Stereo.

HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Civil Revision No.620 of 2014

Muhammad Younis and others
Versus
Mst. Dolat Bibi and others

JUDGMENT

Date of hearing: 22.06.2023

Petitioner(s) by: Sardar Muhammad Ramzan, Advocate

Respondent(s) by: Mr. Sohail Shafique and Ms. Ambar Abid,

Advocates for respondents No.1, 2(ii) to
2(vii)

Mr. Muhammad Farooq Ahsan, Advocate

vice counsel for respondents No.2-vii(a)(b)

M/s Mian Abdul Aziz and Fazal Ur

Rehman, Advocates for respondent No.3

Respondents No.2(i)(iv) ex parte

SHAHID BILAL HASSAN-J: Succinctly, the petitioners

instituted a suit for declaration alongwith permanent injunction

maintaining therein that about 20 years ago petitioners No. 1 &

2 borrowed some amount from Musawar Hussain respondent

for their personal use who asked them to pledge their land

measuring 14-kanals with his wife respondent No. 1. In this

way pledge mutation No.234 was attested on 31.07.1986 in

favour of respondent No.1. Muhammad Younis petitioner again

borrowed some amount for which additional pledge mutation

No.247 dated 07.02.1987 was attested. Later on, when the

petitioners asked the respondents to receive amount on

C.R. No.620 of 2014 2

10.11.1988 and get the land redeemed, respondent No.2 got

attested one mutation for redemption and two mutations of sale

in collusion with the revenue department in his favour and on

27.03.1990 respondent No.2 through another sale mutation

transferred 2-kanals land in favour of Muhammad Iqbal

respondent No.3 who alienated the same to respondent No.1

vide mutation No.415 dated 24.08.1995. It is maintained that

respondents have committed fraud with the petitioners,

therefore, all the mutations are against law and facts, ineffective

upon the rights of petitioners and are liable to be cancelled. The

petitioners came to know about the alleged fraud three months

before filing of the suit upon checking the revenue record. The

contents of plaint were controverted by respondents No.1 and 2

by filing of written statements and raised preliminary as well as

legal objections. However respondent No.3 did not appear and

he was proceeded ex-parte vide order dated 18.10.2006. The

learned trial Court, out of the divergent pleadings of the parties,

framed as many as eight (8) issues including “Relief”. The

petitioners produced Muhammad Younis (PW-1), Muhammad

Sharif (PW-2), Abdul Ghafoor (PW-3), Abdul Ghafar (PW-4)

and Zulfiqar (PW-5). The petitioners also produced

documentary evidence in the shape of exhibits P-1 to P-15. The

respondents produced Ghulam Sarwar (DW-1), Abdul Haque

(DW-2), Ghulam Murtaza (DW-3), Nawab Din (DW-4),

Khadim Hussain (DW-5), Musawar Hussain (DW-6), Zafar Ali

C.R. No.620 of 2014 3

Girdawar (DW-7) and Muhammad Ishaque (DW-8). In

documentary evidence they produced exhibits D-1 to D-12. The

learned trial Court after giving issue-wise findings vide

impugned judgment & decree dated 26.11.2009 dismissed the

suit. The petitioners being aggrieved preferred an appeal but the

same was dismissed vide impugned judgment and decree dated

26.06.2010; hence, the instant revision petition.

2. Heard.

3. Subsection (7) of section 42 of the Land Revenue

Act, 1967 binds the Revenue Officer, who is going to attest the

mutation, to ensure the presence of a person whose right is

going to be acquired by such transaction. The said provision of

law also requires the identification of such person by two

respectable persons. However, in the instant case, neither the

disputed sale mutations carry signatures or thumb impressions

of the vendors/petitioners nor the petitioners/vendors were

identified at the time of attestation of the mutation and even

Sarfraz Lumberdar was not produced by the respondents. All

these facts establish the non-appearance of the petitioners and

non-identification at the time of attestation of the disputed sale

mutations; therefore, it can safely be held that the disputed sale

mutations were attested in violation of sub-section (7) of

Section 42 of the Act ibid.

4. In addition to the above, it is a settled principle of

law that mutation entry is not a document of title, which by

C.R. No.620 of 2014 4

itself does not confer any right, title or interest, and the burden

of proof lies upon the person, in whose favour it was attested to

establish the validity and genuineness of transfer in his/her

favour. It is also a well settled law that if the foundation is

illegal and defective then entire structure built on such

foundation would have no value in the eyes of law. It is a

settled principle of law that 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 in the entry or attestation of such mutation(s) in

dispute. However, in the present case, the respondents have

miserably failed to plead and prove the time, date, place and

names of witnesses in whose presence such original transaction

of sale took place inter se the petitioners and respondents

because the written statement of the respondents is silent in this

regard. When the position is as such, it can safely be held that

the respondents have miserably failed to establish their case that

the disputed mutations were sanctioned legally. Reliance in this

regard is placed on Muhammad Akram and another v. Altaf

Ahmad (PLD 2003 Supreme Court 688) and Province of

Sindh through Secretary and 2 other v. Rahim Bux and others

(2022 CLC 2063).

5. Apart from the above, the respondents have failed

to establish by leading unimpeachable and confidence inspiring

evidence that the possession of the suit property was delivered

C.R. No.620 of 2014 5

in pursuance of the disputed sale mutations, rather it is admitted

and established fact on record that the possession was with

them in pursuance of purported pledge mutation and not being

owner of the suit land. This fact is also an admitted one that the

respondent No.2 (deceased) was a Patwari of the area, so if for

the sake of arguments it is admitted that the respondents are in

possession of the suit property, it cannot be ruled out that the

respondent No.2 managed the entry of possession in Khasra

Girdawri against the physical possession at spot. In this view of

the matter, it can be said the disputed sale mutations in favour

of the respondents are result of collusion with the revenue staff.

6. Article 95 of the Limitation Act, 1908 provides

that while seeking some relief, if fraud is alleged, the period of

limitation will be three years which will commence to be

computed from the date of knowledge. The date of knowledge

in the present case, as per version of the petitioners/plaintiffs is

three months prior to the institution of the suit, which could not

be rebutted by the other side through solid and cogent evidence

rather only evasively denied while submitting written statement

and it is a settled principle of law that evasive denial is not a

denial. Therefore, in the light of Article 95 of the Act ibid, the

suit instituted by the petitioners was well within time.

7. Pursuant to the above discussion it is observed that

the learned Courts below have failed to adjudicate upon the

matter in hand by appreciating law on the subject; thus, the

 C.R. No.620 of 2014 6

Courts below have misread and non-read evidence of the parties

and when the position is as such, this Court is vested with

ample jurisdiction and authority to undo the concurrent findings

in exercise of revisional jurisdiction under section 115, Code of

Civil Procedure, 1908 as has been held in Mst. Nazir Begum v.

Muhammad Ayyub and another (1993 SCMR 321), Sultan

Muhammad and another v. Muhammad Qasim and others

(2010 SCMR 1630), Ghulam Muhammad and 3 others v.

Ghulam Ali (2004 SCMR 1001) and Muhammad Khubaib v.

Ghulam Mustafa (deceased) through LRs (2020 CLC 1039-

Lahore).

8. For the foregoing reasons and while placing

reliance on the judgments supra as well as judgment reported as

Muhammad Ali v. Sohawa (deceased) through L.Rs. and others

(2019 CLC 626-Lahore), the revision petition in hand is

allowed, impugned judgments and decrees passed by the

learned Courts below are set aside, consequent whereof suit

instituted by the petitioners is decreed as prayed for. No order

as to the costs.

(SHAHID BILAL HASSAN)

Judge

Approved for reporting.

Judge

M.A.Hassan