REHMATULLAH and others Versus SALEH KHAN

CH. IJAZ AHMED, J.--- Respondents Saleh Khan and others filed suit for declaration against the petitioners in the Court of Civil judge Tank on 12-12-1991. The contents of the plaint reveal that Saleh Khan and others filed suit against the present petitioners/defendants for declaration to the effect that they are owners in possession of land measuring 421 Kanals, 5 Marlas according to their Shari share being legal heirs of Mst. Zar Bibi and Mst. Janat Bibi and the petitioners/defendants have got no concern with the land exceeding Sharie share of their father Sarwar Khan and that Mutation No.3763 attested on 17-12-1939 being wrong, fictitious, collusive, based on fraud is ineffective upon the rights of respondents/plaintiffs. They also prayed for possession of the land. They have also-made a prayer for permanent injunction restraining the petitioners/defendants for making interference in their possession and use of trees and grass etc. The petitioners/defendants filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed 10 issues and vide judgment and decree, dated 29-7-2002 dismissed the suit. Respondents/plaintiffs being aggrieved filed appeal in the Court of District Judge Tank which was accepted vide judgment and decree, dated 26-6-2003. Thereafter, the petitioners filed civil revision in the Peshawar High Court, D.I. Khan Bench which was dismissed vide impugned judgment. Hence, the present petition.

2. The learned counsel for the petitioners submits that trial Court was justified to dismiss the suit of the respondents whereas the First Appellate Court and learned High Court erred in law to reverse the same. He further submits that both the Courts below had misread the record and decided the case against the petitioners without any justification. He further submits that it was in the knowledge of the respondents well in time and the respondents had filed the suit after 52 years and this fact was not considered in its true perspective. The learned trial Court was justified to dismiss the suit as time-barred. He further submits that one of the legal heirs of Mst. Zar Bibi filed suit for declaration which was dismissed and it was in the knowledge of the respondents but this fact was not considered by the Courts below. He further submits that petitioners had secured a decree on the basis of mortgage and this fact was also not considered in its true perspective. He further submits that affidavits were filed before the First Appellate Court and the High Court by the respondents that the case was filed by the respondents only on political reasons and they did not want to proceed with the case and this aspect of the case was also not considered by the Courts below. He further submits that collateral were not made party, therefore, learned Courts below were not justified to reverse the judgment of the trial Court and this fact was also not considered in its true perspective. He further maintains that one of the legal heirs of Mst. Bani objected to the mutation before Revenue Authorities in the year 1939 which was rejected, therefore, respondents had knowledge of the mutation since then as the Mutation No.3763 was attested on 17-12-1939, hence Courts below erred in law that respondents/plaintiffs got knowledge of the mutation in 1986. Moreover respondents/plaintiffs were the mortgagees of the land, therefore, they had knowledge of proceedings in relation to the redemption of mortgage to the mortgager. He further urges that petitioners/their predecessors-in-interest, have taken possession of the land in question in view of oral sale agreed/accepted between Mst. Bani, the vendor and Sarwar Khan, the vendee. The said alienation was completed when the sale consideration was received by the vendor. After the said sale the respondents/plaintiffs acquired their inheritance respective predecessors i.e. Mst. Janat Bibi and Mst. Zar Bibi vide Mutation No.3849 dated 11-5-1941, Mutation No.61.05 dated 23-7-1963, Mutation No.6611 dated 11-2-1966, the suit-land was not included in the inheritance, therefore, they did have knowledge and this fact was not considered by the Courts below in its true perspective.

3. We have considered the submissions made by counsel for the petitioner and perused the record. It is better and proper to reproduce issues framed by the trial Court out of the divergent pleas of the parties to resolve the controversy between the parties:

"(1) Whether plaintiffs have got a cause of action'?

(2) Whether this Court has got jurisdiction?

(3) Whether plaintiffs have waived their right if any'?

(4) Whether suit is liable to be dismissed being mala fide?

(5) Whether suit is within time?

(6) Whether plaintiffs are owners in the suit-land being legal heirs of Mst. Zar Bibi and Mst. Janat Bibi?

(7) Whether Mutation No.3762 dated 17-12-1993 in favour of the predecessor of defendants is wrong, collusive, fraudulent and ineffective on the rights of plaintiffs?"

(8) Whether plaintiffs are entitled to the decree for declaration and permanent injunction as prayed, for'?

(9) Whether plaintiffs are entitled to the possession of suit-land in the alternative?

(10) Relief."

Some of the grounds i.e. (i) respondents/plaintiffs are legal heirs of Mst. Bani or not, (ii) validation of mutation of sale, (iii) limitation and (iv) non-impleadment of necessary parties, raised before us are exactly the same which were raised before the learned High Court and were rejected with cogent reasons by the learned High Court in the impugned judgment vide paragraphs Nos.7 to 10. The remaining grounds which were contended before us by the learned counsel for the petitioners were not agitated before the learned High Court as is evident from para.3 of the impugned judgment. It is a settled law that parties are bound by their pleadings as law laid down by this Court in Mst. Murad Begum's case PLD 1974 SC 322. It is also a settled law that this Court does not, normally, allow the parties to raise fresh pleas before this Court as law laid down by this Court and Privy Council. See Ashfaqur Rehman's case PLD 1971 SC 766 and John E. Brownlee's case AIR 1940 PC. 219. In view of the law laid down by this Court remaining pleas raised by the learned counsel of the petitioners have no force. The learned High Court had taken lot of pain to consider each and every piece of evidence to find out the validity of mutation of sale in question as is evident from para.8 of the impugned judgment which is reproduced herein:

"As far as the validity of impugned sale mutation is concerned it was entered at the instance of Sarwar the predecessor of petitioners on 19-8-1939 and in Column No.13 of the mutation the sale consideration was shown as Rs.500. The mutation was presented before the Revenue Officer for attestation on 27-8-1939 but on that day Mst. Bani, the alleged vendor, did not appear before him. On 27-9-1939 the mutation again came up before the Revenue Officer and on that Mst. Bani had appeared before him. She was accompanied by one Habibullah Lumberdar who told the Revenue Officer that she admits the receipt of sale consideration of Rs.240. However, when questioned by the Revenue Officer Mst. Bani told him that she cannot tell as to how much amount she had received. At the same time the alleged vendee told the Revenue Officer that she had received Rs.1,000 as sale consideration. In view of the above contradictory statements of the parties and that of Lumberdar the Revenue Officer made an order that the mutation be put up in the presence of the heirs of Mst. Bani. However, soon after 27-9-1939 Mst. Bani died and the Revenue Officer attested, the sale mutation on 17-12-1939 in the absence of her legal heirs mentioning the receipt of sale consideration of Rs.240. It is admitted fact that Mst. Bani was an illiterate lady. The entry dated 27-9-1939 recorded in the impugned mutation reveals that she knew nothing about the contents of impugned sale mutation and she was incapable of understanding the nature of the transaction. She had neither admitted the receipt of sale consideration nor there is any evidence on record establishing the payment of alleged sale consideration. It was, therefore, rightly held by the learned District Judge that the attestation of impugned mutation was the result of fraud and collusion and it was ineffective over the rights of the plaintiffs who being the successors-in-interest of Mst. Bani are entitled to get their share in the suit property."

4. Mere reading of the aforesaid paragraph we are of the view that learned High Court had rightly come to the conclusion that attestation of impugned mutation was the result of fraud and collusion. It is settled law that entries in the mutation registers are by themselves not conclusive evidence of the facts which they purport to record. It is settled law that any person who is acquiring title through mutation, the burden of proof of proving transaction embodied in the mutation, is upon him. It is also settled law that mutations by themselves do not create title and the persons deriving title thereunder have to prove that transferor did part with the ownership of the property, the subject of mutation in favour of the transferee and that the mutation was duly entered and attested as law laid down by this Court in Hakiin Khan's case 1992 SCMR 1832 and Muhammad Ali's case PLD 1993 Lah.

33. It is settled law that an attested mutation may carry a rebutable presumption. See Karam Shah's case 1988 CLC 1812 and Ghulam Muhammad's case 1992 MLD 1335. Mutation is to be proved through evidence of title. See Muhammad Din's case 1992 ALD 459. Even mutation has to be recorded in the presence of the parties with: their consent or upon due notice to them. See Muhammad Shah's case 1992 MLD 833. The petitioners have failed to prove that sale price was paid to the original owner as evident from para.8 of the impugned judgment, therefore, there was no sale in the eye of law as law laid down by this Court in Muhammad Shafi's case PLD 1986 SC 519 it is settled law when the basic order is without lawful authority then all the super structure shall fall on the ground automatically as law laid down by this Court in Yousaf Ali's case PLD 1958 SC 104 and Crescent Sugar Mills' case PLD 1982 Lah.

1. It is by now settled law that limitation cannot run against void order. See Pakistan Post Office's case 1987 SCMR' 1119, Raja Muhammad Fazil Khan's case PLD 1975 SC 331 and Muhammad Masihuzzaman's case PLD 1992 SC 825. It is also settled law that question of limitation does not arise in inheritance cases. See Mst. Fazal Jan's case PLD 1992 SC 811 and Ghulam Ali's case PLD 1990 SC 1. It is pertinent to mention here that fraud vitiates even solemn orders as held by this Court in Muhammad Fazil Khan's case (supra). It is settled law that for non -impleading of party, still cannot he dismissed as law laid down by this Court in Central Government of Pakistan's case. PLD 1992 SC 590. It is admitted fact that both the Courts below had held that mutation was proved to be fraudulent and thus, it was a question of fact on which both the Courts below including the High Court had rightly come to a conclusion to declare mutation as not genuine. This Court, as a rule should give due weight and consideration to the opinion of the Courts below, therefore, this Court, does not normally interfere with the findings of fact reached by a High Court when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence as law laid down by this Court in Malik Muhammad Ishaque's case PLD 1977 SC 109.

5. We do not find any infirmity or illegality in the impugned judgment. It is settled law that constitutional jurisdiction is discretionary in nature. He who seeks equity must come with clean hands. In view of the conduct of the petitioner we are not inclined to exercise our discretion in favour of the petitioners as law laid down by this Court in the following judgments:--

(1) Muhammad Sharif's case PLD 1988 Lah. 725, (2) Haji Saifullah's case PLD 1989 SC 166, (3) Nawabzada Raunak Ali's case PLD 1973 SC 236 and (4) Qutubuddin's case 1976 SCMR 524.

6. In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment. This Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising powers under Article 185(3) of the Constitution. The petition has no merit and the same is dismissed. Leave refused.

S.A.K./R-26/SC Leave refused.