TOOTI GUL and 2 others vs IRFANUDDIN

1. ' WALI MUHAMMAD KHAN, J.---Tooti Gul and others appellants herein, through leave of the Court, have called in question the judgment dated 1-6-1991 passed by a learned Single Judge of the Peshawar High Court whereby the revision petition filed by Irfanuddin, respondent, was accepted, the concurrent finding of the trial Court dated 28-4-1983 and the Appellate Court dated 4-7-1985 were set aside and the suit of the appellants dismissed.

2. ' The leave granting order is as follows:-- "The transaction was reported to the Patwari who entered the same in his daily diary. However, the mutation could not be sanctioned on account of the .Death of the father of the respondent. The father, the original owner,, was the vendor. He also had received an amount of Rs,13,000 out of the total sale price of Rs,15,500. The petitioners' suit was decreed. The respondent's appeal was also dismissed, but his civil revision was allowed by the High Court, inter alia, on the ground that the daily diary DM being a registered document and the value of the property being more than Rs,100, no title had passed to the petitioners/vendors' side. Reliance was also placed on the cases from Lahore and Allahabad. Learned counsel has contended that the oral sale being not prohibited the entry in the Roznamcha was not an instrument of the sale itself. It only evidence the earlier oral sale which had taken place and in the consideration whereof the vendor had also received Rs,13,000.

3. Learned counsel also contended that even if the mutation had been attested, the mutation documents by itself would not have constituted the sale instrument. That attestation would have also been of the earlier oral sale which was reported to the Patwari. Thus, according to him, the entry in the Roznamcha Waqiati and the mutation proceedings certifying and attesting the transaction of sale only are in the nature of acknowledgement and attestation. The sale remains an oral sale, therefore, no question of registration arises. He has relied on Saifur Rahman and another v. Khamid Gul (1991 SCMR 16), and Khurshid Ahmad v. Syed Akhtar Hussain Gilani (PLD 1991 SC 1070). These and other points raised in this petition required examination. Leave to appeal is granted."

4. ' We have heard Mr. Bashirullah Khan, Advocate for the appellants; Mian Hissamuddin, Advocate.

5. For the respondent; and have perused the record of the case.

6. ' Admittedly the appellants/plaintiffs were occupying the suit house as tenants on behalf of Rahmuddin father of Irfanuddin defendant/respondent. The case of the plaintiffs/appellants is that they purchased the said houses from Rahmuddin for a sum of Rs,15,500 and reported the acquisition to the F'atwari Halqa who recorded the same in the daily diary at Mad No, 101 dated 11- 12-1976 (copy Exh.PW- I /4) at the instance of Rahmuddin vendor and obtained his thumb- impression thereon in the presence of Amirullah-Lumbardar. P.W.3 and Shah Zarin P.W.2 and Mutationlio. 4885 duly entered on its basis but before the same could be placed before the Revenue Officer in the Jalsa Aam in the estate the vendor died and, in consequence, the mutation was rejected on 4-1-1977 which necessitated the filing of the present suit for declaratian of title and issuance of injunction 'against the defendant/respondent not to interfere in the possession of the suit houses. The learned High Court has dismissed the suit on the ground of inadmissibility of the Roznamcha Waqiati for want of registration and also doubted the genuineness of the Roznamcha as the same allegedly bore the thumb-impression of Rahmuddin whereas as per the documentary evidence produced in the shape of application for the issuance of Identity Card as well the Identity Card Rahmuddin used to sign.

7. The learned counsel for the appellants reiterated his arguments advanced at the time of leave grafting order and submitted that the entry in the Roznamcha was made by the Patwari Halqas in the discharge of his duty and that the same did not require registration. Be that as it may the Roznamcha by itself will not confer any title in view of the bar contained in section 49 of the Registration Act. Otherwise too, mutations duly attested also do not confer title under the law and the transactions embodied therein have to be established independently of the mutations. The plaintiffs/appellants, as such were required not only to lead convincing-evidence that Rahmuddin sold the suit land in favour of the appellants but also received consideration therefor wholly or in part. 'Food Gul plaintiff in his statement as P.W.4 positively stated that Rs,13,000 was paid in the Patwar Khana to Rahmuddin vendor before the entry of the Roznamcha by the Patwari Halqa in the presence of Sher Dil Patwari Halqa, Amirullah Lumbardar and Shah Zarin attesting witnesses. He is not corroborated by Amirullah Lumbardar P.W.3 and Sher Dil Patwari P.W.1 so far as the payment of consideration in their presence is concerned. In the circumstances, we (16 not find any legal error in the impugned judgment of the High Cana.

8. ' Resultantly, there is no merit in the instant appeal and the same is dismissed.