MUHAMMAD AKRAM and another vs ALTA F AHMAD

' SARDAR MUHAMMAD RAZA, I.---Muhammad Akram and Muhammad Aslam sons of Sultan, residents of Mauza Bhaini, Tehsil and District Mu(tan, were the owners of land measuring 126 Kanals in village Bhaini. A Mutation No,1093 of exchange was attested on 30-10-1983 showing that the aforesaid property was exchanged by the two brothers with Altar Ahmad son of Muhammad Ali against the latter's land measuring 120 Kanals situated in Chak No,115/ML, Tehsil Kum., District Layyah of which Mutation No,44 was attested on 16-10-1983 in favour of Muhammad Akram and Muhammad Aslam.

2. Muhammad Akram and Muhammad Aslam tiled a suit against Altai Ahmad on 26-11-1983 (P- 102) wherein they challenged the alleged exchange mutations and claimed title to land measuring 126 Kanals in village Bhaini while denying altogether the genuineness of mutations aforesaid.

Owing to some formal defect, the suit was withdrawn with permission and again instituted on 4-5- 1985 (P-107) on payment of costs.

3. The suit was contested by Altaf Ahmad. After recording evidence and hearing the parties, learned Civil Judge Second Class. Multan (Ch.Muhammad Hussain). Vide his judgment and decree dated 11-11-1992. Decreed the suit as prayed for. The appeal of respondent Altaf Ahmad was allowed by learned Additional District Judge on 29-9-1994 against which Muhammad Akram etc. Went to the High Court in Revision, which was dismissed by a learned Single Judge of Lahore High Court, Multan Bench, on 6-3-1996 and hence the present petition in which leave was granted on 31- 10-1997. Two other circumstances are relevant to be mentioned here. Firstly, that the property belonging to Muhammad Akram and Muhammad Aslam, other than 126 Kanals aforesaid, was shown to have been transferred in favour of Mst. Amir Mai, their real mother. This mutation also was attested on 30-10-1983. Secondly, during the pendency of litigation, through an application dated 14-1-1991 under Order VI, Rule 17, C.P.0 Altaf Ahmad defendant sought permission to amend his written statement to the effect that on the basis of a receipt dated 12-10-1983, subsequently exhibited as Exh.D-1, he had paid a sum of Rs,4.00,000 to Muhammad Akram on account of the difference in valuation of the two properties. The First Appellate Court as well as the High Court were of the view that the transaction of gift by Muhammad Akram etc in favour of their mother was not challenged and hence their suit challenging the exchange was mala tide. The reasoning was in connection with the arguments that to avoid Martial Law Regulation and to give an impression that entire land in Mauza has been alienated, the Gift was made in favour of mother to protect the exchange.

4. Learned counsel for the appellants at the stage of preliminary hearing had vehemently alleged that both the Courts had given a finding not supported by the facts as well as the evidence on record. That Muhammad Akram and his brother had, in fact, challenged the gift mutation through a civil suit where Mst. Amir Mai, the mother, had confessed judgment in favour of her sons and so through a consent decree the so-called gift stood nullified. Leave was granted to consider this point. The learned counsel also forcefully alleged that the amendment of written statement qua the factum of payment of Rs,4,00,000 was totally unwarranted. That the two properties were materially different from each other in value, that of village Bhaini being much more valuable than the one in Karor, District Layyah. That when Altaf Ahmad realised that this enormous difference in value of both theproperties was irreconcilable, he came up with an amendment application seeking addition of prayers that he paid a sum of Rs,4,00,000 to Muhammad Akram etc. In order to draw equilibrium in the exchange. That this aspect was dealt with by the two Courts in a perfunctory manner. Leave was granted to consider this aspect as well.

6. To recapitulate, the stance of Muhammad Akram etc. Was to the effect that they had not entered into any exchange transaction with Altaf Ahmad, that both the mutations were a result of mala fide on part of Altaf Ahmad and a collusion with Revenue staff. That Altaf Ahmad had been given the disputed property on lease for collecting earth for the purposes of brick kiln and that realizing the value thereof he had resorted to a mala fide act for grabbing the disputed property.

That a gift mutation in favouriof their mother was also a marvel, of respondent's mala fide because he knew that a partial alienation of property through exchange would be hit by Martial Law Regulation and hence, by some means, the entire property required to be shown as transferred.

That further realizing the substantial difference in the valuation thereof, Altaf Ahmad came up with a belated plea that he had also paid a sum of Rs,4,00;000 to Muhammad Akram etc.

7. On the other hand, the plea of Altaf Ahmad respondent was that the appellants had validly entered into exchange transaction of their land. That subsequently, for reasons best known to them, they backed out from such transaction for ulterior motives and were motivated to bring the present suit. In order to settle this controversy, we would venture to see from evidence and record on file as to whether the learned Additional District Judge as well as the Learned High Court were legally justified in arriving at the conclusion that they arrived at to set aside the judgment of the learned trial Court. This was what the leave to appeal was granted for.

8. It is a settled principle of law that a mutation confers no title. Once a mutation is challenged, the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute.

This oft repeated principle of law is quite logical because a mutation not being a title deed, is merely an evidence of some original transaction between that parties that had been struck somewhere prior to entry of a mutation. Respondent Altaf Ahmad has utterly failed to revert back to any transaction and bring on record any oral or documentary evidence thereof. The burden squarely lay on him to prove the transaction because the existence thereof has throughout been alleged by him in affirmative. He was bound to fail in the event of the non-proof of transaction. Only the trial Court realised it.

9. It is again a settled principle of law that in order to prove the existence of a transaction of exchange through mutation, the party that relies on such mutation is bound to prove both of them.

Altaf Ahmad has utterly failed to prove the transaction in Karor, District Layyah through Mutation No,44 attested on 16-10-1983. He has also failed to prove that the possession of such 120 Kanals had physically been delivered to Muhammad Akram etc. This was another blow to the existence of any exchange transaction between the parties.

10. Learned trial Court has categorically determined with reference to every detail provided in section 42 of the Land Revenue Act that the two mutations of exchange in village Bhaini, District Multan and Karor District Layyah were attested in utter violation of provisions of section 42 of the Land Revenue Act. Such detailed reasoning of the trial Court was answered by the High Court in simple and unimpressive words that a Roznamcha Waqiati was, of course, entered in the instant case. Mere entry of Roznamcha Waqiati alone is not the only requirement of section 42 of the Land Revenue Act. Numerous other steps were also to be necessarily taken regarding which the High Court had no reason to advance.

11. The Lumbardar who is said to have had identified the transferors Muhammad Akram and Muhammad Aslam qua the land in village Bhaini, District Multan was admittedly not the Lumbardar of village Bhaini. He belonged to a different village but the Courts granting decree were of the view that said Lumbardar belonged, of course, to the same Patwar Circle. We are not at all convinced by such reasoning because a Lumbardar, as such, is a person supposed to be of the village concerned and not at all Patwar Circle. A Patwar Circle includes numerous villages the people of which are not at all acquainted with the people of other villages. The identification by a Lumbardar of unconcerned village was another factum that indicated doubtful nature of the transaction.

11-A. In connection with the attestation of a mutation, most important entities are the Patwari Halqa who happens to enter the mutation and the Revenue Officer who happens to attest the same. Both of them were not produced and examined in Court. In the absence of these two officials, the mutations cannot be said to have been proved.

12. The most important point in the instant case is with regard to the payment or otherwise of a sum of Rs,4,00,000 to Muhammad Akram etc. By Altaf Ahmad, the factum which subsequently was allowed to be pleaded by respondent Altaf Ahmad through the amendment of written statement. It may be recalled that the trial Court had disallowed this amendment but the same was allowed by the then learned District Judge holding that an amendment can be allowed at any stage regardless of what would be the legal or factual consequences thereof. It has come on record that the property belonging to Muhammad Akram etc. In village Bhaini is much higher in value than the property belonging to Altai Ahmad respondent in Karor, District Layyah.The market value on record of the property in village Bhaini is sixteen times higher than the corresponding property. If this difference is kept in view in order to visualise and assess the whole scenario, one comes to the conclusion that the payment of Rs,4.00,000 during the course of alleged transaction was the most important aspect and ingredient of transaction. It is too far fetched to believe that when the question of exchange would arise, the respondent would tend to forget but the most important aspect of payment of a substantial amount of Rs,4,00,000.

13. It is most curious to observe that the suit by the appellants at the first instance was filed on 26- 11-1983. No doubt, it was withdrawn with permission to file a fresh one yet the respondent had filed a written statement on 21-12-1983, only a month after the institution of suit (P-104). Not an iota of word is mentioned in the written statement qua the payment of Rs,4,00,000. That the omission was due to forgetfulness, is simply unbelievable. The plaintiffs filed fresh plaint on 4-5-1985 (P-107) against which the respondent again submitted a second written statement on 20-7-1985 (P-109).

In this written statement too no mention was made of the payment of Rs,4,00,000. From the first institution in November 1983 up to more than seven years thereafter the defendant/respondent did not think of the payment of huge sum of money. It appears that when the suit proceeded and different relevant matters came to light and when the cards were open, the defendant realised the marked difference in value of the properties and hence unreasonableness of the exchange in question. He for the first time on 14-11-1991 came up with an application under Order VI, Rule 17, C.P.0 for getting his written statement amended to that effect. This sudden recollection of payment is highly unnatural, illogical and utterly fictitious. It was based on a receipt of payment dated 12-10- 1983 (Exh.D-1). Had this receipt been in existence, the factum of payment would never have slipped out of the mind of the defendant for a gross delay of seven years. To our mind the very plea of payment taken more than seven years after the first institution of suit was a fact sufficient by itself to dislodge the defendant/respondent and for grant of decree to the plaintiffs.

14. This alarming delay of more than seven years in bringing about amendment in the written statement is covered by the High Court with the reason that once amendment is allowed in pleadings, such amendment is deemed to have been taken with effect from the filing of first pleading. This was an amazing argument. The amendments are mostly allowed in the pleadings' without considering the delay involved regardless of what legal or factual consequences it may entail upon. One can say that practically no limitation is prescribed for making an amendment but such amendment by itself is no proof of its truth or correctness. How on earth a Court can shut its eyes to a glaring fact that the amendment itself was sought more than seven years after the institution of first written statement. Learned High Court had made it a point to favour the respondent because he too, had put two dates on his amended written statement i,e, 3-9-1991 and 20-7-1985; the former being the date of actual filing and the latter being the date of previous second written statement (P-109). The delay in making this plea cannot, of course, be barred by any limitation but the factual aspect thereof cannot be ignored and the factual inferences which are very strong in the instant case, cannot be avoided.

15. Although we have already held that seven years delay in recollecting the fact= of payment of 118.04,00,000 is by itself 'sufficient to declare the payment as non-existent utid to declare the transaction as void yet for academic purpose, we would also discuss the evidence qua the execution of receipt Exh.D-1, indicating the aforesaid payment. The scribe Abdul Haq Haqqani and the marginal witnesses belong to different places and it could not be explained as to how they gathered together at one place to perform and witness the execution. The deed contains two dates, one being 12-10-1983 and the other being 12-10-1988. The scribe below his signature had put the date as 12-10-1988 which he admitted at confrontation. Observation of the Court is also to the same effect. Obviously, in the year 1983 no one would put a date of 1988 even inadvertently. By inadvertence one can, at the most, write the year as 1982. This makes the receipt doubtful.

According to respondent Altaf Ahmad, the scribe Haqqani was already present on the spot when Altaf and the witnesses arrived there, whereas, Haqqani says that all the other people were already present and that he arrived subsequently. The respondent says that actual transaction at the time of such execution was concealed due to fear of pre-emption, whereas the fact is that a genuine transaction of exchange is not pre-emptible. The payment was allegedly made to Akram alone but the fact is that his brother Aslam was equally a vendor and the payment, if any, should have been made to him as well.

16. Against the suit of the plaintiff an objection was raised qua the maintainability thereof on the ground that no order of the Court was produced regarding withdrawal with permission to file a fresh one. This is refuted by the very pleadings of the parties. The institution of second plaint after withdrawal with permission of the first one, was specifically alleged in the plaint but not at all denied in the corresponding para of the written statement. The fact would, therefore, be deemed to have been admitted. This being besides the fact that the permission to file a fresh suit was granted on payment of Rs,300as costs which were deposited by the appellants and the challan where of is available at page 221 of the tile.

17. The appellants after getting knowledge of the, disputed exchange had filed the first suit and had challenged the same within one month. Similarly, they had also brought a suit for challenging the gift in favour of their motherin which the latter had confessed judgment. It was not at all necessary for the appellants to have made the respondent a party in that suit as well. Apparently, it was a so- called gift between the sons and the mother and the same was set aside through a consent decree.

18. The Gift transaction is taken, from respondent side, to be a proof of the genuineness of exchange transaction because, according to him, it was done in furtherance of the exchange transaction and in order to avoid the mischief of Martial Law Regulation. This is not sound because apparently there is no oral or documentary proof on record that the appellants had made this gift in order to avoid the implication of Martial Law Regulation and to dispose of their entire belongings in the Mauza. As it is a mere presumption, it can equally well be presumed conversely that the gift transaction was also collusively motivated by respondent himself to avoid the mischief of MLR.

19. Another argument is advanced by the respondent side that the appellants had, in fact, entered into a genuine transaction of exchange but subsequently developed some mala tide and thus denied such exchange. In the absence of any proof regarding mala tide, this argument can be taken as double edged. It equally and strongly applies to the respondent who admittedly being in possession of the property as lease for extracting earth for the brick kiln, and realising the value thereof, was swa yed by greed and resorted to manoeuvring the so-call exchange transaction in order to grab the land of the appellants by hook or by crook.

20. Here, we are also confronted with a question as to what at all was the requirement of the appellants to enter into exchange. It is but natural, reasonable and logical that whenever an exchange is entered into it is always for certain material considerations weighing with the parties.

In the instant case the appellants neither owned any property in Karor, District Layyah with which the instant one could have been consolidated nor they had any relationship at Karor for whose sake they could have migrated. So far as the comparative valuation is concerned, we have already stated that the two properties had no comparison whatsoever, one being sixteen times higher in value than the other. Learned High Court was wrong when it reasoned that the reasonableness of an exchange transaction cannot be gone into by the Court like it does in a case of gift. While refuting this reasoning, we hold that reasonableness of a transaction of exchange is a strong as well as relevant consideration.

21. All the above points that we have taken up for consideration had already been taken up, discussed and decided by the trial Court in a very exhaustive manner. There was no evidence on record to refute such reasoning's nor the two Courts have advanced any appreciable reason to refute the conclusions drawn by the trial Court. In our view, there was noevidence at all to necessitate disagreement with the findings of the trial Court. Both the higher Courts have entered into an illegality of not appreciating the evidence in its true perspective and of reading it evidence that which was not there.

22. Consequently, the appeal is accepted, the impugned judgment dated 6-3-1996 of the High Court is set aside and that dated 11-11-1992 of the trial Court is restored. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.