NAJAM-UL-HASSAN KAZMI, J.--- This judgment proposes to decide R. F. A. No. 167 of 1998, arising from judgment and decree, dated 2-5-1998 passed by learned Civil Judge, Sargodha whereby the suit for declaration filed by the appellants herein, was dismissed.
2. Ghulam Shabbir and Mst. Zakia appellants herein, filed a suit for declaration to the effect that mutation No.96, dated 25-2-1991, showing sale of land measuring 151 Kanals, 19 Marlas, by Sikandar Shah-respondent No. 1, in favour of Muzaffar Shah predecessor in interest of appellants, was validly attested and that the orders of the Collector, dated 18-1-1992, Additional Commissioner, dated 6-2- 1993, and Member, Board of Revenue, dated 23-11-1995, reviewing the mutation were void ab initio and inoperative in law and that the inquiry report as well as other proceedings recorded for annulment of the mutation were ineffective in law. They also claimed to be lawful owners of land being the successor of Muzaffar Shah and asked for injunctive relief to restrain respondents from making interference in their possession and title of the property.
3. The basis of the suit was that respondent No. l had transferred the land in issue, in consideration of Rs.4,75,000 in favour of Muzaffar Shah deceased (predecessor of appellants) which fact was allegedly reported by him to the Patwari and given effect in the Revenue Record vide Mutation No.96, dated 25-2-1991. Later respondent No.1 approached the revenue authorities for the cancellation of mutation on the ground that he had never sold or transferred the land in favour of predecessor of the appellants and that the proceedings of mutation were based on fraud and inoperative in law. The plea raised by respondent No.1 found favour with the Revenue Officials where the case was remanded. It is claimed that by stepping through different stages, the appellants filed writ petition which was dismissed with the observations that the appellants could avail their remedy in the Civil Court and in consequence they filed the suit out of which this appeal has arisen.
4. Respondent No. I resisted the suit and maintained that he had never sold the land in favour of predecessor of appellants, never received any consideration, he was defrauded by Muzaffar Shah, who taking benefit of blindness of respondent No. l took him to different places for the purposes of transfer of licence of gun of his father in the name of respondent No. l and obtained his signatures for that purpose. It was maintained that no transaction has ever been made and that everything was concluded in conspiracy with the Revenue Officials. It was added that the appeal filed by the respondents was accepted by the Collector on 6-2-1993 and the decision was affirmed up to the stage of Member, Board of Revenue where the revision of the appellants was dismissed on 12-9- 1994. It was also stated that a review application was filed before the Member, Board of Revenue which was dismissed whereafter Writ Petition No. 1821 of 1995 was filed by the appellants which too did not succeed.
The divergent pleadings gave rise to the following issues:--
(1) Whether the plaintiffs have got no cause of action or locus standi to file this suit?
(2)Whether the suit is based upon mala fide and as such plaintiffs are not entitled to any discretionary relief.
(3) Whether the suit is hit by principle of res judicata?
(4) Whether the suit has been incorrectly valued for the purpose of court-- fee and jurisdiction, if so, what is the correct valuation?
(5) Whether the suit is incompetent without payment of court-fee?
(6) Whether the suit is not maintainable in its present form?
(7) Whether the plaintiffs are estopped by their words and conduct to file the suit?
(8) Whether the suit is bad for misjoinder of necessary parties?
(9) Whether the suit is false and vexacious and as such defendant No. l is entitled to recover special costs?
(10) Whether the impugned Mutation No.96, dated 25-9-1991 is wrong, against law, and facts without jurisdiction, with consideration, result of fraud and collusion and as such void qua the rights of defendant No.1 and resultantly the impugned order, dated 18-1-1992, .6-2-1993, 12-9-1994 and 23-11-1995 are passed in accordance with law and liable to be maintained?
(11) Whether the plaintiffs have obtained possession of the suit land, forcibly, illegally and in collusion with one Nazar Muhammad?
(12) Whether the defendant had got attested the impugned Mutation No.96, dated 25-2-1991 in favour of Muzaffar Shah predecessor-in-interest of the plaintiffs in respect of the suit land and received consideration amount of Rs.4,75,000 and if so, plaintiffs are owners in possession of the suit land and the proceedings pertaining to the impugned orders, dated 18-1-1992, 6-2-1993, 12-9- 1994 and 13-11-1995 are against law and facts, without authority, void ab initio and as such ineffective qua the rights of the plaintiffs?
(13) Relief.
6. On consideration of evidence led by the two sides and also the points raised for and against the matter in issue, the learned Civil Judge dismissed the suit vide judgment, dated 2-5-1998 which judgment is subject-matter of scrutiny in the present appeal.
7. Learned counsel for the appellants candidly argued that the evidence of revenue officials, proving appearance of respondent No. l in the proceedings for attestation of mutation and certification of sale in favour of appellants was illegally excluded from consideration by the learned Trial Court and that even if the payment is not proved or the transaction is not independently established, the appellants could succeed by proving that a valid mutation had taken effect. It was added that the remedy of respondent in such eventuality would be to file a suit for recovery of consideration and not for cancellation of the mutation. Learned counsel submitted that even otherwise the payment was proved by the testimony of P.W.11 (Zafar Iqbal) who was an independent witness. Learned counsel argued that the admission made by respondent No.1 before the Tehsildar, in proceedings for execution of decree by his were, should be deemed to be conclusive for inferring existence of a valid transaction.
8. Learned counsel for the respondent No.1 argued that no transaction of sale could be proved, the mutation proceedings suffer from material illegalities, the over act of Revenue Officials in fabricating signatures in mutation proceedings in violation of the direction contained in the Land Record Manual proved beyond doubt that the proceedings of mutation were collusive. Learned counsel submitted that the payment was not proved, transaction was not established by any independent evidence and that the witness relied upon by the appellants had enmity which was proved on record.
9. We have given our fullest consideration to the points raised and have minutely scrutinized the entire evidence with the assistance of learned counsel for the parties.
10. Admittedly, respondent No. l is a blind person and transaction of sale is claimed to have been made by a blind person in favour of Muzaffar Shah predecessor-in-interest of appellants: In the cases where the sale is claimed to have been effected by mutation and the mutation itself is challenged, then the person claiming benefit of sale has to prove the transaction by independent evidence as the mutation by itself does not convey any title. If the entire evidence is minutely scrutinized, one safely reaches the conclusion that the transaction of sale was not proved.
Respondent No.1 being a blind person, it was necessary for the appellants to take steps for ensuring that the respondent No. l was associated by some close relative who could make him understand about the transaction or in whose presence one could assure that the transaction was made out of free-will and volition. Being a blind person, incapable of looking after himself or his interest, respondent No.1 was entitled to due protection in law and anybody dealing with such like person had to prove that a blind and disabled person was properly protected, accompanied by his independent adviser and that he made the agreement with free will and volition in the presence of his benefactor who rendered advice and took care of his interest. To prove lawful and valid transaction by a blind person, stronger evidence was required than the ordinary cases of execution by a person capable of entering into any deal independently.
11. Amazingly, the respondent No. l is not claimed to have been accompanied, by any of the relative, with whom he was residing. The respondent No. l was issueless and had one sister and one mother.
He was living with his brother-in-law namely Aziz-ur-Rehman's. Neither the said brother-in-law nor the sister or the mother of respondent No. l is claimed to be present at the time of alleged transaction or settlement of deal. Admittedly, Haq Nawaz, Lumberdar of the village where respondent No. l resides-or the land is situated, was not present nor identified the alleged vendor, either before the Patwari or before the Tehsildar and it is claimed that the Revienue Officials of different area identified the vendor which obviously creates serious doubts as to the genuineness of sale. The bargain is claimed to have been settled in the presence of Zafar Iqbal (P.W.11). In his deposition, Zafar Iqbal stated that the amount of Rs.4,75,000 was counted by him and that respondent No. l had agreed to sell the land by receiving this amount. His statement could not be banked upon for the obvious reasons of bitterness of relationship on account of the divorce he had given to the sister of respondent No. 1. The respondent No .l had given divorce to the sister of Zafar Iqbal while Zafar Iqbal had given divorce to the sister of respondent No. l (Sikandar Shah). In this situation, one cannot believe that a person whose sister had been divorced would be an active participant of the bargain and would act for the benefit and interest of the person, who had divorced his sister. Similarly, the sister of respondent No. l having herself been divorced by Zafar Iqbal, there could not be any assumption of good relationship between the two. On the contrary, the circumstances lead to an assumption that Zafar Iqbal, in conspiracy with Muzaffar Shah, facilitated commission of fraud to deprive respondent No. l of his own property. In the course of hearing of this appeal, learned counsel for the parties, on being asked, did not deny that in case of demise of respondent No. l the property would be partly inherited by the appellants and partly by the sister and mother of respondent No. 1 It cannot be ruled out that the appellants did not intend that any part of the property should go to the immediate relations of respondent No. l and, therefore, with a view to ensure the usurpation of total property, they managed a fictitious mutation of sale.
12. It cannot be ignored that the appellants' predecessor claimed payment of huge amount of Rs.4,75,000 to a blind person who is not accompanied by those with whom he was living. The appellants also could not prove any source of the huge amount allegedly arranged by Muzaffar Shah nor they could show where the money was taken away or who took away the money when respondent No. I was a blind person. The whole story of making payment of a big amount to a blind person, in the absence of any of his advisor or near relative, would lead to the conclusion that the plea of alleged payment was concocted one. It is also observed with concern that no receipt is claimed to have been given or prepared in acknowledgement of the alleged payment. In this way, it is a case in which there is no written agreement of sale, there is no receipt for alleged payment of Rs.4,75,000 there is no independent evidence of transaction of sale or payment of consideration, the only statement of Zafar Iqbal is not worthy of credence because of the circumstances noted supra and the respondent No. l who is claimed to a vendor was a blind person who was admittedly having no independent advice. The argument that the statement of the Revenue Officials, attesting the mutation should have relied upon is without substance. In the first instance, the Tehsildar concerned made a contradictory statement in examination-in-chief and in cross-examination about the presence of respondent No. 1. Even otherwise, statement of the Revenue Official was unnatural and improbable: He claims that a blind person had appeared before him but amazingly, there is no note in the Revenue Record that the vendor was a blind person. In the absence of any such clue from the record one fails to understand as to where from the witness remembered that the vendor in this case was a blind person. Rather a negative inference can be drawn in the matter as the absence of any observation in the mutation proceedings about the vendor being blind person, would lead to assumption that the mutation was got attested by producing some normal person. The factum of blindness should have made an attesting authority more conscious who should have given a note in the proceedings that the transaction was made understood to the vendor and that he had ensured that the vendor was making the transaction out of his free-will and volition. In the absence of any such note, the only natural inference can be that the respondent No. l had not appeared and for this reason, the attesting authority could not take steps to protect the interest of a blind person.
13. Regarding plea that the respondent No. l admitted having sold the land, before the Revenue Officials, in the proceedings for execution of decree, suffice is to say that the certified copy of the relevant record was not tendered in evidence to show, if any such admission was made by the respondent No. 1. Be that as it may, it is not the case of the appellants that the particulars of this land were ever mentioned in any proceedings, containing any alleged admission and, therefore, no inference can be drawn on hypothetical assumption.
14. We have alt served that the Revenue Officials were interested in the matter, as due to the inquiry proceedings on administrative side, necessary action was proposed against them. For this reason, the testimony was not worthy of credence. We have further observed that a conflicting and doubtful stand was taken as to the manner in which the mutation was attested. Exh.P.2, which is copy of Mutation No.96, indicate that the Patwari entered the transaction on 13-2-1991, the alleged verification by Girdawar was made on 19-2-1991 and attestation was allegedly made on 25-2-1991.
On the contrary, Muzaffar Shah in his statement before the Inquiry Officer, claimed that the mutation was entered on "Saniture War" i.e. Saturday and was attested on Sunday i.e. Next day.
Exh.P.2 shows that there was a difference of six days from entry of mutation by Patwari and alleged verification by Girdawar and another difference of six days exist between the date of verification by Girdawar and attestation of mutation. -There was thus, obvious contradiction in the two positions which do not coincide with each other and create serious doubt about the story cooked up by the appellants.
15. In so far as the argument that the appellants could claim title on the basis of mutation even if the transaction is not proved and that the respondent No. l should file a suit for recovery of consideration, the argument is devoid of any substance. It is not a case, in which the execution of a registered sale-deed or the attestation of mutation was admitted and that the dispute was only raised in regard to the non-payment of consideration. If it had been so, then the obvious course was to file a suit for recovery of the consideration as in law the sale is defined as transfer of property for the price paid or agreed to be paid. However, the present case rest on different footing.
Here the respondent No. l denies the very existence of transaction and of sale in favour of appellants' predecessor. The mutation in itself could not give any title to the appellants or their predecessor. In Hakeem Khan v. Nazir Ahmad Lughmani and 10 others 1992 SCM R 1832 and Mst.
Noor Fatima v. Begum Bibi and others 1990 SCM R 629, it is ruled that mutation does not convey title and that where the oral sale is claimed to have been reflected in the mutation, the mutation would not convey any title and the transaction of sale will have to be proved independently. In the circumstances noted supra we are of the view that the transaction of sale could not be proved by the appellants by any independent or worthy of credence evidence and, therefore, the learned Trial Court rightly- concluded that the Mutation No.96 was invalid, void ab initio and inoperative as against the rights of respondent No. 1. The findings recorded by the learned Civil Judge, could not be shown to be suffering from any misreading of the record or error of law. Nol other point was urged.
16. For the reasons mentioned above, we affirm the judgment of the Trial Court and finding no ground for interference, dismiss this appeal, leaving the parties to bear their own costs.