Mutation on the based of registered sale deed , can't cancel even it is against the martial law.
کے سول نظرثانی نمبر 485-D سے متعلق لاہور ہائی کورٹ، ملتان بنچ کی طرف سے ایک فیصلہ نامہ ہے۔
1. **پس منظر اور دعوے**:
- جہانگیر خان (درخواست گزار) نے 1986 میں مستقل حکم امتناعی کے ساتھ ڈیکلریشن کے لیے دعویٰ دائر کیا، جس میں 18.09.1984 کو رجسٹرڈ سیل ڈیڈ کے ذریعے خریدی گئی 8 کنال اراضی کی ملکیت کا دعویٰ کیا گیا۔ عبدالغفار (جواب دہندہ نمبر 1) سے 40 ہزار۔
- درخواست گزار نے الزام لگایا کہ سیل ڈیڈ کے باوجود، ریونیو ریکارڈ میں تبدیلی کو غیر منصفانہ طور پر منسوخ کر دیا گیا، جس سے اسے مالک کے طور پر پہچانے جانے سے روک دیا گیا۔
2. **عدالتی کارروائی اور نتائج**:
- ٹرائل کورٹ نے ابتدائی طور پر درخواست گزار کے حق میں فیصلہ سنایا، رجسٹرڈ سیل ڈیڈ کی بنیاد پر اس کی ملکیت کو تسلیم کیا۔
- جواب دہندہ نمبر 3 (رحمت اللہ) نے اس فیصلے کے خلاف اپیل دائر کی، جس میں سیل ڈیڈ اور میوٹیشن کے جواز کے خلاف بحث کی گئی۔
- اپیل کورٹ نے ٹرائل کورٹ کے فیصلے کو پلٹ دیا، جس کے نتیجے میں درخواست گزار نے اپیل کورٹ کے فیصلے کو چیلنج کرنے کے لیے کوڈ آف سول پروسیجر کے سیکشن 115 کے تحت سول نظرثانی دائر کی۔
3. **قانونی تشریحات اور نظیریں**:
- فیصلے میں مارشل لاء کے ضوابط اور اس کے بعد کے قوانین کے تحت رجسٹرڈ سیل ڈیڈز کی بنیاد پر ریونیو ریکارڈز میں تغیرات کے قانونی مضمرات پر وسیع پیمانے پر بحث کی گئی ہے۔
- اس میں فیض اللہ بمقابلہ محمد سرور (2013 CLC 1054) اور سپریم کورٹ کے دیگر مقدمات (محترمہ عائشہ بی بی بمقابلہ نذیر احمد اور دیگر، محمد اسحاق بمقابلہ محمد شفیق وغیرہ) جیسی مثالوں کا حوالہ دیا گیا ہے تاکہ یہ ثابت کیا جا سکے کہ ان تبدیلیوں کی بنیاد پر تصدیق کی گئی ہے۔ رجسٹرڈ سیل ڈیڈز کو ریونیو آفیسرز من مانی طور پر منسوخ نہیں کر سکتے۔
4. **فیصلہ**:
- ہائی کورٹ نے شواہد اور قانونی دلائل کا جائزہ لینے کے بعد عرضی گزار کے اس دعوے کو برقرار رکھا کہ میوٹیشن کی منسوخی غیر قانونی تھی۔
- اس نے اس بات پر زور دیا کہ رجسٹرڈ سیل ڈیڈ نے درخواست گزار کو ملکیت کے حقوق عطا کیے ہیں، جسے بعد میں اتپریورتنوں کی منسوخی سے کالعدم نہیں کیا جا سکتا۔
- فیصلہ اپیل کورٹ کے فیصلے کو ایک طرف رکھ کر اور درخواست گزار کے حق میں ٹرائل کورٹ کے فیصلے کو بحال کر کے ختم ہوتا ہے۔
یہ خلاصہ فیصلے کے بنیادی نکات پر روشنی ڈالتا ہے، رجسٹرڈ سیل ڈیڈ اور ریونیو ریکارڈ میں تغیرات کی قانونی حیثیت پر مبنی ملکیت کے حقوق کے تنازع پر توجہ مرکوز کرتا ہے۔
Stereo.HCJDA 38.
Judgment Sheet
IN THE LAHORE HIGH COURT,
MULTAN BENCH,
MULTAN.
JUDICIAL DEPARTMENT
….
Civil Revision No.485-D of 1993.
Jahangir Khan.
Versus
Abdul Ghaffar (deceased) through L.Rs. etc.
J U D G M E N T.
Date of hearing:
01.11.2023.
Petitioner by:
Tariq Muhammad Iqbal Chaudhary,
Advocate.
Respondents by:
M/s Rao Qasim Raza Khan &
Masood Arif Butt, Advocates.
AHMAD NADEEM ARSHAD, J. Through this Civil
Revision, filed u/s 115 of Code of Civil Procedure, 1908, the
petitioner assailed the vires and legality of the judgment and decree
dated 27.05.1993, whereby, the Court of learned District Judge
while accepting the appeal of respondent No.3, set-aside the
judgment and decree of learned trial Court dated 18.04.1990 and
consequently dismissed petitioner’s suit for declaration with
permanent injunction.
2.
Facts in brevity are that petitioner/plaintiff (herein
after referred to as the petitioner) instituted a suit for declaration
with permanent injunction on 08.10.1986 against the respondents/
defendants i.e. Abdul Ghaffar defendant No.1/(respondent No.1),
Civil Revision No.485-D of 1993.
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Aslam son of Nabi Bakhsh defendant No.2 (respondent No.2),
Rehmat Ullah defendant No.3 (respondent No.3) with the
contention that he purchased land measuring 08 kanals through
registered sale deed No.1018 dated 18.09.1984 for a consideration
of Rs.40,000/- from respondent No.1 and through private settlement
got possession of khasra No.55/25 measuring 08 kanals; that
registered sale deed was handed over to the concern Patwari for
incorporation in the revenue record and he went to England in the
last days of September, 1984; that he came back in July 1986; that
respondent No.1 and Patwari concern with the connivance of each
other did not allow to incorporate the said registered deed in the
revenue record and after entry of the mutation got it cancelled on
the strength that he was not previous owner in the Deh, therefore, it
is violation of the Martial Law Regulation, hence, mutation cannot
be sanctioned; that he, after the death of his father on 29.06.1984,
had become owner in the said Deh and he purchased land through
said sale deed afterwards on 18.09.1984; that concern Patwari
malafidely did not incorporate the inheritance mutation of his father;
that respondent No.1, after cancelling the mutation from his name,
transferred the suit property to respondents No.2 & 3 through
mutations No.563 dated 17.05.1985 and mutation No.585 dated
08.03.1986; that said mutations are against facts and law and
having no effect upon his rights and sought declaration that in the
light of registered sale deed No.1018 dated 18.09.1984 he will be
declared owner in possession of the suit property; that the said sale
Civil Revision No.485-D of 1993.
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deed to be incorporated in the revenue record and the mutation
No.563 dated 17.05.1985 and mutation No.585 dated 08.03.1986 to
be cancelled being against the facts & law and based upon mala fide.
Respondent No.1 resisted the suit through filing contested written
statement by raising preliminary objections such as that the
petitioner has no cause of action against him; that the petitioner
filed the suit malafidely and he has no locus standi; that the
petitioner instituted false and frivolous suit, therefore, costs under
Section 35-A of the Code of Civil Procedure, 1908 be awarded.
While replying on facts, he admitted the execution of the registered
sale deed in favour of the petitioner, however, maintained that
possession with regard to square No.55 killa No.25 was not given
to him. He also maintained that the impugned mutations were
rightly sanctioned and took a specific stance that when the mutation
on the basis of sale deed was not sanctioned in favour of the
petitioner then his brother gathered the respectable of the area
where he (respondent No.1) returned the consideration amount to
him and finally prayed for dismissal of the suit. Respondents No.2
& 3 also filed contested written statement wherein they took
preliminary objections that the petitioner has no cause of action
against them; that the petitioner has no locus standi to institute the
suit; that they (defendants No.2 & 3) have no concern with the suit
property, therefore, they are entitled to receive costs under section
35-A of the Code of Civil Procedure, 1908. While replying on facts,
they pleaded that they got attested the sale mutations after
Civil Revision No.485-D of 1993.
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payments of cash amount and also got the possession of square
No.55 Killa No.24 situated at Chak No.21/11-L and said property
was in their possession since then and they have no concern with
square No.55 Killa No.25 of the said Chak. They also pleaded that
plaintiff’s brothers get back consideration amount from respondent
No.1 and prayed for dismissal of the suit. The learned trial Court,
keeping in view the divergent pleadings of the parties framed
necessary issues, invited the parties to produce their respective
evidence and after recording evidence of the parties, pro and contra,
oral as well as documentary, decreed the suit vide judgment and
decree dated 18.04.1990. Feeling aggrieved, only respondent No.3
namely Rehmat Ullah preferred an appeal. The learned appellate
Court allowed the said appeal while setting-aside the judgment and
decree of the learned Trial Court through impugned judgment and
decreed dated 27.05.1993 and consequently, dismissed petitioner’s
suit. Being dissatisfied the petitioner approached this court through
instant Civil Revision.
3.
I have heard learned counsel for the parties at full
length and perused the record with their able assistance.
4.
Admittedly, respondent No.1 Ghaffar Ahmad alias
Abdul Ghaffar was owner of land measuring 14 kanals 02 marlas
situated at Khewat No.36 khatoni No.203, Chak No.21/11-L Tehsil
Chichawatni, District Sahiwal out of the total land of the khatta
measuring 192 kanals 03 marlas. There is no denial with the fact
that said respondent No.1 sold land measuring 08 kanals through
Civil Revision No.485-D of 1993.
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registered sale deed No.1018 dated 18.09.1984 for a consideration
of Rs.40,000/- to the petitioner. Original sale deed was brought on
record as Exh.P-7 whereas attested copy of the said sale deed was
placed on record as Exh.P-8. On the basis of said registered sale
deed mutation No.534 (Exh.P-4) was entered in the mutation
register. The said mutation was cancelled vide order dated
18.05.1985 on the grounds that the petitioner/vendee is not owner
in the said Chak/Deh, therefore, it is violation of Martial Regulation.
From perusal of record it appears that respondent No.1 sold his
remaining land measuring 06 kanals 02 marlas through oral sale
mutation No.563 dated 17.05.1985 to respondent No.2 namely
Aslam son of Nabi Bakhsh. Said sale was completed before the
cancellation of mutation No.534. Therefore, said sale (mutation
No.563 dated 17.05.1985) cannot be declared null and void and suit
to this extent is not maintainable.
After cancellation of mutation No.534 which was cancelled
on 18.05.1985, respondent No.1 allegedly sold the suit
property/subject matter of the sale deed to respondent No.3 for a
consideration of Rs.30,000/- through oral sale mutation No.585
dated 08.03.1986 (Exh.P-5).
5.
It is matter of fact that the registered sale deed dated
18.09.1984 (Exh.P-7/Exh.P-8) through which respondent No.1 sold
the suit property to the petitioner was neither challenged by the
respondents nor cancelled by any competent authority. The
petitioner was aggrieved from the order of revenue officer dated
Civil Revision No.485-D of 1993.
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18.05.1985 whereby mutation No.534, entered on the strength of
registered sale deed dated 18.09.1984 was cancelled on the grounds
that he is not owner in the Deh and the sale made in his favour is in
violation of Martial Law Regulation.
6.
Now the question arises whether revenue officer was
competent to cancel the mutation which was entered on the basis of
registered sale deed.
7.
The revenue officer was duty bound to incorporate
registered deed in the revenue record. The revenue officer had no
authority to cancel such mutation without giving notice to the
purchaser and providing opportunity of hearing.
8.
Provision of Section 25(4) of the West Pakistan Lands
Reforms Regulation (Martial Law Regulation No.64 of 1959)
forbade the alienation by sale, mortgage, gift or otherwise by a
person owing an area equal to or less than a subsistence holding to
a person other than owner of the same village, Deh or Mouza. For
reference Section 25(4) of M.L.R. No.64 of 1959 is reproduced as
under: -
“No person owing an area equal to or less than a subsistence
holding shall be allowed to alienate by sale, mortgage, gift or
otherwise any party of his holding:
Provided that such a person may alienate his entire holding,
or in the case of a holding which is less than a subsistence
holding, sell any part of his holding to other owners of the
same village, deh or mauza.
Nothing in this paragraph shall apply to land whether
cultivable or otherwise, which is bona fide required for the
purpose for building thereon, and any tenant in possession of
such land who refuses to quit after notice may be evicted
under the order of the Deputy Commissioner.”
M.L.R. No.64 of 1959 was repealed by M.L.R. 115 on
11.03.1972. With regard to Section 25(4) of M.L.R. No.64 of 1959
Civil Revision No.485-D of 1993.
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paragraph No.24(4) of Land Reforms Regulation, 1972 (Martial
Law Regulation No.115 of 1972) was introduced which also does
not allow a person other than owner of the same Deh, village or
Mouza to purchase the land from a person owner of holding less
than a subsistence holding and alienating part of his holding. For
reference paragraph No.24(4) of M.L.R.No.115 of 1972 is
reproduced as under: -
“No person owing an area equal to or less than a subsistence
holding shall be allowed to alienate by sale, mortgage, gift or
otherwise any part of his holding:
Provided that he may alienate the entire holding or in the
case of holding which is less than a subsistence holding, he
may alienate any of his presumptive heirs or exchange with,
or mortgage or otherwise alienate to other powers or landless
tenants of the same village, deh or mouza.”
From bare reading of said provision it appears that there is a
restriction upon the owner of a holding for alienation through sale,
gift or otherwise of any portion of his holding which might reduce
the size of his holding to an area below the limit of an economic
holding and also forbade a person owing an economic holding to
reduce the same through alienation which might reduce the size of
his holding to subsistence holding. However, there is no restriction
to alienate his entire holding. The same restriction also imposed
upon a person owing subsistence holding. However, he may
alienate his entire holding.
In case of owning land, which is equal to or less than a
subsistence holding also forbade a person for alienation of any part
of his holding. However, he may alienate the entire holding or any
Civil Revision No.485-D of 1993.
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part of his holding to only those who are owners or land less tenant
of the same village, Deh or Mouza.
9.
The provision of M.L.R. 115 of 1972 was not meant to
be utilized for the benefit of unscrupulous person and to give him
undue benefits. Para 24 of M.L.R. 115 of 1972 could not be used
for cancellation of sale, whereby, the alienation of the property
through registered sale deed by the vendor in favour of vendee was
completed. Vendor could not be permitted to take back the property
without paying the price he had already received from the vendee
and could not be allowed to turn turtle by taking a chance of legal
interpretation and getting the sale transaction declared void. No law
and rules of ethics and tenets of Islam allowed such a course to be
adopted.
This Court in a case “FAIZULLAH versus MUHAMMAD
SARWAR and another” (2013 CLC 1054) wherein mutation
attested on the basis of registered sale deed subsequently cancelled
by Consolidation Officer to be violative of para No.24 of Land
Reforms Regulation, 1972 held as under: -
“When the transfer of property is made through registered
document, there are some presumptions attached to a
registered document under Articles 85(5) of Qanun-eShahadat Order, 1984 and the mutation on the basis of said
document under the law will remain intact till the time said
registered document is in existence. The mutation attested on
the basis of a registered document cannot be subsequently
cancelled. I have observed that in the sale-deed in favour of
plaintiff-appellant, the vendor of land has clearly stated that
he is selling out the whole of his land in the Mouza and if
inadvertently any land remains out of the sale-deed, the
Revenue Officer will be at liberty to sanction the mutation of
sale of that land also and he will not raise objection in this
regard. In this eventuality, the Revenue Officer was bound
under the law to attest the mutation of whole of land owned
Civil Revision No.485-D of 1993.
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by the plaintiff-appellant in that Mouza and even if the
mutation was not attested for whole of the land of seller in
the name of vendee i.e. plaintiff-appellant, then the
Consolidation Officer who has reviewed the mutation has
absolutely no authority to review the mutation sanctioned by
the Revenue Officer on the basis of a registered document.
The authority to check the violation of Martial Law
Regulation was with the Land Reforms Authorities. Even
land reforms authorities were having a limited authority and
cannot set aside the registered document. The provision
promulgated through para 24 of the Land Reforms
Regulation 1972 (M.R.R.115) has been declared against the
injunction of Islam by the Federal Shariat Court in a
judgment reported as “PLD 1989 Federal Shariat Court 80
(Sajwara and others v. Federal Government of Pakistan)”.
10.
The august Supreme Court of Pakistan in a case titled
“MST. AISHA BIBI V. NAZIR AHMAD AND OTHERS (1994
SCMR 1935) held that Revenue officer while exercising his power
under the Land Revenue Act, 1967 could not simultaneously act
under Land Reforms Regulation and if he was of the view that any
provision of said Regulation had been violated, his duty was to
refer the matter to the Land Commissioner or Deputy Land
Commissioner who was supposed to be the principal officer of the
District concerning land disputes.
Facts of the said case are that a sale effected by means of
registered sale deed was incorporated in the revenue record by
attesting the mutation. The Assistant Collector reviewed the
mutation on the ground that it is violative of Martial Law
Regulation. An appeal and then revision were dismissed by the
Collector and the Additional Commissioner. The said orders were
challenged by the vendees in the Civil Court, the suit was partially
decreed by the learned trial Court. Both the parties filed appeals
which were dismissed. The vendees then filed R.S.A., in this court
Civil Revision No.485-D of 1993.
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while cross objections were filed by the vendors. The R.S.A. was
allowed and the said orders were declared to be void and the suit
was decreed on the ground that only the Land Commissioner or the
Deputy Land Commissioner appointed thereunder can take
cognizance of the matter. The vendors approached the Hon’ble
Supreme Court of Pakistan and their C.P.L.A., was dismissed and
the said judgment of this Court was upheld and declared as under: -
“The suit land was sold by the Chuhar, the original owner, in
favour of Nazir Ahmad, Bashir Ahmad and Aziz Ahmed
respondents 1 to 3 through a registered sale-deed which was
followed by a mutation as the revenue officers were bound to
give effect to all transactions completed through registered
deeds in the Revenue Record. There being no mistake
apparent on the face of record, the Revenue Officer in the
exercise of their review could not set aside the earlier order
of attestation of mutation thereby annulling the solemn
transaction of sale entered into between the vendor and the
vendees in respect of the valuable landed property, moreso,
on the grounds regarding which the jurisdiction expressly
vested in the Land Commission or their subordinate officers
and not in any other forum including the Civil Court. Since
the hierarchy of Revenue Officers act in different capacities
under different laws, it appears that the Revenue Officer also
being vested with the powers of Land Commissioner reviewed
the mutation on grounds available under Martial Law
Regulations, and the whole exercise was conducted under this
mistaken belief. There is no denying the fact, that when an
officer acts under different statute he has to strictly follow the
procedure embodied therein and cannot exercise his powers
availing the provision of other statute. Apparently, the
Revenue Officer while exercising his powers of review under
the Land Revenue Act could not simultaneously act under
Martial Law Regulation concerned and if he was of the view
that any provisions of the Martial Law Regulation had been
violated, his duty was to refer the matter to the Land
commission or the Deputy Land Commissioner who was
supposed to be the principal officer of the district concerning
land disputes.”
In another case titled as “Syed FAKHAR IMAM SHAH and
others versus ABDUL HAQ (deceased) through L.Rs and others”
(2006 SCMR 550) it was observed that vendor would have no legal
Civil Revision No.485-D of 1993.
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or moral justification to challenge validity of a sale effected in
violation of provision of Para 24 of M.L.R.115 of 1972. Such
transactions as between vendor and vendee would not be altogether
void even if there was violation of some provision of M.L.R. 115 of
1972. Para 24 placed restriction more on a vendor then a vendee.
Vendor could not take any advantage of his own wrong being in
pari delicto and held as under:-
“We find that the petitioners/vendors having alienated their
land, by way of sale had no legal or moral justification to
challenge its validity. Even otherwise, such a transaction as
between the vendors and the vendees would not be altogether
void even if there was violation of some provisions of
M.L.R.115. Reference may usefully be made to the cases of
Mst. Zuhra Khatoon and 8 others v. The Member Land
Commission, Rawalpindi 1985 SCMR 312 and Mst. Raj Bibi
and 4 others v. Additional Chief Land Commissioner, Punjab
and 2 others PLD 1975 Lah. 408.”
Further held:
“Needless to observe that paragraph 24 of the Regulation
places restrictions more on a vendor than a vendee.”
The apex Court of the country while following the dicta laid
down in Mst. Aisha Bibi’s case, observed in a case “Muhammad
Ishaq v. Muhammad Shafique and 09 others” (2007 SCMR 1773)
held as under: -
“From the arguments of the learned counsel on either side,
we have observed that the present scenario has three facts,
firstly, whether the question of a transaction being violative
of M.L.R. 115 can be determined by revenue authorities. We
believe, it cannot. Even if, some Revenue Officer detected any
irregularity, it was incumbent upon him to have referred the
matter to Land Commission or the Deputy Land
Commissioner, being the Principal Officer of the District in
the given hierarchy. In the instant case, the order of Revenue
Officer declaring the transaction void, was itself void. This
Court has already taken this view in Mst. Aisha Bibi’s case
1994 SCMR 1935
Civil Revision No.485-D of 1993.
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11.
No doubt, mutation is not a deed of title and even if
the mutation sanctioned on the strength of the sale deed is stood
cancelled, the real and genuine deed of title in shape of registered
sale deed still existed in favour of vendee and on the strength of
which he remained owner of land and vendor had no right to sell
the same to others. Any number of subsequent entries illegally
made in revenue record could not have effect of extinguishing right
of rightful owner. Purchaser through registered sale deed would not
cease to be owner due to cancellation of mutation in his favour. It
was held in Muhammad Ishaq’s case (supra) that: -
“Lastly, one may say, at the cost of repetition in every third
civil case, that mutation is not a deed of title. In the instant
case, even if mutation No.925 stood cancelled, the real and
genuine deed of title existed in favour of Muhammad Ishaq in
the shape of registered deed No.673 of 22.02.1978. On the
strength of such registered deed, Muhammad Ishaq remained
owner of 29 kanals and Ali Muhammad had no right to sell
05 kanals therefrom in favour of Muhammad Shafique.”
12.
The petitioner specifically pleaded in his plaint that his
father namely Bashir Ahmad son of Muhammad Khan was owner
of land in the said Deh (mouza 21/11-L) who died in a road
accident on 29.06.1984, therefore, he became owner in the Deh
being his successor. In order to prove his stance, he produced
Muhammad Usman Secretary Union Council as PW-1 who
deposed that he has brought with him record of death register
wherein at serial No.9 factum of the death of Raja Bashir Ahmad
son of Muhammad Khan (father of the petitioner) on 29.06.1984 in
a bus accident was incorporated on 13.07.1984 and produced copy
of the death register as Exh.P-1. Said document verified his
Civil Revision No.485-D of 1993.
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contention. The petitioner also produced copy of inheritance
mutation No.604 dated 12.07.1986 as Exh.P-6. Perusal of said
document it appears that inheritance of Bashir Ahmad was
sanctioned in favour of his legal heirs including the petitioner. Said
property was situated in Mauza 21/11-L wherein, the suit property
was located. Although an objection was raised to the effect that said
mutation was sanctioned on 12.07.1986 whereas registered sale
deed was executed prior in time on 18.09.1984, therefore, petitioner
was not owner at the time of execution and registration of the sale
deed. There is no force in the said arguments as the petitioner had
become owner in the Deh as soon as his father died. The evidence
available on the record in shape of statement of Secretary Union
Council (PW-1) and copy of death register (Exh.P-1) clearly
suggests that the petitioner’s father namely Bashir Ahmad was died
on 29.06.1984, therefore, at the time of execution of the sale deed,
he was owner in Deh on the basis of inheritance.
13.
The respondents specifically respondent No.1 did not
denied the sale of suit property to the petitioner through registered
sale deed dated 18.09.1984. The stance of the respondents is that
when the mutation No.534, incorporated on the basis of registered
sale deed, was cancelled then brother of the petitioner contacted
respondent No.1 who returned the consideration amount to the
petitioner through his brother. Said fact was also maintained by the
other two respondents i.e. respondents No.2 & 3 in their written
Civil Revision No.485-D of 1993.
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statement. The learned trial Court with regard to the said
proposition framed issue No.7 in the following terms: -
Whether defendant No.1 has repaid the amount of
consideration, if so, its effect? OPD
14.
The learned trial Court placed onus probandi of this
issue upon the respondents. Respondent No.1 namely Ghaffar
Ahmad alias Abdul Ghaffar did not appear in the witness box to
prove his contention that he returned the consideration amount to
the petitioner. Respondent No.3 namely Rehmat Ullah appeared as
DW-1. He deposed that Abdul Ghaffar told him that he returned the
consideration amount to the petitioner. In this way his evidence is
merely hearsay evidence. Ghulam Rasool son of Nabi Bakhsh
appeared as DW-2. He also deposed that they heard that petitioner
got the suit property, but mutation was cancelled and consideration
amount was returned to him. During cross examination, he
maintained that consideration amount was not returned to the
plaintiff (the petitioner) in his presence. His deposition is also based
upon hearsay. The petitioner produced his real brother and general
attorney namely Sabir Ahmad as PW-3. He produced copy of
registered general power of attorney as mark-A. He deposed that
defendant No.1 (respondent No.1) did not return the consideration
amount to him. During cross examination in reply of a suggestion
maintained that it is incorrect that they received consideration
amount before the Punchyat and voluntarily said that no Punchyat
was convened in this regard. Respondents miserably failed to
Civil Revision No.485-D of 1993.
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prove that consideration amount was returned by respondent No.1
to the petitioner after cancellation of the mutation.
15.
Respondent No.1 sold the suit property through
registered sale deed dated 18.09.1984 (Exh.P-7 & P-8) to the
petitioner for a consideration of Rs.40,000/- but he sold the same
suit property to respondent No.3 through oral sale mutation No.585
dated 08.03.1986 (Exh.P-5) for a consideration of Rs.30,000/- Sale
of the suit property after about one and half year for a lesser amount
than that was made through the sale deed also creates doubts about
the genuineness of the sale executed through oral sale mutation in
favour of respondent No.3.
16.
The learned Appellate Court while accepting the
appeal of respondent No.3 much emphasized that protection under
Section 41 of the Transfer of Property Act, 1882 is available to the
respondent No.3.
It is matter of record that the petitioner specifically pleaded
in his plaint that he purchased land measuring 08 Kanals through
registered sale deed No.1018 dated 18.09.1984 and got possession
over specific Khasra No.55/25 (square No.55, Killa No.25). The
respondents No.2 & 3 in their written statement narrated that they
purchased the property through oral sale mutations after payment of
consideration amount and got the possession over square No.55,
Killa No.24 and specifically maintained that they have no concern
with square No.55, Killa No.25. For reference, reply of para No.4 is
reproduced hereunder in verbatim:
Civil Revision No.485-D of 1993.
-16-
واعقچ ک ربمن 42 کی لہربمن 55 ےندقنرمقادارکےکااقتنلعیبرکوای وجہکرمعبربمن 3 "دماع ہیلع ربمن
ی ایکاھتاورایسرپاقضبںیہ۔دماعمہیلعربمن 1 ےن دماع ہیلع ربمن 3 دماع ہیلع ربمن 21/11-L
ےسخ 3 ، 4
ےس وکیئ قلعت واہطس ہن ےہ۔ 21/11-L واعقچ ک ربمن 45 ،کی لہربمن 55 اک ارایض دتموعہی رمعب ربمن
اور 1 وجااقتنلقحبدماعمہیلعوہےئوہی لکلاجئ ،اطمقباقوننی دایگیئزرِنمثوہےئںیہ۔دماعہیلعربمن
ابرکےنیکرغضےسایکےہ۔احالہکنروئ و 4،3 دمیعےناباسزی زرکےکدوعیٰذہادماعمہیلع
وکخ
خ ی رکدہاینپ 3 ےسادادشہزرِنمثواسپےلاکچاھت۔دماعہیلعربمن 1 ہیلع ربمن زعمزنی دمیع اک اھبیئ دماع
" ارایض رپ اقضب ےہ۔
While recording his statement as D.W.1, respondent No.3 Rehmat
Ullah deposed that he purchased the suit property from Abdul
Ghaffar who delivered possession over Khasra No.55/24. He also
maintained that Ghaffar told them that mutation sanctioned with
regard to Khasra No.25 had been set-aside. He further stated that
Abdul Ghaffar told that he returned the consideration amount. His
exact deposition is as under:-
اکہضبقےھجماسےندی اھت۔ج 42 / 55 "ارایض دتموعہی ںیم ےن دبعاافغلر ےس عیب یل یھت۔ رسخہ ربمن
ےس عیب یل ےہ ایس رسخہ ربمن رپ ریما ہضبق ےہ۔"
"افغراسارایضاکامکلاھتسجےسںیمےنخ ی ی۔افغرےنںیمہاتبی اھتہکدمیعےکقحںیمرکوای
اخرجوہایگاھت۔رمقاکدبعاافغلراتبیت اھتہکاسےنواسپرکدی 45 ب ت رسخہربمن اجےنواالااقتنلعیبی
"ےہ۔
During cross-examination, he maintained as under:
ےن عیب یک۔ 1 وکدمیعےکقحںیمای اڑکیی رہعیررٹسجیدماعہیلعربمن 14 ۔9۔ 42 "ملع ہن ےہ ہک
اس اھکہت ںیم 1 ی دہنےہ۔اہجریگنےکااقتنلےکاخ اجےکدعبمہےنزنیمیل۔طلغےہہکدماعہیلعربمن اھکہتںیمےہ۔مہےنی رہعیااقتنلارایضعیبیل۔ااقتنلیکیترخی درست ےہہکارایضدتموعہیرتشمہک
” رصفای اڑکیاکامکلاھت۔ 1 اکامکلاھت۔ج مہےنارایضخ ی یوتدماعہیلعربمن 4- 12 رصف
From the above stated facts, it is abundantly clear that
respondent No.3 never took a specific plea that he is bona fide
purchaser of the suit property for value without notice of the sale
executed in favour of the petitioner. Rather he took a stance that he
Civil Revision No.485-D of 1993.
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purchased the property of Killa No.24 after cancellation of the
mutation and has no concern with the property of Killa No.25.
Meaning thereby, he is well aware that petitioner claimed
ownership of the property situated at Killa No.25 and it was also in
his knowledge that mutation entered in the name of petitioner was
cancelled.
Person claiming protection under Section 41 of the Transfer
of Property Act, 1882 is bound to establish that the person from
whom the suit property has been transferred to him was an
ostensible owner, while transfer so made was with the consent of
the real owner, either express or implied. Said transfer must have
been made for some consideration and the person being transferee
or purchaser must have acted in good faith and taken all reasonable
care and steps before entering into said transaction for transfer. If
anyone of the stated ingredients is wanted, then the transferor will
not be eligible to seek protection of equitable doctrine envisaged
under Section 41 of the Act ibid.
Sanctity is attached to a registered document and it is
considered a notice to the public at large. In order to dislodge said
presumption mere inquiry of the revenue record was not sufficient.
The entries of Revenue record are not foundation of title as said
entries were made for fiscal purposes.
In the present case, neither respondent No.3 specifically
sought protection under Section 41 of the Act ibid nor established
said fact through any evidence.
Civil Revision No.485-D of 1993.
-18-
17.
In view of above discussion, it is clear that sale deed
executed in favour of the petitioner still remained intact and no one
had challenged the validity and legality of said sale deed. Although,
mutation No.534 had been cancelled, even then petitioner was
owner of the suit property on the strength of sale deed and
respondent No.1 had no right to sell the suit property in favour of
respondents No.3. The revenue officer was not competent to cancel
the mutation, entered on the strength of registered sale deed, on the
ground that provision of Martial Law Regulation had been violated.
Therefore, the order dated 18.05.1985 with regard to cancellation of
mutation No.534 is void ab-initio and having no effect upon the
rights of the petitioner.
18.
Epitome of above discussion is that the instant Civil
Revision is allowed Impugned judgment and decree dated
27.05.1993 passed by learned appellate Court is set-aside, whereas,
the judgment and decree of learned trial Court dated 18.04.1990 is
maintained and upheld, resultantly suit of the petitioner is decreed
as prayed for with costs throughout.
(AHMAD NADEEM ARSHAD)
JUDGE.
Approved for reporting:
JUDGE.
Announced in open Court on:_____________
JUDGE.
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