' This R.S.A. Arises out of a suit for declaration with consequential relief of possession filed by Ashiq Ali respondent on 3-10-1978 in the Civil Court, Gujranwala. He claimed to be the allotted of land measuring 81 Kanals, 5 Marlas situated in Mauza Kot Dewan Chan& District Gujranwala vide Khata No,60 of RL-II Exh. P.3. He alleged that Mutation No,51 said to have been made in favour of Haji Wali Muhammad appellant No,3 on 19-7-1969 was fake and fictitious. He challenged the subsequent sale-deed, dated 28-8-1969 made by Wali Muhammad in favour of Anwar Ali (deceased) appellant No,1 (for whom Mst. Farhana Tauqeer has been substituted) and Irshad Ali, appellant No,2 and Mutation No, 53 attested on 7-10-1969. The suit was resisted by the present appellants who filed their written statement on 3-4-1979 which gave rise to the following issues:---
(1) Whether the suit is within time? O.P.P.
(2) Whether this Court lacks jurisdiction to try the suit? O.P.D.
(3) Whether the "valuation for the purposes of court-fee and jurisdiction is incorrect, if so, what is the correct valuation? O.P.D.(onus objected to)
(4) Whether the suit is barred by the provisions of the Specific Relief Act? O.P.D.
(5) Whether the plaintiff has no cause of action and locus stand to file the suit? O.P.D.
(6) Whether the plaintiff is estopped by his words and conduct to file the suit? O.P.D.
(7) Whether the plaint is liable to amendment in view of preliminary objection No,8? O.P.D.
(8) Whether the Mutation No, 51 and registered sale-deed, dated 28-8-1969 and Mutation No, 53 attested on 7-10-1969 are fictitious,' bogus, without consideration and without authority, mala fide, illegal and ineffective qua the rights of the plaintiff? 0 P P
(9) Whether the defendants are entitled to special costs under section 35-A, C.P.C. If so, to what extent? O.P.D.
(10) Relief.
' Issue No,8 was re-cast on 12-8-1982 in the following form:--- "Whether the plaintiff sold the disputed land in favour of defendant No,1 by way of Mutation No,51 for a consideration of Rs,15,000? O.P.D.
' After recording oral as well as documentary evidence of the parties the trial Court decreed the suit vide judgment and decree, dated 3-51987. The defendants/appellants preferred an appeal on 19- 5-1987 which was allowed by the Appellate Court on 1-12-1987 remanding the case to the trial Court after framing the following additional issue:- (9-A) Whether Irshad Ali and Anwar Ali defendants Nos.2 and 3 are bona fide purchasers of the suit land for consideration without notice? If so, with what effect? O.P.P. 2-3.
' After remand, the trial Court recorded evidence on the additional issue and then dismissed the suit vide judgment and decree, dated 20-6-1988. The respondent/plaintiff preferred an appeal on 30-7-1988, which was allowed by the learned Additional District Judge vide his judgment and decree, dated 10-1-1990. The present appeal has been filed by Irshad Ali and Anwar Ali defendants Nos.2 and 3 in the suit. It was admitted for regular hearing in this Court on 15-10-1990.
2. The appellants' learned counsel contends that the respondent's suit was barred by limitation provided under Article 91 of the Limitation Act; that Mutation No,51 was attested on 19-7-1969 and Mutation No, 53 on 7-10-1969 and the suit was filed on 3-10-1978; that the respondent's title was denied, therefore, he was bound to seek a declaration to eliminate Mutations Nos.51 and 53 from the field within a period of six years as provided under Article 120 of the Limitation Act but the suit was filed after the expiry of six years from the date of accrual of cause of action. In this connection, he relies on the judgments in the cases of:---
(i) Shamshad Ali Shah etc. v. Syed Hassan Shah etc. (PLD 1964 SC 143).
(ii) Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762),
(iii) Mst. Hamida Begum v. Mst. Murad Begum etc. (PLD 1975 SC 624),
(iv) Habibullah etc. v. Mst. Aziz Bibi (1986 CLC 2126),
(v) Wahid Bakhsh and another v. Ghulam Muhammad (PLD 1990 Lahore 193) and
(vi) Langar and others v. Ch. Muhammad Shafi etc. (1994 MLD 2169).
' He submits that the Appellate Court had failed to decide re-cast issue No,8 and had merely decided Issue No,8 as originally framed; that the plaintiff/respondent No,1 had claimed that the Mutation No,51 was (Y) which means "forged" as per the meaning given in "Urdu English Dictionary at page 229, published by Kitabistan; that the word forgery includes, fraud and misrepresentation and the plaintiff was bound to give necessary details thereof as required under Order VI, Rule 6 of the C.P.C. In this connection he relies on the judgments in the cases of:---
(i) Muhammad Umar v. Mugarab Khan etc. (1968 SCMR 983),
(ii) Sakhi Muhammad etc. v. Muhammad Yar etc. (KLR 1985 Civil Cases 681) and
(iii) United Bank Ltd. v. M/s. Sartaj Industries (PLD 1990 Lahore 99).
' That the respondent was aware of the disputed mutation, sale of the disputed land to Irshad Ali and Anwar Ali, appellants that Mutation No,53 regarding inheritance of Mst. Fauji was sanctioned in favour of Ashiq Ali, plaintiff/respondent No,1 which was challenged by one Syed Imdad Hussain; that Irshad Ali and Anwar Ali were impleaded as respondents Nos.2 and 3 before the Collector; that at one stage the Collector had passed order, dated 29-9-1970 for ex parte proceedings against Ashiq Ali, respondent No,1, who filed an application with his affidavit Exhs. D.2 and D.3. For setting aside order for ex parte proceedings that in this way Ashiq Ali had gained knowledge in the year 1970 about the mutation of the sale made in favour of the appellants; that Ashiq Ali through his special attorney, Fazal Ahmad had sold the disputed land to Wali Muhammad, who further sold it to the appellants on payment of consideration of Rs,15,000; that the appellants had no knowledge of defect of title of Wali Muhammad and had bonafidely purchased the property for valuable consideration, hence their title is protected under the law as held in the cases of:
(1) Niaz Muhammad Khan v. Settlement' Commissioner (Lands) etc. (1982 CLC 2202 Karachi); and
(2) Kanwal Nain etc. v. Fateh Khan etc. (PLD 1983 SC 53).
' On the other hand the respondent's learned counsel urged that Article 91 of the Limitation Act was not applicable in the case as respondent No,1 was not a party to the alleged sale transaction effected through Mutation No,51; that Mutation No,51 was void abs initio and did not confer any right or title to Wali Muhammad or subsequent purchasers from him; that the plaintiff/respondent No,1 being the lawful owner of the property could file a suit for possession within a period of 12 years, provided under Article 144 of the Limitation Act; that it was not necessary for the plaintiff to first seek a declaration of his title or challenge validity of the disputed mutation or Jamabandis. In this connection he relies on the judgment in the case of Abdul Majeed etc. v. Muhammad Subhan etc. (1999 SCMR 1245); that the plaintiff/respondent No,1 entered the witness-box and denied having made any oral sale of the land in favour of Wali Muhammad, deceased and receipt of the consideration; that the onus shifted to beneficiaries of Mutations Nos. 51 and 53 to prove bona fide purchase of the suit land on payment consideration to the owner; that in the written statement filed by the appellants/defendants it was not specifically pleaded that they were bona fide purchasers without notice and could not be permitted to lead evidence in this behalf; that one Rafiq Patwari was related to the appellants who cleverly maneuvered to insert the names of the appellants in the appeal filed by one Imdad Hussain; that there was no order to implead Irshad Ali and Anwar Ali as respondents in the appeal before the Collector; that there is nothing to show that Ashiq Ali, respondent No,1 was ever served in the appeal that even if it is accepted that Ashiq Ali, respondent was a party to Appeal No,109 filed by Syed Imdad Hussain and had filed application Exh.D2 with his affidavit Exh.D3 it will make no difference because the appeal pertained to the land belonging to Mst. Fauji situated in village Jallan and not in Kot Dewan Chand, where the disputed land is situated; that it was not proved by relatable evidence that respondent No,1 had filed application Exh.D2 with his affidavit Exh.D3 for setting aside the ex parte proceedings. Therefore, it could not be presumed that he had gained knowledge about the disputed mutation and sale transaction in the year, 1973; that Mutation No,51 was false and fictitious because the plaintiff/respondent had never appointed Fazal Ahmad as his attorney; that neither the attorney nor the respondent had ever appeared before the Revenue Assistant and received sale consideration of Rs,15,000; that fraudulent mutation No,51 Pert Sarkar was lost and the respondent could only get a copy of Pert Patwar at the time of institution of the suit; that Pert Patwar merely embodied the factum of attestation of the mutation and not the other facts regarding presence of vendor/owner or his attorney and identification of the vendor or his attorney by the concerned Numberdar or receipt of sale consideration by him that for the said reason it was not mentioned in the plaint that Fazal Ahmad was ever appointed as his attorney by the respondent; that ingredients of section 41 of the Transfer of Property Act are not satisfied to protect the appellants' alleged title as bona fide purchasers without notice; that when a transaction is void the question of limitation does not arise as held in the cases of:--
(i) Mst. Hamida Begum v. Mst. MuradBegum and others (PLD 1975 SC 624) and
(ii) Muhammad Nawaz etc. v. Mst. Ismat Jan (1986 SCMR 1238). ' that the suit filed by respondent No,1 in substance is one for possession and not for cancellation of the documents or for declaration; that in order to determine nature of the suit, the substance of the plaint has to be seen as a whole as held in the case of "Samar Gul v. Central Government and others" (PLD 1986 SC 35), relevant part at page 42, F&G); that the Appellate Court had rightly appreciated the evidence on the record and allowed the respondent's appeal in accordance with the law and no interference is called for -coder section 100 of the C.P.C., by this Court.
3. The first question requiring examination is that of limitation covered by issue No,
1. The suit was instituted on 3-10-1978 to challenge mutation No,51 sanctioned on 19-7-1969, sale-deed, dated 28- 8-1969 and Mutation No, 53 attested on 7-10-1969. Article 91 under the First Schedule to the Limitation Act provides a period of three years for filing a suit to cancel or set aside an instrument from the date of knowledge of the facts entitling the plaintiff to have the instrument cancelled or set aside. This Article is restricted in its application to suits between the parties to an instrument or document or their successors-in-interest. It also applies to voidable instruments which can be declared so at the option of a party to the transaction. It does not apply to suits qua a void or a sham transaction. Again, if the main relief sought by a plaintiff is declaration or possession of the property and cancellation of the instrument is merely incidental or ancillary to the substantial reliefs then Article 91 is not applicable. In the present case the plaintiff has completely disowned the oral sale bargain with Wali Muhammad appellant No,3 and his participation in the Mutation proceedings leading up to attestation of Mutation No,51. Obviously, the alleged sale bargain was oral and the mutation merely embodied the factum of oral sale and was not the kind of instrument contemplated under Article 91 of the Act. This Article applies to written instruments governing the rights and interests of the parties to the same.
4. The suit filed by the respondent though styled as one for declaration, in substance, is a suit for possession. For this purpose the plaint has to be read as a whole. The plaintiff clearly averred in the plaint that he neither sold the disputed land in favour of Wali Muhammad appellant No,3 nor received sale consideration from him; that Mutation No,51 attested on 19-7-1969 was bogus and that its Pert-Sarkar was purposely misplaced so that the detailed order may not become known to the plaintiff. It was inter alia prayed that possession of the disputed land be delivered to the plaintiff. The title of the suit alone does not finally determine the nature and character of the suit and the Court can competently grant appropriate relief after going through the entire plaint. This view finds support from the judgment in the case of "Samar Gull v. Central Government and others"
(FLD 1986 SC 35) relied upon by the respondent's learned counsel in which it was held as under:--- "It is well-settled that a Court is empowered to grant such relief as to the justice of the case may demand and for purposes of determining the relief asked for, the whole of the plaint must be looked into, so that the substance rather than the form should be examined."
' Keeping in view the averments made in the plaint and the statement of the plaintiff I hold that the suit in substance was for recovery of possession and was filed within the period of 12 years provided under Article 142 of the Limitation Act.
5. The argument raised by the appellants' learned counsel that since Mutations Nos.51 and 53 as well as the registered sale-deed, dated 28-8-1969 were adverse to the plaintiffs rights, he was bound to file a suit for declaration of his title first before seeking possession of the land within a period of six years as provided under Article 120 of the Act, is devoid of force. It is not denied that the disputed property belonged to Ashiq Ali respondent. Mutation No,51 being void ab initio did not cast any cloud on his rights. The subsequent sale-deed, dated 28-8-1969 made by Wali Muhammad, appellant No,3 in favour of appellants Nos.1 and 2 and Mutation No,53 sanctioned on the basis thereof on 7-10-1969 also fall to the ground being based on a void transaction.
6. Before proceeding further I may advert to the judgments cited by the appellant's learned counsel having a bearing the question of limitation. In the case of Shamshad Ali Shah and others the dispute related to a gift and issue raised was whether it was made during Marz-ul-Maut or not and whether the suit was governed by Article 91 of the Limitation Act. The Hon'ble Supreme Court found that the donor was suffering from pneumonia and died two hours after registration of the gift, therefore, it was a clear case for the application of the principle of Marz-ul-Maut that gift was not completed in the absence of delivery of possession and that Article 91 of the Limitation Act was not applicable in the case. In the case of Ahmad Din it was held that the time spent for prosecuting a time-barred appeal against attestation of mutation could not be condoned in computing the period of limitation under Article 120 of the Limitation Act. It was further held that if a plaintiff is able to seek further relief for possession, the suit could not fail merely for failure of the, plaintiff to seek consequential relief and that in such a case the Court should allow the plaintiff to amend his plaint by adding prayer for possession. In the case of Mst. Hamida Begum it was held that if a deed or instrument is a initio, null and void there is no need of having it cancelled or set aside. However, if the instrument is the result of force, coercion, fraud, misrepresentation or undue influence then it is a voidable instrument and would remain operative as long as it was not set aside by a competent Court. In the case of Habibullah and others a learned Single Judge of this Court had held that the suit containing a prayer for cancellation of a document would be governed by Article 91 of the Limitation Act. The case of Wahid Bakhsh and another was decided by me sitting singly. In this case it was held that a suit for declaration of title in respect of the land and a challenge to correctness of the entries made in the Jamabandis with consequential relief of possession was governed by Article 120 of the Limitation Act. In the case of Langar and others decided by a Division Bench of this Court (of which I was also a Member) it was held that where the defendants figured as owners in the Jamabandis from the years 1967 to 1981 and were in cultivating possession of the land then the plaintiff was bound under the law to seek declaration of his title and then claim possession of the land and that the suit was governed by Article 120 of the Limitation Act.
7. In reply learned counsel for respondent No,1 relied on the judgment in the case of "Abdul Majeed and 6 others v. Muhammad Subhan and 2 others' (1999 SCMR 1245) which is nearer to the facts of the present case and fairly clinches the issue relating to limitation. In this case the Humble Supreme Court was pleased to hold as under:--- "It has been held by the High Court with which we concur for the reasons to be enumerated in this judgment, that the execution of sale-deed, dated 10-1-1962, by the plaintiff in favour of defendant No,2, could not be proved and it could also not be established that the plaintiff had appeared before the Registrar at the time of registration and payment of sale consideration to the plaintiff could also not be substantiated. The sale-deed was, therefore, a void document and the plaintiff was not bound to ask for its cancellation as it could not constitute a hindrance or impediment in his way to seek possession under Article 142 from the date he was dispossessed."
' The Court highlighted the distinction between a void and voidable instrument and referred to the following passage from the judgment in the case of Muhammad Akbar Shah v. Muhammad Yusuf Shah and others (PLD 1964 SC 329):--- "The principle which is applicable cannot be disputed either on authority or in reason. The principle is that if the transaction which is sought to be set aside was a voidable one, it is essential that the transaction be set aside. If it be not voidable, but void, the question of setting it aside would not arise. As to whether a transaction is voidable or void there is a simple criterion: did the transaction create any legal effects, that is, did the transaction transfer, create or terminate or otherwise affect any rights? In a void transaction no legal effects are produced. In a voidable transaction legal effects are produced but some person has the right to void the transaction and if he exercises that option the process by which rights were affected is reversed and the original situation as it existed before the transaction is restored (subject to adjustment of equities). If the Court which is dealing with the question of limitation reaches the conclusion after considering the evidence before it that the transaction in dispute by its own force produced legal effects it would be necessary that the transaction be set aside and limitation will be governed by the Article applicable to the setting aside of the transaction. If it comes to the conclusion that by itself the transaction produced no effects no need for setting it aside will arise. It is necessary to state here that a voidable transaction should not be confused with a transaction which prima facie looks valid and in relation to which the burden of proof will be on the party alleging its invalidity. There may be a document in existence a registered deed of sale or mortgage or some other transaction, which is by presumption genuine and the person who purports to be its executant may have the burden on him to show that it is a forgery. Still it is not a voidable transaction because ultimately when the Court comes to the conclusion that it is a forgery it will be found that in fact the document never affected any right. This is the criterion for determining whether a document is void or voidable. Its apparent validity or the question of burden of proof is in this respect irrelevant. No person is bound to sue for setting side a document just because it is raising a presumption against him. There is no need for the person who is shown to be the executant of the forged document to sue for its cancellation or for setting it aside though he may be taking a risk in allowing the document stand for proof of forgery may become difficult as time passes. A transaction which is not genuine may have been incorporated even in the revenue records which have a presumption of correctness. Still there is no need to have the transaction set aside for Revenue Records are only evidence of it and do not affect title. If the Court finds that there is no true basis for the entry in the record-or-rights its conclusion would be that there never did exist any transaction which affected any rights. 'Setting aside' is wholly inappropriate for a document which has produced no legal effects though the expression is sometimes loosely used in respect of a declaration of invalidity of a document."
' The Court further held: "It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record would not by its own force be sufficient to prove the genuineness of the transaction to which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document."
8. Respectfully following the law laid down by the Hon'ble Supreme Court of Pakistan in Abdul Majeed's case, I hold that in the circumstances of the present case, the plaintiff was not bound to seek a declaration first before claiming possession because the disputed Mutation No,51 was void a initio (as would be further discussed under Issue No,8) and even if acted upon in the Jamabandi did not confer any right on Wali Muhammad appellant No,3 and that the suit was governed by Article 142 of, the Limitation Act and was rightly filed within the period of limitation. For the above reasons, the findings of the Appellate Court on Issue No,1 are maintained.
9. I am not impressed by the argument raised by the appellants' learned counsel that the plaintiff had gained knowledge about the purchase of property by the appellants from Wali Muhammad in the year, 1970. This argument is primarily based on the Revenue Appeal No,109 filed by Syed Imdad Hussain against Ashiq Ali, plaintiff. There is nothing to show that Ashiq Ali was ever served in the said appeal. It is claimed that at one stage an order of ex parte proceedings was passed against him and he filed the application Exh.D2 with his affidavit Exh.D3 through Ch. Salah-ud-Din, Advocate for setting aside the order for ex parte proceedings. It may be mentioned that names of the present appellants were inserted in the array of respondents but neither any order, for impleading them as respondents was passed nor the addition of the names bore anybody's signature or initials. The defendants/ appellants produced Ch. Salah-ud-Din, Advocate as D.W.6.
He stated in the examination-in-chief that he had filed the application Exh.D2 on behalf of Ashiq Ali, plaintiff for setting aside ex parte order along with the affidavit Exh.D3. In cross-examination he admitted that Ashiq Ali, plaintiff was not known to him; that the application as well as the affidavit were not written by him; that he never remained the plaintiff's counsel in any other case; that the application was to be filed through some other counsel whose name was scored off and instead his name was inserted therein; that he did not address arguments in the application and was not aware of any order passed thereon; that he did not persue the application because the applicant Ashiq Ali did not come to him. He further admitted that in fact Rafiq Patwari, a relative of Wali Muhammad appellant No,3 had contacted him. The evidence of D.W.6 that Ashiq ' Ali, plaintiff/respondent was neither known to this witness nor he contacted him for filing the application and that the application was brought to him by Rafiq Patwari. The application was filed by some other counsel whose name was deleted and that the name of D.W.6 added therein. D.W.6 never addressed arguments on the application and was not aware of its ultimate result. The institution of this application appears to be an act of clever maneuvering done by Muhammad Rafiq Patwari a relative of Wali Muhammad, appellant No,3 who made an attempt to show that Ashiq Ali, plaintiff was aware of the sale made in favour of Wali Muhammad through the disputed Mutation No,51. The same Patwari is being blamed by the respondent in the matter of misplacement of Pert-Sarkar of Mutation No,51. Even if it is presumed that Ashiq Ali, respondent had filed the application it will not ipso facto show that he was aware of Mutation No,51 in favour of Wali Muhammad and further transfer of land in favour of Irshad Ali and Anwar Ali, the appellants. The controversy in Revenue Appeal No,109 filed by Syed Imdad Hussain pertained to village Jallan and' not Kot Dewan Chand, where the disputed land is situated. There is nothing to show that any order was passed by the appellate authority to implead the present appellants as respondents in Revenue Appeal filed by Syed Imdad Hussain. Apparently they had nothing to do with the land situated in village Jallan as they were purchasers of the disputed land situated in Kot Dewan Chand. Therefore, the plaintiff/respondent No,1 cannot be burdened with knowledge about the disputed mutation No,51 on the basis of the documents Exhs.D2 and D3 and the statement of D.W.6.
10. The main controversy between the parties revolves around Issue No,8 pertaining to legality and validity of Mutation No,51 sanctioned on 19-7-1969. The issue as originally framed embodied the question whether Mutation No,51, registered sale-deed, dated 28-8-1969 and Mutation No,53 were, fictitious, bogus, without authority, mala fide, illegal and ineffective qua the rights of the plaintiff. Its burden of proof was placed on the plaintiff. In the re-cast form, the issue raised the question whether the plaintiff had sold the disputed land in favour of defendant No,1 by way of Mutation No,51 for a consideration of Rs,15,000. In this form the onus to prove was placed on the defendants.
It appears that the parties to the suit as well as the Courts below dealt with Issue No,8 as originally framed. The parties were fully conscious of the real controversy as embodied in the re-cast issue and had led evidence in support of their respective claims. The re-cast issue was inherent in Issue No,8 as originally framed. Therefore, the evidence led by the parties can be safely read qua the re- cast issue. So far as the burden to prove is concerned, it has lost its efficacy because both the parties had full opportunity to produce their evidence in order to prove their respective claims.
They had led the Court to decide Issue No,8 as originally framed and did not press for a decision of the re-cast issue. Therefore, none of the parties can be allowed at this stage to complain that the Courts below did not decide the re-cast issue. The finding of the trial Court to the effect that the plaintiff had failed to give and prove the details of fraud and that he would be deemed to be present at the time when the mutation was attested. In substance it meant that Mutation No,51 was rightly sanctioned in the presence of the plaintiff/vendor. It can be construed as an affirmative finding on the re-cast Issue No,8. Similarly, the finding of the Appellate Court that the plaintiff had never appeared before the Revenue Officer; that he had not appointed Fazal Ahmad as his attorney for sale and attestation of Mutation No,51 and that payment of consideration to the plaintiff was not proved can be treated as a negative finding qua the re-cast Issue No,8. I have taken this view to avoid a remand of the case to the trial Court on a technical ground as in that eventuality the agony of the parties will be prolonged which are locked in litigation since the year 1969: The plaintiff appeared as his own witness and stated that he is the owner of the disputed property; that he never sold the property to Wali Muhammad; that he never received any amount from Wali Muhammad and that he never appeared before the Patwari or Tehsildar for attestation of any mutation. In cross-examination he stated that on papers possession of the land was with appellants. Nos.2 and 3 and that it was cultivated. He denied the suggestion that he had actually sold the land but when its price went high then he wrongly filed the suit. Wali Muhammad appeared as D.W.4 and stated that he had purchased the land from Ashiq Ali plaintiff/respondent through Mutation No,51; that the plaintiff had made a statement before the Revneue. Officer that he had received a sum of Rs,15,000 from him (Wali Muhammad). In cross-examination he stated that bargain of sale of the land was made through Shukar Din broker; that the said broker was still alive; that at the time of payment of Rs,15,000 to Ashiq Ali, plaintiff he as well as Shukar Din broker, Patwari and Naib-Tehsildar were present. He denied the suggestion that the mutation was not attested through the general attorney (of the plaintiff). He added that the plaintiff had himself appeared before the Revenue Officer. The position taken by Wali Muhammad appellant No,3 is belied by the contents of Pert Sarkar of Mutation No,51. It shows that one Fazal Ahmad had appeared as general attorney of the plaintiff. Therefore, the story of personal appearance of the plaintiff and payment of sale consideration to him falls to the ground. It is also significant that neither Shukar Din broker nor Patwari and Naib-Tehsildar were produced by the respondent to prove the sale bargain and payment of the sale consideration to the plaintiff. Therefore, the respondent's claim regarding the sale bargain, the payment of consideration to the plaintiff and his alleged appearance before the Revenue Officer remain unsubstantiated. Wali Muhammad D.W.4 wrongly stated that he had further sold the disputed land after 7/8 months of attestation of Mutation No,51. In fact, the second sale was made by him just after one month and nine days through registered sale-deed, dated 28-8-1969. It may be mentioned that Wali Muhammad had made his statement on 9-3-1983 when Pert Sarkar of Mutation No,51 was not yet found out. Therefore, he had no apprehension of being contradicted by the contents of the document. The Pert Sarkar of the disputed mutation was found somewhere in the year 1986 and brought on the record as Exh.P6 and Exh.P7 in the statement of learned counsel for the appellants as mentioned in the order, dated 9-2-1987. The argument raised by the learned counsel for the respondent that Pert Sarkar of Mutation No,51 was got misplaced by Wali Muhammad who was its beneficiary may or may not be true but the fact remains that the Pert Sarkar gives a complete lie to the stance taken by Wali Muhammad in his statement as D.W.4. The Appellate Court has properly appreciated the evidence on the record and rightly held that the plaintiff had not appeared before the Revenue Officer for the purposes of attestation of Mutation No,51 and that he had not received sale consideration of Rs,15,000 from Wali Muhammad.
Therefore, the findings of the Appellate Court on Issue No,8 are maintained. These findings will hold good for the re-cast Issue No,8.
11. The claim of appellants Nos.1 and 2 that they are bona fide purchasers of the disputed property for valuable consideration cannot be accepted in the circumstances of the case. At the time when they purchased the property only Mutation No,51 existed in the name of Wali Muhammad appellant No,3. The mutation is not a document of title and the purchasers in their own interest should have been careful and verified the factum of sale of the property from the owner/respondent. The Pert Sarkar of Mutation No,51 remained missing for a number of years and was ultimately traced out in the year, 1986. It is not known when Pert Sarkar of Mutation No,51 was lost. If it was not available, at the time when appellants Nos.1 and 2 had purchased the property from Wali Muhammad appellant No,3, this would have raised suspicion in their minds. If it was available then they should have verified whether Fazal Ahmad, the alleged attorney of the vendor/respondent had any general power of attorney in his favour and whether it was available on the record. Moreover, it was evident from the entries made in Pert Sarkar of Mutation No,51 that Wali Muhammad, appellant No,3 had purchased the land for a sum of Rs,15,000 and was again selling it in favour of appellants Nos.1 and 2 for the same price. Ordinarily a person sells his property for a higher price to earn profit.
Appellants Nos.1 and 2 should have thought as to why Wali Muhammad appellant No,3 was out to sell the property in their favour without earning a single penny as profit. When at one stage the case was remanded, statement of Irshad Ali was again recorded by the Trial Court as D.W.8 in respect of Issue No,9-A regarding the bona fide purchase of the property by appellants Nos.1 and 2.
Irshad Ali admitted that he was told by Wali Muhammad that he had earlier purchased the land for the same price of Rs,15,000. He did not ask him from whom and when he had purchased the land.
He did not see any receipt with Wali Muhammad regarding payment of sale price to the previous owner. These facts militate against the claim of appellants Nos.1 and 2 of being bona fide purchasers of the property for valuable consideration without notice of defect in the vendor's title.
Apparently they were guilty of negligence and failed to ascertain the validity of title of Wali Muhammad appellant No,3 before purchasing the property from him. Therefore, findings of the Appellate Court on Issue No,9-A are maintained.
12. For the foregoing discussion, I do not find any merit in this appeal which is dismissed leaving the parties to bear their own costs.