KARAM SHAH Versus GHULAM FATIMA

The land in dispute measuring 4 Kanals and 13 Marlas, a part of Khasra No.3938, situated in Mauza Moorat, Tehsil Fateh Jang, District Attock was sold by Fida Hussain etc. in favour of respondents Nos.2 to 4 through mutation No.2275 attested on 12‑6‑1970 for a sum of Rs.900.‑ The said vendees subsequently sold the said land in favour of respondent No.l in recognition of her superior right of pre‑emption through mutation No.2295 entered on 10‑6‑1971 and sanctioned on 24‑6‑1971. The petitioner filed a suit for possession of the said land through pre‑emption. It was resisted by the respondents. The learned trial Court framed the following issues:‑---

(1) Whether defendants Nos.l to 3 have sold the suit land to defendant No.4? If so when and with what effect? OPD

(2) Whether the plaintiff has superior pre‑emptive right to that of the defendants? OP.

(3) Whether the sum of Rs.900 was actually paid?

(4) Whether the suit has been correctly valued? OP.

(5) Relief.

The learned Civil Judge, Campbellpur (Attock) decided the crucial issues in favour of the petitioner and decreed the suit of the petitioner on payment of Rs.900 vide judgment dated 16‑4‑1975. Respondent No.l filed an appeal which was accepted by the learned District Judge, Campbellpur (Attock) vide judgment dated 5‑6‑1975 and the suit of the petitioner was dismissed. This revision petition has been filed to challenge the said appellate judgment and decree. I have perused the record and have heard the learned counsel for the parties.

2. The findings of the learned appellate Court on issue No.l only have been challenged before me and that too on the point as to whether the sale in favour of respondent No.l by respondents Nos.2 to 4 was made within limitation i.e. within one year from 12‑6‑1970, the date on which the original mutation No.2275 Exh. P.3 was sanctioned. The respondents have relied on two documents in this respect. One is the agreement of sale dated 24‑5‑1971 Exh. D.1 and the other a copy of mutation No.2295 attested on 24‑6‑1971 Exh.P.2 However, much stress has not been laid on the said agreement Exh.D.l. As a matter of fact even according to the respondents this is an agreement and not a sale‑deed. Through the said agreement it was agreed that respondents Nos.2 to 4 will transfer the land in dispute to respondent No.1 for a consideration of Rs.900 in recognition of her right of pre‑emption and a sum of Rs.100 was received as earnest money. Therefore, this document is an agreement pure and simple and is not a sale‑deed. It does not even record the factum of any complete oral sale. Therefore, the agreement Exh. D.1 has little bearing on the case. This leaves mutation No.2295 Exh. P.2 in the field. There is no dispute that the said mutation was attested on 24‑6‑1971 while the limitation for filing a suit for pre‑emption expired on 12‑6‑1971. Therefore, if the date of attestation of the mutation is taken into consideration the sale by respondents Nos.2 to 4 in favour of respondent No.l was made beyond the period of limitation of one year and the same, therefore, cannot operate to deprive the petitioner of his right of pre‑emption which is not denied or disputed. However, the learned counsel for the respondents have argued that the mutation Exh.P.2 was entered by the Patwari on 10‑6‑1971 and it is this date which will have to be taken into consideration for determining the point of limitation. He has stated that the said entry by the Patwari carries a presumption of truth. It is difficult to agree with this proposition. An attested mutation may carry a rebuttable presumption of truth but an unattested mutation entered simply by a Patwari has no significance, importance or value in the eyes of law. Supposing if the mutation was not put up for attestation or if the mutation was rejected; the position would have been that no mutation carrying a. rebutable presumption of truth would have been in the filed. In that case only a note by the Patwari would have remained on the record and would have no value. It may be added that an attested mutation in itself is not a document of title, it is an evidence of a fact that a sale recorded therein has been made. Therefore, a note recorded by the Patwari in which statement of the parties to a sale or of a vendor is recorded has to be proved through cogent evidence. It is at the most a note of a previous statement and has to be proved in the same manner in which a previous statement has to be proved. .Therefore, let us see as to what is the evidence on record to prove the statement recorded by the Patwari on 10‑6‑1971 in Col. No.14 of mutation Exh. P.2. It may at the outset be mentioned that respondent No.1, the subsequent vendee who claims the sale of land in her favour within the period of limitation through the said statement dated 10‑6‑1971 made before the Patwari has not entered the witness box and that in itself is fatal for her case. Apart from that the note of the patwari does not show that she appeared before him and made a statement on 10‑6‑1971. In particular there is no note of the Patwari that in accordance with the agreement Exh. D.1 respondent No.l had paid the remaining sum of Rs.800 to respondents Nos.2 to 4. As already said according to the said note of the Patwari respondent No‑1 was not present when the‑ said Note in Col. No.14 of mutation No.2295 Exh. P.2 was recorded. This would mean that the payment of Rs.800 was neither made by her nor by any one on her behalf because according to the said note even Barkat Shah D.W. 3 son of respondent No.l was not then present. To complete an oral sale no documentary evidence is necessary but when any sort of documentary, evidence comes into existence it has to be proved with cogent and reliable evidence. The said note of the Patwari on Ext. P.2 is a documentary evidence of the alleged oral sale made on 10‑6‑1971 but there is no evidence to prove the said note and to prove that the vendors‑respondents Nos.2 to 4, received the remaining consideration amounting to Rs.800 from respondent No.l. As already said she did not dare to enter the witness‑box to state that she had paid the money and that she had received the possession of the suit land. For her failure to so appear her case has no legs to stand upon. She has produced Barkat Shah her son as D.W.3. He has not stated that a sum of Rs.800 was paid by his mother to respondents Nos.2 to 4 at the time when the note dated 10‑6‑1971 was recorded on Ext. P.2. He at first stated that at the time of attestation of mutation he was not present but his mother was present. However, he then stated that he was present at the time of attestation and her mother was present when the mutation was entered. The evidence of D.W.3 therefore, is self‑contradictory. Apart from that it is contradictory to the said note recorded on Ext. P.2. As mentioned earlier it is not recorded therein that respondent No.l was present at the time of entering of the said mutation. D.W.3 himself was not present at that time. Therefore, he has not personal knowledge that his mother was present at that time. Therefore, his evidence that his mother was then present is of little significance and unbelievable and as a matter of fact false. Respondent No.2 Manzoor Hussain Shah has appeared as D.W.4 and he also has not stated that the sale price or a part thereof was received by them at the time of entering of the mutation Ext.P.2 on 10‑6‑1971. He does not say that Mst. Ghulam Fatima was present at the time of entering the said mutation. He excludes her presence by saying that "only we the three brothers were present." Therefore, his evidence also cannot prove that the sale was made on or before 10‑6‑1971. Therefore, by 10‑6‑1971 when the mutation in dispute was recorded no oral sale had taken place and there is no proof that by that time whole of the sale price had been paid and that possession of the land in dispute had been delivered to the vendee i.e. respondent No.l.

3. The sale, therefore, took place at the earliest on 24‑6‑1971 when the said mutation No.2295 Ext. P.2 was sanctioned. As already, pointed out, legally the sale could be made in favour of respondent No.l only within the period of limitation of one year, i.e by 12‑6‑1971. It was not made by that date, and therefore, it is not a sale by respondents Nos.2 to 4 in favour of respondent No.l in recognition of her right of pre‑emption. In other words the said sale cannot defeat the right of pre‑emption of the petitioner. Accordingly the finding of the learned appellate Court on issue No.l is reversed to the extent that the sale in favour of respondent No.l was not made within time so as to defeat the right of pre‑emption of the petitioner. As a result the finding of the learned trial Court on the said issue is restored.

4. In view of my‑discussion above the revision petition is accepted. The impugned judgment and decree of the learned appellate Court are set aside. However, it is clarified that the amount of Rs.900 deposited by the petitioner as pre‑emption money shall be paid to respondent No.l as according to their own showing respondents Nos.2 to 4 have already received consideration from her. The parties are left to bear their own costs throughout.

A . A . / K‑101 / L Revision accepted.