This civil revision is directed against the judgment and decree dated 17-2-1982 passed by the learned Additional District Judge, Khanewal, whereby the appeal of respondent No. l was accepted and the judgment and decree, dated 25-10-1987 passed by the learned Civil Judge, Khanewal was set aside, resultantly, the suit of respondent No. l seeking declaration as to the title to the land in dispute by challenging the validity of mutation of inheritance entered and attested in favour of the petitioner alongwith the prayer for the permanent injunction was decreed.
2. The relevant facts are that the respondent No. l filed a suit for declaration and permanent injunction against the petitioners by claiming therein that the land measuring 84 Kanals, 5 Marlas situate in Chak No.91-A/10-R, Tehsil Khanewal, then District Multan, now District Khanewal, was jointly allotted in the name of respondent No. l and one Khadim Hussain, the predecessor-in- interest of the present petitioner Khadim Hussain, the abovesaid joint owner, in the orally sold his 1/2 share of his land abovementioned in favour of the petitioner for a consideration of Rs.42,100, the oral sale was concluded in favour of respondent No.1 after having obtained permission from the Collector, Multan, which was duly granted on 22-12-1971. It was submitted that respondent No.1 is continuing in possession of the land referred to above since the day of sale in his favour and that in order to formally finalise the bargain of sale referred to above, Khadim Hussain did also execute a power of attorney in favour of respondent No.1 (now respondent No.2 in the present revision petition) which was duly registered on 26-12-1968 and that the vendor i.e. Khadim Hussain categorically admitted therein that he had received the total sale consideration. It was in consequence of this oral sale in favour of respondent No.1 that a mutation was also entered in the Revenue papers but it revealed subsequently that the same was not attested in favour of respondent No. l as the parties failed to appear before the Revenue Officer concerned on the day fixed for its attestation. It was however, pleaded that the respondent No. l continued to believe that mutation of sale has been attested in his name and as he otherwise continued to exercise his rights of ownership in respect of the land sold in his favour therefore, he did not bother to inquire as to whether the mutation has been attested in his name, particularly because the Patwari had assured him that the oral sale in his favour has been mutated in the Revenue papers. It so happened that the said Khadim Hussain died in the year, 1977 and as the sale in favour of the respondent No. l had not been mutated in his name, therefore, the Revenue Officer proceeded to enter mutation of inheritance No. 130 in the name of the present petitioners as the heirs of the said deceased and attested the same on 2-3-1981.
3. The suit was resisted by the petitioners, who inter alia, maintained that suit is not maintainable in its present form and that the respondent No. l had no cause to file the same. It was submitted that the respondent No. l is estopped by his conduct to file the suit and that the same is bad for non- joinder of necessary party i.e. The Provincial Government. It was maintained that the suit is barred by limitation. It was submitted that some negotiations for the sale of the land in dispute did take place between the respondent and the predecessor-in-interest of the parties but no bargain of sale was concluded because the parties could not come to terms as to the sale price. As for the power of attorney, it was submitted that the same was executed by the predecessor-in-interest of the petitioners but for the purpose of obtaining the permission from the Collector and not for any other purpose. The petitioners claimed themselves to be the owners in possession of the land in- dispute and vociferously asserted that the factum of non-attestation of mutation entered in favour of respondent No. l was duly known to him, who accepted the same. It was asserted that the petitioners are paying the land revenue as also Aabiana of the land in dispute. In the light of defence referred to above, it was maintained that the suit of respondent No. l was absolutely frivolous, therefore, it was prayed that the petitioners be allowed special costs under section 35-A of C.P.C
4. The learned trial Court recorded evidence in the case on the following issues:---
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the plaintiff has no cause of action? OPD
(3) Whether the plaintiff is estopped to bring the suit? OPD
(4) Whether the suit is time-barred? OPD
(5) Whether the plaint is not valued for the purposes of court-fee or jurisdiction? If so what is correct valuation and its effect'? OPD
(6) Whether Provincial Government is a necessary party? If so, its effect ? OPD
(7) Whether the Civil Court has no jurisdiction to try this suit? OPD (8)Whether the defendants Nos. l to 9 are entitled to get the special costs? If so how much? OPD
(9) Whether the plant has not been verified? If so, its effect? OPD
(10) Whether the suit is collusive and mala fide? OPD
(11) Whether the defendant No. 10 is an unnecessary party? If so, its effect? OPD
(12) Whether Khadim Hussain the-predecessor-in-interest of defendants Nos. 1 to 9 had sold the suit land to the plaintiff for Rs.42,100 and received the consideration? OPP
(13) Whether the power of attorney executed on 26-12-1968 in favour of defendant No. 10 was irrevocable and was executed for furtherance of contract? OPP
(14) Whether the order of Revenue Officer dated 20-10-1972 rejecting mutation was against fact and law and void against natural justice? OPP
(15) Whether the inheritance in Mutation No. 130 dated 2-3-1981 was void and inoperative against the rights of the plaintiff? OPP
(16) Whether the plaintiff is owner in the possession of the suit land and the Revenue entries contrary to it are void and inoperative against his rights? OPP
(17) Relief.
5. The respondent No. l being the plaintiff produced 4 witnesses while Muhammad Ramzan, Special Attorney of said respondent No. l appeared on his behalf as P.W.5. The documentary evidence produced by the respondent No. l plaintiff consisted of 7,,documents i.e. Exh.P1, the power of attorney dated 26-12-1968 executed by Khadim Hussain in favour of P.W.3 Munshi Khan Muhammad. Exh.Pl/1 are the signatures of Khuda Bakhsh P.W.2 affixed on the abovesaid power of attorney while Exh.P.I/2 are the signatures of Khadim Hussain affixed on the said power of attorney duly proved by P.W.2 Exh.P2 is the death certificate of Khadim Hussain whereby it is certified that he died on 18-12-1977. Exh.P3 is copy of Ruppat Roznama Waqaiti dated 5-2-1972 Exh.P4 is copy of Khasra Girdawari from 24-11-1971 to 30-3-1973, Exh.P5 is the copy of Jamabandi for the year 1981/82, Exh.P6, is copy of Khasra Girdawari from Kharif 1986 to Rabi 1987 and Exh.P7 is the copy of power of attorney executed by respondent No.1 in favour of his attorney i.e. Munshi Muhammad Ramzan who appeared in the case as P.W.5.
The petitioners/defendants on the other hand, examined two witnesses while Muhammad Ashfaque one of the petitioners appeared as his own witness as D.W.3. The documentary evidence produced by the petitioners consisted of 4 documents i.e. Exh.D1 copy of Mutation No.77, Exh.D2, copy of Khasra Girdawari from Kharif 1989 to Rabi 1991, Exh.D3, copy of Jamabandi for the year 1977- 78 and Exh.D4, copy of Jamabandi for the year 1970-71.
6. The learned trial Court having appraised the evidence on the recur--- proceeded to dismiss the suit of respondent No.1 mainly on the ground that respondent No.1 had not been able to prove sale in his favour. The issues as to estoppel, maintainability of suit and limitation were also answered against the said respondent No. 1.
The abovesaid findings of the learned trial Court were however reversed by the learned Additional District Judge, vide his judgment and decree dated 17-2-1982 with the result that the suit of the respondent No. l was decreed.
7. The abovesaid judgment and decree of the learned Additional District Judge, Khanewal has been assailed in the present revision.
8. The learned counsel for the petitioners while assailing the judgment and decree of the learned Additional District Judge, referred to the findings recorded on Issues Nos.12 and 13 and contended that the learned Additional District Judge, reversed the findings of the learned trial Court on the said issues on the ground that the predecessor-in interest of the petitioners having sold the land in dispute for a lawful consideration had delivered the possession thereof to respondent No.1 as according to the learned Additional District Judge, all these factors find mentioned in the irrevocable power of attorney dated 26-10-1968 i.e. Exh.Pl on the record and that due permission for the sale was also obtained from the Collector and since Mutation No.77 was entered (though not attested) therefore, it was also an evidence of the fact that the sale was concluded in favour of respondent No. 1. It was submitted that all the abovesaid factors which weighed with the learned Additional District Judge, while reversing the judgment of the learned trial Court were not proved on the record inasmuch as no evidence in this behalf has been referred to conclude this finding of fact against the petitioner and as a matter of fact the learned Additional District Judge has ignored the evidence led by the petitioners to show that the land in dispute continuously remained in possession of Khadim Hussain till his death and thereafter the same is in possession of the present petitioners. It was further added that the alleged sale being violative of the provision of section 19 of the Colonization of Government Lands Act, 1912 was not at all enforceable at law therefore, the plaintiff had no cause of locus standi to maintain the suit Reliance was placed on Hakim and others v. Atta Muhammad and others 1981 SCMR 993. It was next contended that the land in dispute was jointly allotted in the name of predecessor-in-interest of the petitioners and respondent No. l under the scheme of allotment of land to certain Criminal Tribes in Lower Bari Doab Colony and in view of the provisions contained in Notification No. 11429 dated 28-4-1929 issued in this behalf, the allottee of land under this Scheme could not alienate or sell the same in any manner, therefore, even if it be admitted that the land was sold by Khadim Hussain to respondent No.1, the same being against the law is void and would not create any right, title or interest in favour of respondent No.1. The statements of D.W.1 and D.W.2 were referred to support the abovesaid argument. It was also argued that every allotment made under the provision of Colonization of Government Lands Act, 1912 is governed by statement of conditions and by a reference to the format thereof, it was argued that there does not exist any clause whereby the allottee is authorised to transfer or alienate the land allotted under the abovesaid Act. In any case it was submitted that the so-called permission under section 19 of the Colonization of Government Lands Act, 1912 could not be treated as valid permission because the same to be enforceable in law is got to be prior to the sale and not thereafter. The precise submission was to the effect that in the instant case the permission is shown to have been obtained after the sale and not prior thereto, therefore, on this count also the sale in favour of respondent No. l is hit by the provision of section 19 of the Colonization of Government Lands Act, 1912. Reference was made to Muhammad Sadiq v.
Labh Singh PLD 1959 (W.P.) (Rev.) 79 and Jiwana v. Mst. Sahbi PLD 1954 Lah. 253. The attention was also drawn to para. 165 of the Colony Manual to maintain that if the proposed sale is not concluded within six months after obtaining the permission for the said purpose, the same is deemed to be withdrawn and as in the instant case the permission is shown to have been granted on 22-12-1971 while Mutation No.77 was rejected on 20-10-1972 i.e. After a period of 6 months, therefore, the permission if any, could not enure .For the benefit of respondent No. 1. Another limb of the same argument was to the effect that it is prerogative of the allottee to sell or not to sell the property even in spite of permission or in that behalf, therefore, simple permission does not mean that the sale has been concluded in favour of respondent No.1 It was also urged that the petitioners are continuing as tenants on the land in dispute under the Provincial Government and that in view thereof Provincial Government was necessary party. In any case, it was submitted that the Civil Court has no jurisdiction to grant a declaration thereby substituting respondent No. l as a tenant of the land in dispute in place of the predecessor-in---interest of the petitioner of for that matter the petitioners. It was submitted that the learned Additional District Judge has not adverted to the fact that by granting the declaration as prayed for in the case, the Revenue papers shall have to be changed and since the change is to be brought about in place of the Provincial Government, the same cannot now be effected by the decree of the Civil Court particularly when the permission granted in this behalf has already lapsed. The learned counsel for the petitioner referred to various parts of the evidence to demonstrate that the sale in favour of the respondent No.1 has not been proved on the record and specifically stressed that the evidence of the two witnesses produced by the petitioners have not been properly appreciated thus maintaining that the judgment of the Appellate Court is based on presumptions.
9. The learned counsel for the respondent on the other hand, argued that the contents of power of attorney (Exh.Pl) duly executed by Khan Hussain in favour of Munshi Khan Muhammad P.W. Did manifestly prove that the predecessor-in-interest of the present petitioners had received the total consideration and had also delivered the possession of the land in dispute to respondent No. 1. The learned counsel also referred to the statement of P.W.3 to support the above-referred argument.
As for the plea that the land was allotted to the predecessor-in-interest of the petitioners and respondent No. 1 under the Scheme for Criminal Tribes, it was submitted that the argument now being raised has absolutely no foundation in the pleadings as it was neither Pleaded by the plaintiff nor by the defendant that the land in dispute was allotted under Scheme for Criminal Tribes.
Learned counsel for the respondent referred to the pleadings of the parties and submitted that it was not a case of any of the parties that the land in dispute was allotted under the Scheme for Criminal Tribes. It was maintained that if a fact is not pleaded, any evidence led thereon cannot be looked into, therefore, the total effort of the learned counsel for the petitioners is misdirected, against the law and to say the least futile. As for the argument that the statement of conditions pertaining to allotment of land under a Scheme for Criminal Tribes or otherwise do not contain any clause whereby the allottee is clothed with the power to alienate the land, it was submitted that no such statement of conditions is produced on the record to show that the same were concluded/executed between the Provincial Government and the allottees. The argument that the statement of conditions could have been or would have been executed by the allottee was termed to be without any basis and presumptive. As for the permission under section 19 of the Colonization of the Government Lands Act, 1912, it was submitted by the learned counsel for the respondent that the said permission was duly sought by the allottee and having obtained the same the oral sale was concluded between the parties within a period of six months whereafter the same was sought to be incorporated in the Revenue papers. The learned counsel for the respondent concluded his arguments by submitting that mutation on the basis of oral sale in favour of respondent No. l having not been attested, the respondent No. l has rightly invoked the jurisdiction of the Civil Court and that the decree passed therein shall not only bind the parties but also the Revenue Authorities, who are bound to give effect to the decree passed by the Civil Court.
10. In order to substantiate the arguments the learned counsel for the petitioners referred to evidence on the record to argue that the witnesses produced by respondent No. l to prove the sale in his favour are neither the residents of Chak (sic) connected in any manner with the bargain and submitted that they are either chance witnesses interested, therefore, the findings of the learned Additional District Judge in regard to the same in favour of respondent No. l are absolutely illegal and against the facts on the record. It was submitted that P.W.1 is resident of Chak located at a distance of about 19 miles from the Chak where the land in dispute is situated while P.W.2 and P.W.4 are residents of about 1-1/2 miles away and P.W.3 is resident of Khanewal City. I am afraid the argument is not well-based. The said witnesses have not been cross-examined in that respect so as to elicit from them the exact distance of their residence from the Chak where the land in dispute is situate. Even otherwise, the evidence of the said witnesses cannot be discarded on this count alone particularly when they have corroborated each other as to the factum of sale between the parties. The minor discrepancies as referred by the learned Additional District Judge and pointed out by the learned counsel for the petitioners are not of any vital importance in view of the other facts and circumstances of the case. After all the witnesses are not expected to make statements with computerised precision. The other very important piece of evidence on the record is the power of attorney (Exh.Pl), the execution whereof is proved on the record and even otherwise admitted by the petitioners. It is recited therein that Khadim Hussain had received the total sale price and had also delivered possession of the land in dispute to respondent No. l . The petitioners cannot be allowed to resile from the said admission by maintaining that the said power of attorney was executed for the sole purpose of attestation of mutation in favour of respondent No. l particularly, when it has not been established on the record that the said power of attorney was executed for the said sole purpose. P.W.4 Walizar has appeared in the case to depose that he has been the tenant of the land in dispute and that he used to pay the rent/Batie to respondent No. 1. This statement if read in conjunction with Khasra Girdawari i.e. Exh.P4, Exh.P6 and Jamabandi Exh.P5, leads to irresistible conclusion that respondent No. l has been in possession of the land in dispute since the time of the bargain of sale in his favour. That being so, the sale as also delivery of possession in favour of respondent No. l is competently proved on the record, therefore, it cannot be successfully argued that the sale or for that matter the delivery of possession has not been proved on the record. Since respondent No. l has been in continuous possession of the land in dispute, therefore the suit for declaration is perfectly in accordance with law and within limitation.
11. The plea that the land in dispute was allotted to respondent No. l and the predecessor-in- interest of the present petitioners under a Scheme for Criminal Tribes is also not well founded. A reference to the written statement filed by the petitioners would show that no such plea was ever taken by them. It has also not been the case of respondent No. 1. The learned counsel tried in vain to refer to the statement of D.W.1 and D.W.2 to contend that both the said witnesses have categorically stated that the land in dispute was allotted under the Scheme for Criminal Tribes, therefore, the same could not be alienated. Manifestly, the argument is against the rule of notice. It is now well settled that by pleading a fact, the other party is put to notice and is thereby called upon to make a reply by either admitting it or denying it. It is thereafter that the evidence is received on the matters pleaded by the parties and the rule that the parties are neither permitted nor allowed to lead evidence beyond the scope of their pleadings is one of wisdom because if such a course is permitted the issues based on controversy between the parties would become redundant. Even otherwise, any evidence led to prove a fact, which is not pleaded, is not to be looked into. As for the argument that D. W.1 and D. W.2 were not cross-examined as to their statements that the land in dispute was allotted under a Scheme for Criminal Tribes, suffice it to say, that there being no pleadings or issue to that effect, the failure to cross-examine the said witnesses on this score would not mean admission on the part of the plaintiff/respondent No.1.
Basically this part of the statement of the said witnesses cannot be read in evidence because the same is not based on any pleadings. It is established on the record that the sale was concluded within six months of the permission granted by the Collector. Exh.D1 copy of Mutation No.77 reveals that the same was entered on 2-2-1972 i.e. Within six months of the permission granted by the Collector. It was incident not attested as the parties failed to appear on the date fixed, therefore, the argument that the permission granted for the sale of the land in dispute shall be deemed to have been withdrawn is also devoid of any merit. Needless to add that the mutation is evidence of sale and not the sale itself. The plea that the statement of conditions pertaining to the land allotted under Scheme for Criminal Tribes do not contain any cause whereby the allottees are clothed with the power to alienate the land, it need to be repeated here that the petitioners have failed to prove that the land in dispute was allotted under the Scheme for Criminal Tribes, even otherwise no such statement of conditions is produced on record to show that the same were ever executed between the Provincial Government and the allottee. As for the plea that the Government is a necessary party and that the same ought to have been arrayed as suffice it to say that no suit can be dismissed because of non joinder of parties, even otherwise, this issue was decided against the petitioners at the trial stage but they did not care to file any cross appeal or cross-objection nor did they raise any argument during the course of hearing of the first appeal, therefore, the petitioners are estopped to raise the same objection in this respect. Reliance can safely be placed on Kanwal Nain and 3 others v. Fateh Khan and another PLD 1983 SC 53. The oral sale being valid in Punjab, non-attestation of mutation would not effect the rights of vendee i.e. Respondent No.1. In any case, the entries of mutation are fiscal in nature and are not evidence of title. The argument that permission for sale to be enforceable in law is got to be prior to the sale and not thereafter is equally devoid of any force. The factum of permission having been proved on the record coupled with other evidence thereby establishing that the sale of the land in dispute did take place between the respondent No. l and predecessor-in-interest of the petitioners within a period of six months, the rule of estoppel by conduct is clearly applicable in the facts and circumstances of the case. In the circumstances, it can safely be concluded that the decree of the Civil Court shall take care of the subsequent events inasmuch as the same shall be given effect in the Revenue papers whereby the mutation of inheritance entered and attested in favour of the petitioners shall be recalled and set aside and the name of respondent No. l shall be substituted in place of predecessor-in-interest of the petitioners on the basis of sale in his favour. Since the sale in favour of respondent No. l is not hit by the provision of section 19 of the Colonization of Government Lands Act, 1912, therefore, the rule laid down in the judgments relied by the learned counsel for the petitioners is not applicable in the facts and circumstances of the present case.
12. The respondent No. l having successfully established on the record that the sale of the land in dispute was concluded in his favour with the required permission of the Collector coupled with the fact that the possession of the land in dispute was also delivered to him, the learned Additional District Judge has not committed any illegality in reversing the findings of the learned trial Court and decreeing the suit of respondent No. 1, therefore, no case for interference is made out. The petition is devoid of any merit, hence, the same is dismissed with costs.