ALLAH DAD KHAN Versus ATAR KHAN
AMIN-UD-DIN KHAN, J.--- Through this civil revision petitioners have challenged the judgment and decree dated 11.02.2010 passed by learned Additional District Judge, Mianwali whereby appeal filed by the petitioners was dismissed and the judgment and decree dated 13.4.2009 passed by learned Civil Judge 1st Class, Mianwali whereby suit for declaration filed by the respondents-plaintiffs was decreed.
2. Through this single judgment I intend to decide above mentioned two Civil Revisions as in both the suits subject matter of both the revisions, basic Mutation No. 4527 attested on 12.06.1940 has been challenged and reasons for filing of two suits is that by further transactions the properties were transferred in favour of various persons, therefore, two suits were filed which were decided through consolidated judgment by the learned trial court and even the judgment of the learned first appellate court is also consolidated, therefore, through this consolidated judgment both these revisions are being decided.
3. Brief facts of the case are that on 27.6.2003 Atar Khan and Alam Khan plaintiffs-respondents filed two declaratory suits. They challenged mutation No. 4527 attested on 12.6.1940, of the sale of "Haq-e-Dakheel Kari" by their father in favour of Muhammad Aslam Khan, the owner of the suit property. They have challenged the further transactions of exchange and sale etc. in their suits. Written statements were filed by the legal heirs of the original transferee as well as by the subsequent transferees of the suit land. Learned trial court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Vide consolidated judgment and decrees dated 13.4.2009 learned trial court decreed both the suits. Two separate appeals were preferred. Some of the defendants preferred cross-objections. Learned first appellate court vide judgment and decrees dated 11.2.2010 dismissed both the appeals as well as two cross-objections. Hence, these civil revisions before this Court.
4. Learned counsel for the defendants-petitioners argues that father of the plaintiffs-respondents sold his rights of occupancy tenancy (Dakheel Kari) through the impugned Mutation No. 4527 validly attested on 12.6.1940 and father of the plaintiffs Mehr Zaman Khan remained alive till the year 1980. He never disputed the transaction in issue. Learned counsel argues that the above said transaction is required to be scrutinized by this Court first, if it is valid one then no need to scrutinize further transactions and if it is invalid transaction, then question will arise that whether the subsequent transferees are transferees in good faith or not. Learned counsel argues that filing of the suit in the year 2003, whereas the sale transaction was completed in 1940 i.e. suit after 63 years and admittedly plaintiffs are not in possession of the suit property, filing of suit is long after the prescribed period of limitation and further when father of the plaintiffs never disputed the transaction, plaintiffs were having no right to file the suits. Learned counsel argues that since the transfer of the rights in question in favour of Muhammad Aslam Khan, the father of the plaintiffs as well as plaintiffs were never recorded in the Jama Bandi having rights of occupancy tenancy. Learned counsel has challenged the findings recorded by the courts below that "mutation can be attested within six months" and attestation of mutation in question after nine months was invalid, states that this finding is absolutely against the law. States that evidence has not been discussed by the learned first appellate court, therefore, findings are against the law. Learned counsel for the petitioners while referring the Punjab Tenancy Act No. XVI of 1887 states that civil court was not having jurisdiction to entertain and try the suit and further that when admittedly father of the plaintiffs abandoned the land, therefore, there was no question of any title or right of the predecessor of the plaintiffs even if the mutation in question be kept out of consideration while deciding the lis. Learned counsel argues that learned courts below fell in error while scrutinizing the disputed mutation in the light of Land Revenue Act, 1967. States that at the time of attestation of mutation the said Act was not in field. Learned counsel has further argued that it is not the case of the plaintiffs-respondents that the mutation in question was not in the knowledge of father of the plaintiffs. Further argues that when the transaction was completed if there was any deviation from the existing law while attesting the mutation that cannot be attributed to the petitioners-defendants and no adverse inference can be taken against the petitioners. Argues that even the impugned mutation was of more than 30 years old at the time of filing of the suit, therefore, the learned courts below fell in error while decreeing the suits and dismissing the appeals.
5. On the other hand, learned counsel for the plaintiffs-respondents argues that there are concurrent findings of fact recorded by the two courts below, therefore, revision petitions are not maintainable under the law. States that a mutation was attested on the basis of "Band Sawal" and the same has not been proved in accordance with law. States that the suits have rightly been filed before the civil court as it is the civil court which can declare the rights of the parties and under the tenancy law the revenue authorities were not having jurisdiction to decide the matter in issue. States that when the plaintiffs-respondents came to know about the impugned transaction, therefore, the suit was filed which is within the limitation from the date of knowledge. Further that as the fraud has been committed, therefore, civil court was having jurisdiction.
6. I have heard learned counsel for the parties and gone through the record.
7. The pivotal question in the lis in hand is attestation of mutation No. 4527 on 12.6.1940. According to this mutation Mehr Zaman Khan father of the plaintiffs sold his rights of "Dakheel Kari" under section 8 of the Punjab Tenancy Act (XVI of 1887) in favour of Muhammad Aslam Khan owner of the suit property. For further dilating upon the matter it is necessary that the order of the Revenue Officer recorded while passing mutation on 12.6.1940 be reproduced, which is as follows:--
This mutation was entered on 2.9.1939 and objection of the plaintiffs that same could not have been attested after six months of entrance of the mutation. In this regard, Para 7.4(xiv) of Chapter 7 of the Land Records Manual is relevant which is reproduced as under:--
"No period of limitation being prescribed under section 37 of the Land Revenue Act, a mutation cannot be refused merely because of the lapse of time."
Further light can be taken from the judgment of august Supreme Court of Pakistan reported as "Muhammad Ishaq and 2 others v. Ghafoor Khan and another" (2000 SCMR 519) in which it has been held that once the authority and genuineness of the sale transaction was established then mere irregularity in the procedure regarding attestation of mutation would not suffer the binding effect of the mutation. The objection that mutation was attested after nine months from its entrance and same was defective, is not in accordance with law. When the original right holder in the suit property i.e. father of the plaintiffs Mehr Zaman Khan never challenged the mutation in his lifetime despite the fact that he remained alive after 40 years of the attestation of mutation and further that the mutation was more than 30 years old document at the time of filing of the suit, therefore, the value of the mutation was to be assessed in the light of the relevant provisions of law. Both the courts below have not assessed the evidentiary value of the mutation in the light of the relevant provisions of Qanun-e-Shahadat Order, 1984.
8. In these circumstances, the objection of alleged defects in attestation of mutation has no substance. I am further astonished to see that learned trial court has scrutinized the matter of attestation of mutation in the light of Land Revenue Act, 1967 whereas the mutation was attested 27 years before coming into force of the said Act, therefore, matter of attestation cannot be scrutinized in the light of provisions of the land Revenue Act, 1967 and it is to be seen in accordance with the law applicable at the time of attestation of the mutation in question. When the mutation in question was admittedly incorporated in the revenue record and the same entries in the "Jamabandi" remained intact till the time of filing of the suits, therefore, I am enlightened by the judgment of august Supreme Court of Pakistan reported as "Muhammad Amir and others v. Mst. Beevi and others" (2007 SCMR 614) by holding that the record of rights carries presumption of truth and the august Supreme Court of Pakistan in its judgment relied upon "Abdul Ahad and others v. Roshan Din and 36 others" (PLD 1979 SC 890) and has quoted the following paragraph to illustrate the principle:--
"When a mutation gets incorporated in Jamabandi (i.e. annual record) then as held in Bhagwan Das v. Mangal Said (1), Jamabandi carries a presumption of truth and the learned District Judge in the circumstances was not justified to ignore the said Jamabandi and its corresponding supporting mutation."
Learned counsel for the respondents has further relied upon the Land Revenue Rules, 1968, in accordance with the said rules Form No. 39 is for interrogatories whereas admittedly at the time of attestation of mutation these rules were not in the field.
9. PW-1 Zia Ullah Khan Saddar Qanungo, Naib Tehsildar Office, stated in the cross-examination that proceeding of "Band Sawal" is detached from the proceedings of mutation and same is kept as separate bundle in the Tehsil Office, which negates the allegations of plaintiffs and defects alleged by the plaintiffs with regard to the "Band Sawal" and according to their own case when one of the plaintiffs appeared as PW-4, stated that his father left the Mauza, where the suit property is situated, in his childhood and was residing with his mother in Mohallah Allah Khail due to some dispute in the family and there was a threat to his life by his uncles. In this view of the matter, plaintiffs failed to prove that mutation was wrongly attested and failed to discharge their onus.
10. Now comes the question of limitation, as per the plaintiffs they came to know about the impugned mutation 2/3 months prior to the filing of the suits whereas the PW-1 in his cross-examination stated that Exh.P.1 the copy of mutation which has been produced by the plaintiffs was issued from Tehsil Office on 6.5.2000 which shows that at least in the year 2000 plaintiffs were in the knowledge of the impugned mutation and further when their father has not impugned the mutation in question in his lifetime and remained alive 40 years after the attestation of the mutation, the long silence of a person, when no valid explanation is available with that person, under the law of limitation, if there is any right that extinguishes and does not remain enforceable under the law. Reliance can be made upon "Nazir Ahmad and another v. Muhammad Yousaf" (PLD 2013 Lahore 517). In this view of the matter, light can be taken from the judgments of the august Supreme Court of Pakistan reported as "Atta Muhammad v. Maula Bakhsh and others" (2007 SCMR 1446) and "Muhammad Amir and others v. Mst. Beevi and others" (2007 SCMR 614) and suit was certainly time barred and both the courts below fell in error while deciding the matter of limitation against the settled principles of law.
11. While deciding the point in issue learned both the courts below failed to consider the applicability and barring provision contained in Tenancy Act XVI of 1887, which are directly applicable to the facts of this case, the same are sections 38, 50, 58, 77 and 114. It is admitted position that predecessor of the plaintiffs was not even cultivating the land in the year 1940 when the disputed mutation was attested. Section 38 of the Act, ibid, reads as follows:--
Abandonment of tenancy by occupancy tenant. (1) If a tenant having a right of occupancy fails for more than one year without sufficient cause to cultivate his tenancy, either by himself or through some other person, and to arrange for payment of the rent thereof as it falls due, the right of occupancy shall be extinguished from the end of that year.
(2) For the purposes of this section, a muqarraridar shall be deemed to be a tenant having a right of occupancy."
When predecessor of the plaintiffs abandoned the tenancy and admittedly migrated from the Mauza where the suit land is situated, how after 63 years courts below declared the plaintiffs-respondents as owner of the suit property. Further if the occupancy tenant was wrongfully dispossessed, the remedy was available under section 50 of the Tenancy Act (XVI of 1887) and further the cognizance was available with the revenue court and not before the civil court in the matter in issue and finally in accordance with section 114 of the said Act through decree of the court occupancy rights cannot be created in favour of the plaintiffs after coming into force the Punjab Tenancy (Amendment) Act, 1952.
12. In this view of the matter, the findings recorded by both the courts below are not only result of misreading and non-reading of the valuable evidence produced by the petitioners-defendants but are absolutely against the law, therefore, not sustainable and same are set aside and judgments and decrees passed by both the courts below are set aside and the suit filed by the plaintiffs-respondents stands dismissed. Both these civil revisions are accepted in the above terms.
ARK/A-119/L Revisions accepted.