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Civil Revision No. 106 of 1973, decided on 25th March 1975.
-- S. 115-Revision-Findings of Courts below on a question of facts being erroneous-Revision not competent for such reasons.
Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 ; Maklemuddin v. Kasem Ali Howalder and others P L D 1960 Dacca 884 and Arif Yazdani and others v. .Sheikh Abdus Salam and others P L D 1957 Lah. 983 ref.
-----S. 115-Revision-Decision of lower Court being wrong in opinion of High Court-High Court would not interfere with such decision in exercise of its revisional jurisdiction.
----S. 115--Revision-Conclusion arrived at without any evidence in support-Court acts illegally or with material irregularity in exercise of its jurisdiction-Finding can be revised by High Court.
Mst. Zura v. Muhammad Ayub and others A I R 1943 Pesh. 17 ; G. R. Adikessvalu Naidu v. C. S. B. Lakshmana Ayyar and others A I R 1929 Mad. 204 and Ram Het Gir and another v. Banwari Lal and another A 1 R 1938 Lah. 41 ref.
Maqsood Ahmad and another v. Muhammad Aslam Muhammad Yousaf P L D 1966 Pesh. 151 held not applicable.
Maklemuddin v. Kasem Ali Howalder and others P L D 1960 Dacca 884 rel.
Arif Yazdani and others v. Sheikh Abdus Salam and others P L D 1957 Lah. 983 ref.
Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies P L D 1964 S C 97 ; Muhammad Ali v. Muhammad Amin and another P L D IS67 Lah. 854 and Malik Hadayatullah and 2 others v. Murad Ali Khan P L D 1972 S C 69 rel.
-- S. 115-Revision-Courts below not taking into consideration evidence brought on record or misreading it-Evidence not establishing any fraud or attestation of mutation being effected during maraz-ul- maut of seller-Payment of consideration not proved and transaction without consideration-Judgments and decrees of lower Courts set aside and mutation quashed.
Mian Muhammad Yunas Shah for Petitioners.
Pir Bakhsh Khan for Respondents Nos. 1 and 2.
Respondents Nos. 3 to 8 : Ex parte.
Date of hearing : 11th March 1975.
Shadi Khan and three others, who happened to be the legal representatives of Mst. Barani, the original plaintiff in the suit, felt aggrieved by the decision of the learned District Judge at Dera Ismail Khan whereby on appeal to him against the dismissal of the suit for the cancellation of Mutation No. 17987 Paniala Janoobi attested on 26-1-1969 inter alia on the ground that it was without consideration, in the alternative for possession of the land covered by that mutation, he affirmed the decision of the lower Court, and they have, therefore, moved the present revision petition.
2. The main point that has been urged on behalf of the plaintiff petitioners is that the Courts below have dismissed the suit on the basis of their finding on issue No. 6, which is to the following effect:
Whether Sale Mutation No. 17987 dated 26-1-1969 is fictitious, collusive, fraudulent and without consideration and attested during tile Marzul- Maut of Mehr Khan deceased. If so to what effect
The decision of the aforesaid issue against the plaintiff-petitioners at least to the extent that it relates to consideration was in utter disregard of the evidence that has been brought on the record. The learned counsel for the plaintiff- A petitioners frankly conceded that he was not in a position to establish that there was any fraud or that the mutation was attested when Mehr Khan was suffering from Marz-ul-Maut' and that in any case it being mutation of sale, Marz-ul-Maut', will not come to the rescue of the petitioners.
3. Before I go into the precise point that has been urged on behalf of the petitioners, I should like to dispose of the preliminary objection that has been raised on behalf of the respondent viz. the revision-petition was not competent inasmuch as there was a concurrent finding of the Courts below on the point -that consideration had been paid, which is a question of fact.
4. Section 115 of the Civil Procedure Code reads:
The High Court may call for the record of any case which has beets decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.
The matter will fall under clause (c) (supra). A question arises as to whether misreading of evidence or non-reading of evidence would constitute an illegality or material irregularity in the exercise of jurisdiction. There is no doubt in my mind that a revision will not be comp; tent for the reason that the finding of the Courts below on a question of fact is erroneous.
5. The learned counsel for the petitioners has cited Mst. Zura daughter of Ghulam Jan v. Mohammad Ayub son of Ghulam Habib and others (A I R 1943 Pesh. 17), G. R. Adikessvalu Naidu v. C. S. B. Lakshmana Ayyar and others (A I R 1929 Mad. 204) and Ram Het Gir and another v. Banwari Lal and another (A I R 1938 Lah. 41) in support of the Proposition that where there is misreading of evidence it would be a material irregularity and that a revision would be competent. The learned counsel for the respondent, on the other hand, placed reliance on Arif Yazdani and others v. Sheikh Abdus Salam and others (P L D 1957 Lah. 983), Maklemuddin v. Kasem Ali Howalder and others (P L D 1960 Dacca 884), Mohammad Swaleh and another v. Messrs United Grain & Fodder Agencies (P L D 1964 S C 97), Maqsood Ahmad and another v. Muhammad Aslam Mohammad Yousaf (P L D 1966 Pesh. 151), Mohammad All v. Mohammad Amin and another (P L D 1967 Lah. 854), Malik Hadayatullah and 2 others v. Murad Ali Khan (P L D 1972 S C 69) and Muhammad Hussain Munir and others v. Sikandar and others (P L D 1974 S C 139).
6. P L D 1974 S C 139 (ibid) is a case in which the point that arose for determination was as to what was the scope of the powers of the High Court in t the exercise of the writ juri, diction to interfere with the orders of a 'Tribunal. Their Lordships compared the Constitutional jurisdiction with the provisions made under section 115 of the Civil Procedure Code and after pointing out the prominent features that the Constitutional jurisdiction had, made the following observation:
It is wholly wrong to consider that the above constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is thong. In that case it would make the High Court's jurisdiction indistinguishable from that exercise-able in a full-fledged appeal, which plainly is not the intention of the Constitution makers.
'The ratio decidendi appears to be that High Court will not be able to exercise its revisional jurisdiction mainly because in its opinion the decision given by the lower Court is wrong. This is settled law on the point. Howsoever erroneous the decision of the lower Court may be, a High Court will not interfere with that.
7. In P L D 1972 S C 69 (ibid) there was a case in which the lower Court had extended the time for the deposit of the pre-emption money and this was within the scope of the jurisdiction of that Court. The High Court was pleased to strike down the order but their Lordships of the Supreme Court observed that at the worst all that could be said was that perhaps the Civil Judge has not exercised his discretion in a proper manner in granting the extension but then the matter would not have been revisable by the High Court under section 115 of the C. P. C. This authority also reaffirms the established position that erroneous decisions of the Courts below will not call for interference by the High Court in the exercise of its powers under section 115 of the C. P. C.
8. In P L D 1967 Lab. 854 (Ibid) tire dictum is that howsoever erroneous a decision on a question of fact may be it will not be gone into in revisional jurisdiction. It will be seen that in this case the learned Judge observed that the learned trial Court after considering the evidence bad come to the con clusion that the case was not a case of lack of bona fides. So to speak, it was a case in which the entire evidence brought on the record bad been taken into consideration and a conclusion was arrived at and the argument was that the conclusion was erroneous.
9. P L D 1966 Pesh. 151 (ibid) is a case in which a Privy Council authority in Balakrishna Udayar v. Vasudeva Ayyar (AIR 1917 P C 71) was relied upon and Faizullah Khan, J. as he then was, observed that decision arrived at in proper exercise of jurisdiction even though erroneous in law or in fact will not afford a ground for revision In the words of his Lordship, "Policy of the law is that the first appellate Court has the last say on the question of fact and erroneous finding however gross or inexcusable on the question of fact provided all the material evidence has been considered is not subject to second appeal. (The underlines'" supplied). It will be seen that a very important reservation has been made by the words under-lined.
10. In P L D 1964 S C 97 their Lordships after quoting section 115 of the C. P. C. In extenso on page 101 of the report made the following observation:
An order can under this section be attacked on three grounds and it is the assumption of the third ground that an exercise of jurisdiction may be illegal or irregular and yet the order passed may not be void and without jurisdiction. By merely showing therefore that an order passed was in violation of some provision of law or procedure, the conclusion that the order is a nullity would not follow. It should further be shown that there was such a violation of some statutory provision or principle of natural justice as would render the proceed ings coram non judice.
It will be seen that their Lordships laid down that mere illegality or proof of material irregularity will not be sufficient and that it was necessary to show that there was such a violation of some statutory proviso or principle of natural justice, as would render the jurisdiction coram non judice. In the case before their Lordships, the ex parte order wag made on a date to which the case was adjourned because the previous date had been declared a holiday and the Court was closed. It will be seen that in that case the precise point involved in the present case did not come up for consideration.
11. P L D 1960 Dacca 884 (ibid) is again a case in which, as the report shows, the learned Additional District Judge had considered all aspects of the case and had taken into consideration the evidence before the Court before coming to a finding. It was in these circumstances that that Court declined to interfere with the concurrent findings of the Courts below in the revision.
12. It seems to me that in P L D 1957 Lah. 983 (ibid) there is an elaborate discussion of the matter and that apart from the two Privy Council rulings, that were then the latest decisions, several other authorities were discussed and the learned Judge concluded "these rulings lay down that if a conclusion is arrived at without any evidence to support it, then the Court acts illegally or with material irregularity in the exercise of its jurisdictior and such a finding can be revised by the High Court". The point was further elaborated by his Lordship and I think the following observations can be reproduced with advantage:---
"What is illegal exercise of jurisdiction is amplified in the latest ruling of the Privy Council reported as N. S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board referred to above. It clearly lays down that when a Court in the exercise of its jurisdiction acts in breach of some provision of law or by committing some error of procedure in the trial which is material in that it may have affected the ultimate decision, then the Court acts illegally or with material irregularity within the meaning of subsection (c) of section 115 of the Code of Civil Procedure. That is to say, if the Court commits an error in the mode prescribed for the exercise of jurisdiction then the High Court has the power to interfere under section 115 of the Code of Civil Procedure.
The question, therefore, is whether the Court commits an error in the mode prescribed for the exercise of jurisdiction it the finding is given by the Court in the absence of any evidence in support of it or in utter disregard of evidence on the record. Order XX, rule 4 of the Code of Civil Procedure provides that judgments of Courts other that a Court of Small Causes shall contain concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. According to section 3 of the Evidence Act, a fact is, said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the assumption that it exists. It is, therefore, clear that the decision of the Court must be based on legal grounds estab lished by legal testimony. A Judge cannot hold a fact to be proved unless there is legal proof of it. Conjecture cannot take the place of proof. It is the duty of the Court to consider the relevant and admissible evidence and then to decide whether or not a particular fact has been pro-ed from the evidence adduced in the case. If there is no evidence in support of the truth of a particular fact, can a Court hold it to be proved And if there is legal evidence on the record, can a Court in giving its decision just ignore it In either case, in my opinion, the Court errs in law in the mode prescribed for the exercise of jurisdiction and acts illegally and with material irregularity, and such a case is covered by subsection (c) of section 115 of the Code of Civil Procedure. It goes without saying that a Court will be acting irregularly and with material irregularity if coming to a conclusion a Court imports its own knowledge or shuts its eyes to the legal evidence on the record.
After a careful consideration of the point involved I find myself in complete agreement with the principle laid down in the rulings cited ort behalf of the petitioners. A Court is legally bound to apply its judicial mind to the evidence on the record and in arriving at a conclusion is required to be guided by well recognized judicial principles. If a Court acts arbitrarily or capriciously in determining a matter in utter dis regard of the legal evidence on the record or goes out of its way to decide a point without any legal evidence in support of it, then it acts in the exercise of its jurisdiction illegally and with material irregularity and a finding arrived at in such circumstances is open to revision by the High Court under section 115 of the Code of Civil Procedure."
I am in entire agreement with the view expressed by his Lordship and bold that where the Courts below have not taken into consideration evidence brought on the record or have misread it that will be a case where the Courts have exercised their jurisdiction illegally or with material irregularity.
13. Reverting to the facts of the present case the petitioners produced a-; many as seven witnesses and none of them could very naturally sly positively about a fact which could only be proved by the other side. Payment of consideration is a fact which could only be proved by the defendants who asserted it and not by the plaintiffs who believed in its non-existence. As far as onus placed on plaintiffs is concerned, that stood sufficiently discharged when they came forward and stated that no payment was made it was plainly futile on the part of the trial Court to have looked into the evidence of the plaintiffs on this point. Now so far as the defence evidence is concerned all that the Court did is that it drew an inference from the statement of Mehr Khan before the commission regarding the receipt of Rs. 16,500 and added that the fact as to when the money was paid woo d not matter so long as the impugned mutation was proved to have been attested. The learned Court further added that the land belonged to Mehr Khan and he could sell it in his lifetime and the plaintiffs did not have any locus standi to question it. This approach of the trial Court conveniently overlooks that the case of the plaintiff-petitioners was that but for the impugned sale mutation the land in question would have devolved on them and that as a matter of fact no payment was made to Mehr Khan, an old man of 70, who died within a month and twenty days of the entry of the mutation. The learned trial Judge did not make any endeavour whatsoever to make his own assessment about the veracity of the witnesses produced by the defence and what ever discussion is available in para. 5 of his judgment suggests that he was perhaps, himself not very positive that payment was in fact made to Mehr Khan. In this impression I am supported by the observation "the fact that when money was paid to Mehr Khan does not matter much because defendants have proved that Mutation No. 17987 was correctly attested".
14. As far as the lower appellate Court is concerned, that also did not address itself to the precise evidence produced by the defendants on the point of payment. It only restricted its discussion to the capacity of defen dants 1 and 2 to pay the amount. As far as the credibility of the defence witnesses is concerned, except for Bahadur Khan, Girdawar, who was appointed as Commissioner to record the statement of Mehr Khan and who only proved the admission of Mehr Khan before him, the witnesses produced by the defence to prove payment were not at all noticed. The lower appellate Court also failed to notice that Bahadur Khan. Girdawar, on his own admission was related to the defendants.
15. It will be seen that the impugned mutation (Exh. P. W. 1/2) was, entered on the 4th of January 1969 on a "Darkhowast" of Ghulam Sarwar Khan. D. W. 5, that is to say, on the report of a person who was neither the vendor, nor the vendee. On the very day, the mutation was entered Ghulam Sarwar Khan represented it to the Revenue Officer that Mehr Khan. vendor, was sticken by age and weakness and therefore Girdawar should be appointed as Commissioner. The Girdawar recorded the statement of Mehr Khan fifteen days thereafter on 19-1-1969 and apart from getting it signed from Mehr Khan, got it witnessed from said Ghulam Sawar Khan. (D. W. 5), Muhammad Ayub (D. W. 4) and Falak Sher (D. W. 7). There is no doubt that in this statement, Mehr Khan admitted to have received the entire amount of Rs. 16,500 and in consequence thereof having sold the land but the 'Caveat' that he entered is significant. He stated that so long as he was alive, the land will remain in his possession. Possession has not bean transferred Produce etc. and culture of the land through tenants will be done by him and that on his death the land shall be deemed to be in possession of the vendor. This Caveat' will show that either the vendor was not in senses or the vendees were foolish enough to agree to a unique transaction. It does not stand to reason that the vendees who had parted with a sum of Rs. 16,500 would have agreed to the conditions of such a compromise which was being imposed by an old man with a falling health. The only inference that one can draw from such course of events is that there was some hanky-panky and the conduct of the vendees was not above board.
16. It remains to be seen as to why and when money was paid. The defendants contended that the money was paid ten days prior to the recording of the statement of Mehr Khan by the Girdawar. This admission was made in the presence of Muhammad Ayub (D. W. 4). Ghulam Sarwar (D. W. 5), Khan Mir (D. W 6, and Muhammad Gul, one of the plaintiffs. Muhammad Ayub has not said that the money was paid in his presence. Ghulam Sarwar (D W. 5) and Khan Mir (D. W. 6) no doubt have said about it but Ghulam Sarwar is so much interested in the defendants that he got the mutation entered on his own request and is on the record to have admitted that aunt of the defendants 1 and 2 is the wife of his cousin, Gul Ahmed, and that Sherzada a son of Gul Ahmad from that lady, was his son-in-law. He also added that another aunt of the defendants, namely, Msd. Zubeda was the wife of his other cousin, Gul Ahmad by name. There is no doubt that Khan Mir is a 'Mohamand' and not related to either side but there is nothing on the record to show that he was all that important that he should have been called by Mehr Khan to witness the payment. Again it does not stand to reason that though the parties wanted to create evidence for payment, they would not have secured a document or some more trustworthy evidence to prove their contention. Why at all the money should have been paid ten days, before the statement. It was not a small amount and a large area of land was at stake. Again the very fact that Khan Mir mentions the presence of Muhammad Ayub and Muhammad Ayub has not said so, would show that he was a person whose testimony could not be depended upon.
17. That the witnesses produced by the defendants are related will be borne out by the fact that Bahadar Girdawar, who was appointed as Commissioner, admitted that Master Faizullah was his brother-in-law and that father-in-law of a brother of Faizullah, namely Gulloo Khan, and father- in-law of Ahmad Khan, defendant were brothers. Ahmad Khan (D. W. 3) is himself defendant. Muhammad Ayub (D. W. 4) is a cousion of the defendants and his niece is also married to Muhammad, defendant. Ghulam Sarwar (D. W. 5), I have already noticed. The only two persons that requires to be noticed are Falak Sher and Ibrahim (D. Ws. 7 and 8) respectively. The former admits that aunt of Gaulam Sarwar is tie aunt of his uncle and the mother of the defendants belongs to his caste. The latter, namely, Ibrahim says that even though Mehr Khan, deceased, lived in his house he did not inform him about the receipt of money before that his state ment was recorded by the Girdawar. In any case his no knowledge statement that wife of Abdur Rahman, Mst. Sehra by name, was a sister's daughter of the mother of the defendants, will show that he is also related to the defendants.
18. It is true that the onus of the issue was placed on the plaintiff petitioners but it shifted to the defendants no sooner the plaintiff-petitioner asserted that the transaction was without consideration and the defendants took upon themselves and stated that payment was made ten days before the recording of the statement and also produced evidence to substantiate that contention. I am not satisfied with the proof of payment that has been adduced by the defendants and will in the circumstances of the case hold that it was a transaction without consideration and in this I am reinforced by the fantastic compromise that the vendor exacted from the defendant-respondents, viz. that he will retain the land throughout his lifetime and possession shall be deemed to have passed on to the vendees on his death.
19. The upshot of the whole discussion is that it is a case where the transaction is without consideration. The persons entitled to the land have been deprived of their due by the impugned mutation. I will accept the revision and setting aside the judgments and decrees of the Courts below decree the suit brought by the plaintiff petitioners with costs throughout.
S. A. H. Petition accepted.
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