' It is defendants' revision petition assailing the judgment and decree, dated 25-9-1988 whereby their appeal filed against judgment and decree, dated 26-10-1986 passed by learned trial Court decreeing the suit of the respondent has been dismissed by the learned lower appellate Court.
2. The respondent filed a suit for declaration that sale of land measuring 350 Kanals 10 Marlas belonging to him situated in Mouza Landhay Bhangi Khel Tehsil Isa Khel, District Mianwali through Mutation No.6107 sanctioned on 31-12-1994 was based upon fraud, without consideration and without his consent. The suit was contested by the petitioners. The case of the plaintiff was that on account of political rivalry with Nawabzadgan, he was compelled to leave the said village and settled in Bhakkar and in his absence the said land was mutated in favour of the present petitioners though he did not make any sale or received any consideration.
3. In support of his case the plaintiff examined Sakhi Rehman Lambardar as P.W.1 who was also khewatdar, Muhammad Khan son of Murad Khan as P.W.2 who was tenant, Khair Muhammad as P.W.3 who was attorney of the plaintiff and plaintiff examined himself as his own witness as P.W.4.
4. The documentary evidence of the plaintiff consists of copy of Jamabandi for the year 1977-78 Exh. P.1, copy of Khasra Girdawari Exh. P.2, copy of impugned mutation Exh.P.3, copy of birth certificate of Muhammad Islam son of the plaintiff Exh.P.4, copy of birth certificate of Muhammad Javaid the other son of the plaintiff Exh.P.5 and copy of birth certificate of third son of the plaintiff namely Muhammad Rafiq Exh.P.6, copy of Jamabandi for the year 1973-74 Exh.P.7 and copy of mutation Exh. P.8 through which the land which was earlier mortgaged with the sons of the plaintiff was shown to have been redeemed.
5. The petitioners examined Mirbad Shah as D.W.1, Subedar Ghamir Shah as D.W.2, Muhammad Hussain Patwari as D.W.3 and Mehr Zaman one of the petitioners examined himself as his own witness as D.W.4. The documentary evidence produced by the petitioners consists of copy of impugned mutation Exh.D.1, copy of Jamabandi for the year 1973-74 Exh.D.2, copy of Jamabandi for the year 1977-78 Exh. D.3 and copy of Khasra Girawari Exh.D.4.
6. The two Courts below after careful and elaborate appraisal of evidence produced by the parties have recorded a concurrent finding of fact that the sale of the land in favour of the petitioners by the respondent-plaintiff was not established therefore, the impugned mutation was declared to be void, being based on fraud. It was held that no consideration passed.
7. The impugned mutation Exh. P.3/D.1 shows that Sakhi Rehman Lambardar allegedly identified the parties whose signatures have also been shown to have been obtained on this mutation. He has appeared as P.W.1 who denied that any such mutation was sanctioned. The land is occupied by Muhammad Khan as tenant as per entries in Jamabandi Exh. P.1 who was examined as P.W.2 according to whose evidence he had been paying Battai to the respondent-plaintiff through his attorney Khair Muhammad. Khair Muhammad was examined as P.W.3 who deposed that he had been receiving the Battai from the said tenant. The plaintiff entered the witness-box and deposed that no sale was made by him and no consideration received. In presence of this evidence learned counsel for the petitioners failed to satisfy me that concurrent finding of fact recorded by the two Courts Wow that no sale was made, suffers from any illegality. It may be pointed out that under section 115, C.P.C. such a concurrent finding of fact can only be challenged in revision petition if the same had proceeded upon a misapprehension or was condemnable on any of the grounds mentioned in the said section. Learned counsel for petitioners failed to satisfy me that this finding suffers from any of the legal infirmities as envisaged by section 115, C.P. After examining the evidence produced by both the parties both oral and documentary through which I have been taken by the learned counsel for the petitioners, I am also of the considered view that the sale of the land was not proved in favour of the petitioners, passing of consideration and the presence of the plaintiff at the time of sanction of mutation has not been proved and rather the plaintiff has succeeded in establishing that the mutation of sale was sanctioned in his absence, no sale was made by him of the land and no consideration passed.
8. Learned counsel for the petitioners argued that an application was made before the learned trial Court on 24-11-1983 for grant of permission to produce as additional evidence the copies of certain mutations which has not been disposed of by the learned trial Court. I have perused the record which is available. On 24-11-1983 the main case was fixed for arguments. This application is present on the record but there are no initials of the Presiding Officer with date showing as to on which date the same was placed on the record. There is no mention in the order-sheet recorded on the said date after hearing the arguments that such an application had been presented. No mention was made by the petitioners in the memo. of appeal filed by them before the learned lower appellate Court about having made the said application before the learned trial Court and that the same remained undisposed of. No prayer was made before the learned lower appellate Court even under Order 41, Rule 27, C.P.C. for permission to produce the copies of mutations mentioned in the said application as additional evidence before the lower appellate Court and even in the present memo. of revision petition also. The copies of mutations mentioned in this application appear to have not been appended with this application as no such copies of mutations are present on the record though in the application it was mentioned that the same had been appended, therewith.
9. I asked the learned counsel for the petitioners to convince me that the copies of the said mutations are relevant for the purpose of disposal of this case. He submitted that from the said mutations it was to be proved that the father of the plaintiff had been appearing before the Revenue Officer at the time of sanction of some other sale mutations and that some of the said mutations were sanctioned on the same day when the mutation in dispute in this case was sanctioned and in all those mutations presence of the same Lambardar was recorded from which it was to be shown that Lambardar was present when the mutation in dispute was sanctioned.
10. I am afraid these mutations are not relevant inasmuch as even if the same Lambardar was present at the time of sanction of the other mutations, it was not necessary that he had also witnessed the attestation of mutation in dispute which he categorically denied while appearing as witness who was subjected to cross-examination. The submission of the learned counsel for the petitioners is that failure to pass order regarding the said application by the learned trial Court had affected adversely the findings recorded by both the Courts below. This is apart from the fact that I am in serious doubts that the said application was moved by the petitioners before arguing the case.
11. Learned counsel for the petitioners then argued that the copy of mutation produced by the plaintiff through which the land was shown to have been redeemed by the plaintiff from his sons shows that he was present at the time of sanction of the said mutation as such the case that he had gone to Bhakkar is belied. The plaintiff has categorically denied his presence at the time of sanction of the said mutation also when he was cross-examined on this point. The explanation given by him about his not challenging the legality of the said mutation has justification inasmuch as he was not otherwise prejudiced by the said mutation as it had no adverse effects on his rights.
It appears that the said mutation was got sanctioned by the petitioners because he wanted the land free from encumbrance.
12. Learned counsel for the petitioners faintly argued that the evidence produced by the petitioners was sufficient to rebut the evidence produced by the plaintiff. He also argued that the sale as evidence by the impugned mutation having been incorporated and given effect to in the Jamabandi in which the names of the petitioners as vendees have been recorded as owners therefore presumption of truth was attached to those entries.
13. I have gone through the evidence of the petitioners and find that it has not sufficiently rebutted the evidence of the respondent/plaintiff which inspires confidence and is more reliable. About presumption of truth attached to the entries made in the Jamabandi, suffice it to say, that the entries in the Jamabandi are not conclusive proof of the facts recorded therein that no evidence could be produced to disprove them. It was rightly observed' by the learned lower appellate Court that entries in Jamabandi are rebuttable and I endorse the view that the plaintiff has succeeded, through cogent evidence to rebut the initial presumption of correctness, if any, in favour of entries in the Jamabandi. It may be pointed out that the impugned mutation as also the entries in the Jamabandi were based on the factum of sale by the respondent/plaintiff allegedly made. The factum of sale since has been held to have not been proved therefore any superstructure of rights and obligations raised on the same in the form of the entries in the Revenue record was to no legal effect.
14. Learned counsel for the petitioners submitted that the suit was barred by time and the findings recorded by the two Courts below on issue No.1 are not sustainable.
15. It has been concurrently held by the two Courts below which finding has been upheld by me that in spite of sanction of mutation, the respondent/plaintiff had been receiving Batai from the tenant who was occupying the land under the respondent as such even the possession did not change hands and the petitioners/defendants never occupied the land. This being so, the suit could not be held as barred by time as in such a case the plaintiff was not required to file the suit till such time his rights were put under threat by the petitioners. The finding recorded by both the Courts below under issue No.1 are correct and do not suffer from any illegality.
16. The two Courts below for the foregoing reasons, have not shown to have committed material irregularity and illegality in recording concurrent finding of fact against the petitioners therefore,