MUHAMMAD RAFIQ Versus MUHAMMAD HUSSAIN

This Regular Second Appeal is directed. against the judgment and decree dated 6‑5‑1978 of the learned Additional District Judge, Gujrat, whereby the judgment and decree dated 21‑2‑1976 of the trial Court dismissing the suit of respondent No.1 plaintiff was set aside and his pre‑emption suit was decreed.

2. The sole question of law urged in this appeal is that the learned Additional District Judge has wrongly found that the date of sale in favour of the appellant. who was a second vendee, was 16‑5‑1974. It is submitted that Roznamcha Patwari Exh.D.5, as well as, the relevant mutation Exh.D.7 would show that' the transaction of sale in favour of the appellant was made on 10‑5 1974, and he having a superior right of pre‑emption than the pre‑emptors was entitled to retain the land m dispute.

3. Learned counsel for the respondents submitted that the learned Additional District Judge recorded a finding of fact after re‑appraisal of evidence that neither Muhammad Rafiq, the petitioner herein who appeared in the witness box as D.W.3 nor any other defence witness said that the sale took place on 10‑5 1974, and that no evidence was led as to the, date and payment of sale price and, , therefore, the mere entries in the Roznamcha Patwari are not a sufficient proof of the completion of the sale.

4. The contention of the appellant's counsel has great force. It is well settled that presumption of correctness attached to entries in the Revenue record is not absolute and what probative value is to be attached to these entries must depend on the facts of each case. The mere fact that the mutation was sanctioned on 16‑5‑1974 would not by itself lead to the conclusion that the sale also took place on the said date. Mutation register is not a part of record of rights and its entries do not carry absolute presumption of truth attached to that right. The question of entry of mutation in the relevant register arises only on acquisition of any right or interest in an estate as land owner, assignee or occupancy tenant. IC Here the sale transaction. took place orally on 10‑5‑1974 as per Roznamcha Patwari Exh.D.5 and not on 16‑5‑1974 when the mutation was sanctioned vide Exh.P.7. Section 42 of the West Pakistan Land Revenue Act, 1967, provides that whenever acquisition of any right accrues the person acquiring such right shall report acquisition of his right to the Patwari of the estate, who shall record such report in the Roznamcha to be maintained in the prescribed manner and failure to incorporate these entries simultaneously in the therefore, failure to incorporate these entries simultaneously in the mutation register would not affect the sale. Roznamcha Patwari Exh.P.S was a sufficient proof of the sale having taken place on 10‑5‑1974, inasmuch as, its validity has not been disputed and, therefore, it is wholly immaterial as to whether or not any defence witness also stated the date on which the sale took place and price paid.

In view of the above, the appeal is accepted, the judgment‑and decree of the lower appellate Court is set aside and that of the trial Court is restored with costs.

M.Y.M./2635/L Appeal allowed.