On 1-9-1976 the respondents filed a suit against the appellants. In the plaint it was stated that the suit-land was sold to the respondents by the appellants vide Mutation No.123 attested on 24-2-1973 and that they are continuing in possession under the said sale; that later on the land came to be resumed by the Central Government vide Mutation No.48 attested on 8-7-1976. Thereafter, the appellants proceeded -to purchase the said land from the Central Government and Mutation No.49 was attested on the same date. According to the plaint the result of said events was that the sale made on 24-2-1973 in favour of the respondents stood restored; that on the basis of said Mutations Nos.48 and 49 the appellants are denying their title. With these averments a declaration was sought that the respondents are owners in possession of the suit-land. The appellants in their written statement asserted that they are in possession of the suit-land that had been purchased by them from the Central Government under orders of Additional Settlement Commissioner (L) dated 24-5-1976. They denied that they had even sold the land to the respondents and described Mutation No.123 as fictitious and forged proceedings. It was further explained that the total land measuring 1060 Kanals, 19 Marlas which was evacuee property stood allotted which allotment was cancelled and, thereafter, under the terms settled by the Government the land was purchased by the appellants. Following issues were framed by the learned trial Court:--
(1) Whether defendants Nos.1 to 13 sold out the land in suit in favour of the plaintiffs through Mutation No. 123, dated 24-2-1974?
(2) If issue No. 1 is proved in the affirmative, whether that mutation is fictitious, without consideration, is result of fraud, forgery, collusion and misrepresentation?
(3) What is the effect of order of Additional Settlement Commissioner, dated 24-5-1976 and Mutations Nos.48 and 49, dated 8-7-1976 on the rights of the plaintiffs?
(4) Whether the plaintiffs are owners in possession of the land in suit?
(5) Whether Civil Court has no jurisdiction to entertain and try this suit?
(6) Whether the suit is bad for the non joinder of necessary parties?
(7) Whether the suit is maintainable in the present form?
(8) Whether the plaintiffs are estopped by their conduct to bring the suit?
(9) Whether the plaintiffs have locus standi and cause of action?
(10) Whether the suit-land is incorrectly described? If so, what is the correct description and with what effect?
11. Relief.
Evidence of the parties was recorded. The suit was dismissed by the learned trial Court vide judgment and decree dated 10-7-1979. Feeling aggrieved the respondents filed a first appeal which was heard by a learned Additional District Judge, Khushab who allowed the same and decreed the suit on 24-4-1989.
2. Ch. Mushtaq Masood, learned counsel for the appellants contends that the learned Additional District Judge has proceeded to misread the evidence on record. According to the learned counsel there is no proof of a valid sale by the appellants in favour of the respondents while in the second even if it was to be assumed that Mutation No. 123 dated 24-2-1973 is valid, the respondents could not have been declared to be the owners of the land by virtue of section 43 of the Transfer of Property Act, 1882. Raja Mehmood Akhtar, Advocate for the respondents, on the other hand, contends that a valid sale had been proved in favour of the respondents and that question of applicability of the said section 43 has also been correctly decided by the learned Additional District Judge.
3. I have gone through the trial Court's record, with the assistance of the-learned counsel for the parties. The burden to prove the valid sale and consequently the said Mutation No. 123 dated 24-2- 1973 was upon the respondents. A copy of the said mutation is on record as Exh. P.1. According to the entries in this document the mutation was entered on 10-2-1973. It was taken up by the Revenue Officer on 24-2-1973. The respondents are stated to have been identified before the Revenue Officer by Muhammad Hayat Lumbardar and Ghaus Muhammad and A.I Muhammad Pattidars. In order to prove the said Issue No. 1 the respondents have produced the said A.I Muhammad, Pattidar as P.W. 1 and Ghaus Muhammad as P.W.2. Now whereas the said A.I Muhammad, P.W. 1 admits to be the brother of respondents Nos. 23 and 24 and further admits that respondent No. 1 is the brother of his wife and respondent No.9 is his " SAMDHI ": the said Ghaus Muhammad, P.W. 2 admits to be the brother of respondents Nos.20, 21 and 22 while Ghulam Rasool deceased plaintiff is his son-in-law, respondent No. 11 is married to his sister and so is respondent No. 1. In the case of Muhammad and others v. Sardul (PLD 1965 Lahore 472) this Court has laid down requirements of proof where a party comes to the Court relying upon a mutation. It has been laid down that the Patwari who had entered the mutation had to be summoned with the original record of proceedings, the Revenue Officer as also the Lumbardar and other witnesses identifying the transferors are also to be produced. To similar effect is the view expressed by the High Court of Peshawar in the case of Mst. Bibi Mukhtar v. Mst. Amreian and another (PLD 1968 Peshawar 169).
Upon an examination of the said evidence on record I find that the evidence hardly meets the criteria laid down in the said judgment. Neither the original record of mutation was produced nor was the Patwari and there is no explanation whatsoever forthcoming as to why Muhammad Hayat Lumberdar had not been produced. Of course, the Revenue Officer had also not been produced.
Confronted with this situation Mehmood Akhtar Raja; Advocate urges that the oral evidence be ignored and that the documents be looked into. According to the learned counsel the mutation Exh.P.1 stood incorporated in Jamabandi Exh. P.4. The precise contention is that since the mutation stands incorporated in the Revenue Record which enjoys presumption of correctness it shall be presumed that the sale was made and that the mutation was validly attested. I am afraid it is not possible to accept the said contention of the learned counsel. It is true that unlike the said judgment of the learned High Court, Peshawar there is a reference in the said judgment of this Court to a mutation "not" incorporated in the Revenue Record. However, the superior Courts had been consistently of the view that a party who relies solely on a mutation runs a grave risk. The matters have since been brought home by the Supreme Court of Pakistan in the case of Abdul Majeed and others v. Muhammad Subhan and 2 others (1999 SCMR 1245) wherein it has been clearly laid down that even if a mutation stands incorporated in the revenue record, in case of a dispute, a person seeking benefit under the same, shall not be absolved of his duty to prove the transaction. I, therefore, do find that the learned Additional District Judge has proceeded to grossly misread the evidence and to act in oblivion of law while relying solely on the mutation itself to undo the findings recorded by the learned trial Court which I find to be based on proper reading of the evidence-on-record. Consequently, I reverse the findings of the learned Additional District Judge on Issue No. 1 and restore that of the learned trial Court.
4. Now coming to the said question of law that arises in this R.S.A. As to the applicability of section 43 of Transfer of Property Act, 1882. For the purposes of discussion to follow it will be assumed that the land was validly sold to the respondents by the appellants. The said provision of law embodies the equitable principles of "feeding the estoppel". The provision is attracted where on a fraudulent or erroneous representation that a person is authorised to transfer certain immovable property, he proceeds to transfer the same for consideration then till such time that the contract of transfer subsists the said transfer at the option of the transferee operates on any interest which the transferor may acquire in any such property sold on fraudulent or erroneous representation of the transferor. In the present case there is not even a slight allegation that at the time when the sale was allegedly made by mutation Exh. P.1. By the respondents they had made any fraudulent or erroneous representation that they are authorised to sell the land. On the other hand, the factual background as can be gleaned from the documents available on record particularly the order dated 24-5-1976 of the Additional Settlement Commissioner (L); Jauharabad (Exh/D.10) is that one Yasin was allotted the suit-land. He proceeded to sell the same to Jhanda Khan and others mentioned in the plaint (Exh. D.9). This sale was made by means of Mutation No.355 attested on 7- 7-1966. The appellants as also the respondents filed pre-emption suits. The plaint in the suit filed by the respondents was rejected vide order Exh. D.7. The suit filed by the appellants was dismissed on its merits by the learned trial Court on 24-11-1971 but their appeal was allowed by a learned Additional District Judge, Sargodha who passed a decree in their favour on payment of Rs. 34,000 on 30-6-1975. The amount was deposited and the decree was put into execution and possession was delivered vide report Exh.D.8. It appears that an inquiry had been initiated in the matter of said original allotment in favour of Yasin which ultimately was sent to the said officer on 18-12-1975. The appellants put in appearance and defended their title. The plea taken on their behalf was that they were bona fide purchasers. This plea found favour with the said officer who although concluded that Yasin had committed fraud and the allotment was illegal and proceeded to cancel the same, yet allowed the request of the appellants to purchase the land on the prescribed terms vide order dated 24-5-1976. As stated by me earlier the said mutation came to be entered on 10-2-1973. It will have to be assumed that the transfer was made at a point of time before the said date. There was thus, no question of any fraudulent or erroneous representation being made by the appellants.
Besides because of the fact that the respondents themselves were being to get the land through pre-emption, they also must have been satisfied of a valid title of the appellants on the basis of the Court decree whereunder the amount had been deposited by the appellants. Thus, the very first condition of the said C section 43 does not exist in the present case. The Supreme Court in the case of Suba through his 8 L.Rs. v. Mst. Fatima Bibi through her L.Rs. And others (1992 SCMR 1721) has laid down that in order to attract the said equitable principle it must be shown that a fraudulent or erroneous representation was made by the transferor.
5. Learned counsel for the respondents with reference to case of Ziauddin Rafi v. Muhammad Khan and others (PLD 1962 Lahore 321) argues that such a transferor if he acquires interest subsequently is bound to transfer the land to the transferee. To my mind nothing turns on the said contention. In the instant case the so-called contract ceased to subsist upon the resumption of land by the Central Government and there is no question of operation of a non-subsisting contract on a so- called subsequent interest. In my humble opinion, therefore, the said section 43 has no application to the facts of the present case notwithstanding the findings one way or the other on Issue No. 1.
The learned counsel then proceeded to argue with reference to Khasra Girdawari that his clients are recorded to be in possession of suit land. Again nothing turns on the said Girdawaris. A perusal of Exh. P.5 would reveal that the names of respondents came to be entered in the Girdawaris on the basis of said mutation. As found above there is no valid transfer and no valid mutation in favour of the respondents. The Revenue Authorities, therefore, acted unlawfully in changing the entries on the basis of the said mutation. It is trite law that old entries are to continue till such time that new entries are made lawfully. Otherwise it shall be deemed that the old entries are continuing.
Reference be made to the case of Misri through his Legal Heirs and others v. Muhammad Sharif and others (1997 SCMR 338).
6. For all that has been discussed above, this R.S.A. Is allowed. The judgment and decree dated 24- 4-1989 passed by the learned Additional E District Judge, Khushab is set aside while that dated 10- 7-1979 passed by the learned trial Court dismissing the suit of the respondents is restored with costs.