HAKIM KHAN vs NAZEER AHMAD LUGHMANI and 10 others

' WALI MUHAMMAD KHAN, J.---Hakim Khan, through leave of the Court, challenges the judgment and decree dated 4-11-1989 of the Peshawar High Court, whereby his revision petition against the judgment and decree of the Additional District Judge, Mansehra dated 22-12-1983 and that of the Civil Judge, Mansehra dated 23-6-1980, was dismissed. The leave granting order is as follows: "1. Heard.

2. Contends that the learned High Court and the Courts below have not properly interpreted section 42 of the West Pakistan Land Revenue Act, 1967 and held its provisions mandatory though these provisions, according to the learned counsel, are of directory in nature. He has made a special reference to Crawford's Interpretation of Laws, page 529 which states that as a general rule a statute which regulates the manner in which public officials shall exercise power vested in them, will be construed as directory rather than mandatory.

3. The contention needs examination.

4. Leave granted.

5. Security Rs,2,000.

6. The appeal to be made ready on the present record with liberty to the parties to add further documents: ' The facts of the case, briefly stated, are that Musa Khan predecessor-in-interest of the respondents was owner of the suit property measuring 10 Kanals 9 Marlas situated in the area of village Girlat, Tehsil Mansehra. Vide Mutation No,3466 attested on 28-1-1971, he is alleged to have sold the same in favour of Hakim Khan appellant for a sum of Rs,10,000. Since the land was mortgaged, the appellant filed a suit for redemption in the Court of Collector and Musa Khan thereafter filed a suit for declaration to challenge the aforesaid mutation on the ground of fraud and collusion between the appellant and the revenue staff. The suit was contested, necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Judge decreed the same vide his judgment and decree dated 23-6-1980. The appeal and revision filed against it having not succeeded, the appellant filed the instant appeal through leave of the Court.

' We have heard Mian Younus Shah, Advocate, for the appellant, Mr. Abdul Hamid Qureshi, Advocate, for respondents and Mr.Nazeer Ahmad Lughmani respondent 1 in person. The learned counsel for the appellant seriously attacked the conclusions of the learned trial Judge that the mutation in question was attested in violation of the provision of section 42 of the West Pakistan Land Revenue Act; that the transaction embodied in the mutation has not been proved and that the mutation was attested in the absence of Musa Khan plaintiff. He also submitted that the appellate Court as well the revisional Court have, without going into the record of the case, concurred with the judgment of the trial Judge. The learned counsel for the respondents, on the other hand, submitted that the provisions of section 42 of the Act ibid were mandatory in nature and its violation rendered the mutation illegal and void and even if it was incorporated in the subsequent Record of Right it could not transfer title to the appellant. Musa Khan plaintiff/predecessor-in-interest of the respondents had sought declaration of title through the present suit in respect of suit property and challenged the correctness and genuineness of the Mutation No,3466 attested on 28-1-1971. No doubt, it is by now well settled that mutations by themselves do not create title and the persons deriving title thereunder have to prove that the 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. The perusal of mutation will show that the same was entered by the Patwari Halqa, according to the remarks column 14 of the mutation, at the instance of Musa Khan plaintiff. There is an endorsement on the said mutation dated 23-6-1970 recorded by the Naib Tehsildar that Musa Khan vendor in the open gathering, on the identification of Fareedon Khan & Malik Aman Khan Lumbardars, admitted the factum of the transfer of suit land for a sum of Rs,10,000 in favour of Hakim Khan appellant and that the mutation be produced on the next date fixed for the attestation of mutation. On 28-1-1971, the same was again produced before the Tehsildar for attestation on the basis of earlier admission of the vendor on 23-6-1970, and he sanctioned the same in the open gathering albeit in different estate Balakot.

The same was duly incorporated in the subsequent Jamabandi of 1970-71.

' Musa Khan predecessor-in-interest of the respondents woke up from his slumber after about eight years and sought a declaration that the mutation in question was illegal, fraudulent and collusively attested. Since the mutation had already been incorporated in the Jamabandi 1970-71, to which reference was also made by the plaintiff in his plaint and to which under the law presumption of correctness was attached, the learned trial Judge while framing issues in the case, placed the burden of proof of issue No,6 on the plaintiff. The law required the plaintiff to prove fraud in the attestation of mutation or to apply for the recasting of the issues. However, since the parties were alive to the respective allegations and counter allegations, necessary evidence was led by the parties in respect of their respective allegations. It is by now well settled that any person who is acquiring title through a mutation, the burden of proof of proving transaction embodied in the mutation, is upon him. As stated above Musa Khan plaintiff/vendor admitted the sale transaction before the revenue officer on 23-6-1970 in Jalsa Aam in the presence of Fareedon Khan and Malik Aman Khan and they were the only persons who could depose about the correctness and genuineness of the acknowledgment made by Musa Khan. Malik Aman Khan Lumbardar was dead at the time of the recording of evidence in the case and Fareedon Khan was produced by the defendant/petitioner who in his statement as D.W.2 on solemn affirmation deposed that the transaction in question was negotiated and finalised through him and Musa Khan appeared before the Naib Tehsildar and testified to the correctness of transaction of sale in favour of defendant/petitioner. He also deposed that the sale of equity of redemption was fixed at Rs,8,300/- which was paid by the petitioner through him to Musa Khan plaintiff. Hakim Khan petitioner admitted in his cross-examination that Fareedon Khan is the cousin of Badshah Haroon his son-in- law but elucidated the same that his daughter was betrothed to Badshah Haroon only two years prior to the statement and that the marriage has not yet been solemnised. Besides, he clearly explained that at the time of the sale transaction and mutation in question they were not related to each other. Unfortunately, this material evidence in the case escaped the notice of the trial Court as well as the first appellate Court with the result that they devoted their attention mainly to the technical objections with regard to the attestation of mutation in the same estate and the other requirement as contained in section. 42 of the West Pakistan Land Revenue Act and omitted to apply their mind to the factual aspect of the case. The High Court has made a passing reference to the statement of Fareedon Khan but has not considered it in its proper perspective. As such, their judgments are based on non-reading and misreading of material evidence and require scrutiny at this end.

' As discussed above, Fareedon Khan is a disinterested person and his deposition cannot be brushed aside on the bald allegation that he became the relative of the petitioner after about eight years of the transaction in question. The other Lumbardar was dead at the time of the recording of the evidence of the petitioner and therefore the petitioner was deprived of his valuable corroboration. It was not necessary for the appellant to produce the revenue officer as normally they do not know the transferors personally and act on the identification of identifying witnesses.

The appellant had therefore done his best to prove the transaction in question and in the absence of any rebuttal of the evidence produced, the learned lower forums were bound to hold the sale transaction as proved and ought to have dismissed the suit of the plaintiff.

' Dealing with the technical aspect of the case which prevailed with the learned lower forums that the provisions of section 42 of the West Pakistan Land Revenue Act are mandatory and non- compliance of certain provisions thereof has resulted in the annulment of the transaction of sale on behalf of Musa Khan plaintiff/predecessor-in-interest of the respondents in favour of Hakim Khan appellant, embodied in the impugned sale mutation, for a proper understanding of the legal question involved, it is worthwhile to reproduce the said provisions verbatim:

42. Making of that part of periodical records which relates to land owners.--(1) Any person acquiring by inheritance, purchase, mortgage, gift; or otherwise, any right in an estate as a land owner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall---

(a) record such report in the Roznamcha to be maintained in the prescribed manned,

(b) furnish a copy of the report so recorded, free of cost, to the person making the report;, and

(c) send a copy of the report, within a week of its receipt by him, to the Union Committee, Town Committee or Union Council within which the estate is situated.

(2) If the person acquiring the right is a minor, or is otherwise unable to report, his guardion or other person having charge of his property shall make the report to the Patwari.

(3) The Patwari shall enter in his register of mutations every report made to him under subsection

(1) or subsection (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under either of those subsections and has not been so made.

(4) The report made to the Patwari under subsection (1) or subsection (2) or recorded by him under subsection (3) shall be displayed in such manner as may be prescribed.

(5) If the Patwari fails to record or to display a report made to him under subsection (1) or subsection (2); the person making the report may make the report, in writing, to the Revenue Officer concerned and the Chairman of the Union Committee, Town Committee or Union Council in which the estate is situated, by registered post acknowledgment due and the Revenue Officer shall thereupon cause such report to be entered in the register of mutations.

(6) A Revenue Officer 'shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.

(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection

(6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Town Committee or Union Council concerned, whose signatures or thumb- impressions shall be obtained by the Revenue Officer on the register of mutations.

(8) An inquiry or an order under subsection (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the inquiry, relates.

(9) Where a Revenue Officer makes an order under subsection (6) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct.

(10) If within three months of the making of a report of the acquisition of a right under subsection

(1) or subsection (2), or the recording by the Patwari of an entry in the Roznamcha under subsection (3) respecting the acquisition of any right, no order is made by the Revenue Officer under subsection (6), he shall report the cause of delay to the Collector in the prescribed manner.

(11) The Revenue Officer shall, in the prescribed manner, send or cause to be sent, the gist of an order made by him under subsection (6), to the person whose right is acquired, and also to the Union Committee, Town Committee or Union Council in which the estate is situated.

Balochistan Amendment:

(12) Notwithstanding anything contained in the foregoing subsections, the Revenue Officer shall in cases of transfer by registered deeds, have the mutations entered and attested within a period of thirty days, on receipt of the registration memorandum alongwith a photo copy of the registered deed, without summoning the parties.

' Prior to the promulgation of the West Pakistan Land Revenue Act, the Punjab Land Revenue Act (XVII of 1887) was in the field and the corresponding provisions thereof which were replaced by section 42 are also relevant for understading the change brought about in the present Statute and they are being quoted below:-- Procedure for making records

34. Making of that part of the annual record which relates to land owners, assignees of revenue and occupancy tenants.--(1) Any person acquiring, by inheritance, purchase, mortgage, gift or otherwise, any right in an estates a land owner, assignee of land revenue or tenant having a right of Occupancy, shall report his acquisition of the right to the Patwari of the estate.

(2) If the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the Patwari.

(3) The Patwari shall enter in his register of mutations every report made to him under subsection

(1) or subsection (2), and shall also make an entry therein respecting the acquisition of any such right as aforesaid which he has reason to, believe to have taken place, and of which a report should have been made to him under one or other of those subsections and has not been so made .

(4) A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the Patwari and entry made in that register and shall in each case make such order as he thinks fit with respect to the entry in the annual record of the right acquired.

(5) Such an entry shall be made by the insertion in that record of a description of the right acquired and by the omission from that record of any entry in any record previously prepared which by reason of the acquisition has ceased to be correct.

36. Determination of disputes.---(1) If during the making, revision or preparation of any record or in the course of any inquiry under this Chapter, a dispute arises as to any matter of which an entry is to be made in a record of in a register of mutations, a Revenue Officer may, of his own motion or on the application of any party interested, but subject to the provisions of the next following section, and after such inquiry as he thinks fit, determine the entry to be made as to that matter.

(2) If in any such dispute the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain by 'summary inquiry who is the person best entitled to the property, and shall by order direct that that person be put in possession thereof, and that an entry in accordance with that order be made in the record or register.

(3) A direction of a Revenue Officer under subsection (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.

37. Restriction on variation of entries in records.--Entries in record-ofrights or in annual records, except entries made in annual records by Patwaris under clause (a) of section 35 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in subsequent records otherwise than by--

(a) making entries in accordance with facts proved or admitted to have occurred;

(b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties;

(c) making new maps where it is necessary to make them.

' The comparative study of the above provisions of law makes it amply clear that under the old law the Revenue Officer, after inquiry, if satisfied that the transaction embodied in the mutation is admitted or proved to have occurred, could attest the mutation withut obtaining signatures/thumb impressions of the persons concerned. As a matter of fact, under the relevant rules they were debarred to secure the signature of the transferor or the witness lest the mutation amounts to a regular sale-deed and its ultimate production in any matter before a Court of law may be held as irrelevant on account of no stamp and non-registration. Under the old law certain disputes about the genuineness or otherwise of the transaction incorporated in the mutation arose and, in the case of identifying witnesses denying their presence at the time of its registration, ipso facto resulted in the setting aside of the mutation. To guard against such like eventualities a detailed' procedure was provided for under section 42 of the West Pakistan Land Revenue Act.

' The relevant provisions of section 42 which according to the learned lower forums were not complied with are; one, that the attestation of mutation was delayed for more than one year and the Revenue Officer failed to report the matter to the Collector as ordained in subsection (10); two, that the mutation was attested not in the estate where the suit land was situated but in a different estate of Balakot; three, that the transferor Musa Khan plaintiff was not present at the time of the attestation of mutation nor it was attested in the presence of two respectable witnesses. As fully explained in the earlier part of this judgment, these omissions and commissions on the part of the Revenue Officer are not seriously disputed but whether they were such as to, deprive the appellant from valuable landed property acquired by him on payment of cash consideration. '

Undoubtedly, the provisions of section 42 of the West Pakistan Land Revenue Act are mandatory inasmuch as the word 'shall' has been used at the relevant places and the revenue staff to whom directions to act in certain manner have been made are bound to obey them in letter and spirit.

However, there is no provision in the Act or rules framed thereunder that noncompliance with the said provisions by the revenue staff will invalidate the transactions covered by such mutations, for the obvious reasons that even if a mutation is regularly attested, the same cannot by itself create title in the transferee and in case of disputes about transactions or the mutations relating thereto, the parties to the transactions have to prove the transactions just like any other document according to the provisions of the law of evidence. Consequently, the provision of section 42 whether mandatory or directory had nothing to do with the transactions themselves. Needless to mention that mutations are entered and attested for bringing the record up-to-date for fiscal purposes of recovery of land revenue and/or not of effecting title in immovable property.

' The departure from the above provisions is apparently made to avoid fraud and therefore the obtaining of the signatures of identifying witnesses has been made essential so that in the event of their denial the parties concerned may be in a position to prove their signatures. The provision regarding the attestation of mutations in the estate has also been madeior this very purpose as normally many people of the village are present on the date of attestation of mutation for which prior publicity is made and the chances of impersonation, fraud or collusion are very rare.

According to subsection (6) of section 42 Revenue Officer is required to inquire into the correctness of all entries in respect of mutations and under subsection (7) he is to make his inquiries in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee; Town Committee or Union Council concerned, whose signatures or thumb-impressions shall be obtained by the Revenue Officer on the register of mutations. Under subsection (8), an inquiry is to be made in the area of the estate in which subject-matter of the mutation is situated. The Revenue Officer did make an inquiry about the impugned transaction in the open assembly in the estate on 23-6- 1970 in the presence of Fareedon Khan and Aman Khan, both respectable persons of the area concerned. On cross-examination the Patwari stated that 22-6-1970,was fixed for the attestation of mutations relating to the estate where the suit land is situated but he was not aware of any such programme on 23-6-1970. This much is clear that the Revenue Officer did visit the estate in the month of June, 1970. The possibility that the programme was postponed from 22-6-1970 to 23-6- 1970 or on account of accidental slip of pen instead of writing 22-6-1970, 23-6-1970 was recorded by the Revenue Officer while recording acknowledgment of Musa Khan, cannot be excluded. It was, however, positively stated by the Patwari that the Revenue Officer did not visit the estate thereafter for attestation of mutations. The learned lower Courts misinterpreted sub-rule (6) by holding that on the date of attestation of mutation on 28-1-1971 the presence of the transferor was essential as the Revenue Officer had already made inquiries from him and recorded the note to that effect on the mutation on his earlier visit to the estate and there was no legal bar for him to attest mutation on the strength of the earlier endorsement.

The mutafion was incorporated in the subsequent Jamabandi of 1970-71 and the name of Musa Khan was substituted by Hakim Khan under section 42 of the West Pakistan Land Revenue Act and presumption of truth is attached to such entries. Under section 53 thereof, if any person considers himself aggrieved by an entry in a record-of-rights, he has to institute a suit for declaration. As such Musa Khan plaintiff ought to have filed a suit for declaration within the statutory period, for disputing the genuineness of the transaction or collusion and fraud in the attestation of the mutation. He, on the admission of his own son and attorney, was a well-known personality of the area, being a landlord, and the father of two practising lawyers and a Thanedar. It is specifically alleged in the plaint that the impugned mutation was entered and attested through collusion with the revenue staff. In view of his status in life, the charge of attestation of the mutation by the Revenue Officer through collusion with the appellant, who is an ordinary citizen, is groundless. No collusion or fraud was attributed to Fareedon Khan and Malik Aman Khan, the identifying witnesses of the mutation, nor they or the Revenue Officer were made parts to the suit to afford them a chance to explain their position. Thus the allegation of fraud and collusion in the attestation of mutation was neither proved nor stands to reason.

' The upshot of the above discussion is that the judgments and decrees of all the lower three forums are set aside and the suit of Musa Khan, plaintiff/predecessor-in-interest of the respondents, is dismissed with no order as to costs.