' This judgment proposes to decide two civil revisions one filed by Noor Muhammad, petitioner (Civil Revision No,1730 of 1998) and the other by Mst. Ayesha and others respondents (Civil Revision No,2035 of 1998), challenging the judgments and decrees dated 31-7-1997 and 30-9-1998 passed by the learned Civil Judge and the learned Additional District Judge, Hafizabad, respectively which arise out of one judgment and are between the same parties.
2. A short factual background of the case is that Mst. Ayesha Bibi and others-respondents filed a suit for declaration against Noor Muhammad-petitioner challenging Mutation No, 65 dated 24-2- 1992, showing sale on behalf of Mst. Aysha etc to be fake, fraudulent, fictitious and result of misrepresentation thus, inoperative qua their rights. Mst. Ayesha Bibi etc. Pleaded in their plaint that land measuring 49 Kanals and 13 Marlas, detailed in their plaint, was owned by their predecessor, on whose death they inherited it and Mutation No,63 was sanctioned on 24-2-1991. They also asserted that Noor Muhammad-petitioner being a clever and cunning man, under the cover of sanctioning of inheritance mutation, got another Mutation No,65 dated 24-2-1991 of sale sanctioned in his favour through fraud and misrepresentation. According to them no bargain of sale was struck between the parties, no price was received by them and possession of the land was not delivered to Noor Muhammad petitioner under the alleged sale, as such, Mutation No,65 is fake and fictitious. Respondents/plaintiffs also claimed that photograph of Mst. Aysha Bibi was wrongly affixed on the sale mutation whereas, she did not appear before the Assistant Collector, at the time of sanctioning of mutation and that Mst. Sughran Bibi was minor at the time of sanctioning of mutation but has been shown as major.
3. Noor Muhammad petitioner being defendant in the suit denied assertions of the respondents in their plaint and raised certain preliminary objections in his written statement, regarding non- maintainability of the stiit on account of the fact that respondents/plaintiffs were not in possession of the land. He urged that the sale in his favour was initially reported to the Patwari, who incorporated it in "Rozenamcha" and thereafter the respondents appeared before the Revenue Officer for attestation of mutation, thus the same was sanctioned with their own free will.
Controversial pleadings of the parties necessitated framing of issues and recording of evidence, on the basis of which the trial Court on 31-7-1997 dismissed the suit of the respondents, through judgment and decree, of the even date.
4. Respondents being aggrieved of the decision of the trial Court dated 31-7-1997 filed an appeal before the learned Additional District Judge, Hafizabad where they succeeded to have mutation annulled to the extent of Mst. Sughran Bibi who was claimed to be a minor at the time of sanctioning of mutation whereas with regard to other respondents/plaintiffs, their appeal was dismissed, vide judgment and decree dated 30-9-1998. Noor Muhammad, petitioner is aggrieved of the annulment of his mutation to the extent of Mst. Sughran Bibi, whereas Mst. Aysha Bibi and others-respondents are aggrieved of the dismissal of their remaining appeal and hence, both to them have challenged the decision of the learned Additional District Judge given through judgment and decree dated 30-9-1998, by filing two separate revision petitions, as noted above.
5. The learned counsel for the petitioner (Noor Muhammad) has filed an application under Order XLI, rule (27) of the C.P.C. Seeking permission for producing in additional evidence three documents i.e, (i) Nikah Nama of Mst. Sughran Bibi (ii) School Leaving Certificate of Mst. Sughra Bibi daughter of Mst. Nadia Bibi and (iii) Birth Certificate of Azhar Ali son of Mst. Sughran Bibi. All these three documents are not relevant to the controversy involved in the case i.e, age of Mst. Sughran Bibi at the time of attestation of mutation, and her Nikah Nama simply shows that she was married on 30- 7-1984 at the age of 18 years. No doubt according to this Nikah Nama she was major at the time of attestation of mutation but it is customary in our society that girls are married at young age and their ages are shown in the Nikah Nama, only to show them that they have attained the age of majority. Likewise birth certificate of her daughter and son cannot be based for determination of age of Mst. Sughran Bibi simply on the ground that a girl given in marriage at early age may give birth to her child, without herself attaining the age of majority. Noor Muhammad-petitioner had full opportunity of defending the suit of the respondents and had led evidence of his choice before the trial Court. These documents were in existence at that time and there is no explanation that why these documents were not produced during the trial or such an effort why was not made before the trial Court or the Appellate Court. This application has been filed at the time of final hearing of the revision petition and for the reasons noted above I am not ready to grant them permission to produce documents and to re-open the case for other two decades. I accordingly dismissed this application.
6. Noor Muhammad, petitioner submits that sale by the respondents was proved and Mst. Sughran Bibi has thumb-marked it who was accompanied by her mother, and consent of a natural guardian would mature defect if any, in the sale. He also submits that respondents filed a suit in hand after three years of attestation of mutation and in spite of the fact that Noor Muhammad, petitioner had taken over the possession of the land, shows that respondents acquiesced to the sale in his favour, on their part. According to his submissions respondents-plaintiffs were not in possession of the suit-land, as such, without arguing relief for possession, simple the suit for declaration was not maintainable. He further elaborates his arguments by saying that except Mst.
Sughran Bibi, findings of the two Courts below are concurrent and cannot be disturbed in revisional jurisdiction of this Court. He prayed for acceptance of his revision petition and for setting aside of judgment and decree of the learned Appellate Court to the extent of Mst. Sughran Bibi as well.
7. Conversely, the learned counsel for the respondents (Mst. Ayesha Bibi etc.) refuted the submissions of the petitioner, and supported the part of the decree in favour of Mst. Sughran Bibi passed by the Appellate Court and urged that the respondents never entered into any transaction of sale and they did not receive any sale price and possession under it, was not delivered by them.
Mere sanctioning of mutation does not confer any title to Noor Muhammad. According to the learned counsel for the respondents mutation is not a document of title and the petitioner was required under law to prove independent of it the transaction of sale with regard thereto. The learned counsel for the respondents further elaborated his arguments by saying that both the mutations were sanctioned on one day which supports the assertions of the respondents that their thumb-impressions were obtained on the pretext of sanctioning of their inheritance mutation.
According to him respondents are illiterate and Parda observing ladies and minors who are protected under law and the petitioner being beneficiary of the mutation was required to prove good conscience of the transaction but file is lacking of its proof.
8.. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record. Respondents had denied the sale transaction and attestation of mutation of sale. Whereafter onus shifted on the beneficiary of the mutation, to prove not only the mutation but also the transaction itself. Petitioner produced D.W.1, Falak Sher, who produced original Mutation No,65 dated 24-2-1991. D.W.2 was produced to show that mutation was entered by him and at the time of entering the mutation vendors had appeared before him. This witness also stated that they thumb-marked the mutation, in his presence, D.W.3 is Noor Muhammad, petitioner himself, who stated that he purchased the land of the respondents for an amount of Rs,1,50,000 out of which he paid Rs,10,000 as earnest money and the rest of the amount was paid by him after five days of the bargain, in the presence of the witnesses. He also stated that mutation in question was attested on the statement of the respondents. This is the entire evidence by the petitioner-plaintiff to prove the transaction of sale and the mutation. D.W.2, who is the only witness in support of petitioner's case, besides the statement of the petitioner himself, has not uttered a word regarding the payment of any part of consideration in his presence. He simply stated that the vendor admitted receipt of sale consideration of Rs,1,50,000. D.W.3, Noor Muhammad, petitioner had stated that the sale consideration was paid in two parts, one as earnest money of Rs,10,000 and the other Rs,1,40,000 after five days of the bargain in the presence of the witnesses which were nor named by him and none of them has been produced to prove payment. In this case neither the bargain/transaction of sale is proved nor passing of sale consideration to the respondents is shown to have been made besides it there is no proof that respondents ever delivered the possession of the land to the petitioner, under the alleged sale. Sanctioning of sale mutation on the day when inheritance mutation was attested in favour of the respondent, goes a long way to show that it was done in the manner claimed by the respondents claimed vendors, are illiterate villagers including Parda observing lady and minors, under law they are protected and petitioner was needed to prove good conscience of the transaction and the fact that the ladies were provided independent advice before their statements on the mutation, if any. Vendee was also required to prove that such vendors were made to understand the transaction but file is thirsty of proof of all these facts, in absence of which sale mutation cannot be held to be lawfully sanctioned, transferring any lawful title to the petitioner-Noor Muhammad. My this view is supported by a chain of judgments reported in the cases of Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Irshad Hussain v. Ijaz Hussain and 9 others PLD 1994 SC 326 and Baggu v. Mst. Roshan Bibi 1996 M LD 377.
9. Mutation itself as noted above is not proved because the petitioner did not produce any of its witnesses. The persons who identified the respondents before the Revenue Officer at the time of sanctioning of the mutation who himself has also not been produced. Mutation is repeatedly held be not a document of title and is sanctioned only for fiscal purposes thus statement of D.Ws.2 and 3 are of no help to the petitioner. In this behalf. a reference can he made to the case of Muhammad Bakhsh v. Zia Ullah and others 1983 SCM R 988; Mst. Tahira Begum v. Federal Land Commission, Islamabad and 5 others 1983 CLC 663; Government of Pakistan v. Maulvi Ahmad Saeed 1983 CLC 414 and 1986 CLC 545. As regards maintainability of suit for simple declaration by the respondents who according to petitioner, were not in possession of the land. Their suit, as it stands is in form of a suit under section 39 of the Specific Relief Act and in such-like suit, plaintiff being, if at all, out of possession, can file a suit for mere declaration. Section 39 of Specific Relief Act does create restrictions like contained its section 42 that a plaintiff being entitled to seek other relief i.e, of possession, cannot file suit for simple declaration. Though respondents have asserted their possession over the land in dispute but without entering into this controversy, I hold that their suit, as filed by them is maintainable, under law. The petitioner being beneficiary of the mutation was to prove all these things as above mentioned but he failed and in these circumstances his suit could not have been decreed but both the Courts below have not adverted to these aspects of the case and their judgments run counter to the file, hence are not maintainable: Gross misreading of the evidence and misapplication of law is apparent on the face of the judgments and thus, those being tainted with material irregularity and illegality, are hereby set aside. Revision petition filed by Noor Muhammad, petitioner (Civil Revision No,1730 of 1998) is hereby dismissed and (Civil Revision No,2035 of 1998) filed by Mst. Aysha Bibi and others is accepted and their suit is decreed as prayed.
There will be no order as to costs.