GHULAM SARWAR SHEIKH, J.r- Agricultural land measuring 433 Kanals, 5 Marlas, in Chak No. 8/N.L.
Piplan Tehsil and District Mianwali, admittedly, belonged to Amir Abdullah Khan, who, expired on 28.10.1978.
2. After his demise, it transpired, that the respondent/defendant had obtained a "consent decree", passed on 6.3.1972 in respect of the same, in suit No. 21 of 1972 from Civil Court, Mianwali, and as a sequel, thereto mutation No. 3 was ultimately got attested on 21,1.1977.
3. Such transaction, purporting sale of land in question was assailed as to be fictitious, collusive and without consideration, by the petitioners/plaintiffs, who, claim to be owners in possession thereof, being lawful heirs of the deceased. According to them, Amir Abdullah Khan had neither appeared nor appointed any Counsel. Impugned alienation was considered and scrutinized by Federal Land Commission, at the instance of respondent/defendant, who, wanted exclusion of land in .Question, from the declaration of the deceased in connection with proceedings under Martial Law Regulation No. 115. Same was found and decree based thereon as to be evasive measure and no tight, whatsoever having been transferred and accrued to the respondent/defendant thereby.
Despite that mutation No. 3 was got entered and sanctioned on 21.1.1977. As such petitioners/plaintiffs were constrained to knock at the door of Civil Court through declaratory suit with perpetual injunction as consequential relief.
4. Averments, allegations and claim embodied in the plaint were duly controverted, repudiated and traversed in the written statement, submitted by the respondent/defendant, who, conversely, described herself to be owner in possession of the land, forming the subject-matter of "tis".
5. Matters in controversy, arising out of divergent pleadings of the parties, entailed the formation of following issues:-
(1) Whether the plaintiffs are owners in possession of the suit land? OPP.
(2) Whether the decree in Civil Suit No. 21, dated 6.3.1972 Was collusive and result of fraud and ineffective upon the rights of the plaintiffs? OPP.
(3) Whether the suit is not maintainable in the present form ? OPD.
(4) Whether the suit is time-barred? OPD.
(5) Whether the plaintiffs have no locus standi to bring this suit? OPD.
(6) Whether the defendant is entitled to special costs under section 35-A, C.P.C.? OPD.
(7) Relief.
6. After recording, oral as well as documentary evidence of the parties, wished to be adduced and, of course, affording due chance and opportunity of being heard to them, learned Trial Court adjudged the matter and resolved the controversy reduced into issues Nos. 1 and 2 in favour of petitioners/plaintiffs, by holding the decree dated 6.3.1972 and mutation No. 3, dated 21.1.1977, as to be null and void in the eyes of law. Likewise, issue Nos. 3 and 4, were found and determined, in their favour. Issues Nos. 5 and 6 were, however, disposed of as having not been "pressed" by learned Counsel for the respondent/defendant.
7. Resultantly, suit was decreed, impugned decree dated 6.3.1972 was set aside and the petitioners/plaintiffs were declared to be co-owners in possession of the land in dispute.
8. Appeal, against such judgment and decree dated 1.6.1982, was accepted, findings of learned Trial Court were reversed and the suit of petitioners/plaintiffs was dismissed.
9. Feeling aggrieved and dis-satisfied, the petitioners/plaintiffs have resorted to instant "Revision Petition" wherein inferences drawn and gathered by learned Additional District Judge- have been assailed, challenged and called in question.
10. Factors, points and grounds enumerated in the petition have been re-iterated to impress that:-
(i) Consent decree is just and merely an agreement and transfer contemplated therein has to be proved.
(ii) Amir Abdullah Khan had never come to Piplan or Mianwali during the year 1972 as testified by PW 5 Sher Muhammad Attorney.
(i.e) Respondent/defendant failed to appear or adduce scintilla of evidence to substantiate oral sale or prove payment of consideration to the tune of Rs. 65,000/- and as such she cannot be taken to be bona i.e purchaser.
(iv) Surreptitious, approach of respondent/defendant is, by itself, a proof of fake ness of the transaction.
(v) Decision of Federal Land Commission, asked for, by the respondent/defendant, herself, having attained finality, debars and denudes her from harping the same tune and precludes her from taking the somer-sault to contend otherwise.
(vi) Transaction, being fake, was never acted upon during the life time of Amir Abdullah Khan.
(vii) Decree and mutation in favour of respondent/defendant had lost its sanctity altogether in terms of paras Nos. 3,7 and 29 M.L.R. 115.
(viii) Tenants had attorned to the petitioners/plaintiffs and falsified the claim of respondent/defendant.
(ix) Even entries of Khasra Girdawar Ex.P 5 were ignored and kept out of consideration by learned Additional District Judge.
(x) Conclusions, findings and inferences patently suffer not only from mis-reading of evidence but also, non-consideration of vital material on record.
(xi) In any event same are based on conjectures and surmises.
11. On these premises, acceptance of revision petition has been urged. In support of the contentions reliance has been placed on Habib and 8 others Vs. Haji Muhammad and 3 others (PLD 1970 Kar.
495), Ghulam Akbar v. Haji Sher Jan, etc. (N.L.R. 1990 Civil 199), Hakim Khan Vs. Nazeer Ahmad Lughmani and 10 others (1992 S.C.M.R. 1832), Tooti Gul and 2 others Vs. Irfanuddin (1996 SCMR 1386), Mst. Ghulam Sughran and others Vs. Sahihzada Ijaz Hussain and others (PLD 1986 Lah. 194), Naja and 2 others Vs. Shamand and 4 others (PLD 1985 Lah. 607), Inayat Ali Shah Vs. Anwar Hussain (1995 C.L.C. 1906), Muhammad Yousaf through his LRs. And others Vs. Noor Din and others (1993 MLD 763), Haq Nawaz Khan and others Vs. Rah Nawaz and others (1992 SCMR 993), Mst. Zahiran Vs. Mst.
Rehmati (1987 SCMR 66), Allah Wasaya and 3 others Vs. Rahim Bakhsh and another (1991 SCMR 1369) (NLR 1986 Revenue 43).
12. Conversely, judgment and decree, now sought to be impeached and set at naught, have been acclaimed to be correct in all respects and in consonance with law.
13. Salient features of the case, have been enumerated to lay stress that initial presumption enshrined by Article 129(e) Qanun-e-Shahadat Order of 1984 has not been rebutted any way.
Nargis Shaheen Vs. Federation of Pakistan and 5 others (PLD 1993 Lah. 732), Muhammad Ali and 25 others Vs. Hassan Muhammad and 6 others (PLD 1994 S.C. 245) and Munshi Raghuhir Singh and others Vs. Rani Rajeshwari (AIR 1933 Oudh 466) have been quoted on the point. With reference to Malik Khan Muhammad Vs. Haji Sikandar Khan (1989 CLC 2412), Arbab Jamshed Ahmad and another Vs. Ghazan Khan and others (1995 CLC 695), Muhammad Aslam Vs. Muhammad Tufail and 2 others (1995 CLC 1061), and Sufibat Ullah Khan Vs. Pirzada Noorul Baseer and others (PLD 1993 Pesh. 9), it has been remarked that the facts stated in the mutation proceedings are to be deemed to be correct unless, rebutted by the other side.
14. On the strength of Mst. Raj Bibi and 4 others Vs. Additional Chief Land Commissioner, Punjab, Lahore (PLD 1975 Lah. 408), Muhammad Aslam Khan and others Vs. Federal Land Commissioner and others (PLJ 1976 Pesh. 41), (1968 S.C.M.R. 699) and Mst. Hajiani, etc. Vs. West Pakistan Land Commissioner, Lahore (PLD 1966 S.C. 114), it has been maintained that there is no reason as to why the alienations, which, are hit either by clause (a) or clause (b) of sub-para (i) of paragraph 7 should not be held to be void only for the purposes of the Regulation, but, valid and effective as between the parties to pass the interests, if they, do not otherwise suffer from any invalidity.
15. Elaborating scope of "Revision", learned Counsel for the respondent/defendant has stressed that section 115, C.P.C, applies to cases involving illegal assumption, non-exercise or irregular exercise of jurisdiction only. According to him, no interference is called for unless the findings are based on "no evidence" at all. Gul Wali Khan v. Sgfilar Salim and 10 others (1997 M.L.O. 3075) and Muhammad Bux Vs. Muhammad Ali (1984 SCMR 504) have been referred in this context. On the basis (PLD 1956 S.C.
(Pak.) 389) and 1988 Law Notes (Lahore) 689, presumption of correctness attached to entries of Khasra Girdawari has been asserted.
16. Seemingly faux-pas was committed while analysing data and material on record. Learned Appellate Court seems to have fallen in ignoratio elenchi by treating the claim of respondent/defendant as apodictic as if she spoke as an oracle. The petitioners/plaintiffs also deserved same solemnity and their claims should have been juxta-posed in its true perspective.
17. Marital bonds are generally nurtured and manured by gifts and net conditioned by transactions of sale and that; foo, without possession. Not an iota of evidence is available on record to suggest that Mst. Anwar Begum had ever enjoyed the fruits of so-called sale of land, forming the subject matter of dispute. No body came forward to say that she shared the produce and no tenant deposed that so-called vendor attorned him about the respondent defendant. Late execution of the decree passed in 1972 or so to say its-implementation in the year 1977 in revenue record and then constant refusal of occupants unmasks real intention of last owner/so-called vendor. "Status Quo" after 1972 or 1977, up to institution of suit or initiating proceedings for getting produce just before Civil Suit speaks volumes that the respondent/defendant well knew the mischief from very inception, otherwise, such prolonged conspicuous silence, deep slumber or indifferent attitude was not expected of a real vendee.
18. Apart from the exercise of Federal Land Commissioner, Amir Abdullah Khan deceased never relinquished his claim or owned the respondent/defendant as his substitution relating to land in dispute. Even at the time of filing declaration before Land Commission, he was quite alive to his title of the suit land. The petitioners/plaintiffs discharged their onus by examining PW. 1 to PW. 4 to establish fraud and fake ness. PW. 5 shifted onus to respondent/defendant to prove sale and its fructuation. She; however, utterly failed to discharge onus and felt contended by examining Liaqat Hussain as DW. 1, who, being special attorney, was bound to be "His Master's voice. She failed to examine even Counsel, who, represented alleged vendor, before the Civil Court. She also did not produce a bit of evidence to prove that she ever tasted/enjoyed fruition of sale. About change of ownership and possession no report, in terms of relevant provisions of Land Revenue Act, was made to Patwari for not less than i.e years. Every thing was clandestinely done and this in camera exercise exposes the respondent's plea to a trial of criticism.
19. Mere attestation of mutation is not sufficient to bestow title upon the respondent/defendant. It can be treated as an important piece of evidence as observed in Malik Khan Muhammad Vs. Haji Sikandar Khan (1989 C.L.C. 2412) provided it had been prepared with bona fides. Its basis/origin is not fair, rather, shrouded in mystery. Hence super-structure raised thereon is liable to crumble down like "house of Cards". Similarly only those transactions are protected/immune from the mischief of clauses (a) and (b) of sub-para (1) of paragraph 7, which, do not contain a scintilla of fraud and the parties on its validity.
20. While delivering the verdict dated 27.4.1988, lambasted with clarion voice, learned Additional District Judge did not attend and advert to above aspects, remained oblivious of the same and rather traversed on the periphery. Hence, I am not inclined to expose his inferences, which, cannot be countenanced under any canon of law.
21. Since civil matters are decided by preponderance of evidence and the evidence led by the petitioners/plaintiffs clearly out-weighs the evidence of the respondent/defendant learned Additional District Judge was not justified in reversing the findings of learned Trial Court. His findings and conclusions on issues Nos. 1 to 4 are therefore reversed and those of Trial Court restored. I am fortified in this belief by illuminating observations made in Malik Khan Muhammad Vs. Haji Sikandar Khan (1989 C.L.C. 2412).
22. Upshot of above discussion is that die findings of learned Appellate Court and dismissal of suit are not tenable in law. Fallacious interpretation of law and evidence has caused material irregularity and miscarriage of justice, which, resulted in Illegal exercise of jurisdiction for acceptance of appeal of respondent-defendant. Such action is open to grave exceptions and vividly unsustainable.
23. Concomitantly, Revision petition is allowed, judgment and decree dated 27.4.1988 passed by learned Appellate Court are set aside and that of learned Trial Court are hereby restored. However, I refrain from making any order as to costs.