Mst.Pashmina etc vs Dil Nawaz etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

C.R. No.32-B of 2009

JUDGMENT

Date of hearing

Appellant-Petitioner __________________________ Respondent _________________________________ MUHAMMAD DAUD KHAN, J:- This Civil Revision

Petition is directed against the concurrent judgment and decree dated 07.03.2005 recorded by learned Civil Judge-VII, Lakki Marwat and that of judgment and decree dated 05.05.2009 passed by learned District Judge, Lakki Marwat vide which both the learned subordinate courts concurrently dismissed the suit of the petitioner.

2.Succinct but necessary facts giving rise to the instant revision petition are that mother of the petitioners, Mst.

Pashmina, (hereinafter called the petitioners), initially instituted a suit # 529/1 in the year 1987 titled “Mst Pashmeena versus Ghulam Hassan”. This suit was ended on consent decree passed by learned Civil Judge dated 08.01.1987, basis of compromise effected through son of Mst. Pashmeena, as attorney on behalf of Ghulam Hassan. The said consent decree was challenged through appliction under Section 12(2) C.P.C by Dil Nawaz etc, respondents herein. This application after hotly contested was accepted, resultantly the said consent decree dated 08.01.1987 was set aside and original suit # 529/1 titled Mst Pashmeena versus Ghulam Hassan Khan etc was restored on its original Neem Number. In above said suit the property of Ghulam Hassan shown transferred in favour of Dil Nawaz, through mutation No. 9125 attested on 29.09.1987 was challenged.

3.The said mutation No. 9125 was also challenged by Mst. Pashmeena through another separate suit bearing No.

85/1 of 1987 against same DilNawaz and others. Both the suits were consolidated on the direction of this Court at DIKhan

Bench, vide judgment and order in Writ Petition # 16 of 1995.

After consolidation of both the suits and on submitting written statement by the rival parties, the learned trial court framed the following consolidated issues:-

1.Whether the plaintiff has got a cause of action?

2.Whether the suit of the plaintiff is not competent in its present form?

3.Whether the plaintiff along with his relatives are going to fictitiously transfer the suit property on farzi documents?

4.Whether the suit property has correctly been transferred to the names of defendants-2 to 4 by real owner?

5.Whether the suit property was gifted by Ghulam Hassan to the plaintiff?

6.Whether the amended plaint submitted by plaintiff is not according to the order of the court?

7.Whether the plaintiff is entitled to the decree as prayed for?

8.Relief

4.To prove their case, both the parties adduced their evidence as they wished. After recording evidence of the parties

and hearing arguments of learned counsel of the parties, learned trial Court was of the view that the gift alleged by the petitioner has not been proved and consent decree on the basis of compromise in suit bearing # 529/1 was based on fraud and misrepresentation and liable to be dismissed. While the other case bearing # 85/1 was decreed to the extent of mutation # 9125, which is held fraudulent and collusive and ineffective upon the right of petitioner, whereas the other prayer refused vide its judgment and decree dated 07.03.2005. The appeal filed by the petitioner before the learned District Judge, who vide judgment and decree dated 05.09.2009 dismissed the appeal by maintaining the judgment and decree of trial court. Hence, instant revision petition.

5.Arguments of learned counsel for the parties heard and available record perused.

6.The plaintiff/petitioner produced Patwari Halqa as RPW-1, ADK as RPW-2, Registry Clerk of the Sub Registrar office as RPW-3 and Rais Khan, attorney for the petitioner was

recorded its statement as RPW-4, whereas respondent produced Noor Muhammad Patwari Halqa as RDW-1, ADK as RDW-2 and respondent himself as RDW-3.

7.The plaintiff of both the suits alleged that the suit property was donated (gifted) to her and since then she is owner in possession of the suit land and the other gift mutation # 9125 in favour of respondents is bogus, false, fraudulent and the result of collusion of the Revenue Staff and ineffective upon the right of plaintiff, hence, liable to be cancelled.

8.It appears that gift mutation was entered on the instance of Dil Nawaz, respondent on 16.09.1987 and then applied for recording of statement of Ghulam Hassan on 27.09.1987 and on the very next day i.e., 28.07.1987 his statement was allegedly recorded by the local commission shown identified by one of the donee Abdul Azeem son of Gul Azam and on the following day it was attested. One Abdul Azeem when he was the donee, the attestation of that very

donee is bad in the law of evidence as no beneficiary could be witness of his own benefit.

9.Moreover, the alleged gift mutation bearing # 9125 was attested in village Tajori, while the property is situated in village Kheru Khel Pakka in separate Mauza probably this act of the respondents and the revenue officials seem to be collusion to keep the matter secret. It is settled law that the mutation of any transfer is to be attested in the village where the property situates. In this respect, the law provided in Section 42 West Pakistan Land Revenue Act, 1967 is too much clear. For the convenience it is reproduced as under:- “ 42. Making of that part of

periodical records which relates to

landowners. (1) Any person acquiring

by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a

landowner, 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 manner,

(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 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 ever report made to him under subsection (1) of 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 lace, and of which report

should have been made to him under either of those subsections and has not been so made.

(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 Lambardar or members of “Zila Council, Tehsil Council or Town Council” 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.

10.The bare reading of section 42 of the Land Revenue Act, the object of the section is to follow a particular procedure with a view to minimize rather to exclude commission of any fraud firstly to deprive owner on its

proprietary right and secondly to protect the vendee/transferee after once the mutation is attested. Mere entry in “report of roznamcha” recording statement of the transformer in such manner is not permissible in the law. 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 Lamberdar or member of Union council concerned, whose signature or thumb impression shall be obtained by revenue officer on the registration of mutations. Reliance can be taken from the case titled “Faqir Vs. Gul Zaman and 7 others” reported in (1991 MLD 1870). Similarly under subsection (7) except in case of inheritance or order or decree of a competent Court the inquiry made by revenue officer is to be made in the area of the estate in which subject matter of the mutation is situated and the subsection (8) make it condition, it should be made only in common assembly “ ⌧ ”in estate to which

mutation relates. Reliance can be taken from the case titled “Gharib Shah

Vs. Zarmar Gul” (PLD 1984 SC 188), “Ghulam Haider Vs. Mst.

Subhan Bibi” (1986 MLD 1952) “Hakim Khan Vs. Nazeer Ahmad Lughmani and 10 others” (1922 SCMR 1832). The Honourable Supreme Court of Pakistan in the case “ Mir Zada Khan Vs. Itbar Khan”(2001 SCMR 609) mere reliance on an unattested mutation is not proof of transfer of title.

11.On the other side the respondents also questioned the alleged gift and consent decree of the Court, claimed by the petitioner in her favour by Ghulam Hassan. The perusal of evidence reveals that Plaintiff Mst. Pashmeena and her sons now the petitioners also tried to get transferred property of the said Ghualm Hassan in their names prior through consent decree of suit bearing # 529/1. They firstly tried to get the said property through mutation # 2908 and 7909 through sale consideration of Rs.2,00,000/- and Rs.1,55,000/- respectively, but both the mutations were cancelled and rejected on timely intervention of Ghulam Hassan. Being fail in that attempt, then plaintiff Pashmeena manage to obtain a general power of attorney of Ghulam Hassan in favour of his son namely Raees

Khan. In additional to that the other son of the plaintiff Mst.

Pashmeena namely Muhammad Jamil Khan, as special power of attorney instituted the said declaratory suit bearing # 529/1 and the other son shown as attorney on behalf of Ghulam Hassan submitted compromise and got consent decree fraudulently. The said power of attorney through which the compromise was presented before a court was not fully proved when their attested witnesses were not unanimous on their statements before court. Furthermore it was scribed on 09.10.1986 while the attesting witnesses signed it on 17.10.1986. It is well settled by now that the power of attorney must be strictly construed and it is necessary to show that on the fair construction of the whole instrument the authority in question may be found within the four corners of the instruments. Reliance can be taken from case titled “Muhammad Akhtar Vs Mst. Manna and 3 others” reported in (2001 SCMR 1700).

12.Admittedly, Ghulam Hassan alleged donor, defendant-1 was the sole owner of the suit property and he was issueless. Both the parties are close relatives of said Ghulam Hassan and both the parties tried their level best for getting the landed property of Said Ghulam Hassan as a same fraudulent manner.

13.From the beginning tried their best in all level during his life to get his property by any mean. which was rightly set aside on the basis of fraud and misrepresentation. As against that, the defendant Gul Nawaz, Nawab Khan and Gul Marjan also tried their level best for getting the landed property of said Ghulam Hassan as a same fraudulent manner.

14.There is another noticeable factor that the possession of suit land was never handed over to both the parties under the alleged gift, alleged by them, though according to the Patwari Halqa Gul Nawaz, examined as RPW- 1, the respondents were shown in column of cultivation and are in possession but this possession rather only because of male

relative of the old man. It is well settled law that to prove the gift the factum of delivery of possession must be shown clearly from the date when the gift was taken place. Reliance can be taken from case titled “Boqar Vs Allah Ditta” (2003 SCMR

780)In the light of above circumstances I am of the considered view that the mutation # 9125 is the result of fraud and collusion.

15.Both the learned trial court as well Appellate Court has rightly appreciated the evidence and concluded that the both the parties are not entitled the suit land through gift transaction vide consent decree as well as Mutation #9125, which need no interference by this Court in revisional jurisdiction to disturb the concurrent findings of facts.

16.The scope of revisional jurisdiction is very limited in which the Courts are always slow in reversing the concurrent findings of facts recorded by Courts of competent jurisdiction nor it can upset the same even if on appreciation of evidence a different view can be formed unless these findings are shown

patently illegal, without jurisdiction or the result of bare misreading and non-reading of material evidence, based on conjectural presumptions or erroneous assumption. No such infirmity has been pointed out by the learned counsel for the petitioner in the concurrent judgments, which may warrant interference of this Court. Reference, in this regard can be made to case titled, “Haji Muhammad Saleem Vs Khuda Bakhsh” ( P L D 2003 Supreme Court 315).

17.In the light of above observations, this petition is meritless, without substance and not sustainable, hence stands dismissed. No order as to cost.

Announced

JUDGE