SAYED NAJAM-UL-HASSAN KAZMI, J.- This judgment will decide RSA No.359 of 1978 wherein judgment, dated 21.5.1977, of the learned Additional District Judge, Sheikhupura granting a decree in a suit for declaration with injunction by reversing the judgment of the Trial Court and allowing the appeal of respondents Nos.1 to 9 has been called in question.
2. Noor Hussain owner of land measuring 58 kanals. Respondents Nos.1 to 9 (Mst. Zohra Bibi and others) claimed to have purchased this land from Noor Hussain, on 17.12.1965, through an oral sale, for which mutation dated 3.1.1966 (Exh.PI) was attested. Appellant (Mst. Jaina) and respondents Nos.10 to 13 are heirs of late Noor Hussain. Mst. Jaina appellant challenged mutation of oral sale in appeal which was allowed and the case was remanded to the Revenue Officer. In post-remand proceedings, the mutation was maintained vide order, dated 31.7.1968. An appeal was filed which was allowed and the mutation of sale was set aside vide Exh. D-1, dated 3.12.1968.
3. Respondents Nos.1 to 9 filed a suit for declaration claiming them t<^be owners in possession of the land on the basis of oral sale and for perpetual injunction to restrain the appellants and respondents Nos.10 to 13, from making interference in their possession qua the land in issue. The suit was resisted by the appellant. After hot contest, the suit was dismissed by the learned Civil Judge vide judgment, dated 17.4.1975.
4. Feeling aggrieved, an appeal was filed by respondents Nos.1 to 9 which was allowed by the learned Additional District Judge, Sheikhupura on 21.5.1977. Against this judgment the present appeal is directed.
5. Learned counsel for the appellant contended that the respondents could neither prove transaction of sale nor could establish payment of consideration. It was added that the mutation was not witnessed by any of the neighbourer or independent relation of Noor Hussain. Learned counsel contended that the only person who was claimed to have identified the vendor was Sardar Ali who in his statement admitted that at the time of alleged identification he did not know Noor Hussain personally. Learned counsel submitted that the transaction having not been proved, the suit was rightly dismissed by the learned trial Court and mutation was rightly set aside but in appeal the learned Additional District Judge relied on mutation No.6 which was set aside by the order of Collector passed on 31.12.1988.
6. Learned counsel for the respondents supporting the impugned judgment, argued that there was presumption of truth attached to the mutation proceedings, the mutation could not be challenged on the ground of any irregularity, the transaction of sale would be deemed to have taken place as the presumption was attached to the mutation, the petitioner, having taken the plea of death of Noor Hussain could not succeed as the death was not proved.
7. I have given anxious consideration to the objection raised and have carefully scrutinized the record.
8. Suit was filed by respondents Nos.1 to 9, who claimed to have purchased land in issue from Noor Hussain on the basis of an oral sale allegedly made on 17.12.1965. Mutation of oral sale Exh. P-1 was attested on 3.1.1966 in which, the vendor was shown to have been attested by Sardar Ali. In evidence Sardar Ali appeared as PW-3. In his cross-examination he categorically admitted that he did not know Noor Hussain and that he had identified the vendor on the asking of plaintiffs/respondents. The relevant part of his statement reads as follows:- {{Urdu text missed}}
9. In his cross-examination he deposed that he did not know as to where Noor Hussain died and even he did not know about the mother of Noor Hussain. Apart from the statement of PW-3, Patwari Halqa was produced as PW-1. He too did not claim that Noor Hussain was known to him or that he had asked him to enter the mutation. In addition to this evidence, one of the plaintiff appeared in the witness-box. From this evidence it is discernible, that the respondents/plaintiffs did not make any effort to prove transaction of oral sale. So for as the statement of Sardar Ali is concerned, he admitted that Noor Hussain was not known to him at the time of alleged identification and that on the asking of plaintiffs/respondents he had made the identification at the time of mutation. He further admitted that no payment was made in his presence. This being so, PW-3 was unable to prove any transaction or to prove the presence of Noor Hussain, real owner, at the time of attestation of the mutation. The statement of Patwari being on a different subject, is not helpful to establish the transaction. In law, where the title is claimed on the basis of oral sale reflected in the mutation, mutation in itself does not convey any title and the transaction if denied has to be established independently. The argument that a presumption is attached to the mutation proceedings and, therefore, the transaction of sale should have been inferred is without substance.
The mutation by itself did not convey any title to the respondents and they were required in law to prove, oral sale by independent evidence. Reference can be made to "Kakim Khan r. Nazeer Ahmad Lughmani and 10 others" (1992 SCM R 1832). In this case, plaintiffs/respondents did not produce any oral evidence, as to where and when the transaction was settled or payment was made or the agreement of sale took place. The only witness PW-3 relied upon by the respondents does not help them in this regard as he admitted that no payment was made in his presence. In this view of the matter, there was hardly any evidence to establish the transaction or to justify grant of decree. The argument that the plea of death taken by the petitioner having not been proved, the petitioner should be non-suited, is devoid of merit. It is not the case of respondents that Noor Hussain is alive.
Even in the course of hearing of this appeal learned counsel for respondents did not deny that the whereabout of Noor Hussain were not known for more than 30 years. This being so, the natural presumption would be that he has died otherwise he would have appeared on the scene. Apart therefrom, the tenor of the evidence indicates that Noor Hussain had already died and this fact was not seriously disputed, even in the statement of Sardar Ali who deposed that he was not aware as to whether Noor Hussain died. Be that as it may, respondents Nos.1 to 9/plaintiffs, claiming title on the basis of oral sale, which transaction having been denied by legal heirs of Noor Hussain, the purchasers were required in law to independently prove the existence of a valid sale which in this case could not be proved. The learned Additional District Judge ignored the evidence, misread the record and on erroneous assumption, reversed the findings of the trial Court. As against the judgment of the appellate Court, the learned Trial Court did take note of the entire evidence on record and concluded that the respondents could not prove any sale in their favour from Noor Hussain. The judgment of the appellate Court being based on no legal or admissible evidence cannot sustain in law.
9. In his cross-examination he deposed that he did not know as to where Noor Hussain died and even he did not know about the mother of Noor Hussain. Apart from the statement of PW-3, Patwari Halqa was produced as PW-1. He too did not claim that Noor Hussain was known to him or that he had asked him to enter the mutation. In addition to this evidence, one of the plaintiff appeared in the witness-box. From this evidence it is discernible, that the respondents/plaintiffs did not make any effort to prove transaction of oral sale. So for as the statement of Sardar Ali is concerned, he admitted that Noor Hussain was not known to him at the time of alleged identification and that on the asking of plaintiffs/respondents he had made the identification at the time of mutation. He further admitted that no payment was made in his presence. This being so, PW-3 was unable to prove any transaction or to prove the presence of Noor Hussain, real owner, at the time of attestation of the mutation. The statement of Patwari being on a different subject, is not helpful to establish the transaction. In law, where the title is claimed on the basis of oral sale reflected in the mutation, mutation in itself does not convey any title and the transaction if denied has to be established independently. The argument that a presumption is attached to the mutation proceedings and, therefore, the transaction of sale should have been inferred is without substance.
The mutation by itself did not convey any title to the respondents and they were required in law to prove, oral sale by independent evidence. Reference can be made to "Kakim Khan r. Nazeer Ahmad Lughmani and 10 others" (1992 SCM R 1832). In this case, plaintiffs/respondents did not produce any oral evidence, as to where and when the transaction was settled or payment was made or the agreement of sale took place. The only witness PW-3 relied upon by the respondents does not help them in this regard as he admitted that no payment was made in his presence. In this view of the matter, there was hardly any evidence to establish the transaction or to justify grant of decree. The argument that the plea of death taken by the petitioner having not been proved, the petitioner should be non-suited, is devoid of merit. It is not the case of respondents that Noor Hussain is alive.
Even in the course of hearing of this appeal learned counsel for respondents did not deny that the whereabout of Noor Hussain were not known for more than 30 years. This being so, the natural presumption would be that he has died otherwise he would have appeared on the scene. Apart therefrom, the tenor of the evidence indicates that Noor Hussain had already died and this fact was not seriously disputed, even in the statement of Sardar Ali who deposed that he was not aware as to whether Noor Hussain died. Be that as it may, respondents Nos.1 to 9/plaintiffs, claiming title on the basis of oral sale, which transaction having been denied by legal heirs of Noor Hussain, the purchasers were required in law to independently prove the existence of a valid sale which in this case could not be proved. The learned Additional District Judge ignored the evidence, misread the record and on erroneous assumption, reversed the findings of the trial Court. As against the judgment of the appellate Court, the learned Trial Court did take note of the entire evidence on record and concluded that the respondents could not prove any sale in their favour from Noor Hussain. The judgment of the appellate Court being based on no legal or admissible evidence cannot sustain in law.
10. It cannot be ignored, that the objection to the mutation raised by the legal heirs of Noor Hussain, on the revenue side was accepted in appeal and the mutation was set aside. Respondents No.1 to 9/plaintiffs had challenged the order of cancellation of mutation and also claimed independent sale, therefore, they were under heavy onus to establish that the mutation was validly attested or that there existed a genuine and lawful transaction. The evidence in this regard was lacking, the transaction having not been proved, the presence of Noor Hussain at the time of alleged attestation of mutation having not been established by any independent evidence, the respondents could not succeed in law.
11. For the reasons above, this appeal is allowed, the judgment, dated 21.5.1977, of the learned Additional District Judge, is set aside and by restoring the judgment, dated 17.4.1975, of the learned Civil Judge, Sheikhupura, the suit of respondents/plaintiffs is ordered to be dismissed.