1. ' Revision petition arises out of a civil suit brought by Mst. Zainab Khatoon plaintiff-respondent for a perpetual injunction restraining Mst. Bakht Bano defendant-petitioner from causing interference with the possession of the land measuring 49 Kanals, 12 Marlas owned by her. Civil suit was instituted in the Civil Court at Bhakkar on 25-10-1974. It was decreed in favour of the respondent by the trial Court on 24-7-1977. Appeal against the decree filed by the petitioner failed in the Court of Additional District Judge, Mianwali, on 4-12-1977. The Courts below are agreed that the sale of land by Mutation No,5314, sanctioned on 11-9-1974, by respondent in favour of the petitioner was invalid as it was not proved to have been made.
2. ' Facts for the purposes of the revision, briefly put are:--- 49 Kanals, 12 Marlas of land in the village Karari Kot of Tehsil Bhakkar, was owned by respondent Mst. Zainab Khatoon. By Mutation No,5314, attested on 11-9-1974, above land was sold by the respondent to her sister Mst. Bakht Bano- defendant in the suit, and petitioner here, for a consideration of Rs,7,000, paid and received.
3. Respondent denied the sale and asserted that she neither appeared before the Revenue Officer to affirm it nor received consideration nor gave possession of the land to the petitioner, and, mutation in question was the result of impersonation, fraud, and bad faith. Petitioner appeared in the suit and filed her written statement wherein by raising preliminary objections asserted that respondent was out of possession and the form of the suit chosen by her was defective; court-fee was not properly assessed and paid on the plaint; respondent had sold the land and received consideration, therefore, she was estopped to sue. On merits, it was averred that the sale embodied in the sanctioned mutation was valid.
4. ' Contentious pleadings gave rise to following issues framed on 5-6-1975:-
(1) Whether the plaintiff is in possession of the suit land and the suit is maintainable in its present form? O.P.P.
(2) Whether the suit is insufficiently valued for the purposes of court-fee and jurisdiction? O.P.D.
(3) Whether the plaintiff is estopped by her conduct to bring the present suit? O.P.D.
(4) Whether the plaintiff is the owner in possession of the suit land? O.P.P.
(5) Relief.
5. ' Upon careful appreciation of the evidence led in the suit by the parties, the trial Court found that the land in dispute was not sold by the respondent and sale mutation was fictitious. It was further found that the land in question was part of joint land and perpetual injunction could not be issued.
6. These findings were recorded under joint discussion on issues 1, 3, and 4. Issue No,2 was not pressed, and, was decided against the petitioner. Accordingly, the trial Court gave the relief to the respondent that she was still the owner of her share of the land, and, mutation in question was in operative against her. Against the decree of the trial Court, petitioner preferred an appeal to learned District Judge, Mianwali. It came to be heard by a learned Additional District Judge of that District who agreed with the conclusions reached by the trial Court, and, dismissed the appeal. It is this decision that is being assailed in revision filed by the petitioner.
7. ' Seen from the above narrative, sole point for determination in the revision petition is about the sale of land by respondent to the petitioner, and, genuineness of the sale mutation sanctioned on 11-9-1974. It is common ground that the sale was oral, and, no document was executed between the parties to evidence it. It was made by mutation. Respondent questioned the sale, and, genuineness of the mutation. She denied to have appeared before the Revenue Officer to affirm the sale and the receipt of consideration for it. Petitioner supported the sale as also the correctness of the mutation. In this state of pleadings, onus of proof to support the sale rested upon the beneficiary of mutation, and, not upon the person disputing its genuineness. Therefore, it would have been proper to settle the issue in the form to make it obligatory for the petitioner to prove that she purchased the land in dispute by the mutation in question. However, as both the disputants had led enough evidence, and, none seems to have suffered any prejudice in the irregularity pointed out above, question about the frame of issue and allocation of onus of proof became immaterial.
8. ' Having set out the facts, I shall now advert to records to discover whether the agreed conclusions in the Courts below on point of sale suffered from any infirmity or that the issue was correctly resolved, and, the grievance expressed at the hearing lacked merit. Record reveals that one Muhammad Nawaz owned lands in Chak No,55/ML, Chak No,206/T.D.A., and, Mauza Karari Kot of Tehsil Bhakkar. At Karari Kot, Muhammad Nawaz owned 286 Kanals, 1 Marla of land. Upon death, his lands were distributed among his surviving heirs namely Allah Yar his son, and, four daughters namely Mst. Bakht Bano (petitioner), Mst. Begum Khatoon, Mst. Mehr Bhari and Mst. Zainab Khatoon (respondent). Mst. Zainab Khatoon is married to Fateh Khan in village Dhabba Karsial of Tehsil Mianwali. Her husband is alive. She has living sons and daughters from him. It transpires from an order, dated 9-9-1975 of Extra Assistant Settlement Officer/Collector, Thal Bhakkar Exh.P.6, that by Mutations Nos.5 and 127, sanctioned on 23-9-1974, lands situated in Chak No,55/ML, and, Chak No,206/T.DA. Were sold by the respondent alongwith her sister Mst. Begum Khatoon to the petitioner, Mst. Bakht BaNo, Though Begum Khatoon subscribed to the sales but the respondent challenged the correctness of both the sale mutations and those were consequently set aside on the ground that respondent Mst. Zainab Khatoon had not appeared before the Revenue Officer. It is agreed that against the cancellation of sales evidenced by those two mutations qua the respondent, petitioner did not agitate further and allowed the orders passed against her to attain finality. It may be of advantage to notice that those two mutations were also sanctioned near about the same time when the questioned mutation came into being. It is an important circumstance adversely commenting upon the conduct of the petitioner, and, could not be kept aside while sitting in judgment on the correctness of the questioned sale mutation. It is not the sole circumstance against the petitioner. There are other factors available in evidence which equally improbabalize the sale of the land in dispute by respondent to the petitioner, and, strongly suggest ungenuineness of the sale mutation. Respondent and her three witnesses gave evidence to refute the sale and receipt of price. Petitioner herself did not appear. She was represented by her husband Khan Muhammad who held a general power of attorney from her. In her deposition, respondent denied her appearance before the Revenue Officer. She stated that she did not sell the land nor received consideration for it. Her witnesses supported her on this point. Petitioner gave evidence of four witnesses. D.W.1, Haji Fateh Khan is a village Lambardar. He identified the respondent before the Revenue Officer at the time of the attestation of sale mutation. He deposed that the respondent appeared before the Revenue Officer and affirmed the sale in favour of the petitioner. Also deposed that Khan Muhammad husband of the petitioner had paid Rs,7,000 as sale price to the respondent in his presence. D.W.2, Allah Yar is brother of both the respondent and the petitioner. He showed his presence at the time of the attestation of sale mutation and stated that respondent had appeared before the Revenue Officer and made statement affirming the sale, and, receipt of consideration. However, on payment of sale price, his statement was discrepant with that of D.W.1. He stated that Rs,7,000 were paid in his presence by the petitioner. D.W.3 is Mehr Khan. He stated that respondent had sold the land in dispute to the petitioner in his presence and the respondent had admitted that she had received the sale price. Actual payment of sale price was not witnessed by him. D.W.4, Mehr Bhari is sister of both the respondent and the petitioner. She deposed that land in dispute was sold by respondent to the petitioner for sale price of Rs,7,000.
9. According to her statement, she had consulted her for the sale of the land whereupon she had left for the village in connection for the attestation of the sale mutation. D.W.5 is husband, and, general attorney of the petitioner. He deposed that respondent had sold the land in dispute to the petitioner for a consideration of Rs,7,000 paid and received. He did not disclose the place where the consideration was paid and also whether he paid the consideration or the petitioner herself.
10. Admittedly, petitioner was not present at the time of the attestation of the sale mutation by the Revenue Officer. She was represented by her husband Khan Muhammad. Copy of the report to Patwari for entry of the sale mutation is not on record. There is no evidence as to who reported the sale to the Patwari. Patwari has not appeared in evidence nor the Revenue Officer who attested the sale mutation. Evidence adduced on payment of sale price was materially discrepant and, unconvincing. There is no document in support of it. Evidence on sale of the land is also not reliable.
11. Parties belong to Dhabba Karsial in Police Station Chakrala of Tehsil Mianwali. Land in dispute was situated at Karari Kot in Tehsil Bhakkar. Fateh Khan D.W.1 is a Lambardar of Karari Kot. There are, in all sixteen Lambardars of that Revenue Estate. Though husband of the petitioner appeared for her before the Revenue Officer, yet the respondent was unaccompanied either by her husband or children. In ordinary circumstances, her lone appearance before a Revenue Officer at a distant place appears to be an improbable event. There is yet another circumstance. Sale mutation was sanctioned on 11-9-1974, but soon thereafter suit was filed on 25-10-1974 by the respondent to challenge it. Record gave no reason for such a quick action except that the respondent was not a party to the mutation. This inference gained strength from the cancellation of the two sale mutations in respect of the lands in Chak No,55/ML and Chak No,206/T.DA. There also the respondent was shown to have sold her lands in two mutations to the petitioner but then as stated above those mutations were set aside on the ground that respondent had not appeared before the Revenue ' Officer in those mutations, and, was not a party to them. Exh.P.4 also gave an indication about the improbability of the disputed sale. Some interpolations in the .Sale mutation were also noticed by the trial Court as is indicated by Exh.C.1 a photo copy of the sale Mutation No,5314. Land in dispute forms part of an unpartitioned joint Khata. There is no dispute that the parties are in joint possession of the land through tenants. Therefore, physical possession did not change under the questioned sale. Though the parties are close relations, and a brother and a sister had appeared to support the sale yet on a carefully considered view of the record and circumstances, I am sufficiently convinced that the agreed conclusion on absence of sale of the land in dispute by the respondent is correct, and, cannot be upset in revision. Appearance of the respondent before the Revenue Officer to admit the sale of her land and receipt of consideration in the existing circumstances are not free from serious doubts. In reaching the conclusions about the absence of sale and ungenuineness of the sale mutation, there is no fallacy in appreciation of the evidence.
12. The agreed findings do not suffer from the mistake of misreading or non-consideration of the record. There is no error of jurisdiction either. Therefore, the agreed findings are correct and the petitioner has not sufficiently discharged the onus that lay upon her to prove the sale of land in dispute in her favour.
13. ' Having regard to the above, Civil Revision is devoid of merits. It is, accordingly, dismissed with costs.