1. Second appeal from the judgment and decree of learned District Judge dated 20-6-1967 reversing those of the trial Court arises out of a civil suit brought by Noor Alam plaintiff against Mehdi son of Hayat, Ahmad son of Fatta and Noor Khan son of Sikandar for declaration of ownership rights in regard to land measuring 106 kanals, 14 marlas situate in the revenue estate of Jabbi, Tehsil Chakwal, for confirmation of possession over part of the above land and recovery of actual possession of the remainder. The trial Court decreed the suit but in appeal, decree was reversed and the suit was dismissed. Relevant facts are:- 106 kanals, 14 marlas of land, part of joint Khata, situate at Mauza Jabbi, Tehsil Chakwal belonged to one Birbal son of Ghulam Mohammad who sold it to Mehdi son of Hayat and Ahmad son of Fatta at the sale price of Rs.2,500. It was an oral sale. Sale was reported to the village patwari on 24-11-1953 who made entries in relevant columns of sale mutation No.537 and then put it up before the Revenue Officer at village Nila on 8-12-1953.
2. On this date, Birbal and of the vendees, Mchdi appeared before the Revenue Officer and affirmed the sale transaction, payment and receipt of sale price as also transfer of possession under the sale. Both were identified by Mohammad Khan Lambardar of village Jabbi since deceased. Relying upon the affirming statements of the parties, Revenue Officer sanctioned the sale mutation on the same day. Sale mutation is marked Ext.D1. Birbal vendor, Noor Alam plaintiff and Noor Khan defendant No.3 are lineal descendants of one Jahana who is their common ancestor. Birbal died on 12-6-1961. He left no issue. On 6-10-1965, Noor Alam plaintiff instituted a suit against the vendees to have it declared that the land in dispute was owned by him with his brother defendant No.3, part of it was in their actual possession and in regard to other part in Khasra Nos. 305, 309, 899, 902, 3391 which was described to be in cultivation of the defendants 1 and 2, sued to recover its actual possession. It was alleged that the sale ascribed to Birbal in mutation No.537 attested on 8-12-1953 was not made by him and that the defendants 1 and 2 in collusion with the revenue staff had manipulated false attestation of the mutation by impersonating real owner who was not even possessed of sound disposing mind to deal with his land. It was further alleged that in case, sale was found to have been validly made by Bibal, it was invalid because custom prohibited its sale without consideration and legal necessity which did not exist in the case. It was also alleged that except for the land in Khasra Nos. 305,309,899,902, 3391, rest of land in dispute was in actual occupation of the plaintiff and defendant No.3. As far the above Khasra numbers, it was alleged that defendants 1 and 2 held those as their non-occupancy tenants but since after the death of Birbal, have claimed ownership rights and were, therefore, in unauthorized possession. Upon these allegations, plaintiff claimed declaration of ownership rights to land in dispute, confirmation of possession over the part of it and for actual possession of the land comprised in aforesaid five Khasra numbers.
3. Defendants 1 and 2 filed joint written statement. It was submitted that the suit was barred by limitation; that as the land in suit was possessed by the defendants, form of the suit was defective; that defendant No.3 consented to the sale and as he did not join as co-plaintiff, plaintiff alone could not sue for avoidance of the sale; that the valuation set up in the plaint for purposes of court --fee and jurisdiction was incorrect. As for merits, it was submitted that binding sale of the land in dispute supported by consideration and legal necessity was effected by Birbal in his lifetime in favour of defendants 1 and 2, in 1953, and ever since, they were in its actual possession. Allegation in regard to invalidity of the sale on score of custom was also controverted. Defendant No.3 who was served through proclamation in the press conceded to the claim and submitted confessional written statement. In replication, averments in plaint were reiterated.
4. Trial Court tried the suit on following issues, but somehow those were described as preliminary issues. Issues are:--
(1) Whether there was no sale between Birbal and defendants 1 and 2? OPP
(2) Whether the suit is time-barred? OPD 1 & 2.
(3) Whether the plaintiff is in possession of the suit land? OPP
(4) If not, whether the suit is not competent in its present form? OPD 1 & 2 After settlement of issues, civil suit was adjourned to 19-10-1966 for recording evidence of the parties. On of proof in regard to issues Nos.1 and 3 which were material issues in the suit was placed upon the plaintiff. In terms of allocation of onus of proof, plaintiff was first to begin his case and produce evidence in support of the issues which he was bound to prove but for reasons not discernible from the records, first defendants Nos.1 and 2 gave their evidence and thereafter, plaintiff produced his evidence. As for defendants No.3 who was an equal beneficiary, he neither produced evidence nor cross-examined the defendants' witnesses as is clear from the statement of his counsel recorded on 19-10-1966. Defence is supported by three D.Ws. Saeed Ahmad Naib Saddar Kanungo D.W.1 merely produced impugned sale mutation in Court. Mohammad Shafi DW.2 deposed that on 8-12-1953, he was posted as Patwari in village Jabbi and had entered sale mutation on 24-11-1953 which later on was sanctioned on 8-12-1953 by the Revenue Officer on the basis of affirming statements of the parties who were identified by Mohammad Khan Lambardar of village Jabbi, since deceased. He admitted in cross-examination that neither the contract for sale was settled in his presence nor was he a witness to the payment of sale price. In answer to a question put to him in cross-examination, he stated that mutation was sanctioned at village Nila, a place situated at a distance of about 1-1/2-1 miles from village Jabbi. Mchdi defendant No.1 himself appeared as DW.3 He deposed that land was purchased from Birbal at the sale price of Rs.2500.
5. Further deposed that both he and Birbal had appeared before the Revenue Officer on 8-12-1953 and were identified by deceased Mohammad Khan Lambardar of their village. He also deposed that sale mutation was entered by village Patwari Malik Mohammad Shad who had, later, put it up before the Revenue Officer for its attestation. As for Birbal, witness stated that he was residing with her niece whose son Karim Bakhsh cultivated the land in dispute as non-occupancy tenant and it was Karim Bakhsh who had brought about the sale between the parties and after the sale, had delivered actual possession of the land to the vendees. In cross-examination, stated that parties had concluded contract of sale in the house of Karim Bakhsh and sale price was also paid at his house on the same day. Further stated that Karim Bakhsh was also present at the attestation of sale mutation. Karim Bakhsh DW.4 is related to Mehdi defendant No.1 and is his brother-in-law. It is available in his cross-examination that apart from Mehdi, one Mawaz (his father), Birbal (vendor), Allah Bakhsh and Karam Dad were also present when the contract for sale was settled and the sale price was paid, Allah Bakhsh and Mawaz though alive, but were not produced at the trial. Karam Dad was stated to have expired. Plaintiff as P.W.1 deposed that Birbal.At the time of his decease was of 70/80 years of age. He was of unsound health, was hard of hearing and incapable to conclude a contract of sale. He further deposed that he came to know of the impugned mutation after the death of Birbal, in year 1964. Plaintiff also deposed that the land in dispute except five Khasra numbers of which actual possession was sought from the defendants, was in his possession. It was stated by him that 3/4 years after the creation of Pakistan, Birbal went to Chak No.78 (Bahawalpur) and stayed there for six or seven years and during this period he (Birbal) did not return to his native village. As for himself, he was in Lahore in connection with his education and employment for the past 10/15 years but, of and on, had visited the village. In cross-examination, it was conceded that Birbal died at Jabbi and was also buried in the same village but the witness did not attend his funeral. It was further admitted that whenever Birbal came to Jabbi, he stayed with his niece and her son Karim Bakhsh. In regard to possession over the land in dispute, witness stated that defendants 1 and 2 paid rent for the land in their possession but evcrsince 1965 had not paid any rent. Mohammad Nawaz P.W.2 who was originally resident of village Jabbi stated that Birbal lived with him from 1951 to 1957 at Chak No.78 (Bahawalpur) and during this period, he (Birbal) never visited his native village. He stated that Birbal was an old person. He did not enjoy good health and was hard of hearing. He admitted that Birbal was not related to him and he had never go him admitted in any hospital for medical treatment during the period of his stay with him. Allah Yar PW.3 who is father--in-law of plaintiff and also resident of Chak No.78 (Bahawalpur) supported P.W.2 Allah Wadhaya, Chaukidar of village Jabbi, PW.4 stated that Birbal who previously resided with her niece at Jabbi had gone to Bahawalpur with Mohammad Nawaz P.W.2 and returned a year before his death. He deposed that Birbal stayed in Bahawalpur for about seven to ten years. He also stated that on 8-12-1953, he was present before the Revenue Officer in connection with mutation No.538 by which he had taken some land on mortgage from Mst. Takhtan Bi but had not seen Birbal nor was any mutation relating to his land presented before the Revenue Officer. In cross-examination witness deposed that on 8-12-1953, Mohammad Khan Lambardar was not present at Nila for purposes of identification and that muation no. 538 was attested by the Revenue Officer upon identification of some other lambardar. Mohammad Bakhsh, Gul Baz and Allah Yar D.Ws. Who asserted their presence before the Revenue Officer at Nila on 8-12-1953 deposed that Birbal was not seen present at Nila to make statement before the Revenue Officer. Mohammad Bakhsh deposed that Birbal was in Bahawalpur. Mohammad Bakhsh P.W. Is husband of Mst.
6. Takhtan who had mortagaged her land in favour of Allah Wadhaya P.W. Through mutation 538 attested on 8-12-1953. Mohammad Bakhsh gave a clear lie to Allah Wadhaya when he stated that Mohammad Khan Lambardar of village Jabbi was present at Nila but then professed his ignorance as to upon whose identification mortgage mutation by Mst. Takhtan in favour of Allah Wadhaya was attested. Gul Baz PW.6 is son in-law of Mohammad Bakhsh PW.5. He stated that his father had gifted some land to him vide mutation No. 534 attested on 8-12-1953 and in connection with that mutation, he was present at Nila on 8-12-1953 but Birbal was not seen present nor was any mutation in regard to his land put up before the Revenue Officer on that day. Also stated that Birbal was at Bahawalpur. In cross---examination, he admitted presence of Malik Mohammad Shah, village Patwari and Mohammad Khan Lambardar who had identified the parties to the mutation sanctioned in his favour. As said above, Allah Yar who happened to be present at Nila on 8-12-1953 in connection with mutation No.533 deposed that Birbal was not present nor any mutation in regard to sale of his land was put up before the Revenue Officer. When a question was put to him in cross-examination as to, who had identified the parties in mutation No.533, he conveniently chose to forget the name of lambardar. Khuda Bakhsh P.W.8 like some other P.Ws deposed that 2/3 years after creation of Pakistan, Birbal was taken to Bahawalpur by Mohammad Nawaz P.W. Who remained with him for about six or seven years. He further deposed that Birbal did not sell his land to defendants and possession of the land was with the plaintiff. In addition to oral evidence, certified copies of mutations 538 Ext.Pl, 534 Ext.P2, 533 Ext.P3, 991 Ext.P4, pedigree table Ext.P5 indicating inter se relationship of the plaintiff to Birbal deceased, Jamabandi for the land in dispute prepared for the year 1902-63 Ext. P6 were tendered in evidence.
7. Seen from the above real controversy centres round the main point as to the genuineness of sale by Birbal to defendants 1 and 2 and also whether mutation No.537 Ext.Dl sanctioned on 8-12-1953 represented the true version of the events. Mirza Manzoor Ahmad, learned counsel for the appellant argued that there was enough material on record to establish almost conclusively that the land in suit was not sold by Birbal and the sale mutation was a fake and fabricated document. Also argued that onus to prove valid sale lay upon the vendees who gave no convincing evidence to discharge the onus of proof that lay upon them. In support of the principle that mutation is not a document of title, and, by itself, does not confer title or transfer rights and that onus lies on the party who seeks to establish its authenticity, learned counsel relied upon (Thakur) Nirman Singh and others versus Thakur L al Rudra Partab Narain Singh and others AIR 1926 Privy Council 100, Mst.
8. Aisha Bibi and others versus Muhammad and others P.L.D. 1957 (W.P.) Lahore 371, Jamsher and others versus Abdul Jalil and others P.L.D. 1964 (W.P.) Peshawar 159, Muhammad and others versus Sardul PLD 1965 (W.P.) Lahore 472, Lai and others versus Mian Dad and another 1968 S.C.M.R. 842 (2), Controller of Estate Duty Government of Pakistan, Karachi versus Lt.--Co1.Nawabzada Muhammad Amir Khan PLD 1968 Peshawar 196, Muhammad Iqbal versus S.A.M. Khan, Member, Board of Revenue, West Pakistan, Lahore and 3 others PLD 1970 Lahore 614, Firdus Khan versus Syed Azam Shah and 14 others PLD 1970 Peshawar 141, Mst. Kaniz Fatima and 3 others versus Member (Revenue), Board of Revenue, Punjab, Lahore and 3 others PLD 1973 Lahore 495, Fazal Din and 3 others versus Umar Din and 2 others 1979 C.L.C. 663, Mst. Karim Jan and 3 others versus Anwar Khan and another P.L.D. 1984 Peshawar 111, Naja and 2 others versus Shamshad and 4 others P.L.D. 1985 Lahore 607 and Bala versus Abdul Sattar and 5 others 1987 C:L.C 326. Learned counsel also argued that there is nothing in writing to establish payment of sale price which, in itself, is an important factor to negative the oral sale set up in defence. In reply, Haji Shams-ud-Din, learned counsel for the respondents strenuously argued that plaintiff did not produce sufficient material to displace the genuineness of sale mutation which is a public document prepared in proper discharge of public functions. It was further submitted that presumption of correctness applied to entries in sanctioned mutation and in default of required evidence, not existing in the case, sale mutation sanctioned as far back as 1953 could not be characterized as a fabricated document. In support, reliance was placed by him upon the cases of Bhagwan Das versus mangal Sain A.I.R. 1929 Lahore 93, Nizam Din and others versus Godar and others A.I.R. 1934 Privy Council 40, Nizam-ud-Din and others versus Fateh Din and others A.I.R: 1940 Lahore 118, Abdul Ahad and others versus Roshan Din and 36 others P.L.D. 1979 S.C. 890, Ahmad Ali and others versus Muhammad Iqbal and another 1986 S.C.M.R. 244. As said above, material point and no doubt a difficult point for decision in the second appeal is whether sale of land in mutation EXt.Dl by Birbal to defendants 1 and 2 at the stated sale price had really taken palce. On behalf of the plaintiff, six persons gave evidence to disprove the sale. Defendants were assisted by the oral testimony of three witnesses and also aided by entries in Ext. D1.
9. First point to see is as to what is the `Mutation' and its evidentiary value and effect upon the rights of the parties. Term mutation has not been defined by the legislature. It literally means change of alteration. Thus "mutation" merely signifies alteration of an entry in the revenue records with the object of bringing the latter uptodate so as to represent the facts with regard to the respective rights and liabilities of persons as these at present are and not as they should be. In order to maintain the Record of Rights accurately, it is necessary to register carefully all changes as they occur among the right-holders and in the rights themselves. The act of recording these changes is known as `mutation'. Relevant provisions for alteration in the Record of Rights are found in Chapter VI of the Punjab Land Revenue Act, 1967. Section 41, subsection (3) of the Act provides that "for the preparation of periodical records, the Collector shall cause to be maintained by the Patwari of each estate a register of mutations in the prescribed form, and other prescribed registers, if any".
10. Mutation register, therefore, is prescribed under the above section of law procedure for making of records and scope of enquiry in regard thereto is laid down in section 42 to section 45 of the Punjab Land Revenue Act. Upon close examination of the scheme of the Act and relevant sections of the law, it is clear that Mutation procedure is not designed for final settlement of rights. Nor are the Revenue Officers final arbiters of the rights of the persons or their property. Decisions by -them in mutations are merely a prelude to the decisions by the Civil Courts which alone are competent to pronounce finally upon the rights of persons and to their properties. In mutation proceedings, Revenue Officers are required to reach a decision, in so far as they are able to do so in summary proceedings as to the disputed title to the land in question. The decision on a mutation is not a final adjudication on a question of title. It is the formal recording of what the Revenue Officers dealing with the matter consider the facts in regard to title to the land in question and the final adjudication on a question of title between the parties is a matter for the Civil Courts except in so far as the statute may have taken away their jurisdiction in regard to specified matters and conferred it upon another authority. It is a common fallacy that decisions in mutation coupled with the consequent correction of the revenue entries either create a title previously not existing or terminate a previously existing title. The entry of title in the revenue records on the result of mutation proceedings is merely the recognition by the Revenue Officers of a title which they believe to exist. It is true that the entry made in the Record of Rights in accordance with law is entitled to a rebuttable presumption of correctness but it is equally true the mere making of an entry does not in any way create a title. It is well settled that Mutation Register is not a part of Record of Rights and its entries do not share the presumption of truth attached to that record. Also, record of reghts are not instruments of title. They do not per se confer ownership rights upon the persons but are in the nature of presumptive pieces of evidence to establish the title. Therefore, though the entries in a sanctioned mutation are relevant under section 35 of the Evidence Act, yet no presumption of truth is attached to them. Proceedings before the Revenue Officer are more in the nature of fiscal enquiries rather than to determine disputed questions of title to the property.
11. Privy Council in case of (Thakur) Nirman Singh an others versus Thakur Lai Rudra Partab Narain Singh and others A.I.R. 1926 Privy Council 100 in the classic description of the nature of mutation proceedings and the results recorded in them in regard to rights of the parties in their property, observed: "The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh, at p.482 of the record leads their Lordships to think that its judgment is to a great degree based on the mischievous but persistent error that the proceeding for the mutation of names is a judicial proceeding, in which the title to and proprietary rights in immovable property are determined. They are nothing of the kind as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. It is little less than a travesty of judicial proceeding to regard the two orders of the Extra Commissioner of Bahraich and Mr. M.L. Ferrar, Deputy Commissioner, as judicial determinations expelling proprio vigore any individual from any proprietary right or interest". As presumption of truth is not attached to the entries in the mutation, it is for the party who relies on their correctness to prove them by leading necessary evidence. In case of dispute about the genuineness of mutation, initial burden of proof must always rest on the party who claims to be its beneficiary and not the one who denies its correctness. Therefore, in the present case, it was clearly for the vendees to establish that mutation was correctly sanctioned and all the essential requirements in regard to its attestation were faithfully observed. In my opinion, mere incorporation of mutation entry in the Jarnabandi would not affect the allocation of initial burden of proof. Looked at from this point of view, the question as regards genuineness of sale turns upon appreciation of evidence led by the parties to prove their assertions. Evidence produced by them is of two kinds, one oral, and the other documentary. Documentary evidence consisted of copies of mutations Exts. Pl to P4 produced by the plaintiff and Ext. Dl tendered by vendees-defendants. Ext. P4 is copy of inheritance mutation sanctioned upon the death of vendor on 26-8-1964 in favour of plaintiff and defendant No.3. F.Xts. Pl to P3 mark presence of Mohammad Khan Lambardar at Nila, on 8-12-1953, before the Revenue Officer. In these documents, concerned parties were duly identified before the Revenue Officer by Mohammad Khan Lambardar and it was upon his identification that the Revenue Officer had attested the mutations. Therefore, oral statements of P.Ws. Denying his presence at Nila on 8-12-1953 to disprove correctness of sale mutation by vendor in favour of contesting defendants cannot be taken as a truthful version Presence of Mohammad Khan at Nila on 8-12-1953 is proved beyond dispute. This factor has a strong probative force and greatly probablises the genuineness of sale by vendor. There are other factors which also point in the same direction. Vendor was resident of Jabbi. In the land of small peasants, holding of vendor was not a small one. He sold 106 kana 14 marlas and was left with some more land which upon his death was inherited by the plaintiff and defendant No.3. Plaintiff was a near collateral of the vendor but like defendant No.3 never bothered for the vendor in his lifetime. Even after his death, both did not attend his funeral. That gave clear indication as to their inter se relations. Birbal was issueless. He resided with his niece and her son Karim Bakhsh. They looked after him and assisted cultivation of his lands. It looks really incredible that vendor was taken to Chak No.78 in 1951 and stayed there with Muhammad Nawaz till 1957. Muhammad Nawaz was not related to him. PW3 who is father-in-law of plaintiff was also resident of Chak No.78 but the vendor did not live with him. There are indications on record that plaintiff was not on good terms with the vendor. Story that vendor was, at material times in Chak No.78 was fabricated merely to probablise the delayed commencement of civil action for avoidance of sale and to negate the sale mutation attested on 8-12-1953. Otherwise, it does not appear to be a natural or probable event and has no semblance of truth in it. Upon death of vendor, his land was mutated to plaintiff and his brother vide inheritance mutation 991 attested on 26-8-1964. Nonetheless, instant suit was instituted on 6--10-1965 by the plaintiff. Defendant No3 who was an equal beneficiary in avoidance of sale was impleaded as defendant No.3. Though the plaintiff himself asserted his presence at Lahore for the past about fifteen or sixteen years and paid occasional visits to Jabbi, defendant No.3 was in the village throughout. It is difficult to believe and still more difficult to successfully assert that plaintiff had no knowledge of the sale by the vendor and chandge of revenue entries in this behalf. It may be for this reason that the brother who resided in the village was arrayed as defendant in the suit. As observed above, defendant No.3 conceded the claim in the plaint but did not enter the witness-box to record his statement on oath to avoid cross-examination from the contesting defendants and to prevent discovery of real truth. There is yet another circumstance which assists the point at issue. For about eight years, vendor was alive after the sale but did not question its correctness. Even according to the plaintiffs own evidence, vendor returned to Jabbi a year before his death. Though the vendor was stated to suffer from a defect of hearing, it was no body's case that he had lost all consciousness. What then was the reason for him not to question the ascribed sale, except that he took it as his genuine and valid act. Parties to the sale were identified by Mohammad Khan Lambardar. They affirmed the sale, in his presence, before the Revenue Officer. He was a material witness to the making of the sale but the plaintiff delayed taking action for avoidance of sale till after death of the vendor as also the identifying witness and thus allowed important links of evidence to disappear. Land in dispute was mutated in the names of vendees in 1953. Until the institution of the suit by the plaintiff in 1965, their title stood unchallenged. When important links of relevant evidence are joined together and viewed in their true and correct perspectives, it appears that Birbal vendor had sold the land in dispute to contesting defendants and mutation of sale was correctly sanctioned in favour of the vendees.
12. Therefore, finding on point of sale recorded by learned Judge below does not suffer from any defect. Additionally, whether there was sale or not was essentially a question of fact and merely that Courts of fact differed in their appreciation of evidence in reaching varying conclusions on a point of fact is immaterial and it is the finding of the lower appellate Court which had proceeded on correct assessm ent of evidence that must prevail and be held as binding. In my opinion, second appeal is properly concluded by findings of fact which are based on strong evidence and the vendees had sufficiently discharged the burden of proof laying upon them to prove sale of land in their favour. Second appeal has no substance and is dismissed. Parties are left to bear their own costs.
13. Records be returned.