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Civil Revision No. 99 of 1980, decided on 13th November. 1985.

‑‑‑S. 53‑‑Mutation and subsequent entries in record‑of‑rights based thereon‑‑Evidentiary value‑‑Mutation and subsequent entries in record- of‑rights on basis of such mutation, held, would not by themselves create title in favour of any person‑‑Such documents could not be regarded as deeds of title when questioned.

‑‑What constitutes‑‑Co‑sharer‑‑Requirement‑‑Persons claiming as vendees never entered as co‑sharers of disputed property in Misl‑i -Haqiat, nor coming in possession thereof‑‑Effect‑‑Possession of entire land remaining with co‑sharers and such possession being open and hostile to vendees for more than statutory period, held, would be adverse to such vendees.

Khawaja Abdur Rashid for Petitioners.

Alhaj Sardar Bahadur Khan for Respondents.

Date of hearing: 13th November, 1985.

One Abbas Khan son of Feroz Khan, resident of village Salhad, Tehsil Abotabad, instituted on 2-7-1970 a suit against Abdur Rahim and others for a declaration to the effect that he having purchased, through Mutation No. 8335 attested on 20‑1‑1942, one‑third share out of the land measuring 20 Kanals, 12 Marlas, represented by Khasra No. 1902 of village Salhad, was owner in possession thereof and that the entry in the revenue record showing Jehandad son of Sher Khan, the ancestor of defendants 4 and 5, as owner of that share was wrong, and so was wrong and inoperative against his rights the subsequent transfer made by the said Jehandad through a registered sale‑deed in favour of defendant No. 3, who, in turn, further transferred that share in favour of defendant No. 2, which ultimately was transferred by defendant No. 2 in favour of defendant No. 1. As an alternative relief, he claimed possession of the said share of land.

2. It was stated in the plaint that the disputed land, bearing Khasra No. 1902, was in the old revenue record represented by Khasras Nos. 1597 and 1599 and was owned by Jehandad son of Sher Khan, who transferred it in favour of the plaintiff by Mutation No. 8335, attested on 20‑1‑1942, which was incorporated in the subsequent Jamabandi of 1942‑43; that due to mistake of the revenue officials the name of the plaintiff could not be entered in the column of ownership in the 'Misl‑i‑haqiat' prepared in 1948‑49 though he remained in possession of the suit land as owner thereof, having not transferred it in any manner in favour of said Jehandad, the ancestor of defendants Nos. 4 and 5; that taking undue advantage of the wrong entries made in the revenue record the said Jehandad transferred the disputed land, through a registered deed, dated 18‑7‑1951, in favour of Muhammad Ajab (defendant No. 3), who in turn, further transferred the same in favour of Ali Zeman (defendant No. 2) by Mutation No. 1767 attested on 24‑2‑1954; that on the basis of these transfers wrong entries crept into the revenue record/annual record and the land in suit was ultimately transferred by Ali Zeman (defendant No. 2) in favour of Mst. Hazrat Jan (defendant No. 6), who now claims to be the owner thereof.

3. This suit was contested by the transferees aforestated and on the pleadings of the parties the learned Senior Civil Judge, Abbottabad framed the following issues:‑‑--

(1) If the suit in the present form is maintainable

(2) If the plaintiff is with a cause of action

(3) If the suit is within time

(4) If the suit land was once purchased by the plaintiff vide Mutation No. 8335, dated 20‑1‑1942

(5) If the suit land had not been sold to Jehandad, the predecessor of defendants Nos. 4 and 5 by the plaintiff .

(6) If the sale of the suit land by Jehandad in favour of defendant No. 3 vide registered deed, dated 18‑3‑1951, is wrong and against facts and thus void

(7) If the defendant No. 3 had not sold the suit land to the defendant No. 2 vide Mutation No. 1767, dated 24‑2‑1954 or the alienation effected thereby is void for being unauthorised and fictitious

(8) If the sale effected by Mutation No. 9099 by defendant No. 2 in favour of defendant No. 1 is void and inoperative against the interest of the plaintiff

(9) If the subsequent alienation by defendant No. 1 in favour of defendant No. 6 is also inoperative and. against the plaintiff

(10) If the defendants had matured their title through adverse possession for more than twelve years

(11) If the suit is bad for non‑joinder of necessary parties

(12) If the rights of the vendee defendants are safeguarded under section 41 of the Transfer of Property Act

(13) Relief. .

On the conclusion of the proceedings the learned trial Judge only took up issues Nos. 2 and 4 for discussion, and having found them against the plaintiff, he dismissed the suit, vide judgment, dated 11‑12‑1971.

4. The plaintiff, aggrieved as he was by the aforesaid judgment of the learned trial Judge, went up in appeal to the Court of the learned District Judge, who, vide his judgment and decree, dated 4‑1‑1975, while accepting the appeal, remanded the case to the learned trial Judge for re‑deciding all the issues in the light of the observations made in his judgment and after allowing the parties to produce such further evidence as they may produce.

5. After remand some further evidence was brought on record by the plaintiff but the contesting defendants did not produce any other evidence in the case. Abbas Khan plaintiff having died during the pendency of the suit after remand, his legal heirs were brought on record. After hearing arguments of the learned counsel for the parties the learned trial Judge, vide his judgment and decree, dated 4‑10‑1978, decreed the suit in favour of the plaintiffs, leaving the parties to bear their own costs.

6. This time, as is obvious, the contesting defendant No. 6 (Mst. Hazrat Jan) felt aggrieved by the order of the learned trial Judge and she, therefore, went up in appeal to the District Court against the said decree. The appeal was heard by the learned District Judge, before whom issues Nos. 3, 4, 10 and 12 appear to have been pressed. The leaned District Judge, after an elaborate discussion, came to the conclusion that Abbas Khan plaintiff had failed to prove the purchase of the suit land from Jeharidad, the previous owner; that defendant No. 6 had matured her title by adverse possession on the suit land and in view of his findings on issues Nos. 4 and 10, he, vide his judgment and decree, dated 20‑2‑1980, while accepting the appeal, set aside the judgment and decree of the learned trial Court and dismissed the suit of the plaintiffs, with no order as to costs.

7. This revision petition is directed against the aforesaid judgment and decree of the learned District Judge with a prayer that they be set aside and those of the learned trial Judge restored.

8. Kh. Abdur Rashid, Advocate appeared on behalf of the petitioners and Haji Sardar Bahadur Khan, Advocate appeared on behalf of the respondents. They were heard and the record of the case perused with their assistance.

9. It was not in dispute that Akram, Azad and Jehandad were owners of the disputed Khasra in equal shares. It was by Mutation No. 8335, attested on 20‑1‑1942, that the one‑third share of Jehandad in the suit land was allegedly transferred in favour of Abbas Khan (plaintiff and ancestor of the petitioners). This transfer was given effect to in the Jamabandi of 1942‑43 in which Abbas Khan was entered as owner of one‑third share. By Mutation No. 8336 the other one‑third share of Azad appears to have been mortgaged with Abbas 'Khan; as would show the entry in column of ownership of Jamabandi 1942‑43. In the column of cultivation of Jamabandi 1942‑43, however, the disputed Khasra was shown to be in possession of owners. It was also not disputed that the settlement operations in this village were carried out from 2‑7‑1945 and had ended on 15‑1‑1946 (cross‑examination portion of the statement, dated 30‑3‑1971 of Abdul Jalil S. O. K.) and it was during those settlement operations that the record of rights relating to 1948‑49 was prepared. In this record (Exh. P.W. 3/2) the name of Abbas Khan was not entered in the column of owners, nor was he shown as mortgagee of the share of Azad. The possession of the entire disputed Khasra was shown to be with Azad 'Hissadar'. In the subsequent revenue record prepared after the settlement operations, the name of Abbas Khan was also not entered as owner of one‑third share in the disputed Khasra. He was also not shown therein as in possession of the suit land.

10. The learned counsel appearing for the petitioners argued that the sale in favour of Abbas Khan by Jehandad through Mutation No. 8335, attested on 20‑1‑1942, was incorporated in the subsequent Jamabandi of 1942‑43 and such entry having found placed in the periodical record could not be omitted from the subsequent revenue record when there was no evidence on the record in respect of alienation of this share by Abbas Khan in favour of Jehandad. He, therefore, argued that the subsequent revenue record, including' Misl‑i‑haqiat' 1948‑49, in which the ancestor of the petitioners was not shown as owner of the disputed land was wrong, being without basis, and ineffective in so far as the title of the petitioners in the suit land was concerned. Relying on P L D 1956 Lah. 245, the learned counsel contended that the entries incorporated in the Jamabandi 1942‑43, having been changed by the revenue officials without any basis, would have preference over the revenue record prepared thereafter, in which the name of Abbas Khan did not figure as one of the owners.

11. The learned counsel for the respondents, however, argued that the sale Mutation No. 8335, on the basis of which name of Abbas Khan found mention .in the column of ownership of Jamabandi 1942‑43, was attested in dubious manner, not in the estate where the land is situated but in Abbottabad and on the identification of Biland Khan Lambardar who was brother of Abbas Khan. His other contention was that the mere attestation of mutation and its incorporation in the subsequent periodical record would be of no avail to the petitioners unless the transaction of sale in favour of their ancestor by Jehandad was proved by other evidence which was conspicuously missing in this case. He also contended that during the settlement operations each field number was measured and inspected by the Settlement Officers and the entries which were made in the settlement record of 1948‑49 were the result of thorough inquiries made at the spot after ascertaining the facts from all the owners and interested persons, as certified in Exh. D/1 and that such entries have preference over the previous entries made in Jamabandi 1942‑43 in dubious manner. He further contended that right from the year 1948‑49 Abbas Khan was out of picture in so far as the revenue record was concerned and that many transactions in respect of disputed land were effected thereafter, starting from the year 1951, which 'were not challenged by him upto the year 1970 and that this conduct of the ancestor of the petitioners would show that he was not the owner of the suit land and that the sale shown to have been effected in his favour through Mutation No. 8335 was not genuine.

12. The learned trial Judge mainly relied on the sale Mutation No. 8335 which was attested on 20‑1‑1942 in favour of Abbas Khan and was incorporated in the periodical record prepared in the year 1942‑43. On the basis of this entry and since there was no Mutation, deed or decree of Court Against Abbas Khan on the basis of which such transfer could be annulled and his name removed from the subsequent settlement and revenue record, he granted decree to the plaintiffs. The learned trial Judge did not discuss the other evidence brought on record. The lower Appellate Judge, however, took great pains in discussing the entire evidence, oral as well as documentary, brought on record and while doing so he reached the conclusion that the sale in favour of Abbas Khan through Mutation No. 8335 was of a dubious nature and for that reason the entry made in the Jamabandi of 1942‑43 will have, no effect. He also discussed the oral evidence brought on record and reached the conclusion that Abbas Khan was neither let into possession of the suit land by any one, nor was he possessing it on the spot. The learned Appellate Judge also gave preference to the settlement record and the subsequent periodical record prepared from time to time, in which Abbas Khan was neither mentioned as owner nor in possession of the suit land, over the Jamabandi 1942‑43. On these basis the learned lower Appellate Judge reversed the finding of the learned trial Judge on the main issue (Issue No. 4). There are, therefore, two divergent views before me of the learned two Courts below and it is to be determined which of the two is correct.

13. The history of the suit land, in so far as it is undisputed and relates to the main controversy involved in this case, has already been traced in paragraph 9 of this judgment and need not be repeated here. The sale Mutation No. 8335 was attested in favour of the ancestor of the petitioners in the year 1942 upon identification of the vendor (Jahandad) by one Biland Khan Lumbardar, who was the brother of Abbas Khan, the ancestor of the petitioner. This fact had created suspicion in the mind of the learned lower Appellate Judge as to the genuineness of the transfer of the suit land in favour of Abbas Khan through the said Mutation. The learned lower Appellate Judge also discussed other evidence brought on record by Abbas Khan plaintiff, on whom the onus to prove sale in his favour heavily lay, and reached the conclusion that neither the plaintiff had proved sale of the suit land in his favour nor was he in possession thereof. For these reasons, the learned lower Appellate Judge did not attach any importance to the attestation of Mutation No. 8335 and its incorporation in the Jamabandi 1942‑43. He accordingly gave preference to the subsequent settlement record and the periodical record prepared thereafter. Whether or not Abbas Khan had purchased the suit land from its previous owner Jehandad was a question of fact on which the learned lower Appellate Judge, after discussing the entire evidence brought on record, reached the conclusion in the negative. The learned trial Judge, on the other hand, mainly relied on the sale Mutation referred to above and its incorporation in the subsequent Jamabandi prepared in the year 1942‑43. He did not discuss the other evidence brought on record and utterly ignored the principle of law that the mutation and for the matter of that subsequent entries in Jamabandi do not by themselves create any title in favour of any person. These documents are not to be regarded as deeds of title when questioned. The sale of the suit land in his favour was to be independently proved by Abbas Khan, on whom the onus lay, by cogent evidence brought on record. I am, therefore, of the view that the decision of the learned lower Appellate Judge on this issue was correct and the fact that Abbas Khan had failed to prove sale of the suit land by Jehandad in his favour stood concluded, being a question of fact, by the decision of the learned lower Appellate Judge, particularly when it had the support of the evidence brought on record.

14. The learned counsel for the petitioners also argued that the decision of the learned lower Appellate Judge on the question of adverse possession of the respondents on the suit land was incorrect. This argument which proceeds on the assumption that Abbas Khan did purchase the disputed share, is without substance because from 'Misl‑i- Haqiat' 1948‑49 onwards he was neither entered as a co‑sharer in the disputed Khasra, nor had he remained in possession thereof. The possession of the entire land remained with other co‑sharers and such possession being open and hostile to the petitioners and their ancestor for more than the statutory period was to be regarded as adverse to the petitioners. Finding of the learned lower Appellate Judge on this issue is, therefore, upheld.

15. For the aforesaid reasons, there is no merit in this revision petition, which is hereby dismissed with costs.

A.A. Revision dismissed

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