GUL MUHAMMAD Versus ZULFIQAR

MUHAMMAD SHAN GUL, J:- Through this judgment the titled civil revision is sought to be decided. The present civil revision has been languishing at the limine stage since 2010.

2. The petitioner has filed the titled civil revision against judgment and decree dated 14.4.2006 passed by a Civil Judge, Muzafarrgarh, as also against judgment and decree dated 25.6.2010 whereby an Addl: District Judge, Muzaffargarh has upheld the judgment and decree passed by a Civil Judge, Muzaffargarh. This revision petition seeks to challenge concurrent findings recorded by both courts below.

3. I have heard the counsel for the parties and perused the record.

4. Brief facts necessary for adjudication of the present matter are that respondent No.1, Zulfiqar, plaintiff in the civil court, filed a suit for declaration on 01.10.2001 claiming therein that he is owner in possession of the suit property measuring 46 Kanals 2 Marlas situated in Tehsil Kot Addu, District Muzaffargarh. The plaintiff maintained that mutation No.1389 dated 18.12.1994 on the basis of which subsequent mutation No.2018 dated 10.9.2001 in respect of the suit property was sanctioned is baseless, fraudulent, collusive and, therefore, ineffective upon his rights. The plaintiff specifically took the plea that he had never sold away the suit property through mutation No.1389 dated 18.12.1994 and that he had never received an amount of Rs.2,00,000/-.

5. On the other hand, the defendants, petitioners herein, filed their written statements contending that the property in question had been sold to them by the plaintiff after receiving valuable consideration and the plaintiff had appeared before the revenue hierarchy for the purpose of attestation of mutation but which mutation was subsequently misplaced and as a result of which the matter was reported to the Assistant Commissioner concerned by the Halqa Patwari for preparation of a fresh mutation and who vide order dated 10.9.2001 ordered for preparation of a fresh copy of mutation and which was ultimately entered as mutation No.2018.

6. The following issues were framed by the trial court:- "i). Whether the plaintiff sold away the suit land through mutation No.1389 dated 18.12.94 for a consideration of Rs.2,00,000/- to defendants Nos.5 to 23?OPD ii). If issue No.1 above is not proved then whether order dated 12.11.95 by Assistant Commissioner, Kot Addu and subsequent sanction of duplicate sale mutation No.2018 dated 19.9.2001 by Tehsildar allegedly executed by the plaintiff in favour of defendants Nos. 5 to 23 is against the facts, without jurisdiction and hearing of the plaintiff, illegal, and ineffective against the rights of the plaintiff?OPP iii). Whether the suit has not been correctly valued for the purpose of court fee and jurisdiction?OPP iv). Whether the description of the suit property is incorrect, if so, its effect?OPD v). Whether the suit is not within time?OPD vi). Whether the earlier suit was dismissed for non-prosecution on 24.2.1998 and as such this suit is not maintainable?OPD vii). Whether this court has jurisdiction to entertain this suit?OPD viii). Whether the suit is false, frivolous mala fide, without cause of action and the defendants are entitled to special costs?OPD ix). Relief."

7. The petitioner, Gul Muhammad, himself appeared as DW-1 and was found out, so to speak, during the course of cross-examination. He did not remember the exact date or for that matter even the month or the year in which he had purchased the suit property from the plaintiff. The petitioner also admitted that during the exercise of sanctioning of original mutation No.1389 dated 18.12.1994 no Lambardar or Member of the Union Council was present and even the witnesses of the mutation in question who were alive had not appeared as witnesses and, likewise, the then Halqa Patwari, Abdul Rehman, despite being alive was also not summoned by the petitioner to prove the mutation in question.

8. On the other hand, respondent Zulfiqar himself appeared as PW-1 and categorically stated that neither had he sold the property to anyone nor had he received any consideration for the said purpose. He also stated that at the time of preparation of a duplicate copy of the mutation he was never summoned nor heard by the Assistant Commissioner who without conducting any inquiry sanctioned mutation in his absence.

9. The petitioner through his oral as well as documentary evidence failed to discharge the onus insofar as Issue No.1 is concerned. Under Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 it was incumbent upon the petitioners to prove sale of property through the testimony of reliable marginal witnesses but who were not produced by the petitioners even when they were admittedly alive and available. The petitioner made no attempt in this respect even when the cornered Halqa Patwari, the concerned Tehsildar and marginal witnesses, all except one, were alive. Furthermore, copy of Khasra Girdawari, Exh.P/5, clearly shows the suit property as being in possession of the respondent Zulfiqar i.e. plaintiff in the suit.

10. In the case reported as "Muhammad Yaqoob v. Mst. Sardaran Bibi and others" (PLD 2020 SC 338), the Hon'ble Supreme Court of Pakistan has held that, "under section 54 of the Transfer of Property Act, 1882 in order to enforce the sale of immoveable property, it was imperative for the vendee to establish that the transaction was executed with the title holder and that there was an offer made which was accepted, the parties suffered from no incapacity, there was consensus between them, the sale was settled against valid consideration and was accompanied by delivery of possession." If these principles are applied to the case at hand, it transpires that the petitioners have failed to bring on record any such details pertaining to the sale of the suit property in their favour by the respondents. What adds impetus to the case of the respondents is the Khasra Girdawari which clearly shows the possession of the suit property as being with the respondents and never having been transferred in favour of the petitioners.

11. It is also trite that mere attestation of mutation of sale does not furnish proof of the sale and whenever any such transaction is questioned, the onus lies on the beneficiary to prove not only the transaction but also every ingredient thereof as also the executed document as token of its acknowledgment. The learned trial court rightly placed the onus of proving Issue No.1 'whether plaintiff sold away suit land through mutation dated 18.12.1994 to defendants' on the defendants which they failed to discharge.

12. Likewise, in "Muhammad Ali v. Sohawa (deceased) through L.Rs. and others" (2019 CLC 626), it has been held that, "under section 42 of the West Pakistan Land Revenue Act, 1967, the Revenue Officer while attesting a mutation was bound to ensure the presence of persons whose rights were at stake and were sought to be acquired by such mutation and what was extremely necessary was the aspect of the identification of such persons by two respectable persons." The mutation under challenge before the civil court was sanctioned in violation of Section 42(7) of the West Pakistan Land Revenue Act, 1967 as well.

13. In another case reported as "Muhammad Hussain v. Allah Ditta" (2017 YLR 1249), it has been held that, "entry of a mutation did not have presumption of correctness prior to incorporation in the Record of Rights. When a party had made statement on oath and alleged commission of fraud in attestation of mutation and denied the transaction reflected therein, the onus would be shifted on the beneficiary to prove not only the transaction but valid attestation thereof as well." It was held that the "beneficiary was bound to produce witnesses of such transaction and in case of death of any witness any person familiar with the transaction could be produced before the court."

14. In the present civil revision the petitioners failed to produce the Revenue Officer, Halqa Patwari and any attesting witness to the mutation in question. No Rapat Roznamcha was produced either before the trial court which could have suggested that the transaction did actually take place. Hence, the suit was rightly decreed by the trial court.

15. In another judgment reported as "Bashiran Bibi v. Zaib un Nisa and others" (2018 YLR 2574), it has been held that, "a mutation of sale did not create any right or title in an immoveable property. Attestation of mutation was a consequent stage prior to which the transaction must have been effectuated among the parties. The beneficiary of such transaction was bound to provide details with regard to the transaction such as time, month, venue and names of witnesses who witnessed the completion of transaction and that such fact had to be mentioned in the plaint so as to be proved by evidence." However, a perusal of the written statement filed by the petitioners before the trial court reveals that no such details with regard to the transaction or for that matter sanctioning of mutation have been mentioned in the written statement and no evidence whatsoever was led to prove either of the issues. Therefore, the petitioners failed to prove the sale of the property in question through mutation No.1389 dated 18.12.1994 and, hence, the suit was rightly decreed.

16. The appellate court also affirmed the findings of the trial court by specifically holding that the petitioners had failed to prove the sale of the suit property in their favour by not producing the marginal witnesses of the mutation in question.

17. Even otherwise, the Hon'ble Supreme Court of Pakistan in "Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad" (2012 SCMR 730) has held that, "concurrent findings of facts are not open to correction in revisional jurisdiction unless the same are perverse or suffer from a material error of jurisdiction or are based on misreading of evidence."

18. What is even more alarming is the lame plea taken by the petitioners about the original mutation being misplaced. Also, the petitioner, Gul Muhammad, while appearing as PW-1 during his cross-examination compromised his own case because he failed to mention or recall the date, month or year when the transaction took place.

19. Also evident is the fact that while sanctioning the second mutation on the basis of alleged original mutation the Assistant Commissioner, Kot Addu acted in a mechanical and near robotic manner and sanctioned the mutation without any regard to the person whose interest was being so acquired and without citing any reason as to why a duplicate mutation was being sanctioned. The order of the Assistant Commissioner, Kot Addu being non-speaking and being in derogation of Article 10-A of the Constitution stands eclipsed and, therefore, is of no use to the petitioners. Also important is the fact that the exercise leading up to the second mutation was initiated on the asking of a Patwari. As to why a Patwari took the initiative himself and approached the Assistant Commissioner, Kot Addu, has not been explained at all by the petitioners and, therefore, reeks of collusiveness. The Assistant Commissioner, likewise, did not bother to undertake any inquiry and also did not issue any notice to the respondents!

20. Learned counsel for the petitioners has very strongly urged the aspect of an earlier suit being filed by the respondents which was dismissed for non-prosecution. Learned counsel for the petitioners submits that this earlier suit having been dismissed for non-prosecution barred the filing of a fresh suit. This argument is misaimed and naive because there was no adjudication in the earlier suit which was dismissed for non-prosecution and, therefore, it was not a case contested between the parties. Additionally, the parties to that suit are different than what they are in the present suit. This, therefore, takes care of the objection raised by the counsel for the petitioners.

21. The petitioners have miserably failed to prove:- i). that respondent, Zulfiqar appeared before the Revenue Officer for attestation of the original mutation; or ii). that he received the sale amount; or iii). whether there was any agreement to sell; or iv). whether possession ever changed hands as a result of the alleged mutation.

The evidence of the petitioner, Gul Muhammad, being full of inaccuracies and discrepancies with respect to, both, the transaction as also the alleged mutation, the concurrent findings of facts recorded by the courts below come across as unexceptionable.

22. Since the petitioners did not produce any revenue officials instrumental in the alleged attestation of mutation and since the petitioners did not even produce any witness of the mutation or of the agreement to sell, it can be safely stated that the petitioners are guilty of withholding their best evidence and naturally an adverse presumption can be drawn against the petitioners on the basis thereof.

23. The Hon'ble Supreme Court of Pakistan in "Feroz Khan and others v. Mst. Waziran Bibi" (1987 SCMR 1647), "Muhammad Mal Khan v. Allah Yar Khan" (2002 SCMR 235) and "Muhammad Sarwar v. Mumtaz Bibi and others" (2020 SCMR 276), has categorically held that adverse inference will be drawn against a person who wishes to prove a fact if the person withholds his best evidence because the presumption would be that best evidence has only been withheld on account of the fear of a damning deposition.

24. At the end, it may be reiterated that where the validity of a mutation was challenged by a person whose interests were at stake and stood compromised by the mutation in question, it was incumbent upon the beneficiaries to not only prove the validity and legality of the mutation by producing all relevant evidence but it was also necessary that the initial transaction leading up to the mutation should also be proved through cogent and reliable evidence.

25. Seen from all angles, concurrent findings of facts recorded by the courts below are unexceptionable and deserve no interference. Hence, this civil revision must meet its fate of dismissal.

ZH/G-16/L Revision petition dismissed.