Amir Muhmmad Khan Vs Shah Marood and others

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PESHAWAR HIGH COURT. AR

JUDICIAL DEPARTMENT

C.R No. 835-Pl20l2 thc .M No. 117712018 with c.M o.54912024

Amir Muhammad Khan vs. Shah Marood and others.

Date of hearing 18.11.2024.

lWs Amjad Ati & Mukhtar Ahmad Maneri, Advocates, for the petitioner.

Mr. Muhammad Hamayun Khan, Advocate, for the respondents.

JUDGMENT

SYBD ALI. J. Through the instant Civil Revision filed under section 115 of the Code of Civil Procedure, 1908 ("CPC"), the petitioner has impugned the concurrent findings of learned courts below rendered in the judgments/decrees dated 15.09.2011 and 07.05 .zllzand prayed that the same be set aside by dismissing the suit of plaintifflrespondent.

2.Brief facts of the case are that the respondent/plaintiff on 17.03.2007 hadfiled a suit bearing No.94l1 before the leamed Civil Court at Swabi seeking a decree for declaration to the effect that he is owner in possession of the suit property measuring 08 kanal 9- ll2 marlaor whatever area is proved bearing kfiasra No. 4888 ,4893 khata No. 200/4 07 , 2}ll408 situate d atManta Sheikjana Tehsil & District Swabi on the basis of legacy of Mst. Shamalo daughter of Dheranay, however, the petitioner/defendant in connivance with n the revenue officials got transferred the suit property in his name s{ through different sale mutations bearing No. 14434 dated t2.1L 1990, l4ggo dated 14.10.1993 and 1169 dated 09.12.2003 which are illegal and ineffective upon his right; thus, the same liable to cancellation. In alternate, he prayed for decree for possession of the suit property.

3.on being noticed, the petitioner appeared before the court and contested the suit by filing written statement. From divergent pleadings of the parties, nine (09) issues were framed and accordingly both the parties were directed to adduce their respective evidence.

Aurangzeb Patwari Halqa Mauza Sheikhjana appeared before the court as PW-01 and produced fard jamabandi for the y ear, 2002-2003 (Ex.PW . I I l), khasra girdawari (Ex.PW. I I Z), P erth Patwari of mutation No. 1169 dated 09.t2.2003 @x.PW.1/3), goshwara milkiat (Ex.PW.ll4),PerthPatwar of mutation No. 1369 dated 26.07 .2008 (Ex.PW.1/5) and Naqsha Tasveeri (Ex.PW.1/6). This witness in his cross-examination has admitted that as per Naqsha Tasveeri, land measuring l2kanalO8 marla is in possession of petitioner/defendant, whereas land measuring 04 kanal 11 marla is in possession of Nisar, however, mutation No. 1169 dated 09.12.2003 was attested in favour of petitioner, according to which, the petitioner purchased land measuring 03 kanalg-ll2 marla from Mst. Shamalo against sale consideration of Rs. 195,000/-. MuhammadZaib AOK, Swabi appeared before the Court as PW-02 and produced Jamabandi for the year, 1981-82 of khata No. 179 khasra No. 699 (Ex.PW.2/l), according to which, Mst. Shamalo is owner of land measuring 07 kanal 02 marla.

Istiraj attorney of respondent/plaintiff appeared before the Court as PW-03 and supported the contents as narrated in the plaint. Zarshaid Khan ADK, Swabi appeared before the Court as DW-01 and produced original register of mutation in respect of f\ mutation No. 14434 dated 12.11.1990 (Ex.DW.l ll), according to which, Mst. Shamalo sold land measuring 04 kanal to petitioner against sale consideration of Rs. 70,0001-. He also produced mutation No. 1 1833 dated 25.07 .197 8 (Ex.DW .ll2), mutation No. 12448 dated 16.05.1982 (Ex.DW.ll3), mutation No. 14990 dated 14.10.1993 (Ex.DW.ll4), mutation No. 1169 dated 09.12.2003

v @x.DW.ll5) , according to which, Mst. Shamalo sold property to various persons including the petitioner.

Muhammad Ishaq Retired Tehsildar appeared before the Court as DW-02 and produced mutation No. 14434 dated 12.11.1990 (Ex.DW.1/l), according to which, Mst. Shamalo sold property measuring 04 kanal to the petitioner against sale consideration of Rs. 70,000/-. This witness has also stated that Madar Khan Girdawar was appointed as local commission, who obtained thumb impression of Mst. Shamalo along with witnesses on the mutation. According to the report of local commission, Mst.

Shamalo has received the sale consideration privately.

Ameer Bahadar Khan Retired Tehsildar appeared before the Court as DW-03 and stated that according to mutation No. 14990 dated 14.l0.lgg3 (Ex.DW.1/4), Mst. Shamalo sold land measuring 01 kanal to the petitioner against sale consideration of Rs. 19,000/- ;Fazal Hakeem, Naib Tehsildar appeared before the Court as DW- 04 and admitted his signature upon mutation No. 1169 dated 09.12.2003, he stated that Mst. Shamalo was owner of land measuring 3 kanal 9-ll2 marla in the column of ownership, who transferred the said property in favour of Amir Muhammad through the aforesaid mutation.

Fazal Rehman Khan D.O.R. appeared before the Court as DW-05 and substantiated mutation No. lt69 dated 09.12.2003; petitioner Amir Muhammad appeared before the Court as DW-06 and stated that the suit property was purchased by him from Mst.

,l Shamalo through various mutations by paying the sale considerationto vendor and after 3/+yearsof attestation ofmutations she died. This witness in cross-examination has admitted that he himself settled sale transaction with Mst. Shamalo. On first mutation, Mera Khan and Ibrahim were the witnesses; whereas Abdul Rasheed was the witress of second mutation pertaining to property measuring 1 kanal; while Yousaf and Rajwali were the wifiresses of third mutation pertaining to property measuring 3

v kanal 9-l/2 marla and the sale consideration was paid to Mst. Shamalo intheirpresence. In support ofthis assertion, the petitioner also produced Faqir Muhammad (DW-07), Yousaf Khan (DW-08), Mera Khan (DW-09), Abdul Rasheed (DW-10) andFazal Akbar

(DW-11).

4.The learned trial Court after evaluating the aforesaid evidence and hearing the parties, decreed the suit of respondent/plaintiff vide judgment/decree dated I 5.09.201 l. The said finding was also affirmed by the learned Appeal Court vide judgmenUdecree dated 07 .05.2012.

5.The learned counsel representing the petitioner has argued that Mst. Shamalo was issueless and during her lifetime, she had alienated the properly through ten mutations; however, the plaintifflrespondent had chosen to assail only the three mutations through which the property was purchased by the petitioner. The first mutation was executed on 12.11.1990, the second was executed on 14.10.1993 and the third was executed on 09.12.2003, whereas the suit was filed in the year 2007, which was barred by time, beside, the petitioner, through confidence inspiring evidence, had established the transactions from Mst. Shamalo, therefore, the findings of both the courts below are illegal; hence, the suit was liable to be dismissed.

6.On the other hand, Mr. Muhammad Hamayun Khan, Advocate, learned counsel representing the respondents has argued that the alleged transactions were fraudulent as they were allegedly n executed by Mst. Shamalo, who was a pardanasheen lady, 5{- Therefore, there was a heavy burden upon the petitioner to have established the said transactions through confidence inspiring evidence, more particularly, the passing of her sale consideration, which the petitioner has failed to establish; therefore, the findings of both the courts below are in accordance with law.

7.Arguments heard and record of the case was perused.

v

8.It is evident from record that the predecessor of Mst. Shamalo was Dheranay, who was the son of one Chamnay. Chamnay had trvo sons, Miranay and Dheranay. Miranay was survived by Harood, Shamarood and Marood. Amir Muhammad, the petitioner, is the son of Harood, whereas the suit was filed by his uncle Shamarood, claiming to be the legal heir of Mst. Shamalo, his cousin. The other brother Dheranay had three daughters, Mst. Khan Farosha, Mst. Zar Farosha and Mst. Shamalo. Mst. Khan Farosha and Mst. ZarFxosha were married, whereas Mst. Shamalo was unmalried, therefore, she had no issues. Mst. Shamalo, during her lifetime, as per the report of ADK, had executed the following mutations:

S. Mutation Exhibit Area Name of Name of Names of No. number & Number Transferre Seller purchaser witnesses of date of its d mutations attestation I I 1833 dated Ex.DW- l0 marla Mst. Zaheen Mira Khan 20.07.1978 U2 Shamalo Pari (Lumbardar) Mastaan

2.12448 dated Ex.DW- 03 marla Mst. Hussain Sarmadan 15.06.1982 U3 Shamalo Shah Khan (Ahle Commission), Akbar Khan (Lambardar) & another

3.14434 dated Ex.PW- 4 kanal Mst. Amir Mira Khan 12.11.1990 zfD-l & Shamalo Muhamm (Lumbardar Ex.DW- ad Khan ) (Dw-e) & Ut Fazli Akbar Advocate Sheikhjana, Swabi (DW-

4.14468 dated l0 marla Mst. Akhtar Mira Khan 22.04.1991 Shamalo Hussain (Lumbardar) & Fazli Akbar Advocate Sheikhjana

Swabi 5 14471 dated 08 marla Mst. Gohar Fazli Akbar 07 .07 .1991 Shamalo Bacha Advocate, Sheikhj ana, Swabi & Abdul Qadir s/o Qalandar

6.1457 5 dated l0 marla Mst. Muhamma Mira Khan 21.10.1991 Shamalo d Hakeem (Lumbardar) & Firdous Khan (Lumbardar) 7 14647 dated l0 marla Mst. Zaizool s/o Muhammad 20.02.1992 Shamalo Mujahid Ibrahim (Lumbardar)

v & Wafadar s/o Muhammad Diyar Khan

8.14990 dated Ex.PW- 01 kanal Mst. Amir Muhammad l4.l0.lgg3 2lD-2 & Shamalo Muhamm Ibrahim Ex.DW- ad Khan (Lumbardar U4 ) & Abdur Rasheed s/o Umara Khan

9.1169 dated Ex.DW- 03 kanal Mst. Amir Yousaf Khan 09.12.2003 U5& 9Yz marla Shamalo Muhamm @W-8), Raj PW I/3 ad Mali Khan & Faqir Muhammad (Ahle Commission)

DW-7)

9.Out of the aforesaid mutations, Amir Muhammad, the petitioner, had purchased land measuring 8 kanal 9 Yzmxlathrough three mutations bearing Nos.14434 dated 12.11.1990, Ex.PW 2lD- 1 & Ex.DW-1/1, 14990 dated 14.10.1993,Ex.PW2/D-Z & Ex.DW- l/4 and 1169 dated 09.12.2003, Ex.PWll3 & Ex.DW-l/5.

10.Shamarood, the plaintiff/respondent, filed a suit bearing No.94l1 on 17.03.2007, whereby he had chosen to challenge only the alienation ofthe disputed property by Mst. Shamalo through the aforesaid three mutations to Amir Muhammad. It is alleged in the plaint that Mst. Shamalo, during her lifetime, did not execute the disputed mutations and never received *y sale consideration, beside she was a pardanasheen lady.

11.The evidence produced by the parties has been discussed in the aforesaid paragraphs. In support of mutation bearing No.14434 dated 12.11.1990 (Ex.DW-1/1), the defendant has produced the revenue officer who had attested the said mutation as DW-2. The fi

other two witnesses of this mutation are Mira Khan, Lumberdar, andFazalAkbar, Advocate, who appeared before the court as DW- 9 and DW-ll respectively. Muhammad Ishaq, DW-2, who was a revenue officer/retired Tehsildar at the relevant time, has confirmed in his testimony that he had attested the said mutation on report of the Girdawar Circle, who was appointed as a local commission.

v' According to the commission report, Mst. Shamalo had received the sale consideration of Rs.70,0001- against the property sold.

12.Mutation No. 14990 dated 14. 10. 1993 was attested by Ameer Bahadar Khan, the then Tehsildar, who appeared before the court as DW-3. According to his testimony, the then Girdawar Circle Kamdar Khan was appointed as a local commission to record the statement of Mst. Shamalo and on the basis of the said report, he had attestedthe saidmutation. Fazal Hakeem, Naib Tehsildar, Topi, who was a Girdawar at the relevant time, appeared before the court as DW-4 in support of execution of mutation bearing No.l 169 dated 09.12.2003, whereas Fazal Rehman, DOR, who had attested the said mutation, appeared before the court as DW-5. It is his testimony that mutation No.ll69 was attested on the basis of the commission report. The commission was Faqir Muhammad, Lumberdar, who appeared before the court as DW-7 and recorded his statement in support of the said mutation, whereas the other attesting witness Yousaf Khan had recorded his statement as DW-

13.Under Section 52 of the West Pakistan Land Revenue Act, 1967 ('6Act"), presumption oftruth is attached to the revenue record notwithstanding the fact that mutation per se is not a document of title, however, if a person has to challenge any mutation on the basis of fraud or misrepresentation, the particulars of fraud and misrepresentation must be provided in the pleading. "Lal Khan throush lesal heirs vs. Muhammad Yousaf throush lesal heirs", (PLD 2011 SC 6571. "Messrs SAZCO (Pvt.) Ltd. vs. Askari n Commercial Bank Limited" 1 SCMR 558). "Aamir Afzal and another v,s. ,s. Akmal throuah L.Rs. ilnd 2 others" (2024 SCM . ln the present case, no such particulars have been provided. No doubt that the owner of the property was Mst. Shamalo, who was a pardanasheen lady and it is settled law that a transaction from a pardanasheen lady has to be established by the beneficiary through confidence inspiring

evidence. However, in the present case, Mst. shamalo had never challenged the said mutations during her lifetime. Therefore, it was the plaintifPs burden to have established that the mutations were attested on the basis of fraud and misrepresentation. The plaintiff even did not bother to appear before the trial court in support of his allegations rather he was represented by an attorney. In order to establish that Mst. Shamalo had never executed the disputed mutations and she has never received the sale consideration, the plaintiff should have personally appeared before the court and recorded a statement on oath in support of the said allegations. ('Muhammad Rafioue and another vs. sved warand Ali shah and others", renorted as 2021 SCMR 1068\.

14.It is also evident from record that Mst. Shamalo, during her lifetime, had sold her property through nine number of mutations, whereas the plaintiff/respondent had only opted to challenge the transfer of the properly in favour of the petitioner which not only appears to be based on malafide but the record would show that Mst. Shamalo, during her lifetime, had sold major portion of her property.

15.The evidence produced by the petitioner in support of his case inspires confidence. Asking the beneficiary ofthe mutations to establish the transaction with exactitude after a considerable period of time is not appropriate, more particularly, when Mst. Shamalo, during her lifetime, had never challenged the said mutations. The plaintiff was the cousin of Mst. Shamalo, whereas the petitioner is the nephew of the plaintiff and as evident from the evidence that n the petitioner is in possession of the said property gives a clear impression that the plaintiff was in knowledge of the said transaction. In my humble view, the impugned judgments/decrees of both the courts below appear to be not only misreading of evidence but the approach of both the courts below were mechanical and they have not objectively assessed the evidence produced by the petitioner before the court. Needless to mention

v that when the plaintiff himself has failed to discharge the initial burden i.e., the allegation of fraud, then in such circumstances presumption of truth is attached to the revenue record in terms of Section 52 of the Act. Therefore, the findings of both the courts below decreeing the suit of the plaintiff are not maintainable.

16.In view of what has been stated above, this petition is allowed, the impugned judgments/decrees of both the courts below dated 1 5.09.201 I and 07 .05.2012 areset aside and as a consequence thereof, the suit filed by the defendants stands dismissed with no order as to costs.

J.-' 'u

JUDGE

Date of hearing and announcement ofjudgmgnt ............ 18.1 1.2024

Date of preparation and signing of Judgment ... ........ . ....21.1 I .2024

S.B Hon'ble Mr. Justice Syed Arshad Ali

Mahmood Shah, SSS