Pir SHAH ABDUL HAQ (deceased) Versus MUHAMMAD IRFAN
SHAHID BILAL HASSAN, J.--- The present dispute pertains to land measuring 04 Kanals and 04 Marlas, falling in Khasra Nos. 510, 525, 533 and 537, situated in the Revenue Estate of Golra Sharif, Tehsil and District Islamabad. In the year 1980, the appellant along with the predecessor-in-interest of respondents Nos. 2 to 13, through their attorney Ghulam Jillani, purchased the aforesaid property from Respondent No.1 (plaintiff before the trial court) through an oral sale for a consideration of Rs.20,000/-. The transaction was subsequently reflected in the revenue record through Mutation No.684 dated 15.03.1980. On the same day, Exchange Mutation No.683 dated 15.03.1980 was also sanctioned in favour of one Makhan Khan, and the identifying witnesses of both mutations were the same, namely Said Rasool (Lambardar, Mouza Dhaman) and Ghulam Jillani.
After a lapse of about twenty-two years, Respondent No.1 instituted a civil suit on 16.05.2002 seeking declaration, mandatory injunction and permanent injunction, challenging Mutation No.684 dated 15.03.1980 on the allegation that the same had been procured through fraud, forgery and misrepresentation and without his consent or authority.
The suit was contested by the appellant and respondents Nos. 2 to 13, who maintained that the mutation had been validly sanctioned pursuant to a lawful transaction of sale and that the suit was hopelessly barred by time. On the basis of the divergent pleadings of the parties, the learned Trial Court framed issues, the principal issue being whether the respondent (plaintiff) was the owner of the suit land and whether Mutation No.684 dated 15.03.1980 was illegal, void or the result of fraud and misrepresentation?
In support of their respective cases, the parties led oral as well as documentary evidence. The defendants examined, inter alia , Amanullah Din (DW-1), Malik Altaf Qadir (DW-2), Ghulam Hassan (DW-3), Khurshid Mehmood, Naib Tehsildar (DW-4) and Ashfaq, Halqa Patwari (DW-5), and produced documentary evidence including the copy of the impugned mutation, death registers of identifying witnesses, and Roznamcha Waqiati .
Upon appraisal of the evidence, the learned Trial Court vide judgment and decree dated 17.03.2017 dismissed the suit, holding that the respondent (plaintiff) had failed to prove fraud, forgery or misrepresentation through independent evidence as required under the Qanun-e-Shahadat Order, 1984, and further that the suit, having been instituted after twenty-two years, was hopelessly barred by limitation.
The respondent preferred a Regular First Appeal, which was dismissed by the learned Additional District Judge-IX (West), Islamabad vide judgment dated 11.11.2017, affirming the findings of the learned Trial Court.
Aggrieved thereof, the respondent filed Civil Revision No.410/2017 before the Islamabad High Court, which was allowed vide judgment dated 21.11.2019, whereby the concurrent judgments and decrees of the courts below were set aside and the suit filed by the respondent No.1 was decreed. Hence, the present appeal.
2. Learned counsel for the appellant contended that the impugned judgment of the High Court suffers from serious legal infirmities as it interferes with the concurrent findings of fact recorded by the learned Trial Court and the learned First Appellate Court without demonstrating any misreading or non-reading of evidence. It was argued that the mutation in question was sanctioned in the year 1980, whereas the suit was instituted after an unexplained delay of twenty-two years, rendering the claim hopelessly barred by limitation. Learned counsel further submitted that both courts below, after proper appreciation of oral and documentary evidence, had rightly concluded that the respondent failed to establish any element of fraud, forgery or misrepresentation, yet the High Court, while exercising revisional jurisdiction, reassessed the evidence and substituted its own findings, which is legally impermissible. Lastly, argued that mere procedural irregularity in the attestation of mutation does not invalidate an otherwise proved transaction of sale.
3. Conversely, learned counsel for the respondent No.1 supported the impugned judgment and contended that the mutation in question had been sanctioned without the knowledge or consent of the respondent and was the result of fraud and misrepresentation, therefore it conferred no lawful title upon the appellant. It was argued that entries in the revenue record are only fiscal in nature and do not create or extinguish title unless the underlying transaction is proved to be genuine. Learned counsel maintained that the High Court had rightly exercised its revisional jurisdiction as the courts below had failed to properly appreciate the evidence and had overlooked material circumstances indicating that the mutation proceedings were not conducted in accordance with law. It was therefore submitted that the impugned judgment calls for no interference by this Court.
4. Arguments heard. Record perused.
5. The arguments advanced at the Bar and the material available on record give rise to the following questions for determination: whether the suit instituted by the respondent challenging the mutation after a lapse of twenty-two years was barred by limitation?; whether the alleged procedural irregularities in the attestation of the mutation could invalidate an otherwise established sale transaction?; and whether the learned High Court was justified, in the exercise of its revisional jurisdiction, in interfering with the concurrent findings of fact recorded by the courts below?.
6. It is an admitted position that Mutation No.684 was sanctioned on 15.03.1980, whereas the suit was instituted on 16.05.2002, after a lapse of more than twenty-two years. The law of limitation on the subject is well settled that unexplained delay in challenging a mutation renders the claim legally untenable. In Muhammad Miskeen and others v. Noor Muhammad and others (2011 SCMR 808) this Court held:
The transaction of exchange was entered into in the year 1937; whereas the suit for declaration and possession was instituted on 26-3-1994 Miandad remained satisfied and silent for 53 years therefore, the suit was hopelessly barred by time.
Likewise, in Muhammad Hussain and others v. Muhammad Shafi and others (2008 SCMR 230) it was observed:
The mutation was attested on 15-1-1943 which remained unchallenged till 1990 when the appellants got up from a deep and unexplained slumber and filed a suit for declaration after 47 years
Similarly, in Ghulam Haider and others v. Wali Muhammad and others (2008 SCMR 1425) this Court held that a suit filed nineteen years after the mutation was hopelessly time-barred. The underlying philosophy of limitation was elaborately explained by this Court in Atta Muhammad v. Maula Bakhsh (2007 SCMR 1446) in the following terms:
The law of limitation provides an element of certainty in the conduct of human affairs. Statutes of limitation and prescription are statutes of peace and repose Whoever wishes to dispute this presumption must do so within that period; otherwise his rights, if any, will be forfeited as a penalty for his neglect.
In the present case, the impugned mutation was sanctioned on 15.03.1980, whereas the respondent instituted the suit on 16.05.2002, after an unexplained lapse of more than twenty-two years. During this prolonged period, the respondent remained completely silent and took no steps whatsoever to question the validity of the mutation or the underlying transaction. No convincing or legally acceptable explanation has been furnished to justify such inordinate delay. It is well settled that a person who sleeps over his rights for decades cannot subsequently seek to unsettle long-standing entries in the revenue record and disturb the settled rights of parties. Allowing such belated challenges would defeat the very purpose of the law of limitation, which is designed to bring certainty and finality to legal relations and to prevent the reopening of stale claims 1 . In these circumstances, the suit instituted by the respondent was clearly hopelessly barred by limitation.
7. It is correct that the respondent has attempted to justify the belated challenge to the mutation on the plea that the same had been procured through fraud and misrepresentation. There can be no cavil with the settled proposition that fraud vitiates all solemn acts. In Mst. Zulaikhan Bibi through LRs and others v. Mst. Roshan Jan and others (2011 SCMR 986) this Court reiterated the principle earlier enunciated in Muhammad Younus Khan v. Government of N.-W.F.P. (1993 SCMR 618) in the following terms:
There is no cavil with the proposition that fraud vitiates all solemn acts and any instrument, deed, or judgment, or decree obtained through fraud is a nullity in the eye of law and can be questioned at any time
However, the allegation of fraud is not to be accepted on mere assertion; it must be specifically pleaded and strictly proved through reliable evidence. This Court has consistently held that a question of fraud necessarily involves a finding of fact regarding the conduct of the party concerned before it can be concluded that such conduct amounts to fraud.
Furthermore, even where fraud is alleged in relation to an instrument or transaction, the party challenging such instrument is required to seek its cancellation within the limitation period prescribed by law. In Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212) this Court observed that where a document is alleged to have been obtained through fraud or misrepresentation, the matter falls within the ambit of section 39 of the Specific Relief Act, and the suit seeking declaration or cancellation must be filed within the period prescribed under Article 91 of the Limitation Act, i.e., three years from the date when the alleged fraud comes to the knowledge of the plaintiff.
In the present case, apart from making bald allegations, the respondent failed to produce any convincing evidence to establish fraud in the sanctioning of the mutation. The courts below, after evaluating the evidence on record, concurrently held that the allegations of fraud were not proved. Even otherwise, the respondent remained silent for more than two decades before approaching the court, which further undermines the credibility of the allegation. In these circumstances, the plea of fraud cannot be invoked to circumvent the law of limitation or to unsettle long-standing entries in the revenue record.
8. It is well settled that long-standing entries in the revenue record ought not to be unsettled lightly, particularly where they have remained unquestioned for a considerable period and rights have subsequently accrued on their basis. In Waris Khan and 18 others v. Col. Humayun Shah and 41 others (PLD 1994 SC 336) , this Court observed that where revenue entries are very old, considerations of laches, limitation and even questions of prescriptive title become relevant, and the jurisdiction to disturb such entries through summary processes may itself be open to objection. The principle was reiterated in Mst. Grana through legal heirs v. Sahib Kamala Bibi (PLD 2014 SC 167) , wherein it was held that the law of limitation assumes decisive significance when the conduct of the claimant reflects acquiescence, particularly where third-party interests have intervened in the property. The combined effect of these authorities is that challenges to long-standing mutation entries, especially after prolonged inaction and where third-party rights have been created, must be viewed with great circumspection and ordinarily ought not to be entertained.
9. Another significant aspect which cannot be lost sight of is the presumption of correctness attached to entries in the revenue record. Once a mutation is duly sanctioned and subsequently incorporated into the Jamabandi, it forms part of the regular revenue record and carries a statutory presumption of truth, unless rebutted through strong and cogent evidence. In Abdul Ahad and others v. Roshan Din and others (PLD 1979 SC 890) , this Court held:
When a mutation gets incorporated in Jamabandi (i.e. annual record) then 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.
The same principle has consistently been reiterated by this Court while examining belated challenges to mutation entries. In Ghulam Haider and others v. Wali Muhammad and others (2008 SCMR 1425) , it was observed that once a mutation stands reflected in the revenue record and the parties remain in possession pursuant thereto, the entries enjoy a presumption of regularity which cannot be lightly displaced. The Court held that:
A presumption of regularity is attached to these entries and in absence of any credible material to rebut the said presumption the Courts below have rightly dismissed the suit.
Similarly, in Muhammad Hussain and others v. Muhammad Shafi and others (2008 SCMR 230) this Court refused to unsettle a mutation which had remained unchallenged for decades, observing that the conduct of the party in remaining silent for such a long period itself reflects acceptance of the ground realities. In the present case, the mutation in question was sanctioned in 1980 and continued to remain part of the revenue record for more than two decades without any challenge. No convincing evidence was produced by the respondent to rebut the presumption attached to the revenue entries. In these circumstances, the courts below were fully justified in giving due weight to the revenue record and in holding that the respondent had failed to discharge the heavy burden required to displace the statutory presumption attached thereto.
10. Even otherwise, if for the sake of arguments, it is admitted that there were certain procedural irregularities in the attestation of the mutation, such irregularities by themselves would not invalidate an otherwise established transaction of sale. In Muhammad Ishaq and others v. Ghafoor Khan and another (2000 SCMR 519) this Court categorically held:
Once the authenticity and genuineness of the sale transaction is established then mere irregularity in the procedure regarding attestation of mutation would not affect the binding effect of the mutation as no provision in the Land Revenue Act could be referred to which invalidated such transaction.
Similarly, in Muhammad Afzal and others v. Province of Punjab (2001 SCMR 593) this Court emphasized that where documentary evidence and oral testimony clearly establish the underlying transaction, minor procedural objections regarding mutation proceedings cannot be allowed to defeat substantive rights. The Court observed that the High Court had discarded documentary evidence on illusionary reasons , and after examining the record restored the findings based on documentary proof and corroborating oral evidence of the Sub-ordinate Courts.
In Nawab Din v. Giani (2008 SCMR 657) as well, this Court upheld the validity of a mutation after noting that the Patwari and other witnesses had clearly testified about the factum of sale and payment of consideration, and the courts below had rightly concluded that the sale transaction had been proved.
The consistent thread running through the above precedents is that mutation entries themselves do not create title, but where the underlying transaction is proved through credible evidence, technical defects in the mutation process cannot invalidate the transaction. In the present case, the subordinate Courts examined the oral as well as documentary evidence and concurrently held that the transaction reflected in the mutation was genuine and that the respondent had failed to establish fraud or misrepresentation. In these circumstances, even if certain procedural objections were raised regarding the mutation proceedings, such objections could not, by themselves, annul the transaction or justify setting aside the concurrent findings recorded by the subordinate Courts.
11. Another aspect of the instant case is that the Trial Court and the First Appellate Court, after recording evidence and undertaking a comprehensive appraisal of the material available on record, had concurrently concluded that the mutation in question reflected a genuine transaction of sale, that the respondent had failed to establish the allegations of fraud, forgery or misrepresentation especially when the mutation under challenge (No.684 dated 15.03.1980) and the Exchange Mutation (No.683 dated 15.03.1980) were entered and sanctioned on one and the same day, which negates the stance of the respondent No.1 that he did not visit the office of Patwari on the given date and in this regard he did not produce any other independent witness(es) and remained confined to his solitary statement while appearing in the witness box, which was not sufficient to dislodge the documentary proof brought on record by the appellants and even the respondent No.1. As observed above, both the Subordinate Courts have correctly reached to the conclusion, after construing law on the subject in a judicious manner, that the suit instituted after more than two decades was hopelessly barred by limitation. These findings were recorded after proper appreciation of both oral and documentary evidence and were affirmed by the learned First Appellate Court upon reappraisal of the entire record. It is by now a settled principle of law that concurrent findings of fact recorded by the courts below cannot ordinarily be disturbed in revisional jurisdiction unless such findings are shown to suffer from misreading or non-reading of evidence or are otherwise perverse or illegal. Revisional jurisdiction is supervisory in nature and is not intended to convert the High Court into a third court of fact. In Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) this Court held:
Indeed, the concurrent findings of three Courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity affecting the merits of the case, are not open to question at the revisional stage.
Likewise, in Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another (2023 SCMR 246) this Court reiterated that while an appellate forum may reappraise the evidence within the confines of law, the trial court occupies a special position in assessing the credibility and demeanor of witnesses, and its findings are ordinarily accorded due deference unless they are shown to be manifestly erroneous or perverse.
The same principle has been repeatedly emphasized by this Court in cases involving belated challenges to mutation entries. In Nawab Din v. Giani (supra) this Court declined to interfere with the concurrent findings of the courts below where both courts had held, on the basis of testimony of the Patwari and other witnesses, that the sale transaction had been proved and the mutation had been validly sanctioned. Similarly, in Muhammad Ishaq and others v. Ghafoor Khan and another (supra) this Court refused to disturb the concurrent findings of all the courts below regarding the genuineness of the sale transaction, observing that no flaw could be pointed out in the evidence relied upon by the courts below.
In the present case, the learned High Court, while exercising revisional jurisdiction, reassessed the evidence and substituted its own conclusions in place of the concurrent findings recorded by the courts below without identifying any misreading or non-reading of evidence, nor pointing out any material illegality or perversity in the conclusions drawn by the courts below. Such an approach is plainly inconsistent with the well-settled limits of revisional jurisdiction. The impugned judgment, therefore, cannot be sustained as it amounts to an impermissible interference with concurrent findings of fact recorded by two competent courts after due appreciation of the evidence on record. See Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Muhammad Farid Khan v. Muhammad Ibrahim and others (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21) wherein it has been held that:-
There is a difference between the misreading, non-reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.
Further in judgment reported as Salamat Ali and others v. Muhammad Din and others (PLD 2022 SC 353) , it has invariably been held that:-
Needless to mention that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below.
In this regard, the case of Mst. Farzana Zia and others v. Mst. Saadia Andaleeb (2024 SCMR 916) can also be referred wherein it has invariably been held that:-
13. We are sanguine that the High Court has the powers to reevaluate the concurrent findings of fact arrived at by the lower courts in appropriate cases but cannot upset such crystalized findings if the same are based on relevant evidence or without any misreading or non-reading of evidence. The first appellate court also expansively re-evaluated and re-examined the entire evidence on record. If the facts have been justly tried by two courts and the same conclusion has been reached by both the courts concurrently then it would not be judicious to revisit it for drawing some other conclusion or interpretation of evidence in a second appeal under section 100 or under revisional jurisdiction under section 115, C.P.C., because any such attempt would also be against the doctrine of finality The High Court cannot substitute its own findings unless it is found that the conclusion drawn by the lower courts were flawed or deviant to the erroneous proposition of law or caused serious miscarriage of justice and must also avoid independent re-assessment of the evidence to supplant its own conclusion. (underline for emphasis)
12. The cumulative effect of the foregoing discussion is that the suit instituted by the respondent No.1 after an unexplained lapse of more than twenty-two years was clearly and hopelessly barred by limitation; the allegations of fraud, forgery and misrepresentation remained unsubstantiated and were rightly disbelieved by the subordinate Courts; the mutation in question, having remained incorporated in the revenue record for decades, carried a presumption of correctness which the respondent failed to rebut through credible evidence; moreover, during this long interregnum third-party rights have also come into existence, further strengthening the need to uphold the sanctity and finality of the long-standing revenue entries; and the learned High Court, while exercising revisional jurisdiction under section 115 Code of Civil Procedure, 1908, transgressed the settled limits of such jurisdiction by interfering with the concurrent findings of fact recorded by Trial Court and First Appellate Court without demonstrating any misreading or non-reading of evidence. In these circumstances, the impugned judgment cannot be sustained in law.
13. For the foregoing reasons, these appeals are allowed. The judgment dated 21.11.2019 passed by the Islamabad High Court is set aside, and the concurrent judgments and decrees of the Trial Court dated 17.03.2017 and First Appellate Court dated 11.11.2017 are restored. Consequently, the civil suit filed by respondent No. 1 stands dismissed. No order as to the costs.
C.M.As. Nos. 12138, 12580 of 2019 and 2581 of 2022
14. Since main case has been decided, the instant applications have become infructuous and the same are disposed, accordingly.
UN/A-13/SC Appeals allowed.
1 Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 Supreme Court 212), United Bank Limited and others v. Noor-Un-Nisa and others (2015 SCMR 380), Lahore Development Authority v. Mst. Sharifan Bibi and another (PLD 2010 Supreme Court 705) and Sardar Anwar Ali Khan and 10 others v. Sardar Baqir Ali through Legal Heirs and 4 others (1992 SCMR 2435).