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Civil Revision No. 242 of 1972, decided on 10^thNovember, 1979.

----- S. 115-Revision-Scope-Transferor in previous annual record shown as owner of 12/50 share in disputed field but in subsequent record shown as owner of 21/50 share-No mutation effected in intervening period to justify increase in share nor contesting respondents establishing later entry having been made on basis of some transaction-Incumbent on trial Judge to find out reason for such change but trial Court as well as appellate Court omitting to take such fact into consideration-High Court examining a revenue official for obtaining explanation and interpretation of different annual records to do substantial justice and to find out if Courts below misread evidence and committed material irregularity-Contention that examination of Witnesses could not be resorted to in revisional stage nor could concurrent findings of fact be disturbed at such stage-Held.: Contention without any substance-Every case to be decided on its own merits on .points of fact as well as law-Evidence on record having been placed in haphazard manner, necessity of examining revenue official arose to find if Courts below read evidence correctly or committed material irregulari ties in examination and appreciation of evidence and as such examina tion of witness by High Court justified and not in contravention of provisions of S. 11 5.

Karachi Development Authority v. Haji Taj Mohammed P L D 1977 Kar, 101; Allah Dad v. Province of Punjab P L D 1978 Lah. 1147 and Khan Muhammad v. Mohammad Ishaq 1 975 S C M R 471 distinguished.

----- S. 115-Revision--Words "acted illegally" appearing is S. 115- Imply not merely committing of any error of procedure but also relate to gross and palpable error of subordinate Courts resulting in grave injustice.-[Words and phrases].

Haji Saadullah Khan for Petitioners No. 1.

Khurshid Alam Sherazi for Respondents.

Date of hearing : 14th October 1979.

This is a petition under section 115, C. P. C. wherein the judgment and decree dated 6-2-1972 of the District Judge, D.1. Khat dismissing the appeal from judgment and decree dated 7-10-1969 of the Civil Judge, D.I. Khan has been challenged.

2. The facts of the case have not been elaborately given in the judgments of the two Courts below and consequently it has become necessary for me to re-state them in some detail.

3. The dispute in the case centres round the agricultural land bear ing field No. 21022 situate in village Gujrat, Tehsil and District D. I: Khan. Prior to 1940-41 this field number, in the different annual records, was shown to have an area of 16 kanals, 14 marlas but when the Revenue authorities in 1940 detected that there was a mistake about the actual area of the disputed field number, correction mutation No. 515 was entered and attested on 23-5-1940. By this mutation the area of the land was shown to be 6 kanals and 14 marlas instead of 16 kanals and 14 marlas. The parties to the dispute in the present matter have not challenged either in the two Courts below or before me the action of the Revenue authorities in correcting the entry about the area and in fact it was admitted that 6 kanals and 14 marlas was the exact area of the disputed field number and that prior to 23-5-1940 it was wrongly recorded to be 16 kanals and 14 marlas in the different annual records.

4. The plaintiffs, in the suit out of which the present petition arises, were (1) Lal Khan and (2) Allah Diwaya sons of Khan Muhammad Khan and (3) Ahmad Nawaz and (4) Rab Nawaz sons of Akbar Khan. The defendants against whom the suit was brought arc (1) Mureed Khan son of Bahadur Khan, (2) Mst. Jantan, widow (3) Mulazim Hussain Shah, son and (4) Mst. Zuhran Bibi and (5) Mst. Fazlan, daughters of Ghulam Qasim Shah and (6) Baluch Khan son of Guman Khan. Ghulaut Hussian son of Khan Muhammad Khan, a brother of plaintiffs Nos. 1 and 2, was impleaded as pro forma defendant No. 7.

5. The dispute in the present case arose when by Mutation No. 931 (copy Exh. P. W. 3/2) attested on 9-2-1966 Ghulam Qasim Shah, who was then shown as owner in the annual record, sold 8/50 share to Mureed Khan defendant No. I and then when this sale was pre-empted he transferred by way of exchange 1/50 share to defendant No. 1 by Mutation No. 1019 (Copy Exh. P. W. l/2) attested on 11-3-1967. The case of .the plaintiffs is that Ghulam Qasim Shah, prior to 25-12-1964, was owner of 12/50 share only in the disputed field number which he had sold to defendant No. 1 by Mutation No: 912 attested on 25-12-64 and that after this sale there was nothing left with Ghulam Qasim Shah and, therefore, the further two muta tions, one of sale bearing No. 931 and the other of exchange bearing No. 1019, are without any right and consequently not binding on the plaintiffs and defendant No. 7 who are owners of 3/10 share in the disputed field number. The plaintiffs seek declaration to the above effect and also challenge that in consolidation proceedings on the basis of the above-mentioned invalid mutations the area belonging to the plaintiffs and defendant No._7 has wrongly been reduced from 2 kanals. An injunction was also sought against the respondents that they should not interfere with the plaintiff's right and should not come in their way in connection with the correction of the Revenue records.

6. On receiving the written statement from the contesting defendant No. 1, who alone contested the suit, the learned Civil Judge framed as many as many as twelve issues. Issues Nos. 1, 2 and 3, which were discussed together by the learned Civil Judge and the finding whereon had been upheld by the District Judge, are as follows:-

"(1) Whether Khasra No. 210/22 was sold by the owner vide Mutation Nos. 358/516 and 912 and as such there was left nothing from this Khasra number to be exchanged with defendant No. 1

(2) In case issue No. 1 is proved in the affirmative whether registered deed dated 9-6-1966, Mutations Nos. 1019 and 931 are void, fictitious, collusive and ineffective upon the plaintiff's rights

(3) In case Issues Nos. 1 and 2 are proved whether plaintiffs and defendant No. 7 are the owners in possession of the suit land measuring 2 kanals and entries after 1950 in the revenue papers are incorrect and to that effect "

The learned trial Judge observed that it was for the plaintiffs to prove that Ghulam Qasim Shah could not transfer by way of sale or exchange the area, which was the subject-matter of Mutation Nos. 831 and 1019. He observed that the annual records for the year 1912-13 (Exh. P. W. 1/1) showed that there were. four persons owning the disputed field number at that time and that subsequently Ghulam Qasim Shah also inherited the property from Gulaya Shah and Ghulam Akbar Shah. It was further pointed out that in that year the portion recorded to be in the ownership of Mst. Jindwaddi also devolved on Ghulam Qasim Shah and in this manner he became owner of 1/2 share in the disputed field number. The finding of the learned trial Judge was that the two aforesaid mutations, one of sale and the other of exchange, were valid as the said Ghulam Qasim Shah was the owner therein to the extent of the area sold and exchanged. All the three issues were decided against the plaintiffs. The learned District Judge in his order repeated the arguments of the learned trial Judge in substance and upheld his finding.

7. The matter first came up before Mr. Usman Ali Shah, J, who in order to obtain clarification of the revenue records summoned Assistant District Kanungo and examined him as C. W. 1. He gave details of the different transactions, which had taken place in respect of the disputed field number from 1908-9 onwards and also filed a goushwara containing the copies of the annual record. This is Exh. C. W. 1/1. The evidence of the witness was recorded subject to any objection, which may be made by the contesting defendant-respondent No. 1. The main objection against the examination of the witness in revision stage was, that this Court, while deciding a 'petition for revision under section 115, C. P. C. is not authorised to go into the finding of fact arrived at by the two 'Courts below and that since on facts both the Courts have given a concurrent finding that Ghulam Qasim Shah had validly transferred the property, the question could not be re-opened and much less by recording further evidence.

8. In my opinion the plea taken by the learned counsel for the respondent is without any substance. Every case has to be judged on it own merits on points of fact as well as on points of law. The necessity of examining the Assistant District Kanungo arose because the evidence on record was placed on the file in a haphazard manner and it had become necessary to find out if the two Courts have correctly read the evidence or had made some material irregularities in the examination and appreciation of the evidence before them. The learned counsel referred to the case of Karachi Development Authority v. Haji Taj Muhammad (P L D 1977 Kar. 101) wherein it was held that the provisions of section 115, C. P. C. do not permit an investigation into facts or even consideration of facts not available to Courts below at the time of passing the impugned orders. There is no dispute to the law laid down in the said case, but, as already observed by me above, this is not a case in which additional evidence in the strict sense of the word has been recorded. In fact the learned Judge before whom this petition had first come up and who had examined the Assistant District Kanungo as a Court witness only wanted the clarification of the evidence already on record. It is peculiar to note that the copies of some annual records and some mutation had been filed at the trial but neither the trial Judge nor the learned District Judge, who decided the appeal, cared to scan that evidence. In order to do substantial justice, therefore, and for the facility of obtaining explanation and interpretation of different annual records and the mutations, the examination of the Assistant District Kanungo was essential. It was also necessary to find out if the two Courts below have misread the evidence and) have thus committed a material irregularity which action permits this Court to invoke the provisions of section 115, C. P. C. The case of Allah Dad v. Province of Punjab (P L D 1978 Lah: 1147) was also referred to in which it had been held that a finding of District Judge not suffering from any jurisdictional defect, as described in section 115, C. P. C. cannot be re-opened in the exercise of the revisional jurisdiction by the High Court. This case too is not on opint in as much as the Court can, on the language of section 115 (1)(c), C. P. C. exercise the revisional jurisdiction where there is a material irregularity. Misreading of evidence or omitting to read the evidence is a material irregularity and this can be gone into by the- Court in exercise of its revisional jurisdiction. For the same reasons the case of Khan Muhammad v. Muhammad Ishaq (1975 S C M R 471) relied upon by the respondents counsel can be distinguished.

9. The words "acted illegally" do not, in my opinion, imply the committing of any error or procedure alone but they have relation to gross and palpable error of subordinate Courts resulting in grave injustice. As I shall discuss hereafter the learned trial Judge has not carefully examined the material on record and had omitted to take into consideration some very important evidence. For instance it may be pointed out that, according to the annual record for the year 1949-50, Ghulam Qasim Shah was recorded owner of 12/50 share in the disputed field number but in the year 1954-55 in the annual record in possession of the Patwari he was shown to be owner of 21/50 share. This variation in the share of Ghulam Qasim Shah or for that matter in the share of his successor-in-interest, namely, defendants Nos. 2 to 5, is unexplainable. It was incumbent upon the trial Judge to find out the reason for this change. Since only attested copies of the record had been placed on file, the missing link was to be brought on surface by the heirs of Ghulam Qasim Shah or for that matter by defendant No. 1 who purchased the property from him. In the absence of any mutation in the intervening period justifying the increase in the share of Ghulam Qasim Shah, the annual record for the year. 1954-55 should have alerted the learned trial Judge to find out the real posi tion. The Assistant District Kanungo, when examined in this Court, clarifies that the copy in possession of the Patwari for the year 1954-55 did not tally with the record kept in the Head Office Obviously there was manipulation in the annual record, which was in possession of the patwari, and it was for the respondents, who contested the plaint, to establish that the entry in the annual record, which is at variance with the entry in the annual record for the year 1949-50, had been made on the basis of some transaction. The learned trial Judge as also the learned District Judge did not appreciate the position that onus of proving a fact does not remain on one party throughout the proceedings but it shifts to other party when some evidence establishes the case of one party. In the matter before this Court when the annual record for the year 1949-50 showed Ghulam Qasim Shah was owner of 12/50 share only, it was incumbent upon the contesting respondents to establish that the change in the annual record for the year 1954-55 had been made on some basis. In ignoring to shift the burden at this stage on the contesting defendants the trial Court as well as the appellate Court committed material irregularity, which enables this Court to call for the records, examine it, and correct error.

10. As already stated the entry in the year 1954-55, in the copy placed by the patwari on the file, is wrong inasmuch as it shows Ghulam Qasim Shah to be owner of "1/50 share" whereas in fact he was owner of 12/50 share only as is evident from the original record which the Assistant District kanungoo has placed on record of this Court. There is no transaction, which could justify the increase in the share of the Ghulam Qasim Shah. By mutation No. 912 attested on 25-12-1964 Ghulam Qarami Shah had sold his entire 12;50 share to defendant No. I and, therefore, the subsequent two mutations, one of sale and the other of exchange, were without any right as Ghulam Qasim Shah was not left with any share in the disputed field number which he could transfer by way of sale or exchange.

11. In view of my discussion, it is established that on the face of the latest record, Ghulam Qasim Shah was not owner of the property which he transferred by way of sale and exchange mutations after the attestation of Mutation No. 912 certified on 15-1y-1964 whereby he had exhausted his entire share holding. However, since the learned trial Judge had referred to the annual record of 1912-13 also and the learned lower appellate Court too had adopted his arguments, it is necessary for me to go behind the years 1954-55 and 1958-59. The goushwara (Copy Exh. C. W. 1/1) placed on record of this Court on the order of Usman Ali Shah, J, in fact, includes all the annual records prepared from 1908-9 onwards. This shows that in 1908-9 the shares of the different owners were as under

The position remained the same in the annual record of 1912-13. Thereafter Gulaya Shah died and his inheritance Mutation No. 112 was attested on 15-6-1914 whereby Ghulam Qasim Shah became owner thereof being his only son capable of inheritance at that time. Ghulam Akbar Shah also died and Ghulam Qasim Shah being his nephew inherited his share too and the fact was incorporated in the revenue record by Mutation No. 129 attested on 6-3-1916. Again Mst. Jindwaddi also died and her 1/3 share in the field number was inherited in equal shares by Karam Haider Shah and Ghulam Qasim Shah. In this manner Karam Haider became owner of 1/2 share and Ghulam Qasim Shah too of 1/2 share. This continued up to the preparation of the annual record of 1920-21. By Mutation No. 197 attested on 21-12-1921 Karam Haider Shah transferred 1/5 share out of his 1/2 share to Hussain Bakhsh Shah and Manzoor Hussain Shah. Similarly by Mutation No. 198 attested on the same date Ghulam Qasim Shah too transferred 1/5 share out of his 1/2 share to the said Hussain Bakhsh Shah and Manzoor Hussain Shah. In this manner the respective shares of the owners then existing work out in the following ratio as is apparent from annual record of 1924-25:-

In the year 1927-28 the shareholdings remained the same. However, Baluch Khan son of Guman Khan defendant No. 6 by Mutation No. 358 purchased 147/920 share from Ghulam Qasim Shah. After this transaction there was a change in the share-holdings and the respective shares of the then existing owners were recorded as under in 1931-32:-

Karam Haider Shah died and his inheritance Mutation No: 385 was attested on 15-9-1934. His share in the disputed field number devolved on Hussain Bakhsh Shah and Manzoor Hussain Shah. Hussain Bakhsh Shah also died and Manzoor Hussain Shah inherited his entire share by Mutation No. 483 attested on 13-12-1936. This changed the position in the shareholdings and then the different owners held the shares in the field number as under :-

Manzoor Hassain Shah sold his share by Mutation No. 516 attested on 23-5-1940 in the names of Khan Muhanimad son of Jiwan Khan and Baluch Khan defendant No. 6. This changed the share-holdings as follows:-

Khan Muhammad sold his share to Ghulam Hussain Shah, Lal Khan, Ahmad Nawaz and Rab Nawaz by mutation No. 687 attested on 23-3-1949. In this manner the then existing owners held the following shares:-

This is recorded in the annual record for the year 1949-50. This position had remained intact thereafter throughout when by mutation No. 912 attested on 25-12-1964 Ghulam Qasim Shah sold his entire share to Mureed Khan defendant No. 1. In this manner Ghulam Qasim Shah was not left with any share which he could sell or exchange. The two mutations have therefore, rightly been challenged by the plaintiffs and I hold that on the basis of these muta tions alone Mureed Khan did not become owner of any other share in the property.

12. The result of the above discussion is that I decide issue No. 1 in favour of the plaintiffs. On issue No. 2 I hold that Mutations Nos. 1019 and 931 were attested without any valid right of Ghulam Shah. On issue No. 3 I hold that the plaintiffs and defendant No. 7 are owners as claimed by them. The finding on these three Issues is, however subject to the decision which may be arrived at in respect of the Issues Nos. 4, 7, 9 and 11 which too had been argued before me. If these four issues are decided against the plaintiffs and to favour of defendant No. 1 then of course the final deci sion would be different. These issues are as under:-

"4. Whether the suit is liable to be dismissed under Order VII, rules 11 and 14, C. P. C.

7. Whether the Civil Court has no jurisdiction to try this suit

9. Whether the suit is barred under section 11 and Order XXIII, rule 1, C. P. C.

(11) Whether defendant No. 1 is a bona fide purchaser for consideration of the suit land. If so to what effect

These issues have been discussed by the trial Judge in his judgment. The learned District Judge has, however, not given any finding thereon. In my opinion it would be in the interest of justice that the parties are given a chance to argue these issues in the first instance before the District Judge who has omitted to consider them. No doubt this Court could take up the issues itself but it would be better if the arguments are advanced before the District Judge who has a wider power to examine the questions of fact as well as of law whereas the jurisdiction of this Court is restricted within the short campus of section 115, C. P. C.

13. The result is that I accept this appeal, set aside the judgments and decrees of the two Courts below, and remit the case back to the District Judge with the direction that he should give his considered finding on Issues Nos. 4, 7, 9 and 11 and then dispose of the first appeal accordingly. It may be pointed out that the remaining issues were not argued before me. The cost shall follow the event.

S. A. H.

Appeal accepted. Case remanded.

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