SHAMSHUL HAQ Versus GOVERNMENT OF PAKISTAN. THROUGH THE SECRETARY, MINISTRY OF FINANCE, ISLAMABAD

In this revision petition filed by the defendants against judgment and decree dated 17‑5‑1980 passed by learned Addl. District Judge, Sheikhupura, dismissing their appeal against judgment and decree dated 2‑12‑1979 passed by learned Trial Court decreeing the suit of the respondents, has been challenged.

2. The dispute relates to land which was originally owned by one Ghaus Ali situated in Chak No.3‑B Ittanwali, Tehsil Nankana Sahib,. District Sheikhupura, through Mutation No. 190 which was entered on 6‑12‑1973 and sanctioned on 22‑12‑1973 by the Revenue Officer. Ghaus Ali was shown to have sold land to the extent of 9/10th share to Mukhtar Ahmad plaintiff and to the extent of 1/10th share to his brother Ahmad Zia. The present petitioner is the purchaser from Ahmad Zia of the said 1/10 share who was impleaded as defendant No.4 in the suit by Mukhtar Ahmad respondent No.1 plaintiff. Ghaus Ali was impleaded as defendant No.1, Ahmad Zia is defendant No.2 and Roshan Din attorney of Ghaus Ali was impleaded as defendant No.3.

3. The case of respondent No.1/plaintiff was that in fact he purchased the entire land owned by Ghaus Ali through the said mutation for an amount of Rs.85,000 which consideration was paid by him. In the mutation the attorney of Ghaus Ali got incorporated that 9/10 share was sold to the plaintiff whereas 1/10 share was sold to Ahmad Zia the brother of Ghaus Ali and the amount of consideration as a whole was wrongly shown to be Rs.70,000.

4. The two Courts below after careful and elaborate appraisal of evidence produced by the parties, came to the conclusion that the plaintiff purchased the entire land and the mutation got sanctioned in favour of Ahmad Zia to the extent of 1/10 share was illegal and the plaintiff was the owner of the entire land as purchaser. It was particularly noticed that on the mutation there was cutting on the name of Ahmad Zia which was afterwards again written in the mutation showing him as one of the purchasers.

5. Learned counsel for the petitioners argued that presumption of truth was attached to the entries in the mutation therefore, the learned two Courts below have acted with material irregularity in not giving due consideration to the evidentiary value of the facts recorded in the mutation itself. Reliance has been placed on judgments reported as Mst. Nur Jahan Begum v. Muhammad Ahsan Ullah Khan and others (PLD 1960 (W.P.) Lah. 181), Muhammad Gulzar and others v. Nazir Ahmad (PLD 1960 (W.P.) Lah. 504), Muhammad Faiz Rasool and another v. Nazir Begum etc. (PLD 1978 Baghdad‑ul‑Jadid 74) and The Evacuee Trust Property Board and others v, Haji Ghulam Rasul Khokhar and others (1990 SCMR 725).1 am afraid the rule laid down in these reported judgments is being wholly misunderstood. It has been laid down that entries in the record of rights carry presumption of truth according to firmly settled law. The mutation itself is not a part of record of rights. The plaintiff challenged the entries in the mutation on the ground of fraud and that the same was procured on the basis of misrepresentation of facts. Even if there was any presumption of truth attached to the facts recorded in the mutation the same were rebutable which have been sufficiently rebutted by producing evidence.

6. Learned counsel for the petitioner argued that the necessity to transfer the 1/10 share to Ahmad Zia arose because the sale of 9/10 share of the holding of Ghaus Ali in favour of plaintiff was violative of Martial Law Regulation as it had the effect of reducing his holding below subsistence holding and since plaintiff did not have the sufficient amount to purchase the entire property therefore, the remaining 1/10 share was sold to Ahmad Zia so that the provisions of Martial Law Regulation were not violated. I have gone through the written‑statement filed by Ghaus Ali and Ahmad Zia jointly. No ' such plea was raised in the written‑statement therefore, it appears to be an afterthought in order to justify the incorporation of the name of Ahmad Zia as transferee/purchaser of 1/10 share in the mutation. Apart from this admittedly Roshan Din was the attorney of Ghaus Ali and not of Ahmad Zia therefore, said Roshan Din did not represent him either before the revenue officer or before the learned Trial Court in this suit. The presence of Ahmad Zia has not been recorded in the impugned mutation from which it can safely be inferred that he in fact was not the purchaser of any share of the land because had he purchased the same he would have been present there to get the mutation sanctioned in his favour. From his conduct at the relevant time it can be inferred justifiably that he was not the purchaser of the land. Even before the learned Trial Court Ahmad Zia did not examine himself as his own witness and statement of Roshan Din as attorney of Ghaus Ali could not be construed as statement of Ahmad Zia. Ahmad Zia did not take any interest in the proceedings of the suit excepting the filing of the written‑statement. He is the real brother of Ghaus Ali. After going through the evidence, I am fully convinced that it was the plaintiff who purchased the entire land of Ghaus Ali and the mutation was got sanctioned through fraud which had resulted of depriving him of 1/10th share of the land.

7. The concurrent findings of fact recorded by both the Courts below do not suffer from any material irregularity and illegality in exercise of jurisdiction vested in them under the law. The revision petition fails which is accordingly dismissed. The parties are left to bear their own costs.

H.B.T./G‑27/L Revision dismissed.