1. ' This second appeal by the plaintiff in the suit for declaration of ownership rights in and for confirmation of possession on the land in dispute was against the judgment and decree of the trial Court passed on 6-2-1974, and affirmed in appeal on 25-5-1976, by Additional District Judge, Sargodha. Sixty-nine kanals of agricultural land at Mauza Jharkal in Tehsil Khushab of District Sargodha belonged to Wali Muhammad son of Nawab and Gul Sher son of Jiwana. Wali Muhammad owned 4/5th share in it. His share in the land was 61 Kanals 7 Marlas. Remainder 1/5th was owned by Gul Sher. It came out to be 7 Kanals 5 Marlas.
2. ' By a receipt executed on 10-3-1969, Exh.P1, Wali Muhammad and Gul Sher sold 69 Kanals out of the land measuring 76 Kanals 14 Marlas comprised in Khasra No,300 of Khata No,282 for a sum of Rs,5,000 to Karam son of Mehr of village Jarra, Dakhli Jharkal. On 5-5-1969, Karam brought a suit for declaration of ownership rights in respect of 69 Kanals of land and confirmation of his possession on it against Wali Muhammad and Gul Sher in the Civil Court at Jauharabad. In para. 2 of the plaint, it was averred that the defendants had sold the land to him two years ago for a sum of Rs,6,000 already received by them and delivered possession of the land under the sale to him. Muhammad Nawaz son of Ohulam, Mukhtar-e-Aam of the defendants appeared on their behalf and submitted a concessional. written statement, wherein he conceded the averments in the plaint of the suit instituted by Karam. On 3-6-1969, the trial Court recorded his consenting statement. On the basis of concessional written statement, the suit was decreed by the trial Court, on 3-6-1969 in favour of Karam. Copies of the plaint in the suit filed by Karam against Wali Muhammad and Gul Sher, consenting statement of Muhammad Nawaz and the order made on it by the trial Court produced by the learned codnsel at the hearing were placed on the file of this Court. It may be mentioned that Wali Muhammad and Gul Sher gave general power of attorney to Muhammad Nawaz on 10-3- 1969 and registered on the same day. General power of attorney is Exh.P3 on the file of the trial Court and the decree-sheet prepared in the suit filed by Karam against Wali Muhammad and Gul Sher is Exh.P4. Consent decree in favour of Karam could not be implemented in Revenue Records because the Mutation No,59 entered for it was rejected on 10-5-1969 by the Revenue Officer.
3. Rejected sale-mutation is Exh.D3 on the file.
4. ' On 16-8-1967, Wali Muhammad agreed for the sale of his land measuring 61 Kanals 7 Marlas to Ramzan, Sohara, Yara sons of Ikhtiar, barbers by profession, residents of Jarra for a sum of Rs,8,000.
5. Agreement to sell was reduced in writing simultaneously. It contained acknowledgment of receipt of Rs,8,000 by Wali Muhammad from Ramzan etc. Alongwith the agreement to sell a receipt for payment of Rs,8,000 as a sale-price of 61 Kanals 7 Marlas of land fully described in it was also executed. Agreement to sell is Exh.D.1 and the receipt is Exh.D.2. Since the sale of the land did not take place as agreed, Ramzan, Sohara and Yara brought a suit for specific performance of agreement to sell in favour of them against Wali Muhammad for compelling him to complete the sale in their favour. The suit was instituted on 3-5-1969, in the Court of Civil Judge, Jauharabad.
6. Defendant to the suit gave a consenting written statement. Consequently, the suit was decreed in favour of the then plaintiffs on 17-7-1969. Copy of the plaint in the suit for specific performance is Exh.D.5. Consenting written statement submitted by Wali Muhammad was Exh.D.6. Supporting statement of Wali Muhammad in the suit by which he had admitted the claim of the plaintiffs is Exh.D.7. Judgment of the trial Court decreeing the suit is Exh.P6 and the decree is Exh.D.8. On the basis of the judgment and decree of the trial Court passed in the suit for specific performance, the land in dispute was mutated in favour of Ramzan, Sohara and Yara respondents, vide Mutation No,77, attested on 26-8-1969.
7. ' On 14-2-1970, Karam brought a suit to have declared that he was owner in possession of 69 Kanals of land on the basis of its purchase from Wali Muhammad and Gul Sher and the defendants Ramzan, Sohara, Yara sons of Ikhtiar had no right and interest in it. Gul Sher defendant No,5 submitted consenting written statement. Wali Muhammad did not appear and was proceeded against ex parte at the trial of the suit. Defendants Nos.1 to 3, namely, Ramzan, Sohara and Yara, who had purchased the land measuring 61 Kanals 7 Marlas from Wall, Muhammad contested the suit. It was submitted that the plaintiff had no cause of action; that he was out of possession of the land and was obliged to pay the proper court-fee on the plaint, that the suit for declaration was not maintainable. On merits, they gave a full account of the events about the purchase of land in dispute by them. Reference was made to the agreement to sell; the receipt, the judgment and decree of the trial Court and the mutation sanctioned in their favour.
8. ' On 23-11-1971, following issues were framed by the trial Court:---
(1) Whether the suit has been correctly valued for the purposes of court-fee and jurisdiction. If not, what is the correct valuation for both the purposes?
(2) Whether the suit is mintainable in its present form?
(3) Whether the plaintiff has got the locus standi to sue?
(4) Whether the plaintiff has got any cause of action?
(5) Whether the plaintiff is owner of the suit property as set out in the plaint?
(6) What is the effect of the decree dated 17-7-1969 and the subsequent Mutation No,77 dated 26- 8-1969 mentioned in para. No,2 of the plaint on the rights of the plaintiff, if any, in respect of the suit property?
(7) Whether the decree dated 3-6-1969 in favour of the plaintiff is collusive, void and inoperative on the rights of defendants 1 to 3?
(8) Relief.
9. ' In support of the issues which the plaintiff was required to prove, he gave evidence of three P.Ws. and himself appeared in the witness-box as P.W.4. Reference to the documents produced by him has already been made above. Receipt Exh.P1 was thumb-marked by Wali Muhammad son of Nawab, and, Gul Sher son of Jiwana defendants No,4 and 5, in the suit. Its execution was witnessed by Muhammad Ismail, member of a Union Council, and Allah Yar. P.W.1 Muhammad Ismail proved execution of receipt dated 10-3-1969 and deposed that he was its marginal witness and had thumb-marked it. It was further deposed by him that defendants Nos.4 and 5 had received Rs,5,000 from Karam in his presence and Allah Yar. In cross-examination, the witness deposed that the receipt Exh.P1 was written by a deed-writer between 12-00 and 1-00 p.m. at Khushab, and, the general power of attorney in favour of Muhammad Nawaz was also executed at same time on the same day. Falak Sher and Beera deposed about possession of the plaintiff on the land in dispute. In his own statement as P.W.4, the plaintiff deposed that he purchased the land in dispute from defendants Nos.4 and 5 for Rs,5,000; a receipt was written about it; possession of the land was transferred in his favour and a consent decree was passed on the statement of Mukhtar-a-Aam of defendants No,4 and 5. In cross-examination, he materially contradicted the testimony of P.W.1 Muhammad Ismail regarding the venue of the execution of the receipt, the payment of price and about scribe of receipt. Plaintiff, unambiguously, deposed that receipt was written at village Jarra by a school master but he could not disclose his identity. Neither, the scribe of receipt Exh.P1, nor the other marginal witness was tendered in evidence. No serious effort was made to identify the thumb-print of Wali Muhammad on the receipt. Solitary marginal witness produced to prove its execution contradicted the plaintiff on A material particulars. Obviously execution of receipt Exh.P1 at the time and place shown in it and the transfer of consideration evidenced by it was not proved beyond douby. Exh.P.1 was executed on 10-3-1969. The plaint of the suit filed for declaration of ownership rights in the land and confirmation of possession on it showed that the land was purchased two years prior to it for a sum of Rs,6,000. The averments of the plaint did not synchronize with the contents of receipt Exh.P1. There was a material contradiction between them.
10. On the basis of the suit, Muhammad Nawaz, Mukhtai-e-Aam of defendants No,4 and 5 appeared in Court and gave a consenting written statement. Muhammad Nawaz was also not produced in evidence by the plaintiff. Therefore, appearance of Muhammad Nawaz in the suit filed by the' plaintiff for making of a concessional written statement attributed to him was not above-board. It was also questionable, as to whether he had recorded his statement in Court for conceding decree for the land in dispute in favour of Karam plaintiff. Mere record of consent decree without proof of the facts noted in it was not sufficient proof of its correctness. Case of the defendants was that the consent decree in favour of the plaintiff was from the inception to the end fraudulent. To dispel the doubts attaching to the consent-decree in favour of the plaintiff, he was required to give proof of the convincing nature. Material brought on record by him was wholly insufficient..Therefore, sale of his share of land by Wali Muhammad to the plaintiff was not proved. Since Gul Sher son of Jiwana admitted the claim of the plaintiff in the present suit, his share of the land could be rightly held to have been transferred to the plaintiff. As for Wali Muhammad, there was no proof of sale by him of his land to the plaintiff. Agreement to sell of his land with defendants No,1 to 3 was concluded on 16-8-1967. Receipt accompanying the agreement to sell was of the even date. Defandants Nos.1 to 3 gave sufficient oral evidence in proof of execution of Exh.D.1 and Exh.D.2. On the basis of agreement to sell in their favour, they brought a suit for specific performance against Wali Muhammad which on his admission.was decreed in their favour. The decree passed in the suit was implemented in the Revenue Records by attestation of mutation, reference to which has already been made above. Agreement to sell in favour of defendants No,1 to 3 was prior in time. Therefore, it must take precedence. On the strength of existing records, decree in favour of defendants Nos.1 to 3 must emerge successful in competition with the consent decree existing in favour of the 'plaintiff.
11. Genuineness of the latter decree was not above-board and while deciding inter se rights of the parties of the land in dispute, the Court could legitimately comment on it and decide on its legal efficacy. As for possession on the land in dispute, it was held by defendants No,1 to 3. Entries in Revenue Records gave strength to it. Even the learned counsel for the appellant very fairly and frankly admitted that defendants No, 1 to 3 were in actual possession of the land in dispute.
12. ' In view of the foregoing discussion, sec( d appeal has no substance in it. It fails and is dismissed with costs.
13. ' Original records be returned.