MUHAMMAD IQBAL and another vs MUKHTAR AHMAD through L.Rs,

' SARDAR MUHAMMAD RAZA KHAN, J.--- Muhammad Iqbal son of Mst. Kalsoom, the daughter of Rehmat Ali have filed this appeal, after leave of Court, against the judgment, dated 19-6-1997 of a learned Judge in Chambers of Lahore High Court whereby the appellants were non-suited and the concurrent findings of two Courts below in favour of the appellants were set aside.

2. The property in dispute measuring 300 Kanals is situated in village Chaddar, Tebsil Nankana Sahib, District Sheikhupura. It admittedly belonged to one Rehmat Ali son of Kamala. Through Mutation No,5 attested on 10-1-1970, the property aforesaid is shown to have been sold by Rehmat Ali in favour of Mukhtar Ahmed for a sum of Rs,15,000. Mst. Siddiqan, the widow, along with her two minor sons and a minor daughter brought a suit challenging the validity of the mutation aforesaid and denying the existence of sale by Rehmat Ali in favour of Mukhtar Ahmed. The suit was decreed after contest, by the trial Court as well as by the First Appellate Court. The concurrent findings were set aside by the High Court and hence this appeal.

3. Pointing to the mala fide of Mukhtar Ahmed, the plaintiffs had referred to a previous Mutation No,97 which was similarly entered in favour of Mukhtar and another Faiz Muhammad; the latter being the brother of Mehr Muhammad Khan, the General Attorney of Rehmat Ali. That mutation fortunately got rejected on the technical ground of the implications of Martial Law Regulation No,64. Rehmat Ali having had come to know about such entry and rejection of Mutation No,97 cancelled the power of attorney in favour of Mehr Muhammad Khan. According to the plaintiffs, Mukhtar Ahmed having failed in his first attempt had got the impugned mutation entered and attested fraudulently and fictitiously in the absence of Rehmat Ali owner.

4. Learned counsel for the appellants/plaintiffs vehemently assailed the judgment of the High Court on the ground that the concurrent findings of fact given by the two Courts below should not have been set aside with that much of convenience, more particularly, when the findings of the two Courts below were perfectly in accordance with record, neither perverse nor capricious.

5. The two Courts below were also of the view that one Khan Muhammad Lumberdar, the identifying witness was not present at the time of attestation and also that he belonged to another village Thatta whereas the property in dispute is situated in village Chaddar. The learned High Court did not agree with such finding of fact. We are to see as to whether the two Courts below had at all entered into misreading or non-reading of evidence and whether the conclusion drawn was so perverse that it required to be interfered with in the second appeal.

6. Before entering into appreciation of evidence, we may recall that this Court on numerous occasions has categorically held that the mutation proceedings are not judicial proceedings and mutations do not at all happen to confer title. That, therefore, whenever the genuineness of any such mutation is challenged, the burden squarely lies on the parties relying upon the mutation, to prove the actual transaction. Hakim Khan v. Nazeer Ahmed Lughmani 1992 SCM R 1832 can be referred to in this behalf. This Court in a recent judgment rendered in Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688 has categorically declared that mutation confers no title and once a mutation is challenged, the party relying thereon is bound to revert to the original transaction and to prove such original transaction which resulted into the entry of attestation of any such mutation.

7. Keeping in view this settled principle of law, we would now revert to the evidence on record to see as to how far Mukhtar Ahmed defendant has discharged his burden. The only witness produced by the defendant was Khan Muhammad Lumberdar. It is admitted by the Lumberdar that he belonged to Thatta whereas the property in dispute is undisputedly situated in village Chaddar.

This fact by itself was sufficient for the Courts to hold that the attestation was violative of section 42 of Land Revenue Act, 1967. This aspect has also been dealt with by this Court in Muhammad Akram's case (supra), holding that a Lumberdar in such cases must belonged to the same village in 'which the property is located. Even the association of Lumberdar belonging to the same Patwar Circle was not accepted to be genuine.

8. The most interesting aspect of the case is that Khan Muhammad, Lumberdar not only did not belong to village Chaddar but he is altogether ignorant of even the place of attestation of the mutation. He had categorically stated in the witness box that "(sic)", whereas, mutation No,5 Exh.D.1 was allegedly put up in the open meeting at village Chaddar which had no relevance at all to the Dera of Khan Lumberdar in village Thatta. Lumberdar has blatantly refuted his own role and his presence at the time of attestation. There is another witness by the name of Mubarak Ali Shah, Member Union Council, said to have been present at the time of attestation but the same was not produced by the defendant.

9. Such were the circumstances when the two Courts below came to the conclusion that they arrived at and rightly so. This perfectly sound conclusion should not have been interfered with by the High Court in the exercise of its second appellate jurisdiction. This also has been deprecated by a Full Bench of this Court in Karamat Ali v. Muhammad Yunus Haji PLD 1963 SC 191.

10. The attestation of the mutation having totally been disproved, we are to revert to the original transaction of sale independent of the entry or attestation of mutation. As already held by this Court that in case where a mutation is challenged, the beneficiary has to fall back upon and prove the original transaction, we would be looking for the proof furnished to that effect. What to talk of proving the original transaction about which not a single witness is examined by the respondent, even the amount of consideration of Rs,15,000 is not proved to have been paid and the same is admitted by the learned counsel.

11. In the wake of the evidence on record and the circumstances of the present case, the two Courts below were perfectly justified in granting the decree in favour of the widow and minor children of Rehmat Ali. The learned High Court should have avoided interference in the concurrent and correct finding of fact resorted to by the lower Courts.

12. Consequently, the appeal is accepted, the impugned judgment and decree, dated 19-6-1997 of the learned High Court is set aside while the judgments and decrees of the trial Court, dated 4-3- 1976 and of the First Appellate Court, dated 23-5-1977, are restored.