This revision petition under section 115, C.P.C. By the petitioners/defendants arises out of a civil suit filed against them by the plaintiffs/respondents for a declaration to the effect that the plaintiffs are the owners in possession of land bearing Khasra Nos. 1876 and 1256 measuring 16 Kanals 16 Marlas, situated in Revenue Estate `Takht Nasrate', Tehsil Karak, District Kohat to the extent of their own share and as mortgagees in possession of the land belonging to the other co-owners. This-Civil suit was instituted in the Court of Additional Civil Judge, Kohat on 29-6-1982 which was decreed in favour of the plaintiffs by the trial Court on 30-3-1986. Having felt aggrieved, the defendants filed an appeal against the said judgment in the Court of District Judge, Karak but did not find favour and the appeal was dismissed on 16-10-1986. The defendants have now come to this Court in the present revision petition.
2. The main question, urged at the hearing, to be answered in this petition was, whether the petitioners were successful to establish their undisturbed possession on land under mortgage for more than sixty years for acquiring ownership rights by prescription as against the true owners.
3. On correct reading of record it transpires that the land in dispute was mortgaged by predecessor-in-interest of respondent/plaintiff with the defendants/petitioners' predecessors-in- interest and as per Revenue Record the mortgage was created somewhere in the year 1903. Since then the suit property is coming down in the record as mortgaged with the defendant/petitioner till the filing of suit in 1982. In this behalf the entire record has been placed on record as Exh.P.W.1/1 and Exh.P.W.1/2. In the year 1945 one Mutation No.34941 dated 25-5-1945 was entered with regard to redemption of the suit land in favour of Shah Nawaz and others (predecessors---in-interest of the plaintiffs/respondents) to the extent of their own share and another mutation bearing No.34942 dated 28-5-1945 (i.e. The same day) was also entered in favour of the said Shah Nawaz and others for purchase of mortgagee rights in relation to the land owned by the other co-owner in the suit property. The copies of these mutations are placed on the record of the case as Exh.P.W.1/3 and Exh.P.W.1/4 respectively. These mutations were not attested by the competent Revenue Officer and remained undecided till 1948. The revenue authority finally rejected these two mutations on 29-12- 1948, however, no reason was recorded for the said rejection of the said mutations.
4. The defendants/petitioners have stuck to the stand, with consistent persistence, that the plaintiffs/respondents have never redeemed the suit land and further that they have acquired the title of the suit land because the respondents/plaintiffs/mortgagors' side have failed to redeem the property within the prescribed period of limitation and, therefore by this failure and efflux of time, the petitioners/defendants/mortgagees' side have become owners of the land under mortgage, which admittedly otherwise belongs to the respondent/plaintiffs/mortgagors' side.
5. Learned counsel for the petitioners contended that the findings of the learned lower Courts on issues Nos. 6, 7, 8 and 9 are wrong and misconceived and, therefore, they have failed in appreciating the case in its true perspective and have also failed to apply the correct law on the subject. He further contended hat the learned two lower forums have not considered and appreciated the material evidence in shape of revenue record and have consequently fallen in the error of illegality and irregularity by misreading and non-reading the material evidence. He further stressed that the mortgage of the suit land created in favour of the predecessors-in-interest of the petitioners prior to year 1903-1904 has remained intact and continues for more than 60 years along with possession of the property in dispute. The learned counsel further contended that the two mutations bearing Nos.34941 and ---34942 regarding the redemption of the mortgage were entered in the Revenue Record in .1945, but were not attested and were ultimately rejected on 29- 12-1948, therefore, the possession of the suit property remained with the petitioners. He stated that the petitioners have matured their title by keeping in possession the suit property as mortgagees for more than period of 60 years.
6. On the other hand, learned counsel for the respondents argued that the suit land was properly redeemed by the predecessor-in-interest of the respondents/plaintiffs by payment of the mortgage money to the predecessor-- in-interest of the petitioners and, therefore, Mutations Nos.34941 and 34942 were entered in the relevant register by the Revenue Staff. He further contended that as a result of this deal the possession was handed over to the respondents/plaintiffs which they are enjoying since 1945 till this day. In support of his contention, the learned counsel for the respondents extensively referred to the evidence, placed on record in shape of Revenue Record through Halqa Patwari Hazrat Noor P.W.1 and P.W.2 Patwari Nadir Khan. He stated that once the money had changed hands, possession had also changed from petitioners to the respondents and a written deed in shape of the mutations was also entered then the official permission in shape of attestation of the mutations does not count much and the two lower Courts have exercised their jurisdiction perfectly and correctly and also in accordance with law. He further stated that the law has taken substantial change from 31-8-1991 and the title cannot be acquired by prescription under section 28 of the Limitation Act.
7. In the light of the arguments advanced by both the sides the record of the case was examined with discerning eyes. The original ownership rights of the respondents/plaintiffs are not disputed and similarly mortgagee rights of the petitioners/defendants are not controverted by the rival parties. Therefore, these questions need not be dilated upon. The controversy is only confined to the averment pertaining to acquisition of title by lapse of a period of 60 years over the land under mortgage. In order to know the true facts, reference to the record and evidence recorded is necessary. Hazrat Noor Patwari Halqa P.W. Has stated that record of rights shows that land in dispute remained in possession of the petitioner/defendant/mortgagee side since the year 1903- 04 as mortgagees; but in the year 1943-44 the respondent/plaintiff/mortgagee side have been shown in possession of the suit property in the column of cultivation. This statement of Patwari goes to the root of the case because the record also shows that in 1945 the two Mutations Nos.34941 and 34942 for redemption of land in favour of, the respondent/plaintiff/mortgagor were entered in Revenue Record. This simultaneous acquiring of possession along with the entry in relevant record of the two aforesaid mutations is sufficient proof of the fact that the land was properly redeemed and possession was properly handed over to the respondents/plaintiffs/mortgagors' side. The non-attestation of the said mutations and their subsequent rejection in 1948 is of no avail to the petitioners/defendants/mortgagees' side because we all know that the period spreaded over the years 1946, 1947 and 1948 was the most turbulent period in the history of this country because of the agitative and firey movement for Pakistan was at its full swing. It is quite normal that in such circumstances the respondents/mortgagors' side might not have persued the matter being contented with the deal and acquisition of possession and the mutations were rejected because of non-prosecution. The cardinal principle of law is that possession is nine points of law (sic) and mutations have got little bearing on such matters At would not be out of the place to narrate the legal position of mutation in such like circumstances and I do so in the following lines:--- Mutation neither creates title nor extinguishes title but, in fact, mutation is a record and an evidence of transaction, which is supposed to have been accomplished already in point of time before its entry in the relevant register by the Revenue Staff. It is, therefore, qualitatively different from, declaration of an intention by the alienor or the alienee to enter into the transaction in question. It is neither also an agreement for alienation which is 8 to take place in future: To put it more sharply clear, it must be understood that whenever a mutation is entered in the relevant register/books, it is to be presumed that the transaction/alienation recorded in the mutation has already taken place. This logic has always weighed very heavily with the superior Revenue; Courts as well as with the High Courts. Therefore, they have held time and again that an alienation of land is deemed to have been completed on the day on which it was affected and not on the day the mutation is attested and that the title in property is not postponed till the attestation of the mutation. Similarly, mutation and subsequent entries in record of rights do not create title in favour of any person. The question as to whether certain transaction is valid or otherwise depends not on mutation entries but on whether valid transaction existed and given effect to in the property in question. There are number of decided cases to support this legal statement but I shall refer to some of them. Reference with advantage may be made to Jungi v. Jhanda PLD 1961 BJ 34, Muhammad lqbal v. SA.M. Khan and others PLD 1970 Lah. 614 and PLD 1976 Kar. 109.
8. In view of the aforesaid legal position the only determining factor in this controversy is the factum of possession otherwise necessary elements of acquisition of prescriptive title are clearly wanting in this case. Having been alive to this situation, the learned counsel for petitioners tried his level best to establish that the petitioners have re-obtained the possession and very augmentedly dilated upon a single entry in Revenue Record on 1950-1951, wherein one Mir Gul has been shown as Ghair-Dakhilkar' claiming him to be one of the predecessor-in-interest of the petitioner/defendant/mortgagee's side. But, there is nothing on record to show that the said Mir Gul is the predecessor-in-interest of the petitioners. Be that as it may, but the record is again very clear regarding the factum of possession. Nader Khan, Patwari is very categorical in testifying that in 1954-55 again the possession is with Mst. Zar Begum wife of Shah Nawaz (predecessor-in-interest of the respondents). He further states that in 1962-63 Hazrat Shah and some others have been shown as Ghair Dakhilkar and in the Misl-e-Haqiyat of 1974-75 the said Hazrat Shah with others have been shown as tenants of Parizad respondent/plaintiff. This witness further clarifies the position from the record by saying that Parizad respondent has been shown as co-owner and in possession through Hazrat Shah and others as tenants from 1974 till 1982 and since 1983 he has been shown as co-owner in possession all by himself till his statement in Court on 12-2-1986. The record and evidence tends to confirm the possession of the respondent/plaintiff/mortgagor over the suit land beyond any region of doubt.
9. The positive finding of the learned two Courts below that redemption of mortgage by mortgagor followed by delivery of possession thereunder to him, supported as it is by Revenue Record to which presumption of truth attatches, has not been displaced on any weapon of reason. The possession put forward by the mortgagee falls far short of the period requisite to ripen into full- fledged title within the contemplation of Article 148 of the Limitation Act, which, in turn, by implication has been declared repugnant to and in violation of Islamic Ethology. In this context, reference may be made to Maqbool Ahmad v. Government of Pakistan, reported as 1991 SCMR 2063. The dictum contained in the precedent case wipes out the right of petitioner to ask for the relief claimed by him. The suit of respondents mortgagee was not only misconceived but also incompetent from its very inception. Notwithstanding the above, the controversy between the contesting parties rages round the point which involves the question of fact, whether the mortgagee had prescribed title by efflux of time. As already stated, the two Courts below, while recording concurrent finding in favour of mortgagor, have neither misread the evidence nor omitted to take into consideration material evidence and facts. On the contrary such finding is based on proper appraisal of evidence and cannot be questioned in revision petition, which is not competent one on this score too. For, a revisional Court cannot go into factual aspect of the case as it is the exclusive domain of trial Court and appellate Court. In other words, revision al Court has limited jurisdiction of considering illegality or material irregularity allegedly committed by either of the two lower forums. Herein, no such element exists nor is made out during the arguments. This view is supported by Shah Zada Muhammad Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 and Haji Zaman v. Zafar Ali PLD 1986 SC 88. So from whichever angle, the revision petition in hand is looked at, it is without merit and is dismissed, however, leaving the parties to bear their own costs as warranted by circumstances of the case.