' Plaintiffs-petitioners instituted a suit for declaration against defendants-respondents to the effect that Mutation No,6906 attested on 12-3-1985 in respect of suit land measuring 3 Kanals, 12 Merles 2- 1/4 Sarsai in favour of respondents is void, illegal, fraudulent, based on collusion and being sale mutation was without consideration, therefore, ineffective and inoperative against the proprietary rights of the petitioners.
' They have also prayed for the possession of share in the house in the occupation/possession of the respondents on the ground of they being successor-in-interest in the property of Mst. Hussain Jan.
2. The suit property is the legacy of Mst. Hussain Jan who was the predecessor of both the parties.
She had first married Bostan Khan and out of the wedlock give birth to the petitioners. After the death of Bostan Khan, Mst. Hussain Jan got married to Shamsher Khan. She had no issues from her second husband. Shamsher Khan, however, from the first wife had two sons i,e, the respondents.
' Ownership of the suit property to be that of Mst. Hussain Jan, inherited by her from Shamsher Khan to the extent of her legal/Shari share, is undisputed. Challenge, however, was made in the plaint to Mutation No,6906 with the above given objections and it was pleaded in the plaint that Mst.
Hussain Jan has never slid the said property.
3. Learned trial Court on the receipt of plaint asked for filing of the written statement where after issues were framed, of which Issues Nos.5 and 6 were the moot issues and required consideration.
The two issues are reproduced as under:-- "Issue No,5: ' Is the suit based on mala fide and fraud?
' Issue No,6: ' Had Mst. Hussain Jan sold the suit land in favour of defendants, vide Sale Mutation No,6906 sanctioned on 12-3-1985, if so, its effect?"
' The parties were allowed to adduce evidence pro and contra. After the conclusion of the trial the learned Civil Judge 1st Class Lahor (Swabi) vide judgment and decree, dated 11-3-1997 dismissed the suit. Petitioners unsuccessfully challenged the judgment and decree before the learned Additional District Judge, Lahor (Swabi) and the order of the learned Additional District Judge is, dated 16-9-1997.
4. In the present revision petition the judgment and decree of the two Courts below are assailed on various factual as well as legal grounds.
5. Before taking up the arguments as advanced by the learned counsel for the petitioners and rebutted by learned counsel appearing on behalf of the respondents, it would be rather appropriate to give resume of evidence of the parties as was led during the trial.
' Fazal Siyaf is Patwari Halqa, who has produced Jamabandi for the year 1978 to 1988 as well as for the years 1991 and 1992. He has exhibited pedigree-table and the site plan of the disputed house.
Muhammad Ishaq petitioner (plaintiff) appeared on his behalf and also as special attorney for rest of the petitioners and stated that Mst. Hussain Jan was his mother and after the death of Bostan Khan, his father, she contracted second marriage with Shamsher Khan. That, Mst. Hussain Jan had challenged Mutation No,7404 during her lifetime on the ground of being attested through fraud and coercion but the matter when went to the High Court the case was decided in his favour. He stated that another mutation (the suit mutation) has also been deceitfully and fraudulently being executed by the respondents. The stance taken was that Mst. Hussain Jan was a Pardanasheen lady and was residing with the plaintiffs-petitioners at Peshawar and she never executed nor appeared before any Commission nor has thumb-impressed the mutation in question. Ghafoor Khan, defendant, appeared and stated that the suit land was sold to them by Mst. Hussain Jan, their step-mother, who has received Rs,25,000 as sale consideration. In respect of house, the portion whereof was claimed in the plaint, it was stated that the same was gifted to Mumtaz Ali brother of Ghafoor Khan by their father and that the said gift was duly recorded on a stamp-paper Exh.DW.6/1. Nabi Sardar a brother of one Gut Qamar appeared and stated that his brother Gul Qamar is since dead and so is Muhammad Ibrahim who both were marginal witnesses to document Exh.DW.6/1. Safdar All is son of Muhammad Ibrahim who has also testified and confirmed that document Exh.DW.6/1 (gift deed) carries his signature and that of Muhammad Ibrahim his father. Hameesh Gui A.O.K. Produced original mutation register according to which mutation has been attested on behalf of Mst. Hussain Jan widow of Shamsher in favour of Ghafoor Khan and other sons of Shamsher Khan.
' Muhammad Bahader Khan retired Naib-Tehsildar testified having seen the Original Mutation No,6906 to be correct as the same was marked by Abdul Bashir Khan Lodhi, the then Naib- Tehsildar of the Circle to the Girdawar Circle for recording the statement of Mst. Hussain Jan. He deposed that after the proceedings of commission, as ordered, and after the statement of Hussain Jan was recorded, he attested the mutation in Jalsa-i-Aam in village Yaqoobi which carries his signature thereon. Muhammad Sadiq D.R.A. Who was Girdawar Circle of Yar Hussain area has confirmed the statement of Muhammad Bahader Khan by stating that he was directed to record the statement of Mst. Hussain Jan for which he went to the house of one Ibrahim Shah Bacha where the lady was present, her statement on the mutation in presence of Syed Safdar Ali Shah and Ibrahim Shah recorded on which he gave his report, dated 15-1-1985 with his signature thereon. He has further testified that Mst. Hussain Jan has put her thumb-impression while Syed Safdar Ali Shah and Ibrahim Shah have signed and thumb-impressed the mutation respectively.
Syed Safdar Ali Shah was stated to be Member of District Council, Mardan and elder of the area.
Ibrahim Shah was also deposed to be a notable of the village.
' Ibrahim Shah and Syed Safdar Ali Shah both appeared and they confirmed that in their presence the statement of Mst. Hussain Jan was recorded and that money received from Ghafoor Khan and others respondents amounting to Rs,25,000 as sale price of the suit land was given to Mst. Hussain Jan. They have also accepted that statement of Mst. Hussain Jan was read over to her by Girdawar Circle where after she has thumb-impressed the mutation. Syed Sabz Ali Shah signed while Ibrahim Shah thumb-impressed the same. Ibrahim Shah has accepted that Mst. Hussain Jan was his maternal aunt. Syed Muqaddar Shah Petition-Writer has proved the execution of gift deed Exh.DW.1/1.
4. Learned counsel for the petitioners submitted that the findings of two Courts below are liable to be set aside as both have failed to correctly evaluate evidence led by the parties. That, the evidence produced by defendants-respondents was interested and is not trustworthy. That, the statements of two witnesses, namely, Ibrahim Shah and Syed Safdar Aii Shah are self- contradictory. That, there is no provision embodied/contained in the Land Revenue Act where any Revenue Officer could appoint a commission for recording the statement of vendor. That, the procedure as laid down in section 42(7) & (8) of the Land Revenue Act was not followed by the revenue staff and the provision being mandatory, the mutation, subject-matter of the suit could not have created title in favour of the respondents. In this behalf, learned counsel for the petitioners relied on Hakeem Khan v. Nazir Ahmad Lughmani (1990 M LD 89). It was also argued that the mutation can only be attested as prescribed under section 42 of the Land Revenue Act and section 7 of the Act ibid specifies classes of Revenue Officers which does not include Girdawar Circle, hence, any statement recorded by Girdawar on the basis of which the Revenue Officer later attested mutation would be violative of the law. Lastly it was contended that under section 54 of Transfer of Property Act (Act IV of 1882) "sale" has been defined which is "a transfer of ownership, in exchange for a price paid or promised or part paid and part promised" It was argued that the defendants' evidence is deficit on point of payment of sale consideration, therefore, too sale mutation impugned is liable to cancellation.
5. Learned counsel appearing for the respondents submitted that the instant mutation was attested on 12-3-1985 in favour of the defendants by Mst. Hussain Jan. In ner lifetime Mst. Hussain Jan has challenged the validity of Mutation No,7404 attested on 24-2-1988 which matter came to this Court and finally went up to the Supreme Court and was decided on the basis of compromise.
It was contended that if Mst. Hussain Jan had not executed the present impugned mutation which was much early in time to the one which she challenged in her lifetime would by itself be sufficient evidence that the mutation attested in favour of the defendants-respondents was genuine and properly executed and attested. Learned counsel also referred, to-Order II, Rule 2, C.P.C. And submitted that - the earlier Mutation i,e, No,7404 was challenged by Mst. Hussain Jan and the present petite were defendants therein, therefore, it is but in council they would not be in the know of present mutation and that they should have challenged/ the same in the earlier suit. It was next contended that in the present plaint, the petitioners have accepted the challenge that was made to Mutation No,7404. Reference was made to para. No,2(B) of the plaint. It was also argued that no substantial doubt should be deemed to exist in all such transactions where vendor/transferor is a Pardanasheen lady. Because, in the instant case sufficient precautions were taken to establish the identity of Mst. Hussain Jan before attestation of mutation.
' Learned counsel also submitted that the violation of section 42 of the Land Revenue Act or that the transaction relatable to the mutation in question was not sale in terms of section 54 of the Transfer of Property , have not been taken in grounds of appeal nor in the instant revision, hence, these objections cannot be taken at this stage. Though, he maintained that proper procedure was followed in the process of execution and attestation of mutation. Lastly, it was submitted that the defendants are in possession of the suit land and they have been so recorded in the revenue record since 1985.
6. As in the plaint, the petitioners have challenged the transfer of property to the defendants through Mutation No,6906 and also their possession on a house but, learned counsel for the petitioners conceded at the bar that as the defendants have successfully proved through evidence the execution of gift deed Exh.DW.6/1 in respect of the house, he would not challenge the validity of findings of the two Courts below to that extent.
7. Since in the preceding paragraphs I had already given the resume of evidence led by the parties, now, what is to be seen is if the two Courts below have misread the evidence or they have taken into consideration evidence which was inadmissible. The original of Mutation No,6906 was produced in Court and it was so deposed too by Hamesh Gui D.W.1. He has admitted that the impugned mutation was attested on commission. No challenge to his statement is made as to tampering with the mutation. Muhammad Bahader Khan has stated that Abdur Rashid Khan Lodhi who was Naib-Tehsildar of the Circle had marked the mutation to Girdawar to take down the statement of Mst. Hussain Jan as Commission. Muhammad Sadiq, D.R.A. Was Girdawar Circle and has furnished direct and first hand evidence of recording the statement of Mst. Hussain Jan in the house of Ibrahim Shah who was identified by Rahim Shah as well as Syed Safdar Ali Shah, of which the latter was a Member of the District Council, Mardan. He has refuted the suggestion of impersonation. No dent can be found in his statement to taint his testimony.
' Ibrahim Shah has confirmed the presence of Mst. Hussain Jan in his house and that, in his presence as well as in the presence of Syed Safdai Ali Shah the statement of Mst. Hussain Jan was recorded and she told Girdawar Circle (Commission) to have received Rs,25,000 as sale consideration. The relationship of this witness with Ghafoor Khan defendant-respondent by itself is not a disqualification to appear as his witness more so when there is no evidence nor any suggestion of any hostility existing between him and the petitioners and so is the case of P.W. Syed Safdar Ali Shah. The two witnesses. Are unanimous on each details of the execution of the impugned mutation. It is held, that the evidence given by a witness though related to a party who has produced him in the witness-box, cannot be discredited or be of little value just because of their inter se relationship or more so in the absence of any strained relation between the witness and the party against whom he has appeared.
8. One of the arguments advanced by the learned counsel for the respondents was to the effect that no challenge can be made in terms of non-compliance of section 42 of Land Revenue Act, as the same was not raised in appeal nor is in the grounds of the petition. My view of the matter is that any legal point/objection can be raised at any stage of the proceedings which would also include revision proceedings, where such legal procedure of law would be of the nature which would make the transaction void. As it is commonly known that there is no estoppel against law, therefore, whether in the instant case procedure, as envisaged under section 42 of the Act ibid, was followed, and if not, its effect requires consideration.
Learned counsel for the petitioners while relying on Hakim Khan's case (supra) wherein it was held "that the provisions of section 42 of the Act (ibid) are mandatory in nature and violation thereof shall be considered as unlawful" had submitted that mutation in question is nullity. This matter was taken up by the Supreme Court of Pakistan in case reported as Hakim Khan v. Nazir Ahmad Lughmani and 10 others (1992 SCM R 1832) and the view taken by this Court in the same case was not approved. The relevant para. Of the judgment of the Supreme Court is reproduced below:.:- "Undoubtedly, the provisions of section 42 of the West Pakistan Land Revenue Act are mandatory inasmuch as the word 'shall' has been used at the relevant places and the revenue staff to whom directions to act in certain manner have been made are bound to obey them in letter and spirit.
However, there is no provision in the Act or rules framed thereunder that noncompliance with the said provisions by the revenue staff will invalidate the transactions covered by such mutations, for the obvious reasons that even if a mutation is regularly attested, the same cannot by itself create title in the transferee and in case of disputes about transactions or the mutations relating thereto, the parties to the transactions have to prove the transactions just like any other document according to the provisions of the Jaw of evidence. Consequently, the provision of section 42 whether mandatory or directory had nothing to do with the transactions themselves. Needless to mention that mutations are -entered and attested for bringing the =oat up-to-date for fiscal purposes of recovery of land revenue and/or not of effecting title in immovable property."
9. The bare reading of section 42 of the Land Revenue Act though apparently gives an impression, the same to be mandatory for the revenue state but it only prescribes the mode and manner the person and the place for registration/execution and the attestation of a mutation. Nowhere in the whole of West Pakistan Land Revenue Act the non adherence to procedure as prescribed in section 42 is visited by any penalty to be imposed on any Revenue Officer. The object of the section is to follow a particular procedure with a view to minimise rather to exclude commission of any fraud firstly to deprive the owner of its proprietary rights and secondly to protect the vendee/transferee after once the mutation is attested. The concept of attesting a mutation as envisaged under subsection (8) of the section in common assembly (Jalsa-e-Aam) is precisely for the above object. Therefore, the strict non-compliance of section 42 of the Act ibid would in no manner invalidate the mutation, it may, however, have some aspersion on its existence but that too is to .Be determined on the basis of evidence adduced at the trial and not in isolation.
No doubt, that under section 7 of the Act (ibid) classes of Revenue Officer have been enumerated and Girdawar Circle does not fall into the category of Revenue Officer but in the present case Girdawar Circle has only recorded the statement of Mst. Hussain Jan while the attestation of the mutation was done by competent Revenue Officer, therefore, the submission of learned counsel for the petitioners is of no help to him.
Otherwise too, a mutation though is record of right and entries contained therein are taken as evidence and its contents form part of evidence but it always requires proof by means of evidence led by party which either challenges it or by the party which wants to prove its execution. It, however, does not create a title in the party in whose favour it has been attested.
10. The submission as made by learned counsel for the petitioners with reference to section 54 of the Transfer of Property Act inasmuch that the evidence led by the defendants falls short of "sale" as defined under the section which also is not tenable as discussed earlier that sufficient and cogent evidence has been led through the mouth of Ibrahim Shah and Syed Sabz Ali Shah as well as through documentary evidence. Mutation in question carries endorsement by the Revenue Officer about payment of Rs,25,000 as sale consideration to Mst. Hussain Jan when she was duly identified by Syed Sabz Ali Shah and Rahim Shah in Jalsa-e-Aam.
11. There is yet another aspect of the case which is reflected in the judgment pronounced in Civil Revision No,365 of 1992 by this Court exhibited as DW.2/2, where too, the execution of mutation in question has been referred to and it was observed in context of that case but with reference to the impugned mutation that "it will also be pertinent to point out that Mutation No,6906, which was not challenged by Mst. Hussain Jan was attested in Village Yaqoob and her statement was also recorded".
12. Having discussed the factual as well as legal aspect of the case, I find myself in full agreement with the findings arrived at by the two Courts below. No case for interference in revisional jurisdiction by this Court is made out. Therefore, this revision is dismissed with costs.