' Through this Civil Revision the petitioner-defendant has challenged the judgment and decree dated 12-1-1986 passed by the learned Civil Judge 1st Class Sadiqabad whereby he decreed the respondents/plaintiffs' suit and the judgment of the learned Additional District Judge Rahim Yar Khan dated 21-12-1989 vide which while affirming the aforementioned judgment and decree, dismissed petitioner-defendant's appeal.
2. Brief facts leading to the abovenoted case are that the respondents-plaintiffs filed a suit against the petitioner-defendant for a declaration that they, being legal heirs of Naqshoo deceased, are the owners of 4/6th share of the disputed house and mutation No, 575 decided on 8-9-1971 in favour of the petitioner-defendant was illegal, void, without consideration and thus not binding on their rights. Further, sought permanent injunction by way of consequential relief restraining the petitioner-defendant from alianting the property in question in any manner during the pendency of the suit. A prayer was also made for joint possession to the extent of their share. It was averred in the plaint that Naqshoo deceased was the father of the parties; was allotted the disputed house and remained in possession of the same till his death i,e, 5-10-1982. The petitioner-defendant was living with the father whereas Muhammad Tufail respondent was residing in Muhajir Colony. It was alleged that it was only in 1982 and on the day of Qul Khawani of their father that the petitioner- defendant told them that the said house had been sold to him by their father on 8-9-1971. This mutation was challenged on the ground that the same was fraudulent and without consideration; that the sale in dispute having the value of more than Rs, 100 required compulsory registration and that since Patta Malkiyat of the said house had not been sanctioned in favour of Naqshoo deceased at the time of the alleged sale, the sale in favour of the petitioner-defendant was illegal.
3. The suit was contested by the petitioner-defendant by filing written statement. In terms of the respective claims, the following issues were framed:- "(1) Whether the suit is time-barred? OPD
(2) Whether the plaintiff No, 1 is estopped by his conduct from bringing the suit? OPD
(3) Whether the suit is not correctly valued for court-fee? If so, its correct valuation for the both?
OPD
(4) Whether the defendant validly purchased the house in dispute through mutation No, 575 dated 8-9-1971 with consideration of Rs,1,000 OPD (onus objected to).
(5) Whether the plaintiffs are entitled to inherit 4/6th share of the house in dispute as legal heirs of Naqshoo deceased? OPP
(6) Relief."
4. In support of their suit, the plaintiffs produced Muhammad Hanif (P.W.1), Mushtaq Ahmad (P.W.2) and one of the plaintiffs-respondents (Muhammad Tufail) had himself appeared as P.W.
3. They also tendered in evidence a copy of Jamabandi (Exh. P.1) and a copy of mutation in dispute (Exh. P.2) The petitioner-defendant produced Noor Muhammad (D.W.1), Ghulam Qadir (D.W.2), Abdul Latif (D.W.3) and he himself appeared as (D.W. 4). He also produced Iqrarnama (Exh. D.1); a copy of mutation (Exh.D.2); copy of impugned mutation (Exh. D. 3) and copy of Jamabandi (Exh.D.4).
5. The learned trial Court decided issues Nos. 1 to 4 against the petitioner-defendant whereas issue No 5 was decided in favour of the respondents-plaintiffs. In view of the findings on the aforementioned issues, the suit was decreed vide the judgment and decree dated 12-1-1986 mainly on the following grounds:--
(i) That the mutation in dispute was sanctioned in 1971 and the limitation period would start not from the date of execution of mutation but from the date of knowledge. The respondents-plaintiffs got to know about the sale on the day of Qul Khawani of their deceased father i,e, in the year 1982.
The suit was filed within a month from the date of knowledge.
(ii) That the Iqrarnama (Exh. D.1) through which, according to the petitioner-defendant, the respondents had mutually partitioned the property was not binding on the respondents-plaintiffs as the said Iqrarnama had admittedly been rejected by their father i,e, Naqshoo deceased. Exh.D.1, therefore, is no bar for the respondents-plaintiffs to file suit.
(iii) That there is nothing in evidence that the respondents ever extended their consent to mutation No, 575 dated 8-94971.
(iv) That mutation No, 206 through which the petitioner-defendant transferred land measuring 2 Marlas 3 1/2 sarsahis in favour of Muhammad Tufail respondent is of course bearing the same date when mutation No, 575 was sanctioned (8-9-1971) yet there is nothing in evidence to indicate that the said plaintiff was present at the time of the execution of both these mutations.
(v) That to prove the factum of sale, the petitioner-defendant has examined Noor Muhammad as D.W. 1 who admitted his signatures on the mutation in dispute, however, he could not tell the exact amount which was paid to the vendor. According to him, the value of the suit property was Rs, 1,00,000 at the time of its sale. Ghulam Qadir appeared as D.W.
2. He is the author of the Iqrarnama as he is `petition writer'. He stated that the contents of Exh. Dl are mentioned at serial No, 787 of his register and that he knew the parties personally. Abdul Latif appeared as D.W.3 he identified the parties before the Revenue Officer and he also signed on the mutation in question. According to him, the value of the property at the time of sale was Rs,70,000.
He is also a signatory to Exh. Dl, the Iqrarnama, entered into between the petitioner-defendant and respondent-plaintiff No,1.
(vi) That Noor Muhammad (D.W.1) has not been able to specify as to what was the consideration money in the mutation of sale. Abdul Latif (D.W.3) is not a Lumbardar of Chak No, 168 where the property in dispute is situated. No independent witness relating to both the parties has been produced. Patwari of the relevant Mauza as also the Tehsildar have not been produced and mutation by itself does not create any title.
(vii) That it is not manifest from the evidence on record that Naqshoo deceased was in need of Rs,1,000 to have sold the property. In any case the value of which was about Rs,1,00,000, the alleged sale at Rs,1,000 is doubtful. This doubt is further strengthened by the fact that the petitioner- defendant kept quiet for almost a decade and disclosed about the sale only after the death of his father.
6. The learned Additional District Judge vide his judgment dated 21-12-1989 dismissed the appeal filed by the petitioner-defendant and observed that as the witnesses produced by the petitioner- defendant were inconsistent on the sale price, D.W.3 Abdul Latif who identified Naqshoo deceased was not the Revenue Officer or Lumberdar of the said village and as the petitioner-defendant had failed to produce the Revenue Patwari who entered the mutation or attested the same, the authenticity of the impugned mutation was doubtful. According to learned appellate Court, the execution of Exh. D.1 was of no help to the petitioner-defendant. Firstly because the respondents were not owners of the house in the year 1971 (when Exh. D.1 was executed) and secondly the petitioner-defendant himself conceded that the said Iqrarnama was not accepted by their father Naqshoo deceased.
7. The learned counsel for the petitioner while arguing his case, has urged the following pleas:--
(i) That the onus to prove the mutation No, 575 as fraudulent was on the respondents/plaintiffs. The particulars of fraud have not been proved and the onus has not been discharged. On the other hand, the petitioner-defendant had proved through facts that the mutation in question had been validly executed.
(ii) That the petition writer who scribed Exh. D.1 was produced and the execution of Exh. D.1 stood proved.
(iii) That the petitioner-defendant did move an application to summon the Petwari of the concerned Mauza but the same was dismissed on 4-5-1985.
(iv) That the respondents-plaintiffs produced heresay evidence which was not tenable in law.
(v) That Muhammad Tufail respondent-plaintiff admitted to be living in the house which was given to him pursuant of Exh. D.1.
(vi) That the execution of Exh. D.1 is further proved by mutation No, 206 which is at page 85 of this Civil Revision.
(vii) That the entries of Jamabandi carry a presumption of truth and that presumption had not been rebutted by the respondents-plaintiffs.
(viii) That it was a time-barred suit as the case was covered by Article 120 of the Limitation Act and the same merited dismissal on this short ground. Relied on PLD 1971 SC 762. '
(ix) That the Patta Malkiyat had been issued in favour of Naqshoo qua the house in question and he could validly transfer the same which he did vide the impugned mutation.
8. The learned counsel for the respondent/plaintiffs, on the other hand, submitted:-
(i) That the respondents-plaintiffs got to know about the impugned mutation only in the year 1982 after the death of their father and the suit was filed within 30 days. The Limitation, in the circumstances, would run from the date of knowledge.
(ii) That the petitioner-defendant had led an evidence which was highly discrepant and consisted of those persons which were not related to both the parties. This according to the learned counsel was not the best evidence available.
(iii) That the concurrent findings of two Courts below cannot be interfered with by the High Court.
He relied on MLD 1993 Page 1976.
(iv) That the entries in the record per se are not conclusive and that they have to be proved. In support of this submission reference was made to MLD 1990 Page 1503 and 1990 CLC Page 1014.
9. I have heard the learned counsel for the parties and have also perused the record. The precedent case-law relied upon by both the sides have also been gone into.
10. In the plaint the respondents-plaintiffs had pleaded that mutation No,575 dated 8-9-1971 qua the disputed house was based on fraud and that the plaintiffs are owners to the extent of 4/6th share by way of inheritance being heirs of Naqshoo deceased i.e, their father. The petitioner- defendant in his written statement had pleaded that the house in questions was validly purchased by him and he is in possession of the same since the day of execution of mutation No, 575 i,e, 8-9- 1971. He had raised construction over it and that plaintiff-respondent No,1 had relinquished his claim over the said property in terms of an agreement dated 23-8-1971 which is Exh. D.1.
11. When a party alleges fraud with regard to a document, the initial burden to prove the execution of the said documents is on the party which is relying on it. Once this onus is discharged, the burdon to prove factum of fraud or undue influence shifts on the party which alleges fraud. To prove the execution of the mutation, the defendant produced documentary as well as oral evidence, Exh.D3 is mutation No, 575 through which the house in dispute measuring 2 Marlas 1-3/4 sarsahis was mutated in the name of the petitioner-defendant for a consideration of Rs,1,000. This mutation was duly sanctioned by the revenue off cial on 8-9-1971 and Naqshoo was identified by Abdul Latif Lumberdar who appeared as D.W.3 and Noor Muhammad who appeared as D.W.1. Both these witnesses are independent witnesses and both have stated that Naqshoo deceased had mutated the house in their presence before the revenue official. Nothing has been brought on record to suggest that any of these witnesses was in any way closely related to the petitioner- defendant or had an interest to make a false statement. D.W.1 in fact stated that Naqshoo deceased had come to his house to collect him for joining the mutation proceedings. Exh. D.4 is a copy of the record of rights' which indicates that in terms of the aforementioned mutation the property in question was duly entered in the rime of the petitioner-defendant in the Revenue Record.
12. Exh. D.1 lhas been totally ignored by both the learned Courts below on the ground that this document was, as per the statement of the petitioner-defendant, disowned by their late father Naqshoo. It is important to note that this agreement was between the petitioner-defendant and respondent-plaintiff No,1 with regard to their property the terms of which are as follows:-
(i) Muhammad Aslam (petitioner-defendant) relinquished his claim with regard to plot No, 54/S situated in Muhajir Colony Sadiqabad barring one room description of which is mentioned in the agreement in favour of Muhammad Tufail (respondent-plaintiff).
(ii) Muhammad Tufail (respondent-plaintiff) relinquished his claim with regard to half of the house situated in "Galla Mandi Sadiqabad (which share he was to get from his father) in favour of Muhammad Aslam petitioner. The impugned mutation is with regard to this house.
(iii) Muhammad Tufail (respondent-plaintiff) undertook to give Rs,1,900 to Muhammad A slam at the time of mutation in his favour.
13. To prove Exh. D1, the petitioner defendant had produced Noor Muhammad as D.W.1, D.W.2 Ghulam Qadir (who scribed the agreement) and himself appeared as D.W.4. D.W.2 stated that Exh.
D1 is duly entered in his register at serial No, 787 on 23-8-1971. This averment is confirmed by the stamp of the deed-writer which is affixed on Exh. Dl. It bears his signatures and it also mentioned the register's serial number. At the back of Exh. Dl I find that the stamp paper of Rs, 4 on which the agreement was written was purchased by respondent-plaintiff (Muhammad Tufail). It is signed by him and the serial number of the stamp vendor is also mentioned there. The respondent-plaintiff No,1 denied having signed this agreement. No effort was c made to compare his signatures affixed on this agreement with his signatures on the plaint. In the interest of justice this Court itself deemed it proper to compare the signatures. I find that the signatures of Muhammad Tufail on the agreement as also on its back side are similar to the ones on the plaint and prima fade he is signatory to the said document. It appears that it was in pursuant to this agreement that the house in Mohajir Colony in which the respondent-plaintiff No,1 is residing was mutated in his name by Muhammad Aslam petitioner-defendant. This is borne out from the statement of Muhammad Tufail himself who appears as P.W.3. He admitted that the house in which he was living was jointly owned by him and his brother Muhammad Aslam petitioner-defendant. However, he conveniently denied the suggestion that it was pursuant to the said agreement that this house was given to him.
He maintained that he purchased this house from Muhammad Aslam petitioner-defendant. The fact that the house in which Muhammad Tufail was residing, was initially jointly owned by them, is further confirmed by P.W.1 Muhammad Hanif and P.W3 Muhammad Mushtaq. According to P.W.1, Muhammad Tufail respondent-plaintiff had purchased that portion of the house from Muhammad Aslam petitioner-defendant but he was not aware of the amount. Similarly P.W.3 also had no knowledge about the sale price. A copy of Mutation No, 206 was placed on record but it seems that this was some how not properly exhibited. Since the execution of this mutation is not disputed by P.W.3 (respondent-plaintiff) as he admits to have purchased this house the sale of which is evidenced through this mutation, this Court can take a judicial notice of the same. It is interesting to note that this mutation bears the same date on which the impugned mutation No, 575 was sanctioned. Not only that Abdul Latif Lumbardar D.W.3 who appeared as a witness to identify Naqshoo in mutation No, 575 also appeared at the time of sanctioning of mutation No, 206. This further strengthens the petitioner-defendant's case that the respondent-plaintiff (Muhammad Tufail) had not objected to the impugned mutation in view of the mutual understanding in terms of Exh. Dl and had . Practically relinquished his claim.
14. There is further circumstantial evidence to prove the execution of Dl and D.2. It is admitted by P.W.3 (Muhammad Tufail) respondent-plaintiff that the petitioner-defendant had raised construction on the house in question and built two shops and also constructed upper portion of the house. Being real brother and living in the same city, he must have come to know about the construction being raised. The fact that it was not objected to by the respondent-plaintiff strengthens the petitioner-defendant's plea that he had become the owner of the disputed house pursuant to the impugned mutation.
15. The learned appellate Court doubted the genuineness of the impugned mutation on the ground that Abdul Latif D.W.3 who identified Naqshoo deceased was not Lumbardar of the said village and that the Revenue Patwari who entered the mutation was not produced in Court. The learned Court below did not appreciate that on 1-4-1985, the petitioner-defendant made an application for summoning Nazir Ahmad Girdawar who had attested mutation No, 575 dated 8-9-1971 and mutation No, 206 dated 8-9-1971. The learned trial Court vide its order dated 4-5-1985 dismissed the said application on the ground that "The abovementioned documents namely the copies of mutations are admissible per se in evidence and these need not be proved. Therefore, the question of summoning any witness to prove these documents does not arise at all. Since the copies of these documents are on the file, the defendant can produce these documents in evidence". The bona fides of the petitioner-defendant to adduce the best evidence available is manifest from the aforementioned attempt of the petitioner and the order made by the learned trial Court.
16. One of the main grounds which found favour with the learned Courts below to cast doubt about the genuineness of mutation of sale was the low sale price. I am afraid they failed to realise that it was a sale being made by the E father to a son who were residing in the same house. Secondly, it is a matter of common knowledge that parties do mention hopelessly low price in the sale-deeds to avoid stamp duty. But mere low price in the absence of any strong proof against genuineness would not make a mutation fake or fraudulent.
17. The mutation is a public document which is sanctioned under the Land Revenue Act and once mutation is entered in the 'record of rights' it carries the presumption of truth. I am fortified in my view by a judgment of the Hon'ble Supreme Court which is reported in PLD 1979 (SC) page 890 which is to the following effect:- "(c) West Pakistan Land Revenue Act (XVII of 1967), S. 44 read with S. 41---Mutation getting incorporated in Jamabandi, held, carries a presumption of truth---Evidence Act (I of 1872), Ss. 35 & 114."
Similarly in a judgment reported as AIR 1934 Privy Council 40 it was held:-- "Punjab Land Revenue Act (1887), S. 44--Record of rights---Entry in---Burden of proof that it is false is on person asserting it---Patwari committing some irregularities in submitting report does not displace presumption---Order of mutation must be proved to be false."
18. To prove the allegation of fraud with regard to the impugned mutation, the respondent-plaintiff had produced three witnesses including himself. The evidence of P.W.1 Muhammad Hanif and P.W.2 Muhammad Mushtaq is mostly here say and both of them have tried to assail the genuineness of mutation of sale by saying that they approached Naqshoo deceased to sell the house in question to them and he refused to do so; therefore, they alleged that he had not sold it to the petitioner- defendant. The best evidence regarding family affairs would be that of a close relative of both the parties. P.W.1 Muhammad Hanif is not related to either of the parties. P.W.2 Muhammad Mushtaq claimed that he is related to both but in cross- G examination, he could not divulge his relationship with the petitioner/defendant nor he could tell the parentage of Naqshoo deceased. On the contrary, proved himself to be an interested witness by disclosing that his nephew is married to the daughter of Muhammad Tufail respondent-plaintiff.
19. It is pertinent to note that respondents-plaintiffs Nos.2 and 3 who are sisters of the petitioner- respondent and claimed ownership through inheritance H did not appear in Court in support of the plaint. This is a circumstance which would go to show that the impugned transaction was genuine and the sisters did not appear in Court to challenge the same.
20. Coming to the point of limitation I find that the circumstances emanating from the evidence on record are a pointer to the effect that the respondents-plaintiffs were very much aware of the impugned mutation in favour of the petitioner-defendant. Firstly, Abdul Latif D.W.3 is a signatory to the impugned mutation as well as mutation No, 206 in favour of the respondent-plaintiff No,l. It is not believable that he would not have told the said respondent/plaintiff about the mutation in question. Secondly, the construction of the upper-storey and the two shops were admittedly made by the petitioner-defendant prior to the filing of the suit and in fact during the life time of Naqshoo deceased. If the construction was raised in absence of mutation in favour of petitioner-defendant, the same would have been objected to by the respondents-plaintiffs living in the same city. Thus, the mutation having taken place in 1971, the same could not have been challenged beyond the period of limitation which is six years under Article 120 of the Limitation Act. The suit was, therefore, time-barred and was liable to the dismissed on that score alone.
21. For aforementioned reasons, I am of the view that the findings of both the learned Courts below are based on misreading and non-reading of material evidence on record. These are against the weight of evidence, contrary to law and cannot be sustained. I, therefore, set aside the judgment and decree dated 12-1-1986 of the learned trial Court and judgment dated 21-12-1989 of the learned appellate Court and accept this petition. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.