1. ' WALI MUHAMMAD KHAN, J.---Abdur Rehman, appellant herein, through leave of the Court, assails the judgment dated 25-11-1992 passed by a learned Single Judge of the Peshawar High Court, Dera Ismail Khan Bench, whereby his Revision Petition No, 160 of 1991 against the judgment and decree of the District Judge dated 8-6-1991 accepting the appeal filed by the respondent against the judgment of the trial Court dated 2-2-1991, was dismissed. The operative part of the leave granting , order is as follows:-- "We are inclined to grant leave to consider the questions, whether the first appellate Court was justified in reversing the judgment/decree of the trial Court, and whether the learned Judge in Chambers had rightly declined to interfere with the above appellate judgment/decree. Leave is, accordingly, granted."
2. ' The facts of the case, briefly stated, are that Khaliq Dad, respondent herein, filed a suit for declaration to the effect that he is owner of the suit land mentioned in the heading of the plaint and that he never entered or attested Mutation No, 1816 attested on 26-5-1988 purporting to be a sale of the suit land in lieu of Rs,90,000 in favour of Abdur Rehman appellant and that the said mutation is entered and attested through fraud and collusion, is without consideration and ineffective against his rights. It was further asserted that he is in possession of the suit property and that the possession never changed hands. The defendant/appellant contested the suit and denied the allegations contained in the plaint in toto besides raising some preliminary objections. Issues arising out of the pleading of the parties were framed. The plaintiff/respondent produced Sadiq Hussain Shah, Patwari P.W.1; Munirur Rehman, Manager, Habib Bank Limited P.W.2 and Rabnawaz P.W. 4, besides appearing as his own witness as P.W. 3 while the defendant/appellant produced Muhammad Riaz Ex-Patwari who had entered the mutation; Shahabuddin Khan, Naib-Tehsildar who had attested the impugned mutation; and Sikandar Khan the identifying wines at the time of the attestation of mutation, besides appearing as his own witness as D.W.3. On the appraisal of the evidence produced and the documents exhibited, the learned trial Court, vide its judgment and decree dated 2-2-1991, dismissed the suit of the plaintiff/respondent holding the sale transaction embodied in the impugned mutation as genuine. However, the learned appellate Court vide judgment and decree dated 8-6-1991 reversed the same and decreed the suit of the plaintiff/respondent. The appellant filed revision petition in the High Court which could not succeed vide the impugned judgment. Hence the instant appeal through leave of the Court.
3. ' We have heard Mr. Muhammad Munir Peracha, Advocate, for the appellant; Ch. Muhammad Akram, Advocate, for the respondent; and have perused the record of the case.
4. ' The perusal of certified copy of Mutation No, 1816 copy Exh.DW-1/1 on the file reveals that it was entered by Muhammad Riaz Patwari on 11-5-1988 and was produced before the Revenue Officer on 26-5-1988 in the Jalsa-e-Aam of the estate where the suit land is situated for attestation and the Revenue Officer on the admission of Khaliq Daq vendor who was identified to him by Sikandar Khan son of Sarfaraz and Allah Bukhsh son of Haq Nawaz of the same village, attested the same and obtained the thumb-impression of Khaliq Dad vendor and the two identifying witnesses in token of their admission of the transaction as well as the receipt of sale consideration of Rs,90,000. The defendant/appellant discharged the onus of proving the entry and attestation of mutation by producing Muhammad Riaz Patwari who had entered the mutation at the instance of the parties, namely, Abdur Rehman and Khaliq Dad, Shahabuddin Naib-Tehsildar the attesting Revenue Officer and Sikandar Khan and identifying witness of the plaintiff/respondent. The plaintiff/respondent while appearing as his own witness as P.W. 3 was confronted with his thumb-impression on the mutation which he admitted as correct. There can, thus, be no doubt about the attestation of the mutation in the presence of Khaliq Dad plaintiff-respondent and his plea that he had been taken by the defendant-appellant to the Patwari and Revenue Officer for attestation of certain other transaction, does not appeal to common sense; firstly because, he did not specifically mention this fact in the plaint though he was in possession of the certified copies of the mutation and knew that it bears his thumb-impression and secondly, that the Patwari Halqa, the Revenue Officer and the identifying witnesses named above, admittedly disinterested witnesses, stated on oath that the impugned mutation was entered and attested at the behest of the plaintiff/respondent to whom the contents thereof were fully explained and he not only admitted the genuineness of the transaction but also the receipt of sale consideration of Rs,90,000.
5. ' It appears that the first appellate Court as well as the High Court were persuaded to doubt the genuineness of the sale transaction for the reasons that the passing of sale consideration was not fully established and that possession had not changed hands. Under section 54 of the Transfer of Property Act sale is defined as a transfer of ownership in exchange for a price paid or promised or part-paid part-promised. It may be that the defendant/appellant could not satisfactorily establish the passing of entire consideration before the Court but then it was not legally required of him as the plaintiff/respondent challenged the very existence of the transaction and the entry and attestation of mutation. Had it been his case that consideration was not paid to him, the appellant would have concentrated on the proof of payment of consideration. Strangely enough, in this case the plaintiff/respondent himself produced Munirur Rehman, Manager, Habib Bank Limited as P.W. 2 whose statement went against him, inasmuch as, he, under cross-examination, produced the cheque Exh.P.W.2/D-1 drawn by Abdur Rehman defendant/appellant on 9-6-1988 for Rs,47,000 and stated in unequivocal words that at the time of encashment of cheque, both Khaliq Dad and Abdur Rehman had come to him and after the encashment of the cheque an amount of Rs,7,000 was paid to Khaliq Dad and with the remaining Rs,40,000 an account was opened in his name bearing No,PLS-250 and also exhibited the statement of account Exh. PW2/D-2 through which the amount was withdrawn by Khaliq Dad plaintiff/respondent from time to time. This witness was produced by the plaintiff/respondent and he is bound by the statement. He tried to wriggle out of this admission by stating that this amount was paid by him to the appellant who happened to be his landlord as Amanane but he had not explained how the occasion for opening an account in the bank was necessitated all of a sudden and what was the need for him to go to the bank alongwith the appellant for encashment of the cheque. This payment is made, undoubtedly, after some days of the attestation of mutation but the relation between the parties being cordial, the plaintiff/respondent may have admitted the receipt of sale consideration before the Revenue Officer believing that the amount of Rs,47,000, the balance of sale consideration, would be paid to him.
6. The transaction being that of sale, delivery of possession was not legally essential. Anyhow, from the perusal of Khasra Girdawaris placed on the file, it is evident that Khaliq Dad plaintiff/respondent was not in physical possession of the suit land but was recorded in possession of part of the land comprised in the Khata through tenants and, as such, he could not physically deliver possession to the appellant and the tenants thenceforth could be deemed to be the tenants of the appellant, mereso when the appellant was a co-sharer in the Khata on the basis of an earlier transaction of sale on behalf of Khaliq Dad plaintiff/respondent vide registered sale-deed 818 attested on 8-9- 1980 duly incorporated in the Revenue Record vide Mutation No, 1031 attested on 30-12-1981 and was shown in possession of some land in the Khata as well. The plaintiff/respondent, strongly enough, when confronted with this transaction also denied the existence of the same and dubbed it as fraudulent though no suit for annulling the same was filed by him uptil now.
7. ' In view of the discussion above, we are inclined to hold that the learned appellate Court and the High Court have not properly appraised the evidence produced in the case and their conclusions are based on misreading and non-reading of evidence. This appeal is accordingly, accepted, the judgments and decrees of the High Court and the first appellate Court are set aside and that of the trial Court restored with the result that the suit of the plaintiff/respondent stands dismissed.