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Civil Revision No. 453 of 1980, decided on 20th October, 1985.

‑‑‑ Art. 72‑Proof of transaction of sale‑Certified copy of registered sale‑deed produced in evidence‑Defendant not disputing sale tran saction nor genuineness of certified copy of sale‑deed‑Production of certified copy of sale‑deed, held, could not be objected to, in absence of plea of no sale and of forgery of certified copy of sale‑deed.

‑‑. Art. I 19‑Proof of particular fact‑Defendants while admitting sale transaction taking plea that such sale was fictitious and sale con sideration was returned within one year of sale transaction and land repurchased‑No cogent and imperative evidence produced to prove such contention‑No document of repurchase of land having been placed on record, mere ipsi dexit of defendants in that behalf, held, would not inspire confidence in circumstances of case.

‑‑ Credibility of‑Integrity of witness not questioned‑Evidence of such witness remaining unrebutted and inspiring confidence‑Re liance, held, could be placed on such evidence.

‑

‑‑ S. 52‑Registration Act (XVI of 1908), Ss. 17 & 49‑Proof of ownership‑Entries in revenue record, held, were not only symbol of ownership‑Such record was kept and maintained mainly for fiscal purposes‑Transaction through registered sale‑deed was manifestation of ownership as well‑‑Mere absence of such persons' names from revenue record who had purchased land through registered deed would not deprive them of their vested rights.

Duty of Court‑In order to do substantial justice between parties, Court, held, must look for real position brought on record by way of evidence and must not allow itself to base verdict on conjectures and surmises‑Civil suit‑If upon evidence on record, factual posi tion came to surface, Court would not be justified to ignore same on technical grounds.

---‑S. 54‑Sale‑Rights of subsequent vendee‑Subsequent purchaser, purchased land from persons who had seen divested of ownership by having already sold same to prior purchaser‑Effect‑Such subsequent purchaser, held, had no right to claim land but could seek remedy against vendors, if so advised.

Abdur Rehman Khan for Petitioner.

Mian Muhammad Ismail Qureshi for Respondents Nos. 3 to 9 and 14 to 17.

Remaining Respondents : Ex parte.

Date of hearing : 28th May, 1985.

The dispute between the parties in this revision application relates to 15 Kanals and 13 Marlas out of land measuring 29 Kanals and 13 Marlas comprised in Khasra No. 5206/1650/1651/1652 situate in Mahal Hazar Khani, Tehsil Peshawar, Bakhshish (now represented by his legal heirs and his brother Ghulam Sarwar brought suit for grant of decree of joint possession in the said land. Their case was treat their father Mehboob had purchased land measuring 15 Kanals 13 Marlas in the land in question from Mir Alam, the father of the petitioners herein, by registered sale‑deed dated 14‑2‑1927 (Exh. P. W. 2/1) and they are in on session of the same since then. Likewise, Mir Aslam, the brother of Mir Alam, also sold his share to defendants Nos. 5 to 7 and thus the original owners of the entire land divested their rights of ownership in favour of the vendees. The plaintiff respondents asked the defendants not to interfere in their ownership rights and their possession of the land to the extent of their share but they did not agree and hence they were obliged to bring the present suit. The suit was contested by defendants Nos. 1 to 4. During the pendency of the suit one Ali Akbar also filed written statement claiming that he has purchased the suit land from defendants Nos. 1 to 4. Upon the pleadings of the parties, the following issues were framed

(1) Whether the suit is barred under section 11, C. P. C.

(2) Whether the plaintiffs are estopped to bring the present suit

(3) Whether the suit is within time

(4) Whether the suit is bad in the present form

(5) Whether the suit is bad for non‑joinder of necessary parties

(6) Whether the plaintiffs are owners of the suit property on the basis of a valid purchase and are entitled to decree prayed for

(7) Whether defendants Nos. 1 to 4 have matured their title to the suit land by adverse possession

(8) Relief.

Additional Issue No. 4.‑Whether Mir Alam father of defendants Nos. 1 to 4 had sold his share in the suit land measuring 15 Kanals 13 Marlas to Mehboob father of the plaintiffs through a registered sale‑deed, if so, whether the plaintiffs are in joint possession of the suit land with defendants

Upon these issues parties produced their evidence and on examination of the same; the learned trial Judge came to the conclusion that the suit of the plaintiffs/respondents is barred by limitation. He seems to have based his finding on the revenue record in which the names of the plaintiffs/ respondents did not find mention after their purchase of the suit land. He further observed that in 1949 defendants Nos. 1 to 4 had filed suit quo the suit land and plaintiff Bakhshish appeared as witness to the said suit, but he never questioned the title of the defendants with respect to the suit land until 1966 when the plaintiffs brought the present suit. It appears that the learned trial Judge did not touch upon the claim of Ali Akbar that he had purchased the suit land from defendants Nos. 1 to 4. He accordingly dis missed the suit of the plaintiffs, vide his judgment, dated 24‑5‑1907. The plaintiffs then filed appeal in the District Court and a learned Additional District Judge dismissed the same on the ground that the plaintiffs had impleaded a dead person as party and the appeal was not properly con stituted before limitation against his legal representatives. The plaintiffs challenged this judgment in second appeal before this Court but their appeal was dismissed, vide judgment, dated 15‑7‑1969 which was impugned by the plaintiffs in Letters Patent Appeal and a learned Division Bench of this Court allowed the appeal and remanded the case to the lower appellate Court with direction to decide the appeal of the plaintiffs on merit, vide judgment, dated 20‑4‑1977. On remand, the learned Additional District Judge who heard the appeal allowed the same and granted decree in favour of the plaintiffs against the defendants, vide his judgment, dated 12‑7‑1980. Hence this revision application by the defendants 1 to 4. Ali Akbar has also filed revision application bearing No. 453 of 1980. I propose to dispose of both revision applications by this judgment.

I have heard the learned counsel for the parties and perused the record. It is not denied that in 1922 the predecessor of the respondents had purchased the suit land through a registered sale‑deed. The learned counsel for the petitioners contended that the original sale‑deed was not produced but a certified copy of the sale was produced from the office of the Regis trar. He. therefore, argued that as in the absence of the original document, legally certified copy is not admissible in evidence, the respondents cannot claim ownership of the suit land on the basis of the certified copy of the registered sale‑deed. This contention would have been available to the learned counsel for the petitioner. if he had disputed that no sale of the suit land had ever taken place in favour of the respondents and the certified copy with respect to the sale of the suit land is a forged document but this is not the case. He conceded as a fact, that in 1922, the predecessor of the defendants Nos. 1 to 4 petitioners sold the suit land in favour of the predecessor of the respondents through a registered sale‑deed. The question, therefore, will be whether on the basis of the said sale‑deed the respondents are in possession of the suit land right from the year 1922. The learned counsel for the petitioner contended that as the revenue record is silent with respect to respondents' possession of the suit land and its possession is shown in the names of the petitioners. It is obvious that the respondents did not obtain possession of the suit land pursuant to the registered sale‑deed. In support of his contention, he refer red to the statement of his clients made by them in the written statement to the effect that the suit land was sold by their predecessor in favour of the predecessor of the respondents for timely need of money and the‑sale transaction was fictitious and that the sale consideration was returned by their predecessor to the predecessor of the respondents within one year. The learned counsel was unable to prove this contention by any evidence aliunde or other cogent and imperative evidence. It does not stand to reason that the predecessor of the petitioners had returned the money to the predecessor of the respondents within one year after the sale transaction. Had it been so, he would have either repurchased the suit land from the predecessor of the respondents through registered sale‑deed at least he would have returned the money through other written document in order to constitute a proof in this behalf against the respondents. No such thing was placed on record, the mere ipsi dixit of the petitioners in this behalf does not inspire confidence in the facts and circumstances of the case. Correct that pursuant to the purchase of the suit land by the respondents in 1922‑'through registered sale‑deed, their names did not find mention in the revenue record, but this would not be a ground to go against the respondents unless it is shown that respondents were never in possession of the suit land on the basis of the registered sale‑deed. The respondents produced Fateh Muhammad as P. W. 4 to show that he was cultivating the suit land on their behalf as tenant. This P.W. stated that the suit land was cultivated by him, Abdur Raziq and Abdul Khaliq for 40 years on behalf of the predecessor of the respondents and after his death the plaintiffs used to receive the share of their produce and that he was in possession of the suit land on behalf of the respondents Nothing was brought on record on behalf of the petitioners to question the integrity of this witness that he is partisan of the respondents and in order to favour them he has made a false statement in their favour. The learned Additional C District Judge, therefore, rightly placed reliance upon the evidence of this witness, as his evidence was not rebutted by any evidence worth con sideration. In order to repeal the contention of the learned counsel for the petitioners that the revenue record supports the case of his clients, the learned Addl: District Judge also rightly observed that :‑

"It is well‑settled law that the entries in the revenue record are not the only symbol of parties ownership. The revenue record is kept and maintained mainly for fiscal purposes. The plaintiffs are as good owners of the suit land by means of transaction through a registered sale‑deed as the land would have been mutated in their favour and mere absence of their names from the revenue record would not deprive them of their vested rights the plaintiffs are co‑owners in the suit Khasra number and their possession would be deemed as joint with the other co‑owners in the absence of any proof to the contrary that the defendants have through any overt and unequivocal act' ousted the plaintiffs of the possession."

It may further be observed that legally title follows possession and as the respondents were found to be in possession of the suit land on the basis of the registered sale‑deed right from 1922, the revenue record, even though the names of the petitioner; are mentioned therein, will lose its legal significance. In order to do substantial justice between the parties, the Court must look for real position brought on record by way of evidence and must not allow itself to base its verdict on conjectures and surmises. In a civil suit, if upon the evidence on record, factual position comes to light, the Court shall not justified to ignore it on technical grounds. In the present case, entries in the revenue record in favour of the petitioners showing them in possession of the suit land were wrong against the factual position, therefore, the finding of the learned trial Judge in this behalf was a material mistake and the learned Additional District Judge was right to upset the same observing that as the respondents were in possession as owners of the suit land on the basis of a valid registered sale‑deed right, from 1922, the question of limitation cannot be agitated against them.

This brings me to attend to the revision petition filed by Ali Akbar. As it was found that the suit land was not owned by defendants Nos. 1 to 4 from whom he purchased the suit land, his sale would not be binding on the respondents. He can, as observed by the learned Additional District Judge, seek his legal remedy against defendants Nos. 1 to 4, if so advised.

Finding no error of law in the impugned judgment of the learned Addl. District Judge, both revision petitions fail and are dismissed with no order as to costs.

A.A. Petition dismissed.

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