MIAN ALLAH NAWAZ, J.- This civil revision is by Muhammad Bashir and others-defendants against the judgment and decree of affirmance passed by the learned Additional District Judge, Faisalabad dated 22.5.1990.
2. The facts in brief are; that on 21.12.1983, Abdul Hamid (herein respondent No.1) instituted a suit for declaration to the effect that he was owner m possession of land (completely detailed in the plaint) and mutation of sale bearing No.649 attested on 21.1.1979 was based upon fraud and was therefore without any legal effect. It was further averred that neither he made the sale nor received the consideration nor effected the delivery of possession.
3. The suit was resisted. The learned trial Court after taking into consideration the evidence and material on record, decreed the suit by holding that Abdul Hamid had not made the sale of the land in dispute; that the transaction incorporated in the disputed mutation was sham and collusive. On appeal the learned Additional District Judge came to the same conclusion and affirmed the finding of the first Court. Hence this petition.
4. Learned counsel for petitioners vehemently contended that the findings of the two Courts below on issues No.1 and 1-A were incorrect and legally un-sustainable on account of over-looking confessional statement made by PW-1 who admitted in cross-examination that the suit was filed on account of subsequent estrangement between the parties. He submitted that this amounted to admission of sale on the part of Abdul Hamid and so the Courts were not justified in decreeing the suit. Reliance was placed on Mst. Asghari Begum Ansari Vs. Ahsan Moquim Ansari & 7 others (1984 CLC 762). No other point was urged.
5. I have heard the arguments of the learned counsel at length and gone through the record of the case.
6. The main issue directly and substantially between the parties was whether Abdul Hamid made the sale of land and got attested mutation No.649. On this aspect, the learned Civil Judge rendered the finding in following words:- "The Revenue Officer who attested the impugned mutation has not been produced by the defendants. I do not feel it necessary to reiterate that it is for the party to establish the genuiness of a transaction who up-holds it. Thus it was obligatory for the defendants to prove the propriety of the impugned transaction. Un-doubtedly, the Revenue Officer was a material and important witness. By withholding such a direct and good piece of evidence, the defendants have invited adverse presumption against them as envisaged in Article 120(G) Qanun-e-Shahadat, 1984. The evidence produced by the defendants in rebuttal to the evidence of the plaintiff, is self- contradictory and un-reliable. It is not out of place to mention here that mutation is. Not a document of title. The defendants were required to prove the existence of sale transaction independently. They are an utter failure to prove the fact of sale. Thus I decide the issue in the affirmative.
7. The learned Additional District Judge also rendered following observation on this aspect of the case:- It was deposed by him that the said mutation was got attested by him and it was got recorded by him but he does not know the parties personally. He further in his cross-examination admitted that the parties had never contacted him prior to the attestation of mutation.
The parties had introduced themselves and their identification was got made by Lambardar. The payment of any consideration was not made in his presence. He also denied that whether the plaintiff or the other vendors had signed or affixed their signatures. DW3 is Bashir Ahr. Ied Lambardar who had identified the parties before the Tehsildar at the time of mutation. He admitted his signatures upon the mutation Ex. D.l but when he was subjected to cross-examination he further contended that he had never seen the plaintiff and the other vendors prior to the attestation of the mutation. He pleaded ignorance about how many days before the attestation of the mutation, report Roznamcha Waqaiti was recorded. He had never seen the plaintiff and he had no knowledge whether the plaintiff had affixed his signatures or thumb marked it. DW.5 is Ghulam Nabi who in his cross-examination has admitted that what was the sale consideration of the property was not within his knowledge and the amount was paid two days prior to the attestation of mutation but he pleaded ignorance about the actual amount paid by the plaintiff Abdul Hameed. No evidence of the payment of the consideration has been produced. No doubt the onus of this issue had been placed upon the plaintiff, even then it is easier to prove in the affirmative that the said mutation was attested by Abdul Hamid himself and he had received the consideration and it was voluntarily got attested. No such cogent evidence has been made available by the defendants on record. Even the Patwari. Who had recorded the mutation had pleaded ignorance of introduction with Abdul Hameed and of payment of consideration. Similarly, Bashir Ahmad, Lambardar, who had identified Abdul Hamid had admitted that he did not know Abdul Hamid prior to the said mutation and no consideration had been paid in his presence. Then the plaintiff had produced his evidence that the mutation was not got entered by him nor he had received any consideration for that, the onus had shifted upon the defendants to prove that the mutation was got attested by Abdul Hamid himself and that loo after receipt of consideration by him. No evidence in order to corroborate it had been made available. As such, the findings of the Civil Judge upon these issues are confirmed."
8. After taking into consideration the submissions made by the learned counsel for the petitioners. I do not find any illegality or any jurisdiction error in te afore-noted findings. It is well known principle of law that the concurrent inclusion of facts cannot be interfered in revisional jurisdiction until and unless esc findings are vitiated by non-reading, mis-reading of evidence or any error which amounts to jurisdictional defect. No such point was; pointed out by the learned counsel for the petitioners.
9. There is yet another aspect of the case that the main issue between e parties was whether Abdul Hamid made the sale of land in dispute, and got the impunged mutation attested. It is to be noticed that the onus to prove the sale.