CH. IJAZ AHMAD, J. -- The brief facts out of which the present revision petition arises are that the original owner of the land in question namely Nazar Muhammad mortgaged his land measuring 82 Kanals in favour of Fazal Hussain and Atta Muhammad through Mutation No. 138 for Rs.8,000/-.
Subsequently allegedly Nazar Muhammad sold the land in question to Fazal Hussain and Atta Muhammad petitioners on 7.10.1974 vide Mutation No. 178. Nazar Muhammad being aggrieved find appeal before the Assistant Commissioner having powers of Collector Wazirabad which was accepted by him vide order dated 6.2.1978. The petitioners being aggrieved find appeal before the Additional Commissioner (Revenue) who dismissed the same vide order dated 22.1 1.1978 with direction that the petitioner should have find a suit before the competent Court. The original owner exchanged the land in question with respondent No. 5 on 26.6.1984 and mutation No. 510 was also sanctioned by the Revenue Officer on 25.7.1984 to this effect. The petitioners being aggrieved find a declaratory suit with permanent injunction and consequential relief against respondents to the effect that respondent/defendant Nazar Hussain was owner of land measuring 82 kanals, 19 marlas situated in Mauza Mardekey Tehsil Wazirabad as per Jamma Bandi for the year 1965/66 who vide mutation No. 138, dated 7.12.1972 mortgaged the land for Rs.8,000/- with the plaintiffs/petitioners. Subsequently, Nazar Hussain entered into agreement to sell the said land against consideration of Rs.40,000/- including mortgage money with the petitioners/plaintiffs and Mutation No. 178, dated 7.10.1974 was sanctioned after receiving Rs.32,000/- and mortgaged land was redeemed vide mutation No. 179, dated 7.10.1974. The plaintiffs/petitioners came into possession of the land. Against said mutation respondent-defendant find an appeal before the Collector which was accepted vide order dated 6.2.1978. The petitioners/plaintiffs find appeal before the Additional Commissioner (Revenue) who advised them to approach the Civil Court.
Thus in the suit order dated 6.2.1978 passed by the Collector Wazirabad was sought to be declared null, void and ineffective against, the petitioners/plaintiffs, who are in possession of the suit land as owners with the prayer that order of Additional Commissioner Lahore Division dated 22.11.1978 and exchange deed dated 26.6.1 984 and mutation No. 510, dated 25.7.1 984 be declared to be without lawful authority. The respondents find written statement and controverted the allegations levelled in the plaint. Out of the pleadings of the parties the Trial Court framed the following issues:-
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the plaintiffs have no cause of action to bring this suit? OPD
(3) Whether the descriptions of suit land is incorrect? If so, its effect? OPD
(4) Whether the plaintiffs are owners in possession of the suit land? OPP
(5) Relief.
The Trial Court dismissed the suit vide judgment and decree dated 5.1.1988. The petitioner being aggrieved find appeal before the Additional District Judge, Gujranwala who dismissed the same vide judgment and decree dated 29.1 1.1990. Hence, the present revision petition.
2. Learned counsel of the petitioners submits that judgments of both the Courts below are result of misreading and non-reading of the evidence on record. He further submits that both the Courts below misread the evidence of Atta Muhammad and did not appreciate the stand taken by Atta Muhammad in his evidence. He further submits that petitioners had alleged that the deceased Nazar Muhammad had earlier mortgaged this property in their favour through mutation No. 138, dated 7.12.1972 for Rs.8,000/'-. They further alleged that they had later purchased it from him vide mutation No. 178, dated 7.10.1974 for a sum of Rs.40,000/- including the mortgage money. He further- submits that original written statement as also the amended written statement reveal that the sale was denied yet no plea was taken in regard to the mortgage. He further submits that in fact it was separate transaction taking place two years earlier than .The sale. He further submits that this Court has ample jurisdiction to reverse the findings of the Courts below, In support of his contention he relied upon Asadullah Khan v. Abdul Karim (2000 SCJ 441). - 3. Learned counsel of the respondents submits that both the Courts below have given concurrent findings of fact against the petitioners therefore, revision petition is liable to be dismissed. In support of his contention he relied upon the following 'judgments:-
(1) Muhammad Arshad v. Muhammad Ismail (1987 SCMR 115);
(2) Khurshid Bibi v. Muhammad Rafique (1987 SCMR 1545);
(3) Muhammad Bakhsh v. Qadir Bakhsh (1 986 SCMR 412).
He further submits that this Court has no jurisdiction to substitute its own findings in place of the findings^of the Courts below while exercising jurisdiction under Section 115, CPC. In support of his contention he relied upon Abdul Rehman Wahla v. Dr. Sher DU Batra (PLD 1986 S.C. 234). He further submits that even if findings of the Courts below are erroneous but both the Courts below have jurisdiction to decide the controversy between the parties, therefore, this Court has no jurisdiction to interfere in the findings arrived by both the Courts below concurrently, In support of his contention he relied upon Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood (1985 CLC 657). He further submits that learned counsel of the petitioner has failed to point out any piece of evidence which was misread or non-read by both the Courts below. He further submits that Atta Muhammad stated in his statement that registered sale-deed wasexecuted between Nazar Muhammad and the petitioners but the sale-deed was not produced in evidence. He further submits that petitioners/plaintiffs failed to produce any witness mentioned in the mutation. Therefore, the petitioners failed to prove that sale was executed between the petitioners and Nazar Muhammad original owner. He further submits that respondents failed to bring on record any receipt to the effect that the petitioners had paid the consideration amount of the land in question to Nazar Muhammad. He further submits that land in question is situated in village Mardeykey whereas the mutation was sanctioned in Village Sangowali. Therefore, the same is in violation of the mandatory provisions of Section 42(8) of the Punjab Land Revenue Act, 1967. He further submits that Lambardar of the Village or respectables of the village were not produced in the witness box. He summed-up. His arguments that- both the Courts below have given concurrent findings of the fact that sale-deed was not executed between the petitioners and Nazar Muhammad original owner. Therefore, the revision petition is liable to be dismissed.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
5. It is admitted fact that petitioners based their claim/title qua the land in question on the basis of the oral sale between the petitioners and original owner Nazar Muhammad through Mutation No. 178, dated 7.10.1974 which was sanctioned by the Revenue Officer after receiving to Rs. 32,000/- by the original owner from the petitioners and the mortgaged land was redeemed vide mutation no. 179, dated 7.10.1974. It is better and appropriate to reproduce salient features to resolve the controversy between the parties:-
(i) Registered sale-deed was not produced;
(ii) Witnesses of the mutation were not produced;
(iii) Receipt with regard to receiving the consideration/price of the land amounting Rs.32,000/- was not produced;
(iv) Revenue Officers/officials were not produced.
It is settled principle of law that any person who is acquiring title through a mutation, the burden of proof of proving transaction embodied-in the mutation is upon him. In arriving to this conclusion I am fortified by the law laid down by the honourable Supreme Court in Hakim Khan's case (1992 SCMR 1832). The honourable Supreme Court also observed in the aforesaid judgment that mutations by themselves do not create title and the persons deriving title thereunder have to prove that the transferor did part with the ownership of the property, the subject of mutation in favour of the transferee and that the mutation was duly entered and attested, It is pertinent to mention here that in the present case except petitioner No. 2 the petitioners failed to produce any witness to prove that the mutation was attested in favour of the petitioners. The relevant observation from the aforesaid judgment of the honourable Supreme Court is also reproduced hereunder:- "Undoubtedly, the provisions of Section 42 of the West Pakistan Land Revenue Act are mandatory inasmuch as the word 'shall1 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 non-compliance 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 be 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 law 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 record upto-date for fiscal purposes of recovery of land revenue and/or not of effecting title in immovable property."
(Underlining is mine)
The aforesaid underline clearly reveals that it is the duty and obligation of the petitioners to prove the contents of the mutation or mutation in terms of the provisions of the Evidence Act or Qanun- e-Shahadat Order i.e. Article 188 of Qanun-e-Shahadat Order, 1984. The aforesaid proposition of law is also supported by the following judgments:-
(1) Muhammad Lehrasib Khan v. Mst. Aqeel-un-Nisa (2001 SCMR 338) + (2001 PSC (Civil) 335);
(2) Muhammad Ishaq v. Ghaffar Khan (2002 SCMR 519);
(3) Muhammad Azam v. Muhammad Yar (1988 CLC 2388);
(4) Arbab Jamshed Ahmad v. Ghazan Khan (1995 CLC 695);
(5) Muhammad Aslam v. Muhammad Tufai! (1995 CLC 1061);
(6) Gharif Shah v. Zarmar Gul (PLD 1 984 S.C. 188);
(7) Nagheshar Bakhsh v. Mst. Genesha (AIR 1920 PC 46);
(8) -Gangabai v. Faqir Gowadda (AIR 1930 PC 93);
(9) Gurunath Radhaswa mi v. Bhimappa (PLD 1948 PC 123);
(10) Mst. Aisha Bibi v. Muhammad and others (PLD 1957 Lah. 371);
(11) Muhammad and others v. Sardul {PLD 1965 Lah. 472).
The ratio of the aforesaid cases is that the entires in mutation are admissible as evidence in a case. These are entitled to weight dependent upon circumstances of each case, It is for the party who relies upon these entires, to prove the admission in consonance with the principles of Evidence Act or Qanun-e- Shahadat Order, 1 984 which are applicable to prove admissions. The initial onus of proof of a transaction embodies in mutation is essentially upon the beneficiary of the mutation, in the present case the petitioners/plaintiffs failed to discharge their initial onus. Both the Courts below have given concurrent finding of fact against the petitioners that petitioners failed to prove with sufficient evidence on record that sale was executed between the petitioners/plaintiffs and respondent No. 5 Nazar Muhammad original owner, coupled with the fact that petitioners/plaintiffs failed to establish that consideration agreed between the petitioners/plaintiffs and Nazar Muhammad were received by the original owner of the land in question. Therefore, ingredients of Section 54 of Transfer of Property Act is not attracted, It is also an established proposition of law that findings of question of fact or of law whosoever erroneous the same may be recorded by a Court of competent jurisdiction cannot be interfered with by the High Court in exercise of its revisional jurisdiction under Section 115, CPC unless such findings suffer from jurisdictional defect, illegality or material irregularity as per principle laid down by the Privy Council in N.S. Venkatagiri Ayyangar v. Hindu Religious Endowment Board (PLD 1949 Privy Council 26). No jurisdictional defect has of course been pointed out and similarly no legal infirmity in the impugned judgments has been alleged.
In view of what has been discussed above, this revision petition has no merit and the same is hereby dismissed.