The two civil revisions, one filed by Haji Muhammad Hussain and others and the other by Muhammad Durwaish, are disposed of by this common judgment because they arise out of the same judgments and decrees of the Additional District Judge, Bannu, dated 11-6-1995 and the Civil Judge, Bannu, dated 2-2-1995
2. The six children of Mir Sahib Khan, resident of Kotka Namwar, Tehsil and District Bannu filed a suit in the Court of Senior Civil Judge Bannu on 18-4-1994 against Muhammad Durwaish and his brother, Muhammad Rafique, for declaration that registered deed No.171, dated 8-6-1963 whereby House No.377 measuring 5 Marlas, purportedly sold by Mir Sahib Khan to the defendants be cancelled on the ground of fraud because the sale transaction had never taken place. It was further prayed that Mutation No.8181, dated 24-11-1979 whereby land in Khasras Nos.1822/828 and 829 was transferred in the name of the defendants in pursuant to the registered deed be also cancelled. Permanent injunction was also sought. The defendants in their written statements defended their registered deed as well the mutation. The controversy between the parties resulted in the framing of 11 issues. Six witnesses were produced by the plaintiffs in support of the case whereas Muhammad Durwaish, defendant No. l testified for the defendants. Suit of the plaintiffs was dismissed by the Senior Civil Judge after deciding Issues Nos.2, 8 and 9 against the plaintiffs.
Issue No.2 related to cause of action; Issue No.8 was regarding the genuineness of the registered sale-deed No. 171 whereas Issue No.9 related to Mutation No.8294, dated 23-6-1994 whereby Muhammad Rafique, defendant No.2 transferred half of his share in the house to his brother Muhammad Durwaish.
3. On appeal by the plaintiff the Additional District Judge modified the judgment and decree of the Trial Court. It upheld the findings of the Trial Court on Issues Nos.2, 8 and 9. However, it framed an additional issue, that is:--------- "Whether the Mutation No.8181, dated 24-11-1979 is void and liable to cancellation. " and decided the same against the defendants on the available evidence. As a result Mutation No.8181 was cancelled, whereas the validity of the registered sale-deed No. 171 was upheld. Haji Muhammad Hussain and others now seek the setting aside of both the judgments and decrees and pray for decreeing their suit, whereas Muhammad Durwaish and others have come against the modification by the District Judge of the judgment and decree of the Trial Court and seek the reversal of the modification.
4. Mr. Dost Muhanmiad Khan, learned counsel for Muhammad Hussain and others, plaintiffs in the original suit, assailed the registered sale-deed No. 171 on a number of grounds. Relying upon Article 79 of the Qanoon-e---Shahadat Order, tire learned counsel submitted that since the execution of the registered sale-deed had been denied by the legal heirs of its purported executant---burden was on the defendants to have positively proved the deed notwithstanding the death of the two attesting witnesses of the deed. Reliance was placed on judgment of the Lahore High Court in Abdul Aziz v. Muhammad Ashiq 1991 CLC 820.
5. It was argued that because of the circumstances surrounding the alleged transfer it all the more because necessary that the defendants should have been asked to prove the sale transaction positively notwithstanding the deed. In this context the learned counsel made reference to the fact that Mir Sahib Khan was illiterate and had thumb-impressed the deed, that the attesting witnesses hailed from other villages, that no sale consideration was paid in presence of Registrar and that the deed did not disclose the place, time and other circumstances of the oral transaction preceding the registration . .... The learned counsel next contended that the Courts had wrongly placed reliance upon the admission made by P.W.4 in another Suit No. 111/1, as the witness had explained that the earlier reference was to another property.
6. S. Zafar Abbas Zaidi, Advocate, representing Muhammad Durwaish and others raised two preliminary points:--------------- firstly, that the suit was barred by time under the Article of the Limitation Act, having been filed 31 years after the impugned registered sale-deed; and secondly, that the suit was liable to dismissal under section 42 of the Specific Relief Act in that although admittedly the plaintiffs were out of possession, no prayer has been made for the consequential relief of restoration possession.
As regards the validity of the documents the learned counsel referred to Article 100 of Qanoon-e- Shahadat Order, 1984 and contended that being a thirty years old document presumption of correctness lay in his favour. Responding to the arguments regarding the doubtful circumstances surrounding the sale transaction the learned counsel argued that it was not the requirement of law that the sale consideration be paid in the presence of the Registrar and the deed itself states that the amount had already been paid. The learned counsel also pointed out that the executant of the deed, who had died in the year 1988, did not question the deed for 25 years. Regarding cancellation of Mutation No.8181 by the Appellate Court the learned counsel argued that though the content of the mutation was not in accord with the Registered sale-deed No.171 inasmuch as the deed did not contain any Khasra numbers, nevertheless cancellation of the mutation would affect the rights of the defendants as it might cast doubt on their title . ... It was suggested that instead of annulment the mutation be rectified in the terms that directions be given to make the entry in the mutation in conformity with the deed. For his contentions the learned counsel relied upon Muhammad Sher v.
Mst. Taj Meena PLD 1996 Pesh. 6, Muhammad Ali v. Hassan Muhammad PLD 1994 SC 245, Malik Amir Khan v. Muhammad Ishaque 1991 SCMR 1483 and Umar Din v. M. Hussain 1993 SCMR 1299.
7. As regards the preliminary points Mr. Dost Muhammad Khan, Advocate pointed out that the suit could not be dismissed as time-barred because fraud had been alleged. Reliance was placed on Muhammad Shaft v. Mushtaque Ahmad 1996 SCMR 856 and Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1. About the second point the learned counsel submitted that no objection was raised to the form of the suit and, therefore, no issue was framed thereon. The learned counsel further submitted that such objection was not even taken before the Appellate Court.
8. The undisputed facts are that Mir Sahib Khan, the father of Hussain and others, and Amir Payo Khan, the father of Darvesh and Rafique, were the sons of Marjan Khan. Amir Payo Khan predeceased Marjan Khan and as a result there was some litigation between the plaintiffs and the respondents regarding the "Shari" shares of Darvesh and Rafique in the property of Marjan Khan.
Darvesh is also the son-in-law of Mir Sahib Khan and in the year 1959, the latter had given a house to Darvesh and Rafique for their residence. Since then till now they have remained in possession of the house. It is this house which is the bone of contention between the parties and is the property mentioned in registered sale-deed No.171, measuring five Marlas, carrying Survey No.377.
9. A careful reading of the judgments of the trial and the Appellate Court reveal that the decision upholding the registered sale-deed was not on account of admission made by Muhammad Hussain, plaintiff (P.W.4), another Suit No. 111/1, that Darvesh--and Rafique had purchased the suit house. The findings of the Courts are primarily based on the presumption of genuineness and authenticity attached to the registered deed under Article 100 of the Qanun-e--Shahadat Order, because it was a document of more than thirty years old. In fact, the learned representing Darvesh and Rafique (defendants) also did not rely upon the admission made by P.W.4 in another suit and confined his arguments to the application of Article 100 of the Qanun-e-Shahadat Order.
10. Thus, the question to be determined is whether Article 79 or 100 of the Qanun-e-Shahadat Order be applied to resolve the controversy between the parties. If the former is relevant, the burden would be on the defendants to prove the execution of the sale-deed No.171, notwithstanding its registration. If Article 100 aforesaid is found to be applicable, the burden to disprove the execution of the deed would shift to the plaintiffs. Under Article 100 of the Qanun-e-Shahadat Order presumption of correctness is attached to the signatures and contents of a thirty-years old document if produced from proper custody When a document fulfils requirements of Article 100, the person relying upon A the document is not' required to prove its execution unless the presumption is rebutted. Thus, the provisions of Article 79 of the Qanun-e-Shahadat Order would not come into play if the benefit of Article 100 is available to the defendants.
11. There is no doubt that the sale-deed in question has come from proper custody. The vendee, Darvesh, should naturally be in its possession. The document having been executed in the year 1963 was definitely more than thirty years old when the suit was filed in the year 1994. Thumb- impression on the deed purports to be that of Mir Sahib Khan and the contents purports to transfer by way of sale the house in question to the defendants. No evidence has been produced by the plaintiffs to dislodge the presumption attached to the deed. The registered sale-deed, therefore stands proved. Additionally, no misreading or non-reading of evidence has been pointed out to set aside the concurrent findings on this issue.
12. As regards the cancellation of Mutation No.8181 by the Appellate Court, the learned counsel for the defendants (Darvesh and Rafique) has conceded that the mutation was not in accord with the registered deed, inasmuch as the deed identified the house by its Survey No.377 and did not make any reference to Khasra numbers, whereas Khasra numbers were allotted to the house in the mutation. This being the position, the proposal of the learned counsel to direct rectification of the mutation in accord with the registered deed cannot be accepted. Such a direction would not only be vague but would create further confusion. Mutation No-8181 is either to stand or be cancelled. As stated above, it is not in conformity with the registered deed although purportedly made in pursuance to the deed. The decision of the Appellate Court to cancel the mutation, thus, does not warrant any interference.
13. The preliminary points, although normally are discussed first, are taken up now because the foregoing discussion have some bearing on them... The plea for the dismissal of the suit for non- compliance of the requirements of section 42 of the Specific Relief Act with regard to consequential relief, cannot be accepted for two reasons. Firstly, as found above, the house has been declared to be owned by the defendants and, therefore, the consequential relief of possession would presently be redundant. The suit, therefore, cannot be entirely dismissed on this ground, because the plaintiffs have also sought cancellation of Mutation No.8181 for which no consequential relief was required. Secondly, objection to the form of suit was never raised before the Trial Court and, therefore, no issue was framed thereon. The judgment of the Supreme Court of Pakistan in the case of Amir Khan v. Muhammad Ishaq (ibid) is distinguishable because in that case the Trial Court had dismissed the suit on the ground of non-seeking of consequential relief, apparently in pursuant to the issues being raised by the defendants.
14. As regards limitation, the case of the plaintiff had all along been that they had no knowledge about the existence of the deed or the incorporation of the mutation in the Revenue Record. In the case of Muhammad Shafi v. Mushtaq Ahmad, referred to above, the august Supreme Court held the suit of the plaintiffs barred by time under Article 120 of the Limitation Act, because the Court found that the plaintiffs' suit was not brought within time after explicit denial of the plaintiff's title by the defendants. In that case, the entry of inheritance mutation in the name of the defendants, who were the children of the brother of the plaintiff, to his exclusion was held to be explicit denial of the plaintiff's claim to a share in the property. In the present case, the house admittedly had remained in possession long before either the registered sale-deed or the mutation. Furthermore, it is well- settled that fresh preparation of the revenue record provides fresh cause of action and that mutation does not confer title. The plaintiffs had alleged that they were unaware of the registered sale--deed as well as the mutation, because right upto, at least, 1990, the defendants had apparently treated the house to be owned by the plaintiffs' father as was evident from their stand in Suit No. 111/ 1 filed by them.
15. In these circumstances, the suit of the plaintiffs could not be thrown out on the question of limitation.
16. From the above discussion it follows that the judgment and decree of the Appellate Court is to be upheld. Consequently, both the revision petitions are dismissed with no order as to costs.