ALLAH RAKHIA Versus GHULAM QADIR

Briefly stated the claim of the plaintiffs/petitioners is that they are owners in possession of land measuring 82 Kanals, 13 Marlas being 576/1152 share in Khata Nos.45 and 46 of lamabandi for the year 1928‑29, that the said land was purchased by their predecessor‑ in‑interest Jindoo from one Mansoor (predecessor‑in‑interest of defendants/respondents) vide Mutation No.372 dated 28‑9‑1925, that while attesting said mutation i.e. 372 dated 28‑9‑1925, the area of land so purchased has been described correctly i.e. 81 Kanals, 6 Marlas but in terms of share it has not been described correctly, that instead of describing share to be 78/192, it has been described as 9/192, that they came to know about the said entries in the said mutation only 2/3 months ago when they checked the Revenue Record in connection with partition proceedings, that they requested the defendants/respondents to admit them owners of 78/192 share in the suit land, but as they refused to accede to their request they have to file a suit for declaration to the effect that they are entitled to 78/192 share and not 9/192 as incorrectly and erroneously mentioned in the said mutation. The suit was resisted by the defendants-respondents wherein they raised preliminary objections to the effect that they, plaintiffs/petitioners were estopped by their conduct to file the suit as well as the suit was barred by limitation. They asserted that actually 9/192 share was alienated in favour of the predecessor of plaintiffs/petitioners and inadvertently the area measuring 81 Kanals, 6 Marlas has been mentioned in the impugned mutation, that subsequently the said entry was rectified and corrected vide Mutation No.80 dated 30‑5‑1933. It was, thus, prayed that the suit be dismissed.

2. Divergent pleadings of the parties gave rise to the following issues---

(1) Whether the plaintiffs are estopped to file the suit? OPD

(2) Whether the suit is within time? OPP

(3) Whether the plaintiffs are entitled to 516/1152 arid entries in the Revenue Record are not correct? OPP

(4) Whether defendants Nos.27 and 28 are bona fide purchasers with consideration and without notice, if so with what legal effect? OPD 27 and 28

(5) Relief.

3. In support of their respective stand both the parties adduced evidence and finally the suit was dismissed by the trial Court vide judgment and decree dated 5‑4‑,1981. The plaintiffs/petitioners felt aggrieved of the' said judgment and decree and filed an appeal which was also dismissed by the Additional District Judge, Rahimyat Khan vide judgment and decree dated 28‑10‑1981. The plaintiffs/petitioners being aggrieved of the said judgments and decrees have filed the inst revision petition.

4. Arguments have been heard and record perused.

5. It is submitted by the learned counsel for the plaintiffs/petitioners that their predecessor‑in‑interest Jindoo had purchased land measuring 81 Kanals, 6 Marlas as is evident from Mutation No.372 dated 28‑9‑1925, that as per record mutation No.372 could not be sanctioned on 12‑8‑1925 as it contained incorrect entries, that while sanctioning Mutation No.372 on 28‑9‑1925 the area of land so purchased has been described fully and correctly, but the share so purchased could not be entered correctly, that although the area purchased being 81 Kanals, 6 Marlas comes to 78/192 of Khata No.4 5 but due to inadvertence of the Revenue Officer attesting the mutation, it has been described as 9/192 share, that total area of Khata No.46 is 200 Kanals and 4 Marlas, that if the 78/192 is sold only then and then land measuring 81 Kanals, 6 Marlas is said to have been sold and this fact further proves that Jindoo had purchased 78/192 share and not 9/192 as disclosed in Mutation No.372 dated 28‑9‑1925, that the stand of the defendants/respondents that actually 9/192 share was sold to Jindoo and such correction in the Revenue Record was made vide Mutation No.80 dated 31‑5‑1933 is devoid of any legal force as Mutation No.372 could, not be reviewed vide Mutation No.80 dated 31‑5‑1933 as entries in the Jamabandi on the basis of mutation No.372 dated 28‑9‑1925 had been made and even otherwise it. is not proved that Jindoo was present at that time, that according to section 7.30 of Land Record Manual a mutation of correction could not be entered when entries of a mutation have been implemented in Jamabandi; that no value can be attached to mutation No.80, dated 31‑5‑1933 as the same had been sanctioned in the absence of Jindoo as per statement of P.W.4, that even question of limitation cannot be pressed into service against the plaintiffs/petitioners who are co‑sharers in the suit land, that even an adverse entry and non‑participation in the profits of the property would not amount to an ouster of co‑sharer and suit filed due to denial of rights of the co?sharer, for declaration, would be within time and Revenue Authorities; on success, of such suit would be required by law to correct the wrong mutation and placed reliance upon Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi,(PLD. 190 SC 1), Aswar Muhammad and others v. Sharif Din and others (1983 SCMR 626) and Haji through his legal heirs and others v. Khuda Yar through his legal heirs (PLD 1987 SC 453). He further submitted that mutation does not bless sanctity to transaction and such mutation confers no right in property but is meant for ensuring realisation of land revenue and correctness of Revenue Record and for that purpose and placed reliance upon Aswar Muhammad and others v. Sharif Din and others (1983 SCMR 626). He further contended that the learned Appellate Court has relied upon only one mutation No.310, dated 25‑6‑1921 and has not relied upon twenty other mutations which prove the stand of the plaintiffs/petitioners that they had purchased land measuring 81 Kanals and 6 , Marlas for Rs.90 and not land measuring 10 Kanals as the price of land prevailing in the market in those days was upto rupee one per Kanal. He, thus, submitted that both the Courts below have not passed the impugned judgments and decrees in accordance with law. As such by accepting the revision petition the same be set aside and suit of the plaintiffs/petitioners be decreed.

6. Conversely, the impugned judgments and decrees have been supported by the learned counsel for the defendants/respondents. He further submitted that no doubt the area purchased by Jindoo has been disclosed as 81 Kanals, 6 Marlas in mutation No.372, dated 28‑9‑1925, but at the same time it also contains that share purchased was. 9/192, that actually share 9/192 was purchased by Jindoo and such mistake stands rectified by entering mutation of correction No.80, dated 31‑5‑1933, that as per Mutation No.80 Exh.D‑32, Jindoo's presence stands proved, that as Jindoo did not raise, any objection at the time of sanctioning mutation No.80, dated 31‑5‑1933 Exh.D‑32 so it proves that he had purchased 9/192 share and not 78/192 share, that much weight is being given to the statement of P.W.4 who claims that Jindoo was not present at the time of attestation of mutation No.80, dated 31‑5‑1933 Exh.D‑32, that this assertion of P.W.4 is devoid of any force as he was not even born when mutation No.80 was sanctioned. To support his this stand he referred to the statement of P.W.4 who has disclosed his age as 35/36 years on 18‑6‑1980 when his statement was recorded. If his (P. W.4) age was 35/36 years on 18‑6‑1980 then he could have born in 1944/45, that under these circumstances how P.W.4 could make a statement about an act which had taken place in 1933 i.e. 12/13 years prior to his birth.

7. The only point which requires determination is if Jindoo had purchased 78/192 share in Khata No.46 or 9/192 share. Both the parties have adduced oral as well as documentary evidence. As per impugned mutation No.372 dated 28‑9‑1925 Jindoo is said to have purchased 9/192 shares but the area of land has been disclosed as 81 Kanals and 6 Marlas. Now if the total area of Khata No.46 is taken into consideration and is compared with total measuring 81 Kanals, 6 Marlas then it appears that share purchased is 78/192 not 9/192. However, if mutation No.80, dated 31‑5‑1933 which is 'a correction mutation, is, taken into consideration then it appears that Jindoo had purchased only 9/192 share as he has been shown to be owner of 3/64 share in the said mutation which come to 8 Kanals and 5 Marlas. It has also come on record that land measuring 14 Marlas out of the share of Jindoo was acquired for construction of Road as such he remained the owner of 7 Kanals and 11 Marlas, as is evident from document Exh.P‑1. This document Exh.P.I further shows that vide mutation No.294 Jindoo purchased an area measuring 7 Kanals, 11 Marlas, as such he became the owner of 15 Kanals, 2 Marlas. Thus this entry showing an area of 15 Kanals, 2 Marlas kept on appearing in the Revenue Record from 1936/37 to 1976/77. Again as per Jamabandi for the year 1933/34 Eich.P.12 Jindod has been shown a share? holder of 3/64 which also corresponds to his share as given in Mutation No.80, dated 31‑5‑1933. This Jamabandi Exh.P.12 also shows the implementation of Mutation No. 80 as mutation of correction. Thus, it stands proved that Jindoo owned 3/64 in Khata No.46 and was owner of land measuring 8 Kanals, 5 Marlas on the basis of Mutation No. 372, dated 28‑9‑1925 and was not owner of 81 Kanals, 6 Marlas being owner of 78/192 share. The entries recorded in Jamabandi for the year 1933/34 Exh.P.12 have been repeated till 1976/77. The plaintiffs/petitioners have been accepting the position till March 1979, as such they have rightly been held to be estoppsd by their conduct to file this suit. There is no need to dilate upon other issues.

8. Be that as it may, section 115 of the Civil Procedure Code applies to cases involving illegal assumption, non‑exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which do not, in any way, effect the jurisdiction of this Court, no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. An erroneous conclusion of law or fact is liable to be corrected in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion, an error of law is manifestly shown to have been committed.

9. Neither any such aspect has been put, forth or highlighted, nor is, seemingly available, so as to attract or entail provisions of section 115 of Civil Procedure Code, which thus, can, neither, come into play, nor press into service. Judgments and decrees, now sought to be impeached and set at' naught are accordingly unexceptionable as the saner neither appear to suffer from any infirmity or any irregularity what to speak of material irregularity, nor perversity or arbitrariness.

Hence, viewed from any angle, revision petition merits dismissal and is hereby dismissed with no order as to costs.

H.B.T./A‑177/L ?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.