' By this single judgment I propose to dispose of C.R. No,226/91, C.R. No,227/91, C.R. No,228/91, C.R.
No,229/91 and C.R. No,230/91, as in all these revision petitions the same question of law and facts are involved.
2. The brief facts of the case are that land measuring 1 Kanal 9 Marlas was transferred in favour of Sher Nabi Khan, Ghulam Nabi Khan, Nabi Sarwar, Qismat Ali and Shakirullah Khan, through Mutation No,10091 dated 29-5-1988. Through Mutation No,10090 dated 29-5-1988 land measuring 1 Kanal 10 Marlas was transferred in favour of Sher Nabi Khan and others. Vide Mutation No,10084 dated 29-5- 1988 land measuring 2 Kanals 15 Marlas out of Khasra Nos. 1077, 1080 and 1081 was transferred in favour of Umer Gul, Rehmat Gul, Zakirullah Khan and Basirullah Khan for a sale consideration of Rs,1,000. Through Mutation No, 10089 dated 29-5-1988 land measuring 1 Kanal 10 Marlas was transferred in favour of Umer Gul and others and on the basis of Mutation No,10092 dated 29-5- 1988 land measuring 3 Kanals 6 Marlas was transferred in favour of Amir Sher Din, Gul Sher Din and Muhammad Sher Din. All these mutations were attested as sale mutations. The plaintiff-petitioners of all the five cases filed separate suits in the Court of learned Senior Civil Judge, Bannu for declaration to the effect that in fact, the mutations mentioned above in their favour were of gift but the same had been collusively entered and attested by the defendants as of sale and, therefore, the same were liable to be cancelled.
3. The suits were contested by the defendants concerned and from the pleadings of the parties, the learned Senior Civil Judge, Bannu framed identical issues in all the five suits. Evidence of the parties as they wish to adduce was recorded separately in all the suits but almost identical and the same, and after hearing the learned counsel for the parties, the learned Senior Civil Judge, Bannu by separate judgment but all similarly worded, dated 20-11-1990 dismissed all the five suits, whereagainst appeals filed in the Court of Additional District Judge, Bannu also met the same fate, which were decided on 6-7-1991. The plaintiff-petitioners still feeling aggrieved, have come up to this Court with the revision petitions in hand for setting aside the judgments and decrees of the two Courts below and decreeing the suits in their favour.
4. I have heard the learned counsel for the parties and gone through the record of all the cases thoroughly with their assistance.
5. As evident from the facts mentioned above that the bone of contention between the parties is the allegations of the plaintiff that the mutations in question which had been attested are not sale mutations but these are the gift mutations and should have been attested as such. The filing of the suits was a consequence of the feeling of necessity because of pre-emtion suit file by defendants 4 and 5, had these mutation been of gift, no pre-emption suit could have been filed.
6. The mutations including the abovementioned five Mutations (10084, 10089, 10090, 10091 and 10092), and Mutations Nos. 10078, 10079, 10080, 10081, 10082, 10083, 10085, 10086 and 10087 were entered by the Patwari Halqa on one and the same day i,e, 9-4-1988 amongst the same set of parties i,e, Mubarak Din, Mir Salam Din, Gul Qamar Din sons of Amal Din and their sons etc. Or other relations e.g. Including female of the same family in favour of one another. The learned counsel for the petitioners also stated at the bar that it was a family arrangement for the transfer of a particular piece of land in the exclusive ownership of a particular person instead of retaining the property as joint and as the partition was not permissible so this methodology was adopted. All the mutations were entered by the Patwari as gift mutations, except Mutation No, 10085 which was a redemption mutation, and in this respect he mentioned in column No, 13 on the foil of the mutation register and in his note on the said mutation he used the word i,e, donors instead of the vendor etc: and this fact was verified by the Girdawar Circle. Out of the mutation mentioned above, Mutations Nos.10078 to 10082 and 10085 to 10088 were attested by the Tehsildar on 24-4-1988 while the rest of the mutations including the one in question were not attested on the same day but were left as such and attested on 29-5-19> and while attesting the same the words which had been entered by the Patwari as and were cut down and in the operative order the transfer was mentioned as sale for Rs,1,000 in each mutation for different areas in the various mutations ranging from 1 Kanal 10 Marlas to 9 'Canals 18 Marlas.
7. The plaintiffs in their suit, impleaded the Revenue Officers i,e, the Tehsildar, Girdawar Circle and Patwari Halqa as. Parties in addition to the contested defendants i,e, defendants 4 and 5 who filed the pre-emption suit and the donors (the transferors). The defendants Nos. 1 and 3 i,e, Tehsildar and Patwari and defendants 4 and 5 submitted their written statement while the rest did not file their written statements. The plaintiff examined Baitullah Khan, Patwari Halqa as P.W.1, Office Kanungo as P.W.2, Haji Mubarik P.W.3, attorney of the plaintiff while defendant examined Attaullah Patwari who was posted as Patwari Halqa at the time of attestation of mutations, Office Kanungo was again examined as C.W.1, Bahader Ali defendant No,5 and also attorney of Rastamal Khan defendant No,4 and Gohar Zaman Patwari, who is also defendant No,3 and was a Patwari Halqa at the time of making entries in the mutations, was mentioned as DW.2 but was abandoned being unnecessary.
8. The purpose and procedure for making entries in the mutation register and its verification and attestation has been mentioned in the West Pakistan Land Revenue Act, 1967 hereinafter called as Act.
9. The purpose of mutation is the preparation of record. Chapter II of the Act deals with the records of an estate, i,e, records of rights and periodical records, their preparation and revision etc.
10. The periodical records prepared under section 41 of the Act, as the very name indicates periodically, may be yearly or quadriennially i,e, after four years as the Board of Revenue directs for the preparation of this new edition of record-of-rights the register of mutation is caused to be maintained so that the new entries and changes brought about in the estate to be channelized through a proper procedure in the shape of a mutation. The execution of which is done under a set procedure as prescribed, under section 42 of the Act, the mode of making record, in order to eliminate if not altogether to minimise the wrong entries to be incorporated in the record of a estate as the entries in the records of rights or periodical records, has got presumption of truth unless controverted under section 52 of the Act.
11. After having a look of the purpose of the mutation i,e, making of new edition of records of rights, now revert to the procedure for attestation of mutation. According to section 20 of the Act the procedure, to be adopted for conducting the business or work by.a Revenue Officer, is either prescribed in the Act itself and if not provided, then the Board of Revenue with the previous approval of the Government will make rules for the same. For making entries in an attestation of mutation, the procedure has been prescribed by Act itself in section 42 and according to subsection (1) of section 42*, when a report is made of the acquisition of any right to the Patwari, then he shall -- "(a) record such report in the Roznamcha to be maintained in the prescribed manner, P7(b) furnish a copy of the report so recorded free of costs to the person making the report,
(c) send a copy of the report within a week of its receipt by him to the Union Committee, Town Committee or Union Council within which estate is situated." and then under subsection (3) of section 42 Patwari after complying with the abovementioned formalities shall enter in his register of mutation every report made to him under subsection (1) of said section and under subsection (4) the said report then shall be. Displayed. According to subsection (5) if the Patwari failed to record or display the report made to him, then the person concerned may make a report in writing to the Revenue Officer and Chairman of the Local Council by Registered Post A/D and the Revenue Officer shall cause such a report to be entertained in the register of mutation, By going through the section mentioned above, there is a set procedure for making entries in and attestation of mutation and the most important duty enjoined upon the Patwari is the making of entry in the register of mutation and the Roznamcha and any failure on his part, then the report would be submitted to the Revenue Officer in writing by Registered A/D who will then proceed according to rule 34 (1) of the West Pakistan Land Revenue Rules, 1968 which may be hereinafter called the rules, the form of the Roznamcha Waqiati (Daily Diary) has been prescribed in Form XX for the purpose of section 42(1)(a) and the manner in which the entries are to be made and the Roznamcha to be kept has also been mentioned under Rules 34(2) and (3) which are to the effect: "(2) The pages of Roznamcha shall be stitched in a volume and each page shall bear the book number in print.
(3) The Patwari shall prefix to every entry in the Roznamcha a separate serial number, in large and clear figures. Every entry shall be closed by an asterisk, and no blank line shall be left between two consecutive entries. Such orders and instructions as relate to rules of practice, shall be entered in red ink. The date of each day's entries shall be given according to the official calendar." and according to sub-rule (4) nearly all kinds of entries made in it starting from rainfall and epidemic diseases to alteration in ownership.
12. The form of mutation has been given under rule 72(H) and Form XXXV and there is a specific column in which the nature of the mutations will have to be mentioned. The procedure for making entries in the attestation of mutations mentioned above has been further elaborated in Chapter 7 of the Land Record Manual, the relevant of which is Chapter 7.1(i)(ii), the gist of which is that on receipt of a report of the acquisition of any right the Patwari shall make necessary entries in the remarks column of the mutation sheet and also the report be recorded in the Roznamcha Waqiati and according to para.(vi) it would be the duty of the Patwari to bring to the notice of the Halqa Officer the entry of any mutation during his visit to the Tehsil Headquarter who in 'turn will initial all mutations entered by the Patwari and shall note the fact for planning his subsequent tour programme.
7.4(H) enjoins upon the Filed Kanungo a responsibility to attest by personal examination of the paper concerned every entry made by the Patwari in the counterfoil and foil, noting briefly that he has done so with the date below the report in the letter. He must sign the entries in both counterfoil and foil. The provisions of 7.4 (XV) (a) (1) and (2) (b) and (c) further places a duty, upon the Field Kanungo that he will visit each Patwari Halqa twice a month, shall make a comparison of the entries of mutations with the relevant record of rights and will not delay his comparison for more than a month and if the Revenue Officer finds that a mutation has not been compared by the Field Kanungo, he shall himself make the comparison and attest the mutation besides recommending suitable action against the Field Kanungo. The Revenue Officer will have to go through the entire mutation register, detect all pending mutations and take suitable action in every case. He is bound to record on every pending mutation the reason for not attesting it. He shall also clearly indicate that what further action is necessary to make the case ripe for disposal on his next visit and he would not confine himself only to the mutations presented to him by the Patwaris. Furthermore, in addition to the fact the mutation ultimately finds its way in the records of rights or periodical record to which rebuttable presumption of truth attached under section 52 of the Act, mutation is inadmissible piece of evidence as entries in it are relevant to the facts in issue and relevant facts and acts to the issue which will of title or right arise subsequently.
13. After having a look the purpose and procedure of mutation it would be abundantly clear that the aim of such stringent procedure is to eliminate the possibility of wrong entries in the mutation right, may be based on fraud and collusion and to ensure the making of correct entries. Any negligence, carelessness or fault on the part of concerned officials may deprive a person of his rights including (some times ) title to a property. These facts i,e, (i) prescribed procedure in the law itself and (ii) the value which the procedure carries with it i,e,. Finally resulting in bestowing a right upon some person and A the fact that every duty enjoined upon Revenue officials i,e, Patwari and Revenue Officer under section 42 of the Act has been prefaced with the word shall lead one to a conclusion that the procedure for entering and attesting a mutation, is mandatory and any deviation from it would entail serious consequences may amount in nullifying the whole exercise.
The exercise of such elaboration is to get know that whether the procedure has correctly been adopted in the instant case or not which will be seen hereinafter.
14. As stated above, about 15 mutations were entered on 9-4-1988, some of which were attested on 24-4-1988 while the mutations in question were left on the said date though they were on the mutation register and left unattested, uncancelled and without any note on it. Furthermore after the cutting of the words gift and donor then same process from the beginning including of mal 4 entries in Daily diary should have been adopted by Patwari if not by him then a written application by registered post A/D should have been required by the Revenue Officer which was not done and even the thumb-impression or signature of transferor, some of whom are "Parda Nasheen" ladies, have not been obtained on the mutation which, in practice, is done, and thus the mutations were attested in flagrant violation of the mandatory I provisions of the Land Revenue Act and the provisions of other relevant laws.
15. The plaintiffs have pleaded a fraud on the part of the Revenue Officials by attesting the gift mutations as sale mutations in collusion with the defendants 4 and 5 who later on instituted a pre- emption suit in respect of the same property and claiming that these mutations were really gift mutations but have wrongly been attested as sale mutations. The plea of the plaintiffs has got support from the evidence and circumstances of the case. According to Baitullah Khan, Patwari Halqa, P.W: "The mutation stated above was entered as gift, the same was verified by a Girdawar. The Revenue Record does not bear the conversion of gift into sale by the donor nor is anything regarding the cancellation."
' According to P.W.2 Office Kanungo, in his own words: "The said gift is cut down but the cutting does not bear the date There is nothing in writing on behalf of the owners cancelling the gift mutation and converting the same into a sale."
' P.W.3 Haji Mubarik in addition to the fraudulent attestation of mutation at the behest of the contesting defendants 4 and 5 stated: "The land is measuring about 13 Kanals. It is correct that 13 Kanals of land were transferred through the mutation which I have challenged today. Voluntarily stated that we had transferred 80 Kanals of land to each other by way of gift."
' Attaullah Patwari Halqa was examined as P.W.1 and according to him that the common assembly was held in the Rice Mills of Gul Ayub who is the cousin of Bahadar Ali attorney of Rastamal Khan and the expenses of the said common assembly were borne by Gul Ayub. It may be stated that Bahadar Ali and Rastamal Khan, as evident from the addresses given in the plaint are brothers.
According to this witness i,e, Attaullah Patwari: "I have seen Mutations Nos.10078, 10079, 10080, 10081, 10082, 10086 and 10087 which were entered by Gohar Zaman, the then Patwari Halqa and the same mutations also pertain to parties inter se and were attested on 24-4-1988."
' These mutations have been entered on 9-4-1988 as the mutations in the present case. He further stated, "It is correct that the Special Attorney of the defendants is the first cousin of Gul Ayub. It is also correct that Bahadar Ali stated above and Gul Ayub were present at the time of attestation of impugned mutations."
' Bahadar Ali who is defendant No,5 and also attorney of defendant No,4 Rastamal Khan was examined as D.W.3 who stated: "I have gone to the place of gathering and met Patwari Halqa over there namely Attaullah and thereafter I departure to Bannu City. The Patwari Halqa told me that he had come to the said place for attestation of mutations of our village."
' All the above mentioned facts i,e,--
(i) entering of the mutations in dispute as gift mutations on 9-4-1988 along with other mutations,
(ii) the attestation of some of the mutations on 24-4-1988 while leaving the mutations in question unattested without cancellation and without passing any order on them even without writing any note on the same on the said date I e. 24-4-1988 when other mutations were attested and they were already entered in the mutation register,
(iii) by converting the gift mutation into sale without compliance of the mandatory provisions for entering and attesting of the mutations,
(iv) the holding of the assembly where the mutations were attested in the place of Gul Ayub, close relative of the contesting defendants who borne the expenses of the common assembly,
(v) the presence of Bahadar Ali in the assembly and his meeting with the Patwari without any job of his own,
(vi) the subsequent institution of pre-emption suits by the contesting defendants,
(vii) the mentioning of Rs 1,000 as value of the property ranging from 1 Kanal 10 Marlas to 9 Kanals 18 Marlas i,e, a nominal price,
(viii) without any solid reason or cause with the donor or the donee for asking the Revenue Officer for changing the mutations from gift to C sale, all speak volume of mala fide , ulterior motive and fraud on the part of the Revenue Officials in collusion with the contesting defendants.
16 Now after holding the attestation of mutations in flagrant violation of the law and rules and the result of fraud and collusion with the contesting defendants the question which poses itself for consideration is that., jurisdiction of the Civil Court in the matter and this was necessitated by the findings of the learned appellate Court which, of its own considered the suit under section 42 of the Specific Relief Act by observing that the plaintiffs-- "want to get the correction of mutations which does not come within the purview of section 42 of the Specific Relief Act because the correction of mutation can only be sought through its review before the Revenue Authorities under the Land Revenue Act, and so, for the mere correction of mutations the provisions of section 42 of the Specific Relief Act does not attract at all and consequently such like suits are barred by the provisions of section 42 of the Specific Relief Act."
' While commenting upon the pre-emption suit the learned Appellate Court observed: "As such, the instant suits of appellants being instituted after the earlier suits of pre-emption, are also barred by law. The same are neither competent nor maintainable and were rightly dismissed by the learned trial Court."
' While the learned trial Court on Issue No,4 with regard to the competency of the suit, Issue No,5 for misjoinder of the parties, Issue No,7 for compensatory cause, Issue No,8 with regard to the jurisdiction of the Court and Issue No,9, observed-- "these issues were neither pressed nor proved, hence are decided in negative."
The learned appellate Court has misconstrued the facts of the case by holding it that the case is for the correction of the mutations but what the plaintiffs' case is that the mutations in dispute have been made immune from the pre-emption while in case of sale it gives rise to the right of pre-emption the moment it took place. So, keeping in view these facts into mind then it cannot be said that it is mistake which requires correction but it signifies the very intention of the parties that under what consideration they want to transfer the property to another. It is not a clerical error or a patent fact simplicitor which requires a correction. If the learned appellate Court while treating the suit only under section 42 of the Specific Relief Act why it could not be treated along with that section, under section 31 of the Act ibid which provides for the rectification of the instrument as when through a fraud or mutual mistake of the parties an instrument in writing does not truly express their intention, then either party may institute a suit to have the instrument rectified and the Court on arriving at a conclusion that the fraud or mistake has been committed and the real intention of the parties was somewhat else, then the Court, in its discretion, rectifies the instrument to bring it in accord with the intention of the parties.
17. The endeavour of a Court is to get at the true understanding of the parties to give effect as the object of the parties was to produce a certain legal result yet the contract as framed is not calculated to produce it. Here the desire of the parties was to transfer the property through gift which was conformable continuously in the minds of all the parties down to the time of its execution. Though the powers of rectification of the instrument has been subjected to a condition that the rights acquired by third person in good faith and for value be safeguarded which in the instant case is also lacking as no party has acquired any right in good faith and for value except the filing of the pre-emption suit by the defendants which cannot be considered as such. In the section ibid the word instrument in writing has been used and which word has not been defined in the Act itself, to which the general meaning will be given, as a formal legal writing such as deed, will, agreement which include every document by which any right of liability is, or purports to be, created, extinguished or transferred. Even a compromise decree may also be considered as an instrument on the ground that it is a contract between the parties. In this case all the conditions of section 31 are satisfied and if otherwise the substance of the suit leads to a conclusion that the instrument involved requires ratification and in which respect sufficient material has been brought on record, then the Court under the equitable jurisdiction ought to grant such a relief irrespective of the procedural omission if that causes no prejudice to anyone.
18. According to section 172 of the Land Revenue Act, the jurisdiction of the Civil Court is barred and under 4(2)(vi) of the said section, the jurisdiction of the Civil Court has been ousted in matter of correction of register of mutations. But as held above, herein the case in hand, the correction of the mutations is not involved but it is the rectification of the instrument which is to be done and which was the result of fraudulent act of the Revenue officials and which requires a thorough probe, recording of the evidence for arriving to a conclusion that the intention of the parties for the transfer of the property was through gift and not through sale and which could not be done without a proper regular suit as the procedure before the Revenue Officer under the Land Revenue Act is in the nature of the summary inquiry and even otherwise too, wherever there are some acts of the statutory functionary, which is not in accordance with the law and rules prescribed for the same and their acts are in violation of the relevant provisions of law, then the Civil Court has got the jurisdiction.
' As a result of the above discussion, on acceptance of the revision petitions, the suit of the plaintiffs is decreed by rectifying the mutations as gift instead of sale. Parties are left to bear their own costs.