time, I am of the view that the courts must insist on some evidence other than the mutation proceedings, in support of the sale and any person, who relies solely on mutation proceedings without obtaining any thing in black and white besides it, would do so at his own peril. The instant case is no exception, and mere entry or attestation of sale mutation allegedly made at' the instance of plaintiff-respondent in favour of the petitioner; its non-confirmity with the mandatory provisions of section 42 of the Act notwithstanding, shall neither clothe it with any credence nor will it be sufficient to create a right of ownership of the disputed land in his favour.
17. Reverting to the point that the impugned Mutation had been duly incorporated in jamabandi of 1970-71 which has a presumption of truth attached thereto, a reference to section 52 of the Act itself can be usefully made. It states:- "An entry made in a record of right in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor."
A bare reading of the provision would indicate that an entry made in a record of rights" shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. Thus it is more than clear that the presumption of truth attached to the entries in a jamabandi is rebuttable.
18. Such being the case I have no hesitation in holding that once the entries in a Mutation register maintained under section 42 of the Act are proved as cast with clouds of discredence, or/and moreso when made in contravention of the aforesaid provision, its incorporation in the jamabandi would be of no legal significance and the presumption of truth otherwise attached thereto shall be no more available under the law. This principle very much applies to the facts of the present case also.
19. It is next urged by the learned counsel for the petitioner that the pleadings do not contain any of the violation of section 42 of the Act on which both the learned courts founded their judgments and in such an event neither any evidence could be led nor looked into in support of a plea by a party, if had not been taken in the pleadings. Learned counsel relied on a case T.Motan Das v. Anis Ahmad reported in PLD 1987 Kar.
159. But, I am afraid this principle cannot be stressed to cover the facts of the instant case inasmuch as the total denial of any transfer of the suit land in favour of the petitioner vide Mutation No34.66 has been the anchor of the plaintiff's case and it was only towards the proof of the said averments in the pleadings that the provisions of section 42 of the Act had to be resorted to in order to re-inforce their stand and, it appears, that the respondents have amply succeeded in this effort of theiRs,
20. On the point that wrong acts of the Court, or for that matter, of officials cannot make him suffer on account thereof in the context of the fact that noncompliance of the provision of section 42 of the Act by the Revenue officers should not have prejudiced the cause of the petitioner, suffice would it be to state that where non-compliance of the provision of law is going to bestow illegal gains on a person at the cost of the rights of another, such person cannot press it into service all the more when he himself is instrumental in violation of the relevant law or wrong acts of the officials.
21. Viewed the matter in the perspective of the foregoing discussion, I have no hesitation in holding that both the learned lower Courts were right in deciding that the impugned mutation was not valid inceptionally and was not attested in accordance with the provisions of section 42 of the West Pakistan Land Revenue Act, 1967 which are mandatory in nature and thus have rightly decreed the suit against the petitioner in favour of the respondents. Nor did their judgments suffer from any jurisdictional error.