Shahadat & 2 Other vs Muhammad Mehdi & 5 Other
This matter originated as a civil suit filed in 1989 by the predecessor-in-interest of the petitioners, seeking a declaration of ownership over land measuring 52 kanals and 16 marlas, based on an alleged sale transaction from 1973 and 1974. The defendants contested the claim, asserting the plaintiff was merely a tenant. The Trial Court dismissed the suit, finding no evidence of a sale. Although the Additional District Judge initially decreed the suit in favor of the plaintiff, the High Court, in revision, set aside that judgment, affirming the Trial Court's finding that no sale occurred and that the plaintiff was a tenant. Furthermore, the High Court held the suit was barred by limitation. The Supreme Court examined whether the High Court's findings on facts and limitation were sustainable. The Supreme Court dismissed the petition for leave to appeal, holding that the High Court's factual determination regarding the absence of a sale transaction was conclusive and that the suit filed in 1989 based on 1973-1974 mutations was clearly time-barred. The Court affirmed that precedents regarding the validity of un-attested mutations apply only where the underlying sale transaction is proven genuine.
- Whether a suit for declaration of ownership based on unattested mutations filed years after the alleged transaction is barred by limitation?
- Does the principle that an un-attested mutation does not invalidate a genuine sale apply when the underlying sale transaction itself is not proven?
- Can the Supreme Court interfere with concurrent findings of fact regarding the status of a party as a tenant versus an owner?
KARAMAT NAZIR BHANDARI, J.- In the year 1989, Inayat s/o Bukhtawar, predecessor-in-interest of the petitioners filed a suit claiming declaration of ownership of the land measuring about 52 kanals and 16 marlas (hereinafter to be referred to as "the suit land) which he asserted to have purchased form one Shabhir Hussain for a sum of Rs.20,000/-. According to the plaint, mutations to this effect were entered but rejected in the years 1973 and 1974. It is stated in plaint that another mutation Ex.
P.2 was entered by the Patwari but was not put-up for attestation by the revenue officer, It was also prayed in the suit that the Patwari be restrained from showing the plaintiff as tenant in the Khasra Girdawaries. The suit was contested by denying the claim to sell, It was asserted that Inayat was a tenant and was rightly being shown in the revenue record, as such. The Trial Court after recording the evidence and considering the same, dismissed the suit on 20.4.1994. Plaintiff's appeal before the Additional District Judge, Sheikhupura was accepted vide judgment dated 14.9.1995 and the suit was decreed. On revision by the respondents- defendants, the appellate judgment and decree was set aside and that of the Trial Court restored.
2. A finding of fact has been recorded by the High Court that there was no sale in favour of the petitioners and that Inayat was rightly shown as a tenant. The High Court also concluded that the suit was filed in the year 1989 on the basis of so-called sale mutation No. 123, dated 1.7.1973 and mutation No. 128, dated 16.3.1974 and therefore, was barred by time.
3. In order to impeach the finding of the High Court, learned counsel for the petitioners has relied upon the cases of Ch. Hakim Ali v. Sultan Khan and 3 others (2001 L.N. (Lah) 769), Muhammad Ishaq and 2 others v. Ghafoor Khan and another (2000 PSCC (Pak) 567) and Muhammad Subhan and others v. Mir Qadam Khan and others (2001 M.L.D. 1716).
4. The judgments relied upon do not help the petitioners as these proceed on their on facts, In the case of Ch. Hakim Ali (supra) learned Single Bench of the Lahore High Court has held that:- "Where whole of consideration amount was paid to the vendor and possession was also handed over to the vendee the sale was completed and merely because the promised mutation was not entered and attested, the same did not dilute its effect as a sale".
In the case before us the crucial finding on disputed facts are against the petitioners. The High Court has held that the petitioners were occupying the land as a tenant and that there was no sale, In the case of Muhammad ishaq and 2 others (supra) this Court held that:- "Once the authenticity and genuineness of the sale transaction was established then mere irregularity in the procedure regarding attestation of mutation would not affect the binding effect of the mutation."
The principle is not applicable in the case in hand, as the Trial Court as well as the High Court has not believed the alleged transaction of sale.
5. Notwithstanding above, the High Court is also correct in holding that the suit brought in the year 1989 on the basis of unattested mutations dated 1.7.1973 and 16.3.1974 is clearly barred by time.
During the course of his submissions, learned counsel has not been able to show that the above conclusion is in any manner illegal. The impugned judgment does not call for any interference.
6. Consequently, leave is declined and this petition is hereby dismissed.