MUHAMMAD AZAM Versus MUHAMMAD YAR

This is plaintiffs' second appeal against judgment and decree dated 9‑12‑1970, passed by learned District Judge, Jhang dismissing their appeal from judgment and decree dated 17‑12‑1969, passed by learned Administrative Civil Judge, Jhang by which their suit was dismissed with posts.

2. The facts giving rise to this second appeal, relevant for its disposal briefly stated are that the appellants namely Muhammad Azam and Pehlwan filed a suit against the respondents Muhammad Yar and Muhammad Fazil, for a declaration that they were the owners in possession of the land in dispute detailed in the plaint and that the same was not liable to be redeemed. According to the case of the appellants as made out in the plaint, their deceased father namely Lal purchased the land in dispute from Sardara deceased father of the respondents who was its owner, but in order to avoid the possibility of a suit of pre‑emption regarding the said transaction, it was given the colour of a. mortgage. The appellants claimed to be in possession of the land in dispute as owners since that time. The necessity to file the suit arose because an application before the Revenue Assistant Jhang was made by the respondents for redemption of the suit land which according to the appellants was not maintainable because there did not exist relationship of mortgagors and mortgagees between the parties and that it was never a usufructuary mortgage therefore the same was not liable to be redeemed. The appellants also claimed to have spent an amount of Rs.30,000 on the improvement of the land.

3. The respondents contested the suit by filing written statement in which they asserted that the land in dispute was mortgaged by their father with the father of the appellants/plaintiffs. They also denied that the appellants had made any improvement over the land in dispute. It was also pleaded that the Collector had extinguished the mortgage in favour of the appellants /plaintiffs without any compensation and that the said order of Collector could not be challenged in a Civil Court and that Civil Court had no jurisdiction to try the suit because of bar contained in West Pakistan Act, 1964. On the pleadings of the parties, the learned trial Court framed the following issues:‑

(1) Was the land actually sold to the plaintiffs and was given the form of a mortgage to avoid a suit for pre‑emption? 0 . P . P .

(2) If issue No. 1 is found in favour of the plaintiffs, is the order of Collector extinguishing the mortgage legal and valid? O.P.P.

(3) Is the alleged mortgage not a usufructuary mortgage? O.P.P (onus objected to)

(4) Has the Civil Court no jurisdiction in the case? O.P.P.

(5) Have the plaintiffs made improvements on the suit land?

(6) Relief.

4. In support of their case, the appellants/ plaintiffs examined Gehna son of Peera. as P:W.1, Muhammad Iqbal Moharrar Patwari caddar Jhang as P.W.2, Allah Yar as P.W.3 and Muhammad Azam one of the appellants/ plaintiffs examined himself .as P.W.4. In addition to this oral evidence the appellants also produced documentary evidence such as Fard Intikhab EXh.P.l, copy of Register Haqdaran for the year 1963‑1964 Exh.P.2, original registered mortgage‑deed dated 14‑5‑1919 Exh.P.3, copy of mutation of sale No.521 dated 31‑7‑1920 Exh.P.4 and copy of Khasra Girdawari Exh.P5. As against this, respondents/defendants examined Muhammad Fazil one of the defendants as D.W.1. They also produced documentary evidence such as copy of mutation No.735 EXh.D.l, copy of mutation No. 55, Exh.D..2, copy of mutation Na.510 Exh.D.3, copy of mutation No.518 Exh.D.4, co0y of mutation No.519, Exh.D.5 copy of mutation No.548 Exh.D.6, copy of mutation No.549, Exh.D.7, copy of mutation No.550, Exh.D.8, copy of mutation No.1097, Exh.D.9 copy of mutation No.1645, Exh.D.10, copy of Jamabandi 1916‑1917 as Exh.D.ll, copy of Jamabandi 1963‑64 Exh.D.12, copy of order of Collector Exh.D.13, copy of Jamabandi Exh . D .14.

5. The learned trial Court answered issue No.l against the appellants/ plaintiffs. Under issue No.2 it was found that the mortgage was with possession and the plaintiffs had been in continuous possession of the land in dispute from 1920 from the time it was mortgaged to their father, the mortgage was usufructuary and they had derived the benefit out of it therefore, Collector had jurisdiction to extinguish the mortgage under the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964. It was also held that the order of Collector was thus valid and within his jurisdiction and issue was answered accordingly. Under issue No.3 it was held that the plaintiffs had been in possession of land since 1920, when the mortgage was effected in favour of their father and it was a usufructuary mortgage. Issue No.3 was decided against the plaintiffs. Under issue No.4, the learned trial Court held that since it has been found that the transaction was a usufructuary mortgage and Collector had jurisdiction to extinguish the same under the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 therefore, under section 17 of the same Act, the jurisdiction of the Civil Courts was excluded to question the legality or correctness of the order of the Collector passed under the said Act extinguishing the mortgage. For these reasons it was held that the Civil Court had no jurisdiction to try the suit and issue was answered accordingly. Under issue No.5, learned trial Court held that no evidence was produced by the appellants/ plaintiffs to prove that they had made improvements on the land in dispute therefore, this .issue was also answered against them. In the result the suit of the appellants was dismissed by judgment and decree dated 7‑12‑1969 passed by the learned trial Court.

6. The appellants/ plaintiffs feeling aggrieved filed an appeal before the learned District Judge, Jhang which has also been dismissed by judgment and decree dated 9‑12‑1970 which has been assailed in this second appeal. Before the learned lower appellate Court the appellants only questioned the findings of the trial Court on issues 1, 2 and 4. Learned lower appellate Court reversed the findings of the learned trial Court on issue No.4 and held that since the appellants /plaintiffs had claimed declaration regarding their title to the land in dispute therefore the Civil Court had jurisdiction to entertain and decide the suit and section 17 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 did not bar the jurisdiction of the Civil Court to entertain such a suit. However, on issue No.l, the findings of the learned trial Court were upheld and the appeal was dismissed.

7. This appeal was admitted to consider, whether in view of concurrent findings of both the Courts below that the appellants were mortgagees of land measuring 841 Kanals, the Collector could have proceeded with the matter in view of Sections 3 and 12 of the West Pakistan Redemption and Restitution of Mortgaged' Lands Act, 1964. Learned counsel for the appellants however, did not address any argument on the said point to consider which the appeal was admitted. He however wanted to make submissions regarding findings of the Courts below on issues 1 ‑and 2. Learned counsel for the respondents raised an objection that the appellants could not be allowed to urge any grounds other than those on which the appeal was admitted. No doubt the order dated 23‑12‑1970 by which the appeal was admitted, shows that it was admitted to consider the contention whether under sections 3 and 12 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 the jurisdiction of the Collector was barred to entertain the application of respondents to extinguish mortgage but since the appeal stands admitted therefore in the interest of justice, I permitted the learned counsel for the appellants to address arguments regarding issues 1 and 2.

8. Learned counsel for the appellants submitted that the learned lower appellate Court though mentioned documents Exhs.D.3, D4 and D5 in its impugned judgment but no findings have been recorded as to their effect on the merits of the case as according to learned counsel these documents supported the case of the appellants /plaintiffs. He also .complained that the documents such as Exhs.D.6, D.8 and D.11 have not been considered by the learned lower appellate Court and had these documents been considered, the findings on issues 1 and 2 would have been different. He urged that through registered mortgage‑deed Exh.P.3 dated 14‑7‑1919, the land in dispute was mortgaged with Lai 'deceased father of the appellants but it was in fact a sale which was given the colour of a mortgage. He urged that the parties as a matter of fact intended it to be a sale which fact gains support from Exhs.D.3, D.4, D.5, D.6, D.8 and D.11 which prove that it was Lai deceased father of the appellants/ plaintiffs who had redeemed the other mortgages of the same land made in favour of various other persons by Sardara deceased the father of the respondents. The Redemption of these mortgages by Lai deceased father of the appellants was ample proof of the fact that Lai was treated to be its owner for, without that he would not have redeemed these mortgages. According to learned counsel these documents having been produced by respondents themselves, was a stronger evidence in favour of the appellants/ plaintiffs, to prove that they were the owners of the land in dispute.

9. I proceed to examine the oral as well as documentary evidence in order to satisfy myself whether findings of both the Courts below on issues 1 and 2 did or did not suffer from any misreading, misconstruction or non‑consideration of material evidence.

10. The case of the appellants/ plaintiffs in the plaint was that transaction between Sardara deceased father of respondents the original owner and‑ Lai deceased father of appellants/ plaintiffs was really a sale but the same was given the colour of a mortgage to avoid suit of pre‑emption. The appellants/ plaintiffs produced P.W.1 Gehna. According to this witness the land in dispute was sold for an amount of Rs.30,000 in favour of Lai deceased by Sardara about 49/50 years ago. According to him an amount of Rs.1,000 was paid in advance and the balance amount of Rs..29,000 was paid 8 or 10 days later. P.W.3 Allah Yar another witness produced by the appellants however narrated a different story in respect of this alleged sale. He stated that the land in dispute was owned by Sardara deceased which was mortgaged with Hindus and Sikhs and since these creditors gave trouble to Sardara, the owner, therefore he decided to sell the land to Lal deceased the father of the appellants/ plaintiffs. He went on saying that he had gone alongwith Sardara to Lai who had purchased the land for an amount of Rs.60,000,. According to him an amount of Rs.1,000 was paid as an advance and according to agreement between the parties the transaction would be shown to be that of mortgage for Rs.30,000 and after one year Sardara received the balance amount of Rs.30,000 from Lai. Statements of P.W.1 and P.W.2 produced by the appellants relating to the same transaction of sale are clearly contradictory to each other therefore, their evidence was not rightly given any credence and is not sufficient to prove the factum of alleged sale of land in favour of Lai deceased, father of the appellants. According to P.W.1 the sale was effected for an amount of Rs.30,000 whereas according to P.W.3 it was made for an amount of Rs.60,000. P.W.4 Muhammad Azam one of the plaintiffs merely state that they were the owners of the land in dispute having obtained it from their father and that it was never mortgaged. He did not state that it was purchased by their father from Sardara deceased, for Rs.60,000.

10. Now I proceed to consider the effect of documents Exhs.P.4, D.3, D.4, D.5, D.6, D.8 and D.11 which are the mainstay of the case of the appellants/ plaintiffs and over which a great deal of stress was laid by the learned counsel for the appellants during the arguments. Exh.P.4 is mutation of sale No.521 which was sanctioned on 31‑7‑1920. According to this document Lai deceased became owner of the land through purchase on 31‑7‑1920. Exh.D.5 is a copy of mutation No.519 sanctioned on 31‑7‑1920 according to which Sardara deceased redeemed the land from Lal deceased mortgagee and it has been recorded therein that Lai deceased motgagee admitted to have received the mortgage money and redemption of land by Sardara and delivery of possession to Sardara as a consequence thereof. If on the same date i.e. 31‑7‑1920 through EXh.P.4. Lai deceased mortgagee had purchased the land, there could be no question of his having paid the mortgage money to Sardara deceased mortgagor and delivered possession to him as a consequence of redemption of mortgage by Sardara as evidenced by mutation No.519 Exh.D.5. P.W.2 Patwari has thrown sufficient light on the evidentiary value of these two documents recording contradictory facts. P.W.2 admitted in cross‑examination that the print of mutation forms Nos. 520 is thick whereas the print of form of mutation No.521 is quite thin. He also admitted that print of form of mutation No.521 and 519 was the same but the page numbers on form No.519 and 521 were not printed whereas page numbers on the rest of the register of mutations were printed. This statement of Patwari coupled with the fact that no entry as a consequence of these two mutations was made in subsequent Jamabandi and none of the parties even bothered them selves to get the same incorporated in the Jamabandi is sufficient to conclude that Ex.P4, D5 were not genuine documents and were rightly not given any credence. It is apart from the fact that in ‑the plaint they appellants did not state that after the mortgage of land subsequently through mutation No.521 dated 31‑7‑1920 Ex.P4 the same was purchased by Lal. This omission has got material bearing affecting the case of the appellants adversely. Learned counsel for the appellants attempted to justify this omission by arguing that according to view expressed in judgment reported as S.M. Ayub v. Syed Yusuf Shah and others P L D 1967 SC 486, the law of pleadings has never been strictly construed and rigorously applied in all its technicalities, in this country as plaints and petitions drafted, specially in the mofussil, suffer from various minor defects. I am afraid this is not a case of merely a minor defect in the pleadings, but a case where the appellants/ plaintiffs wanted to make out an absolutely different case from the one pleaded in the plaint inasmuch as in the plaint the claimed that transaction of mortgage itself was in fact a sale but given the colour of mortgage to avoid a suit for pre‑emption whereas in the evidence they made out a case that subsequent to said mortgage there was a sale. The appellants/ plaintiffs were as a matter of fact debarred from leading any oral evidence for the purpose of contradicting, varying, adding or subtracting from the terms of registered mortgage‑deed Ex.P3 executed between the parties under Article 103 of the Qanun‑e‑Shahadat to prove that it was not a mortgage. They could only produce evidence according to proviso 4 of the said Article, to prove a subsequent oral contract regarding recession or modification of any such previous contract i.e. mortgage which should have been specifically pleaded, which they did not plead. Assuming that the case of the appellants/ plaintiffs was that subsequent to mortgage of land through Ex.P3,'there was a contract of sale between the parties as made out in the evidence, the same also does not stand proved as discussed above. The evidence produced by the appellants/plaintiffs in the form of P.W.1 and P.W.2 being contradictory, is not reliable.

12. According to Ex.D3 which is a copy of mutation No.510 sanctioned on 22‑7‑1920, Lal deceased father of appellants redeemed the mortgage of the same land made by Sardara in favour of Sada and Burkhurdar. In this mutation, Lal deceased was mentioned as first mortgagee who was redeeming the said mortgage in that capacity. The description of Lal as first mortgagee established that he was redeeming the mortgage of Sada and Burkhurdar as a co‑mortgagee and not as a owner. Ex.D4 is a copy of mutation No.518 sanctioned on 22‑7‑1920 according to which the name of Lal deceased as mortgagee was ordered to be incorporated in the Jamabandi in the column of ownership as mortgagee with possession because before that his name appeared in the column of Kaffiat. According to this document, name of Lal was ordered to be shown as mortgagee with possession in the Jamabandi. These two documents are prior to 31‑7‑1920 on which date mutation of alleged sale was sanctioned in favour of Lal which is Ex.P4. The argument that, had Lal not purchased the land from the date of execution of Ex.P3 i.e. the mortgage‑deed, he would not have redeemed the mortgages in favour of Sada and Barkhurdar, has no force. There is no bar under the law relating to mortgages land the principles of law governing the mortgage, against one mortgagee redeeming the land from the other mortgagee if it has been mortgaged by the owner to different mortgagees. Since Lal deceased as mortgagee could redeem mortgage in favour of Sada and Barkhurdar made by Sardara, no presumption can be raised that he redeemed the same as owner or this fact alone could be an evidence to establish that the transaction of mortgage Ex. P3 was in fact a sale but given a colour of mortgage. Ex.D6 is a copy of mutation No.548 sanctioned on 21‑8‑1921. According to this Sada as mortgagee Awwal redeemed the mortgage in favour of Bhag Singh mortgagee Dosim. This mutation has been sanctioned much after 31‑7‑1920 when allegedly the land had already been purchased by Lal deceased through Ex.P4. Had there been any genuine transaction of sale and Ex.P4 the mutation of sale had also been genuine, there was no occasion for Sada a mortgagee redeeming a mortgage in favour of another mortgagee Bhag Singh on 21‑8‑1921. Ex.D7 is a copy of mutation N.549 which has also been sanctioned on 21‑8‑1921 according to which Sardara the mortgagor, father of the respondents redeemed the mortgage from Sada mortgagee after pdyment of Rs.3,600. This document is also subsequent to alleged mutation of sale Ex.P4 and had there been any sale in favour of Lal there was no occasion for Sardara redeeming mortgage from Sada. On 21‑8‑1921 another mutation No.550 Ex.D8 was sanctioned in the presence of both Sardara and Lal, in which Sardara has been recorded as mortgagor and Lal deceased mentioned therein as mortgagee. It has been ordered in this mutation that the entries in the column of ownership of relevant Jamabandi be corrected as to record therein the name of Sardara as mortgagor and Lal deceased as mortgagee. If according to the appellants/ plaintiffs Lal had already purchased the land on 31‑7‑1920 or before and mutation of sale Ex.P4 sanctioned on 31‑7‑1920 was a genuine document and through Ex.D5 the land had already been redeemed by Sardara deceased there was no question, both of them to have got sanctioned this mutation on 21‑8‑1921, for correction of Jamabandi in order to record therein the name of Sardara as mortgagor and that of Lal as mortgagee. Ex.D4 is copy of Jamabandi for the year 1916‑1917 which does not advance the case of the appellants/ plaintiffs as the entries of this Jamabandi also show that Lal deceased has been recorded as mortgagee whereas Sardara as mortgagor. EX.D1 is a copy of mutation No.735 sanctioned on 9‑11‑1942 on the death of Lal deceased. In this mutation Lal deceased has been recorded as mortgagee and inheritance of his mortgagee rights was sactioned in favour of his sons namely Azam and Pehlwan appellants/ plaintiffs. Ex.D2 is copy of mutation No.55 sanctioned on 21‑3‑1929 in the presence of Sardara according to which Sardara transferred his ownership rights in the land in favour of his sons namely Muhammad Yar and Muhammad Fazil the respondents. Ex.P1 Fard Intikhab 1959‑60 produced by the appellants/ plaintiffs themselves shows that respondents Muhammad Yar and Muhammad Fazil sons of Sardara have been recorded as mortgagors of the land in dispute and the present appellants as mortgagees in equal shares. The land has been shown to be in the possession of mortgagees. According to Ex.P2 which is copy of register Haqdaran for the year 1963‑64 produced by the appellants in which also the respondents as sons of Sardara have been recorded as mortgagors in equal shares and the present appellants as sons of Lal have been recorded as mortgagees and land has been shown to be in possession of the said mortgagees. Ex.P5 is copy of Khasra girdawari in which also respondents have been shown as mortgagors and the present appellants as mortgagees. From the examination of this over‑whelming documentary evidence it can safely be concluded that the appellants/ plaintiffs miserably failed to prove either that originally transaction of mortgage of Ex. P3 was in fact a sale but given colour of mortgage and also that subsequent to this transaction there was a sale between the parties as mentioned in Ex.P4. The law is well established by now that mutation itself does not create title in the property and if the factum of sale mentioned therein is denied, such sale is required to be proved by independent evidence. Learned counsel for the appellants when questioned as to how the sale itself of the land has been proved, he faintly argued that under Article 100 of Qanun‑e‑Shahadat, Ex.P4 i.e. the mutation being a document of more than 30 years old, the said mutation itself should have been presumed to be the proof of such a sale. I am afraid, the argument is wholly misconceived. The argument raised by the learned counsel for the appellants is that presumption under Article 100 of Qanun‑e‑Shahadat, section 90 of the Evidence Act is two fold i.e. as regards genuineness of the signatures and handwriting on Ex.P4 and also as regards truth of its contents i.e. the factum of sale. The argument as raised as regards truth of contents of document is not acceptable in view of plain language employed in Article 100 of Qanun‑e‑Shahadat. It is manifest from this Article of Qanun‑e‑Shahadat that the presumption thereunder is limited in scope and confined by the plain terms of Article 100 of Qanun‑e‑Shahadat to the signatures and writing borne on a document being in the hand of the person purporting to be the author thereof. The presumption does not extend to the truth of the contents of the document in dispute i.e., Ex. P4. Even otherwise, the expression . "may presume" occurring in Article 100 of Qanun‑e‑Shahadat shows that it is discretionary with the Court to raise a presumption and it is not imperative to do so. In view of evidence of P.W. 2 the Patwari regarding Ex. P4 and contradictory evidence of P.W.1 and P.W. 3 in respect of alleged sale, the two Courts below were right in not raising presumption under Article 100 of Qanun‑e‑Shahadat in the instant case and I find no good reason to interfere with the judgments of two Courts below on this account especially when they have not acted arbitrarily and capriciously. Otherwise also in view of the evidence discussed above, I myself do not feel persuaded in my discretion to raise presumption in this respect. Without granting the same even if it was possible to raise the presumption under Article 100 of Qanun‑e‑Shahadat, the same was in law rebuttable. For the reason already stated above, the presumption if raised would anyhow stand amply rebutted. No satisfactory explanation was given by the learned counsel for the appellants for inaction on the part of Lal deceased and after his death the present appellants in not taking any step for a fairly long time to get the entries in the Revenue record corrected so as to record them as owners, had Lal deceased purchased the property and became owner thereof on 31‑7‑1920 or before as alleged. This omission on their part and their silence in this respect is sufficient to establish that in fact there was no sale made by Sardara deceased in favour of Lal deceased. EXt.Dll is copy of jamabandi in which Sardara deceased predecessor‑in‑interest of the respondents has been recorded as mortgagor and Sada as mortagee Awwal and Bhag Singh as mortagagee Doiam. Names of Burkhurdar and Murad have also been recorded therein as mortgagor Awwal. This document in no manner advances the case of the appellants. It rather supports the case of the respondents. The concurrent findings of facts recorded by both the Courts below on issues 1 and 2 are fully supported by evidence on the record and do not suffer from any misreading, misconstruction or non‑reading of material piece of evidence or from any other illegality calling for interference by this Court under section 100, C.P.C.

For the foregoing reasons, this appeal fails which is hereby dismissed with costs.

A . A . / M‑873/L Appeal dismissed.