ABDUL RASHID Versus MUHAMMAD HUSSAIN
This second appeal arose out of a suit for possession of suit land measuring 53 Kanals detailed fully in the plaint filed by the appellants‑plaintiffs on the averments that they were owners to the extent of 17 Kanals and 18 Marlas in Khata No.67/162 while they received 7/44 share equivalent to 35 Kanals and 2 Marlas in Khata No.7 min through alienation made by their father Bilawal Din in favour of his sons, daughter and wife vide mutation No.166 dated 29‑4‑1964. It was further averred that the respondents‑defendants got mutation No. 167 showing sale of 53 Kanals of land sanctioned in their favour against a consideration of Rs.18,000 fraudulently and that mutation No.167 was ineffective as against their ownership right as the same was procured fraudulently due to collusion with revenue officials and they had not received any consideration whatsoever. It was also pleaded that the land in dispute remained in their self occupation for two years from the date of the alleged sale and thereafter the suit land was obtained on batai basis for cultivation by the respondents‑defendants but when they were asked to vacate the land they started asserting title over the suit land:
2. The respondents‑defendants contested the suit by controverting the pleas of the appellants‑plaintiffs with the assertions that the appellants‑plaintiffs agreed to sell the land in dispute for Rs.18,000 and after receiving total consideration, they appeared before the Revenue Officer. admitted the receipt of the sale price and got the mutation sanctioned.
2. The learned trial Court framed the issue. "Whether the transaction of sale incorporated in mutation No.167 dated 29‑4‑1964 is fraudulent and without consideration". The appellants‑plaintiffs produced Khan Muhammad Patwari PW3, Muhammad Ismail Lambardar PW5, Farzand Ali Lambardar PW6, Shah Muhammad Lambardar PW7 and Abdul Khalio one of the appellants‑plaintiffs appeared as P.W.8. Copies of rapat roznamcha waqiati dated 10‑4‑1964 EX.P1, mutation No.166 Ex.P2, mutation No.167 Ex.P3 and khasra girdawari from the years 1960 to 1968 (two pages) were also produced. The respondents/ defendants produced jamabandi Ex. D1 and khasra girdawari pertaining to the years 1964 to 1968 Ex. D2. In addition to the documentary evidence the respondents‑defendants also produced Noor Muhammad D.W.1, Muhammad Hussain DW2 and Shah Muhammad DW3 in order to prove the transaction and payment of the consideration. Muhammad Saleem . DW6 stated that the respondents‑defendants had purchased the land in question six years prior thereto; that the land remained with the appellants‑plaintiffs for two years on lease and that the respondents‑defendants took possession of the land after two years of its sale. Muhammad Hussain one of the respondents‑defendants appeared as DW7 to support the version of the defendants. The learned trial Court after hearing the parties decreed the suit vide judgment and decree dated 27‑5‑1971. This decree was challenged by the respondents‑defendants in appeal which was accepted by the learned Additional District Judge Faisalabad vide judgment and decree dated 29‑11‑1971. The suit of the appellants‑plaintiffs was consequently dismissed. This led to the filing of the present second appeal under section 100, C.P.C.
4. I have heard the learned counsel for the parties. The contention of the learned counsel that in second appeal the .findings of fact recorded by the learned Appellate Court cannot be interfered with as the same are based on evidence on record and as n6itiler any misreading nor non‑reading of any material piece of evidence has been Pointe out. This contention is without force., The principles and the conditions laid down by the Supreme Court in the case of Madan Gopal and 4 others v. Maran Bepari and 3 others P L D 1969 SC 617 for interference in second appeal are as follows:
"The legal position does not admit of any doubt that a concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error of defect in the decision of the case upon its merits. Interference would also be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law. If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail. although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different. findings have respectively proceeded. If the finding of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal.
Where, therefore, the first appellate Court reversed the finding of the trial Court and the appellate Court had also discounted a very fundamental piece of evidence, it was held, that the High Court was right in disagreeing with the lower appellate Court and of the first Court."
The appraisal of evidence made by the two Courts below has thus to proceed keeping in view the aforesaid principles.
5. I have gone through the record with the assistance of the learned counsel for the parties. The learned trial Court for holding that neither the transaction of sale nor the passing of the consideration was established gave the following reasons:‑
(i) that in a transaction based on mutation, initial onus to show that the transaction had factually and bona fidely taken place is on the party claiming thereunder. In the instant case much room for doubt was left by the statement of Syed Sajjad Shah DW.5, Tehsildar, the Attesting Officer, as he deposed that the vendors or their identifier Shah Muhammad was not known to him personally and he relied largely on the patwari's affirmation of facts.
(ii) that the conduct of the Patwari who thus assumed extreme importance stood exposed by the fact that in rapat roznamcha he wrote that Ch. Farzand Ali Lambardar came to lodge the report about the sale of land on 10‑4‑1964 but he forgot to write the name of said Lambardar and recorded it as Muhammad Ismail in column of the relevant mutation No.167 Ex.P3. Both Farzand Ali PW6 and Muammad Ismail PW5 repudiated this position and denied having reported any such sale to the patwari.
(iii) that P.W.7 Shah Muhammad, however, affirmed the correctness of the impugned mutation but he could hardly help resiling from this in view of his signature on the said mutation. Still he stated that a sum of Rs.11,000 had not been paid to the appellants‑plaintiffs in his presence.
(iv) that the evidence produced by the respondents‑defendants is self‑contradictory on the point of location and the persons in attendance at the time of alleged payment of earnest money.
(v) that it appears too magnanimous on the part of the respondents‑defendants to believe that they hardly bothered for a receipt of no meagre amount of Rs.7,000 at the time when the appellant‑plaintiffs had not even become owners of major portion of the suit land; that there has been inconsistency about the motive for sale on the part of the appellants‑plaintiffs and that the factum of possession of the suit land is of material consequence.
(vi) that the respondents‑defendants admitted that the appellants/ plaintiffs remained in possession of the land in question after the sale of the land for two years but it was sought to be explained that it was due to the fact that the land was taken for cultivation on batai basis but this explanation stands contradicted by the entries of the khasra girdawari Ex. D2 produced by them.
(vii) that the averment about delivery of possession of the land in dispute in roznamcha waqiati Ex.Pl and mutation Ex.P3 stands contradicted by the admitted factual position that the possession of the land remained even after the alleged sale for two years with the appellants‑plaintiffs. This shows that record was prepared in simple contravention of facts and this serves as an independent evidence showing veracity of plaintiffs contention.
The learned trial Court was further of the view that "the simultaneous attestation of mutation No. 166 the validity of which is undisputed, and mutation No.167 does not take the respondents defendants' case any further. Of course it might have afforded an opportunity to the respondents‑defendants to devise a plan conceived in collaboration with the patwari to a juicy piece of estate without parting with any amount".
6. As against the aforesaid reason,, recorded by the learned trial Court, the learned appellate Court accepted the appeal by giving importance to the following factors:
(a) that the evidence of Sajjad Hussain read with the evidence of Shah Muhammad Lambardar and the patwari proves beyond any manner of doubt that the plaintiffs appeared before the Revenue Officer and made a statement that they had sold the suit land in favour of the defendants. The aforesaid fact stands supported from the possession of the land which remained with the plaintiffs for two years and then the possession was delivered to the defendants. The plaintiffs say that the defendants worked as tenants on the suit land. 'They have not been recorded as tenants but they have been recorded as owners in the revenue record including the jamabandi.
(b) that the transaction took place in April 1964. It was after 5 years of the sale that the plaintiffs brought a suit that they did not make any sale in favour of the defendants. It was not believable that the transaction did not come to light during the period of 5 years.
From the aforesaid facts it was concluded by the learned appellate Court that the plaintiffs had made a sale in favour of the defendants. On the question of consideration by referring to the statements of Noor Muhammad DW1, Muhammad Hussain DW2 Shah Muhammad DW3 and Muhammad Hussain (Defendant) DW7 the learned lower appellate Court observed that the sale price of Rs.18,000 was actually paid. This is in all what weighed with the learned appellate Court.
7. The first thing to be noted is that the learned appellate Court while reversing the judgment of the learned trial Court failed to advert to the reasons on the basis of which the learned trial Court had come to the conclusion that neither the sale transaction nor the payment of the consideration was established. Secondly the learned first appellate Court was wrong in observing that the appellants/ plaintiffs had taken 5 years to challenge the sale. The mutation was attested on 29‑4‑1964. It stands admitted by the respondents defendants that the possession remained with the appellants‑plaintiffs for two years even after attestation of the sale mutation. The explanation given by the respondents‑defendants that the appellants had obtained the land for cultivation on batai basis and their possession was in the capacity of tenants stood contradicted by the entries of khasra girdawari Ex/ D2 produced by them as the appellants‑plaintiffs were shown in possession as owners. The names or possession of the respondents‑defendants came to be recorded for the first time in the khasra girdawari for 1967‑68. The suit was filed on 17‑5‑1969. It will, therefore, be seen that the observation of the learned appellate Court that it was not possible that the transaction had not come to light during the period of 5 years is unwarranted.
8. The case of the respondents‑defendants is based on mutation Ex.P3 and oral evidence of the witnesses produced to establish the sale transaction and payment of sale price The copy of mutation Ex.P3 was relied upon as the presence of the appellants plaintiffs as well as their admissions as regards receipt of sale price and delivery of possession stand recorded therein. The examination of evidence by the learned trial Court proceeded on sound principles and reasons given for not believing the version of the respondents‑defendants are sound and convincing. The factors noted by the learned trial Court are that the mutation was entered on the basis of the report made by Farzand Ali Lambardar in the Roznamcha waqiati EX.P1. None of the appellants‑plaintiffs admittedly appeared to report the alleged sale. The report allegedly made by Farzand Ali Lambardar also stands belied as in the mutation Ex.P3 the name of the person who had reported the sale was mentioned as Muhammad Ismail Lambardar. Muhammad Ismail and Farzand Ali both appearing as P.Ws. stated that they neither made any report of sale to the patwari nor any sale transaction was agreed to by the parties in their presence. Noor Muhammad DWI., Muhammad Hussain DW2 and Shah Muhammad DW3 are the witnesses of transaction and payment of Rs.7,000 as earnest money. Noor Muhammad DW stated that the transaction was agreed in the house of Muhammad Hussain whereas Muhammad Hussain DW2 and Shah Muhammad DW3 deposed that the transaction took place and the earnest money was paid in the baithak of Allah Bakhsh father of Muhammad Hussain. Muhammad Hussain DW is also related to the respondents‑defendants. All of them further stated that the balance of the sale price amounting to Rs.11,000 was agreed to be paid at the time of attestation of the mutation. Muhammad Hussain (defendant) PW7 stated that the balance of the sale consideration was paid in the presence of Shah Muhammad Lambardar PW7 at the time of the attestation of mutation. He added that mutation was attested at the Dera of aforesaid Shah Muhammad Lambardar. This Shah Muhammad appear in or as PW7, however, stated that neither any bargain was agreed upon before him nor any payment was made in his presence. The falsity of the assertion that the balance of consideration amounting to Rs.11,000 was paid at the time of attestation of mutation stands further belied from the fact that neither Muhammad Hussain nor Muhammad Sadiq respondents‑defendants were present at the time of attestation of the mutation. It stands recorded in the copy of mutation Ex.P3 that Allah Bakhsh appeared on behalf of respondents‑defendants. Had Muhammad Hussain respondent‑defendant been present he would have been marked present and not Allah Bakhsh his father. Learned first appellate Court failed to take notice of the aforenoted factors. In fact on the question of payment of balance price amounting to Rs.11,000 there is no evidence except the bald assertion of Muhammad Hussain. The evidence of the witnesses of the respondents‑defendants on the question of payment of earnest money as noted in one of the paras above does not inspire confidence and was therefore not relied upon by the learned trial Court. Learned trial Court was, therefore, perfectly justified in coming to the conclusion that neither transaction of sale nor payment of consideration stood proved on record. The learned first appellate Court was not justified in setting aside the judgment and decree passed by the learned trial Court.
9. For the reasons given above this appeal is accepted, the judgment and decree dated 29‑11‑1971 of the learned Additional District Judge, Faisalabad, is set aside with the result that the judgment and decree of the learned Civil Judge stand restored. The respondents defendants will also pay costs of the appellants‑plaintiffs throughout.
S.Q./A‑246/L Appeal accepted