PLJ 1996 SC 58 (Appellate Jurisdiction)

Present: saiduzzaman siddiqui and fazal illahi khan, JJ. RASTA MAL KIIAN-Pet: Joner

versus

NA15I SAL'WAR KHAN etc.-Respondents Civil Petitions NTo. 521 to 525 of 1994, dismissed on 29.1.1995.

[On appeal from judgment of Peshawar Higti Court, Circuit Branch DI

Khan, in Civil Revisions No. 226, 227, 228, 235 and 229 of 1991,

passed on 7.7.1994]

(i) Land Revenue Act, 1967 (W.P. Act XVII of 1967)--

-—S. 42- Mutations of gift-Attestation of--Whether mutations were of gift or of sale-Question of-In these mutations words 'Hibba' and 'Wahiban' in relevant columns of mutation, were cut arid overwritten as 'Bai' and Rs. l.OOO/- was inserted as sale consideration for land in each of these mutations though area covered by them greatly varied»-It was, therefore, rightly observed by learned High Court that if parties to transaction had changed their mind, revenue authorities were required to reject mutation of sale after recording such report in 'Roznamcha Waqiati', as required under Section 42 (1) of West Pakistan Revenue Act, 1967, at instance of owner and then all formalities required for completion of transaction of  #sale should have'been completed before attestation of sale mutation-Neither such report was made to Patwari nor any entiy was made in . 'Roznamcha' wherefrom it can be gathered that both parties had changed their mind and agreed to convert gift transaction into that of sale-Held : Purpose behind these mutations, was to get suit land partitioned in manner that each one of them shall become owner of specific Khasra number to exclusion of others, for that gift mutations were resorted to as a device to achieve that end.           [Pp. 61&62] A, B & C.

(ii) Land Revenue Act, 1967 (W.P. Act XVII of 1967)--

—-S. 172 (2) clause VI read with Ss. 42 & 52 of Specific R«ief Act, 1877- Mutations-Attestation of-Challange to-Whether jurisdiction of Civil Court is barred-Question of-Exclusion of jurisdiction of Civil Court relates to correction of entries made by Revenue Officer in performance of his duty without touching right of persons in land, but whenever such entires interfere with rights of a person in land recorded in Record of Rights, he has to approach Civil Court for declaration under Section 53 of Act or in other words under Section 42 of Specific Relief Act-Dispute herein pertained to nature of transactions in suit for pre-emption based
on impugned mutation-Held : Suits were rightly held triable by Civil Court-Leave to appeal refused.            [Pp. 62&63] D & E

Mr. M. Munir Peracha,  Advocate Supreme Court and Mr.  Ejaz Muhammad Khan, AOR for Petitioners in all 5 petitions.

Respondents: Not represented. Date of hearing : 29.1.1995.

judgment

fazal ILAHI kjian, J.-By this single judgment we propose to dispose of Civil Petitions for Leave to Appeal No. 521/94 to 525/94,-as in all these petitions the same question of law and facts are involved.

2.                  These five petitions are directed against, the common judgment in Civil Revision Petitions No. 226/91 to 230/91 of the Circuit Bench D.I. Khan of Peshawar High Court ; whereby, the judgments and decrees of the Courts below were  set aside and the respondents/plaintiffs' suits were decreed as prayed fjr in the plaint.

3.                  Admittedly mutations of gift bearing No. 10091, 10090, 10084, 10089 and 10092 wore entered by the Patwari Circle alongwith several other similar mutations. Through these mutations the parties mutally agreed to transfer their share in the specific khasra numbers in favour of one another. Similarly all these mutations were attested on 29.5.1988 while the rest of them i.e. the disputed one for un-known reason were not attested on the said date but allegedly attested on 29.8.1988. Subsequently when suits for pre­ emption were brought in this respect these mutations were challenged in the present   suits   by   plaintiffs/respondents   arraying  the   transferees,   pre- emptors, Patwari Halqa and Tehsildar as defendants. The orders of the Revenue Officer passed on these mutations showing the transactions that of sale were   challenged   to  be   collusive   and   fraudulent   as   actually   the transactions were that of gift and that sale consideration for the same had never passed. Nabi Sarwar Khan and another respondents in their written statement resisted the suits and stated that the mutations were of sale have been correctly attested while respondents No. 4 and 5 (i.e. the pre-emptors) in their joint written statement also denied the allegations and stated that these mutations were rightly attested that of sale in Jalsa-e-Aam and are binding on the parties to the transactions.

4.         After framing of issues Baitullah Khan, Patwari Halqa (PW-1), Muhammad Ali Khan Office Kanun-go (PW-2) and Haji Mubarak (PW-3) Special Attorney of the plaintiffs appeared from the plaintiffs' side while Attaullah Khan Patwari (DW-1), Goher Zaman Patwari Halqa (DW-2), Muhammad Ali.Khan Office Kanungo (CW-1) and Bahadur Ali Khan (DW- 3) appeared for the defendant/petitioner and closed the evidence. They also placed on file the relevant revenue record in their statements. The learned trial Judge under issue No. 3 i.e. "as to whether the impugned mutations attested on 29.5.1988 are gift mutations and not of sale", held that these mutations were attested in public gathering in presence of the parties and the witnesses to it ; namely, Shamtiaz and Zafar Ali, That the plaintiffs'attorney (PW-3) though present in the Jalsa-e-Aam did not dispute the sales in question. Reliance was also placed on statement of Atta Ullah Khan Patwari Halqa (DW-1X That in case the petitioner defendant had any objection in treating the gift as sale such objection would have been taken at the time of attention of these mutations. On such finding the respondents/plaintiffs' suits were dismissed. The learned Addl : District Judge in appeals filed by the respondents/plaintiffs, whoever, assuming that the suits were in substance for correction of the revenue record additionally found the same incompetent under Section 42 of the Specific Relief Act. It was further found that after institution of the suits for pre-emption the question could have been raised and decided in the suits for pre-emption and not by separate suits. The learned appellate Court, however, did not give any finding on merits of the case and dismissed the appeals. In revisions filed by the respondents/plaintiffs the findings of the learned trial Judge maintained by the learned Addl : District Judge, on the material issue was set aside and in consequence on acceptance of the revision petition the judgments and decrees of the Courts below were set aside and the respondents-plaintiffs' suit decreed as prayed for.The main contention on which leave to appeal is prayed for is as to whether the learned High Court was legally justified on facts of the present case, to reverse the finding of fact recorded by the trial Court, not interfered with by the first appellate Court, and that the transaction was that of sale and not fit. In order to appreciate the contention, salient feature of the case has to be looked into and in depth appraisal of the evidence would be necessary specially that part of the evidence which prevailed with the learned High Court in setting aside the concurrent finding. Mian Shakirullah Jan, the learned Judge in Chamber, who was seized of the matter, on re-appraisal of the evidence has observed that the Courts below have misconceived the facts of the case, mis-read the evidence and mis­construed the law which has resulted in gross injustice in the case.

5.         It is an admitted fact that apart from the impugned mutations No. 10084, 10089, 10090, 10091 and 10092 several other mutations i.e. mutation Nos. 10078, 10079, 10080, 10081, 10082, 10083, 10085, 10086 and 10087 were entered by the Patwari Halqa on one and the same day 9th April, 1988. All these were between the same set of parties, namely, Mubarak Din, Mir Salam Din, Gul Qamar Din sons of Amal Din, thtir sons, and other close relatives and family members in favour of one another in respect of different khasra numbers which they jointly owned, it was the case of the respondents-defendants that these mutations were entered by way of family settlement with an object that each of the family member shall become an exclusive owner of specific khasra number, to the exclusion of other share-holders of the joint holding, so that the land could be effectively managed which was otherwise difficult as a joint holding. As a result of such settlement, the gift mutations were entered with the Patwari excepting mutation No. 10085 which was that of redemption, and the entries in the relevant column dated 9.4.1988 are as under :-Mutation No. 10078 to 10082, 10085 to 10088 were attested on 24.4.1988 as of gift while the remaining mutations i.e. the mutation under pre-emption, for no reason whatsoever, were left out and not attested and these were subsequently attested on 29.5.1988. In these mutations the words 'Hibba' and 'Wahiban\ referred to above, in the relevant column of the mutation, were cut and over-written as Bai and Rs. l.OOO/- was inserted as the sale consideration for the land in each of these mutations though the area covered by these mutations greatly varied. It was, therefore, rightly observed by the learned High Court that if the parties to the transaction had changed their mind the revenue authorities were required to reject the gift mutations and to order the entiy of fresh mutations of sale after recording such report in Roznamcha Waqiati, as required under Section 42 (1) of the West Pakistan Land Revenue Act, 1967, at the instance of the owners and then all formalities required for completion of a transaction of sale should have been completed before attestation of the sale mutation. It is evident from the record that neither such report was made to Patwari nor any entry was made in the Roznamcha wherefrom it can be gathered that both the parties had changed their mind and agreed to convert the gift transactions into that of sale.

6.                   Baitullah, Patwari Halqa (PW-1) who was examined in Court has stated that he entered all these mutations at the instance of the parties and these were duly verified by the Girdawar Circle as such and there is nothing in his record to show that the parties to the transaction had changed their mind or that they had reported that the transaction in question were of sale and not of gift. Similar is the statement of Haji Muhammad Ali Khan, Office Qanungo who produced the original mutations, copies Ex. PW-1/2, and has stated that these mutations were duly verified by the Girdawar but subsequently the word Hiba has been cut down and that these cuttings do not bear the date and signatures. There is nothing in black and white on behalf of the donors to show that the gift mutations were converted into that
of sale. 

7.                   The learned High Court in setting aside the finding of the Courts below found the following infirmities in the case of which no notice had been taken and which have, been ignored while giving their findings :-

(i) entering of the mutations in dispute as gift mutations on 9.4.1988 alongwith other mutations,

(ii) the attestation of some of the mutations on 24.4.1988 while leaving the mutations in question un-attested without cancellation and without passing any order on them evenwithout writing any note on the same on the said date i.e. 24.4.1988 when other mutations were attested and they were already entered in the mutation register,

(iii) by converting the gift mutation into sale without compliance of the mandatory provisions for entering and attesting of the mutations,

(iv) the holding of the assembly where the mutations were attested in the place of Gul Ayub, close relative of the contesting defendants who borne theexpenses of the common assembly,

(v the presence of Bahadar Ali in the assembly and his meeting with the Patwari without any job of his own,

(vi) the subsequent institution of pre-emption suits by the contesting defendants,

(vii) the mentioning of Rs. 1,000/- as value of the property ranging from 1 kanal 10 marlas to 9 kanals 18 marlas i.e. a nominal price.

(viii)without any solid reason or cause with the donor or the donee for asking the Revenue Officer for changing the mutations from gift to sale".

Learned High Court further observed that: all these facts enumerated above "speak of volumes of mala fide, ulterior motive and fraud" on the part of the. revenue officials in collusion with the contesting defendants. The learned High Court has rightly observed that it is the endeavour of the Court to get the correct understanding of the parties mind in order to deduct correct result therefrom.

9.     In the present cases what Actually was the .purpose behind these mutations, was to get the suit land partitioned in a manner that each one of them shall become the owner of a specific khasra number, to the exclusion of others, for that the gift mutations were resorted to as a device to achieve that end.

10.   Regarding bar of jurisdiction of the Civil Court under Section 172 Sub-section (2> Clause VI of the West Pakistan Land Revenue, Act, 1967 it, may be pointed out that exclusion of jurisdiction of Civil Court relates to the correction of the entries made by the Revenue Officer in performance of hi- duty without touching the right of the persons in the land, but when-ever such cnti les into'kiL vith the rights of a person in the land recorded in the t)cci ic1 f    Rights   diid such person feels aggrieved, for correction of such i i      <• 1    'ms tu appioach Civil Court for declaration under Section 53 of the \     ai  i'   othti n   ' <s u/S. 42 of the Specific Relief Act-both the relief  bun*,  Di   the  same  nature and  identical.  The  dispute  hereinj'pertained to the nature of the transactions in the suits for pre-emption based i on the impugned mutation. The suits were therefore rightly held triable by 1 the Civil Court.For the reasons given above we find no infirmity in the judgment of the learned High Court and refuse to grant leave to appeal in all the five petitions.

(B.T.)                                                                              Petition dismissed