On 2-10-1979 Muhammad Din deceased plaintiff filed a suit against the respondents. According to the plaint, he was the owner of the suit-land but the respondents got a Mutation No.6127 attested on 10-8-1967 purporting to be the sale of the land by the deceased plaintiff in favour of the defendants. It was stated that the land was never sold and the mutation was never got attested. It was further averred that on 23-2-1977 when the said mutation came to the knowledge of the deceased plaintiff, he filed an application before the Collector who conducted an inquiry and it was found that the mutation is illegal and void being result of fraud. However, an appeal was allowed by the Commissioner on 12-9-1979 on the ground that the application before the Collector was barred by time. It was stated that the plaintiffs are continuing in possession as owners. Now the respondents in the written statement categorically stated that they have validly purchased the land from Muhammad Din who had received the consideration amount of Rs.9,000 and had filed an application in writing before the Revenue Officer to get his statement recorded on 27-7-1967.
Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the quit on (sic)-11-1995. A first appeal filed by the petitioners was dismissed by the learned ADJ, Attock, on 3-10-1998.
' Mrs. Zahida Ameen, learned counsel for the petitioners, contends that the learned Courts below have acted without lawful authority inasmuch as they accepted the copy of the mutation as the evidence of the sale of the suit-land by the deceased plaintiff in favour of the defendants as alleged by the latter. She further contends that the impugned judgments are violative of the law laid down by this Court in the case of Muhammad and others v. Sardul (PLD 1965 Lahore 472). Learned counsel for the respondents, on the other hand, contends that the copy of the mutation has been validly relied upon by the learned Courts below inasmuch as it was incorporated in the Revenue Records.
3. I have gone through the copies of the records. It will be seen that the deceased plaintiff had denied having made any sale or having got any mutation attested. The defendants have taken the plea that there is a valid sale and a valid mutation in their favour. It is obviously for them to prove a valid transaction. Now so far as the said contention of the learned counsel for the respondents (and also of the learned Courts below) that since the mutation was incorporated in the Revenue Records it became an evidence of title,. I may here refer to the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245) where the Hon'ble Supreme Court of Pakistan has taken a different view and which, of course, is the consistent view of the superior judiciary of this country. Now on the record neither the original mutation was produced, nor Revenue Officer who attested the mutation was produced. Even Lambdardar who allegedly identified Muhammad Din was not produced. There is no evidence of payment of consideration. It is thus a case of no evidence. However, I do find that it was pointed out in time to the learned Court of first appeal that the matter be remanded as the burden is upon the defendants to enable them to lead evidence. In this view of the matter, I allow this civil revision, set aside the impugned judgments and decrees of both the learned Courts below. The result would be that the suit filed by the petitioners would be deemed to be pending before the learned Senior Civil Judge, Attock, in whose Court the parties shall appear on 9-12-2003. The learned Senior Civil Judge shall give an opportunity to the defendants in the case to prove the alleged sale made in their favour by Muhammad Din deceased plaintiff as also the said mutation impugned in the suit. Thereafter the evidence of the petitioner shall be recorded and the question as to whether the deceased plaintiff validly sold the suit-land to the defendants and the case shall be decided. No orders as to costs.
4. A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Attock. accordingly.