' This is a revision petition against the judgment and decree, dated 15-11-1989 passed by the learned Additional District Judge, Vehari whereby he dismissed the appeal and cross-objection and maintained the finding of the learned Civil Judge 1st Class, Vehari on Issue No,2 to the effect that the suit of the appellant was badly barred by time.
2. The background of the case is that land measuring 157 Kanals, 7 Marlas situated in village Satar Shah, Tehsil Mailsi, originally belonged to Qabool Khan. Son of Mola Bukhsh Rajput who died and the said land devolved upon his two daughters Mst. Salaman and Mst. Gaman and a son Khair Din through mutation of sale bearing No,305, dated 15-5-1957, Mst. Salaman and Mst. Gaman purported to have sold away their share in the suit land to Khair Din for a consideration of Rs,6,000.
On 9-12-1980 Mst. Salaman and Mst. Gaman instituted a suit for declaration to the effect that they were owners in possession of 1/2 shares in the suit land and that Mutation No, 305, dated 15-5-1957 was illegal, void and ineffective upon their rights being the result of fraud as they have not entered any transaction of such sale. As a consequential relief, they both sought permanent injunction restraining the defendants from making an assertion on the basis of the said mutation or making any interference in the correction of revenue entries. The suit was contested by the defendants and the following issues were framed:--
(1) Whether the defendant No,1 is a bona fide purchaser for value, if so, its effect? OPD.
(2) Whether the suit is barred by time? OPD.
(3) Whether the Civil Court has no jurisdiction to entertain the suit? OPD.
(4) Whether the suit is bad for misjoinder of necessary party? OPD.
(5) Whether the suit is not maintainable in its present form? OPD.
(6) Whether the suit is hit by res judicata? OPD.
(7) Whether the plaintiffs have no cause of action? OPD.
(8) Whether the plaintiffs are equally joint owners to the extent of half share of the suit land and the sale Mutation No,305, dated 15-5-1957 in favour of Khair Din defendant No,1 was fictitious, without consideration, collusive and fraudulent and thus, was ineffective upon the plaintiff's rights? OPP.
(9) Relief.
3. The learned Civil Judge found Issues Nos.1 and 8 for the plaintiffs but decided Issue No,2 against the plaintiffs and dismissed the suit on 12-7-1987. The plaintiffs preferred an appeal while the defendant No,1 Khair Din filed cross-objection against the finding of learned lower Court on Issues Nos.1 and 8. The learned Additional District Judge dismissed both the appeal and cross-objections.
The plaintiffs have filed this revision petition.
4. The notices were issued to the respondents and they appeared through their counsel.
Arguments heard; record have been perused.
5. The learned counsel for the petitioners has urged that both the Courts below have not read the evidence on record and where read it has been misread and as such they have fallen into error of improper exercise of jurisdiction vested in them. He submitted that there was no time limit for dislodging the wrong entries in the Revenue Record of exclusive 'ownership based upon fictitious mutation of transfer existing in favour of co-owners in possession
6. On the other hand, the learned counsel for the respondents has submitted that findings of the learned trial Court on Issues Nos.1 and 8 were liable m correction because he had sufficiently proved the fact of sale of plaintiffs share in the suit land in his favour.
7. I have given due consideration to the valuable arguments on both sides and appreciated the evidence assistance.
8. Issue No,8 was regarding the allegation- of fraud, the onus lay upon the plaintiffs to prove it and in order to prove the fraud, the plaintiffs examined four witnesses, viz. Muhammad Ramzan (P. W.1), Shahab Din (P.W.2), Faiz Muhammad (P.W.3) and Ghulam Rasool (P.W.4).
' Muhammad Ramzan (P.W.1) stated that Qabool Khan had died about 40 years back and his inheritance came to his two wives, namely, Mst. Gaman and Mst. Salaman and one son Khair Din.
Khair Din had murdered Wazir Ali who is the father-in-law of Mst. Salaman and Mst. Gaman and thereafter, he started giving threats of murder to the husband of Mst. Salaman and Mst. Gaman due to which they went to Lodhran and thereafter, to Karachi and in their absence Khair Din fraudulently got the mutation of land attested in his favour. On return from Karachi they came to know of it. In his cross-examination, he stated that Mst. Salaman and Mst. Gaman were the daughters of Qabool Khan and not his wives. He , also admitted in cross-examination that he was not present at the time of mutation. Shahab Din (P.W.2) stated the fact of murder and then proceeding to Lodhran and Karachi and attestation of mutation by fraud. He admitted in cross- examination that when the mutation was attested he was in Kot Muzaffar. Faiz Muhammad (P.W.3) stated that mutation was effected by producing misrepresentation. In cross- examination, he stated that as the mutation was secret, he had no knowledge about the women. Ghulam Rasool (P.W.4) is the general attorney of the plaintiffs. He is son of Wazir Ali who was murdered by the defendant Khair Din. He stated that Khair Din gave threats of murder on which they shifted to Lodhran and then to Karachi along with Mst. Salaman and Mst. Gaman and in their absence while they were at Karachi the defendant Khair Din got the mutation attested fraudulently and that Mst.
Salaman and Mst. Gaman had neither sold it to Khair Din nor had received any consideration nor they have appeared before any Tehsildar for attestation of mutation and they demanded the land back on the return from Karachi and on checking of the record it came to know that a fraudulent mutation has been attested. He stated that the murder took place in 1952 on which they remained 2 to 4 years in Lodhran and 1-1/2 years at Karachi and it was the rein of General Zia ul Haq that they came to know the attestation of mutation. In his cross-examination, he stated that Khair Din took possession of land in the year 1957. Pe also stated that copy of mutation was obtained in the year 1978. He also stated that no criminal case was lodged against Khair Din. He admitted that the possession of land was not with the plaintiffs. The plaintiff appeared as her own witness. She stated that they came to know of fraud 8/9 months back. She also stated that no bargain of sale was struck by them nor they had received Rs,6,000 nor they had appeared before the Tehsildar nor they had got the mutation attested nor they had gone before a Patwari nor they had put their thumb- impression. In cross-examination, she stated that two months after the murder of her father-in-law she went to Lodhran and thereafter, she did not come back from Mailsi for 26/27 years.
9. On the other hand,' to disprove the fraud, the defendant produced two witnesses Hifaz-ud-Din (D.W.1) and Noor Muhammad .(D.W.2) Hifaz-ud-Din (D.W.1) retired Patwari who deposed that he had entered the mutation it was presented for attestation in village Shah Satar. The plaintiffs and Mst. Gaman had sold the land to Khair Din, both the vendor appeared before the Revenue Officer.
The mutation was attested prior to the year 1968. Revenue Officer had inquired and no fraud was committed. In cross-examination, he could not tell the name of the both Mst. Salaman and Mst.
Gaman. He could not tell the name of the father-in-law or husband. He stated that he was informed by Lumberdar whose name was Sikandar. He did not know the name of the Revenue Officer. He also stated that Rs,6,000 were received before the Tehsildar and both the Mst. Gaman and Mst. Salaman had received the amount from Khair Din. He also stated that he did not know as to whether he had entered report 'Roznamcha'. He also did not know the area under mutation. He denied the production of women other than the vendors. Noor Muhammad (D.W.2) stated that he was present when mutation was attested in village Shah Satar on the identification of Lumberdar Sikandar of Kot Kabir there was no fraud nor production of fictitious women. He stated that the bargain was struck for Rs,6,000. In Cross-examination he stated that the mutation was attested after 4/5 years of murder of Wazir Ahmad. He also admitted that criminal case of murder was registered against Khair Din, Yasin, Noor Muhammad and Suleman and he was one of the accused.
He stated that bargain had struck 12 days before of mutation and again said the bargain was struck on the same day. He could not tell the name of any person present. He had no knowledge that the plaintiff and Mst. Gaman had gone to the Patwari before the mutation. He denied the fraud in the matter of attestation of mutation. The defendant No,1 appeared as D.W.3 and deposed that Mst. Salaman and Mst. Gaman were his sisters and he had taken the suit land from them through mutation of sale for a consideration of Rs,6,000 and that both had appeared before Tehsildar and since then he is in - possession. He also stated that Ghulam Rasool, Mst. Salaman and Mst. Gaman had gone anywhere from leaving Mailsi. In the cross-examination, he could not tell the year of mutation. In cross-examination, he stated that the bargain was struck 4/8 'Peher' before mutation at his house and the amount was paid before Tehsildar. He admitted that there were many persons at the time of attestation of mutation but did not remember their names. He denied that the mutation was fictitious or without consideration or that Mst. Salaman and Mst. Gaman had not put, their thumb-impression on it. He admitted that he cannot tell as to how many days prior to the mutation the report was made to Patwati hat it was prior to the day of bargain. His statement in the cross-examination that he did not remember as to whether he had.
10. In the circumstance of denial by the alleged Vendors (the two signs of the vendee) having sold or got attested mutation of sale by them to prove the sanction of the mutation, the best /evidence was that of the Revenue Officer who had sanctioned the mutation and the Lumberdar Sikandar Khan who had identified the parties. Both have not been produced. It means that had they appeared they would not have supported the case of the vendee Khair Din. Another important piece of evidence could be the report of Finger Print Expert to prove the thumb-impression but defendant No,1 himself admitted that no thumb-impression of the vendees were taken on the mutation.
11. The learned Civil Judge has, therefore, very correctly appreciated the evidence under Issue No,8.
Similarly the learned Additional District Judge correctly appreciated that Khair Din has not proved that he has paid any consideration to his two sisters and that his two sisters had made the sale of their share to him voluntarily for consideration.
12. As the existence of sale is not proved and the mutation being dependent upon the existence of the sale it is ineffective. In the case of Muhammad hibal v. S.A.M. Khan, Member, Board of Revenue, West Pakistan, Lahore and 3 others (PLD 1970 Lahore 614), a Division Bench of this Court observed:- "The Revenue Authorities moreover in proceedings for sanctioning mutation do not act as arbiters of the rights of the parties and a decision in mutation proceedings is not a decision as to the title of the parties. They sanction mutations to keg, their record in order and up-to-date. In Nirm an Singh v. Rutira Partap Narain Singh I AIR 1926 PC 100), it was held by the Judicial Committee that mutation proceedings are not judicial proceedings in which title to and proprietary rights in immovable property are determined but that ' they are much more of the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid'. Same view was expressed in Mst. Rasulan Bibi v. Nand Lal (AIR 1930 All. 521) and was relied on in Ram Sarup Rai v. Charitter Rai (AIR 1927 All.
338). An entry by virtue of the mutation is, therefore, not the basis of title. The person in whose favour such an entry is made cannot take advantage of the same to claim a title against any person. A person adversely affected by such an entry can, notwithstanding the mutation, maintain that he is vested with the right and have his right declared in a civil suit."
Consequently, the petitioners are co-sharers by reason and on the basis of earlier and admitted mutation of inheritance bearing No,9, dated 16-5-1957 (Exh.P.1) after the death of their father and the limitation does not run against the co-sharer, being in constructive possession.
13. For the above reasons, the revision petition is allowed and the impugned judgments and decrees, dated 12-7-1987 and 15-11-1989 of the Courts below are set aside and the suit of the plaintiffs decreed with costs.