NAJA AND 2 OTHERS vs SHAMAND AND 4 OTHERS

ORDER

' Respondent No, 5, Mst. Fatima widow of Ahmad, and the petitioners herein, who happened to be the alienates in third succession of the land on account of a transfer thereof made by her after securing in the year 1950 the inheritance from her son Yara who died issueless and could not have transferred a title in the land .For more than her 1/3rd share. The suit was held to be within time under Article 120 of the Limitation Act on the basis of possession of land proved to have been held by them. Plea of the defendants about their being the bona fide purchasers of the land was negative with the finding that there was no evidence about payment of consideration nor regarding any inquiry held by them about the title and possession of the land. Consequently, the suit was decreed and an appeal filed by the present petitioners has been dismissed by the learned District Judge by affirming the findings of fact recorded by the trial Court and they have now come upto this Court in revision.

2. It is argued by the learned counsel that the two Courts below have wrongly disregarded the entry of mutation Exh. D. 7 in holding that the petitioners have not been proved to be the bona fide purchasers. This argument is incorrect because they have considered this mutation and in the year 1948, were sued out for declaration by respondents Nos. 1 to 4 herein, namely, Shahmand; a real brother of the aforesaid Ahmad, and the three sons of Muhammad, their only other brother. The case set up in the plaint, is that only 1/3rd share of land left by Yara had vested in his mother Mst.

Fatima while the remaining 2/3rd share thereof had devolved upon them. The suit was resisted on a number of pleas giving rise to a total of 8 issues involving the questions of limitation, estoppel and the defendants being the bona fide purchasers of land. Trial Court found on the basis of evidence led in the suit that Yara had died in the year 1948 with the result that the plaintiff- respondents became co-sharers in the land in dispute to the extent of 2/3rd upon the 1/3rd share thereof being inherited by Mst. Fatima held that there is no evidence of payment of consideration, a necessary ingredient of the right asserted. Clearly enough, a mutation simply incorporates a transaction which has already taken place and, as much, mutation is only a piece of evidence, though not an unimportant one but it does not take the place of the transaction itself nor, its own force, prove the transaction which, even in the presence of a mutation, stands in need of being independently proved like any other fact. This has been the consistent view of the superior A Courts taken in innumerable cases during the last more than half a century. Hence the proof of payment of consideration cannot be deemed to have been provided by the mutation Exh. D.

7. Learned counsel has not been able to point out any documentary evidence, in the form of receipt, to bear out the payment alleged to have been made by the petitioners and the ocular evidence adduced on the point has been disbelieved by the two Courts below. Hence, the conclusion of the two Courts below that a necessary condition for being the bona fide purchasers has not been proved in this case, is simply unexceptionable.

3. It is next argued that entries in the Khasra Girawari bear out that the plaintiffs are holding the land in dispute as tenants under the petitioner, wherefore, they are estopped under the law to deny the title of the petitioners. This argument is only misconceived because the Courts below have recorded concurrent findings of fact on the basis of the evidence led in the suit that possession of the land is held by them in their own right, as co-sharers. There is no evidence whatever adduced to prove the alleged tenancy nor has any of the stated cultivators been brought to the witness-box.

Unsupported entries of Khasra Girdawari, regarding the nature of possession held by one C or the other person, are only valueless. In Devi Das and others v. Yaran Khan and others (1) a Division Bench of this Court concluded on the basis of Wall Muhammad v. Muhammad Bakhsh (2) that Khasra Girdawaris, not being the foundations of title but only evidence thereof, interpretation of entries made therein remains a question of fact, not liable to be reopened in a second appeal and hence the concurrent findings of fact reached by the two Courts below on the basis of the evidence led in the suit are sacrosanct for the purposes of this revision petition because there is no jurisdictional of those Courts pointed out as having been committed in reaching those findings.

Nothing can really turn in this case on the entries of Khasra Girdawari and case of the petitioners cannot get advanced anywise by a finding being reached even to the effect that they may have themselves been in possession of the land in dispute, may be for any length of time, because they have not pleaded or proved ouster of the plaintiffs who have been proved to be the co-sharers of the land in dispute and, as has been held in Saadullah Khan and 6 others v. Mir Piayo Khan and 14 others (3) they have a right to claim themselves to be in possession of the land through toe other co-sharers because possession of one co-sharer endures also for benefit of the E other co-sharers.

In this view of the matter, there is no question of the suit of the respondent-plaintiffs being barred by time. Contention of the learned counsel is accordingly repelled. No other point has been argued before me.

(1) AIR 1937 Lab. 656 (2) AIR 1930 P C 9!

(3) PLD 1970 Pesti. 150

4. There is no force in the Civil Revision which is, therefore, dismissed in limine.