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Civil Appeal No. 190 of 1978 decided on 27th October, 1985.

(On appeal from the judgment dated 26‑2‑1978 of the Lahore High Court, Lahore, in R. S. A. No. 135 of 1978).

‑‑‑Art. 185(3)‑‑Mutation‑‑Leave granted to consider contention that first and second appellate Court had erred in reversing judgment and decree of trial by holding that sale mutation in favour of appellants which was attested and incorporated in Jamabandi was not sufficient evidence to prove sale.

‑‑‑S. 53‑A/54‑‑West Pakistan Land Revenue Act (XVII of 1967), S.52‑ Sale of property supported by mutation which was duly sanctioned and incorporated in Jamabandi and seller failing to rebut presumption of truth attached to said entry in record of rights‑‑Seller claiming that after redeeming mortgage he gave disputed land back to purchaser on lease (Theka) but no document, evidencing said transaction, produced and even oral evidence led by seller on this point was discrepent‑‑Not a single entry from Khasra Girdawari produced to show that purchaser was holding land as a lessee under seller‑‑Evidence regarding payment of lease money by purchaser also found to be most nebulous‑‑Legal presumption arising in favour of purchaser that land stood sold in their favour supported by preponderance of evidence and un-rebutted‑decree passed by trial Court that land was sold in favour of purchaser by seller upheld and that of District Judge and High Court holding otherwise set aside.

Muhammad Arif, Advocate Supreme Court with Ejaz Ahmad Khan, Advocate‑on‑Record for Appellants.

Naveed Shehar Yar, Advocate Supreme Court with S.Ali Imam Naqvi, Advocate‑on‑Record (absent) for Respondent No.l.

Respondent No. 2: Ex parte.

Date of hearing: 27th October, 1985.

This appeal, by leave of this Court, is directed against the order of the Lahore High Court Lahore, dated 26‑2‑1978, whereby the appeal (R.S.A.No.135 of 1978) against the judgment and decree passed by the District Judge, Sheikhupura, in favour of the respondents was dismissed in limine.

Briefly stated, the facts are that Muhammad Iqbal, Respondent No.l, mortgaged with possession a parcel of agricultural land, measuring 124 Kanals 16 Marlas, situated in village Barkhurdar, Tehsil Nankana Sahib, District Sheikhupura, in favour of the appellants herein, for a consideration of Rs.13,000 and two mutations bearing Nos. 135 and 177 were sanctioned in their favour on 5‑2‑1960 and 28‑12‑1960. On 10‑10‑1962, respondent No.1 redeemed the mortgage and allegedly sold the disputed parcel o land to the appellants. The fact of redemption of the mortgage as also the factum of sale it favour of the appellants by respondent No.1 are evidenced by two mutations, bearing Nos. 2 and 3, both attested on 10‑10‑1962 (Exhs. P.3 and D.3 respectively). It appears that the son of respondent No.1 (who is respondent No.2 herein) filed a suit to pre‑empt the aforesaid sale of the land in dispute on 2‑10‑1963. The said suit, however, was dismissed on 29‑9‑1965.

The mutation of redemption and of sale were not, however, given effect to in the Jamabandi for the year 1964‑65, but were given effect to for the first time in the Jamabandi for the year 1967‑68 (Ex h. D.7). The factum of sale, however was disputed by respondent No.1 who filed a suit for a declaration that he is the owner of the disputed land that mutation of sale Exh.D.3 was illegal, against facts, based upon fraud and ineffective upon the rights of the plaintiff‑respondent and that the entries in the Jamabandi for the year 1967‑68 (Exh.D.7) on the basis of the impugned mutation were also ineffective upon his rights. The plaintiff‑respondent further prayed for possession of the disputed land as a consequential relief. The abovementioned suit filed on 10‑10‑1974, 12 years after the disputed sale and was directed against the appellants herein and respondent No.2 (son of respondent No.l).

The case of respondent No.l, at the trial, was that after the redemption of the suit land he had become the owner of the land but had given the land to the appellants on lease on year‑to‑year basis. On the other hand, the case of the appellants was that the suit land was sold to them by respondent No.1 for the consideration of Rs.32,000 contemporaneously with redemption of the mortgage and that Mutation No.3, Exh.D.3 evidencing the above sale, was attested on 10‑10‑1962 and that the suit was time‑‑barred, inasmuch as it was brought on 10‑10‑1974, 12 years after the above said sale. It was pointed out that respondent No.2 (son of respondent No. l) filed a pre‑emption suit against the appellants to question the sale of the land by his father (respondent No.1), and for the recovery of its possession on 2‑10‑1963, which was dismissed on 29‑9‑1965. The respondent No. l was aware of the factum of the institution of the suit which was instituted to question the sale effected on 10‑10‑1962. The cause of action arose on 10‑10‑1962 when the sale mutation was sanctioned and the assertion of respondent No.1 that he was not aware of any sale mutation could not be believed.

The trial Court accepted the plea of the appellants that the cause of action had arisen on 10‑10‑1962 and found that the suit was time barred. In so holding, the Court relied upon the fact that respondent No.2(son of respondent No.l), who was also party in the subsequent proceedings, had brought the pre‑emption suit in 1963 to pre‑empt the sale dated 10‑10‑1962 and respondent No.1 was aware of this fact. It was also observed that the mutation had been given effect to in the Jamabandi for the year 1967‑68 and the plaintiff could not get substantive relief without obtaining cancellation of mutation and correction of the entry in the Jamabandi. The suit was covered by Article 120 of the First Schedule to the Limitation Act and the limitation was six years from the date when the right to sue accrued. In this case, the right to sue accrued on 10‑10‑1962. Consequently, the suit of respondent No.1 was dismissed.

Respondent No.1 preferred an appeal against this judgment and the learned Additional District Judge reversed the judgment of the trial Court and granted a decree in favour of respondent No. 1 on 2-2-1978. The learned Additional District Judge found that the sale in favour of the appellants was not established as the sale mutation sanctioned on 10-10-1962 was given effect to only in the Jamabandi for the year 1967-68 and was not mentions were not produced which Further. The original of the sale mutations were not produced which cast a doubt on their authenticity. He further noted that apart from the sale mutations there was no other evidence to prove the factum of sale. The learned Additional District Judge also found that the appellant's possession of the land in dispute after redemption thereof was under a lease and they, as lessees, having denied the title of the lessor (respondent No. 1) had forfeited their right to possess the land; therefore, possession was to be given back to them. As a corollary, the learned Additional District Judge held that the suit was not time- barred. In particular, the suit of respondent No.2 (son of respondent No.l), which was dismissed was found not to affect the respondent No.1 as the son was acting in collusion with the appellants and his actions could not bind the respondent.

Aggrieved by this judgment and decree, the appellants went in second appeal to the Lahore High Court. The learned Judge of the said Court dismissed the appeal in limine and upheld the judgment and decree passed by the District Judge, observing that the trial Court was wrong in applying Article 120 of the Act and holding that the suit was barred by time. According to the learned Judge the plaintiff came to know of the alleged sale "very recently" and not from the date of the institution of the pre‑emption suit by the son who had strained relations with the plaintiff. The land was earlier mortgaged and redeemed by the plaintiff and the alleged purchase of the land by the appellants was not proved The period of limitation was to be reckoned from the date when the appellants denied the title of respondent which gave rise to the cause of action and as this had arisen only "very recently" the suit was not barred by time.

Leave was granted to consider the submission of the appellants that the first and second appellate Courts had not erred in reversing' the judgment and decree of the trial Court by holding that the sale mutation in favour of the appellants (Exh.D.3), which was attested on 10‑10‑1962 and incorporated in the Jainabandi for the year 1967‑68, was not sufficient evidence to prove the sale in question. The presumption of truth under section 52 of the West Pakistan Land Revenue Act, 1967 was attached to such record and no weight had been attached to this aspect of the case. The further submission was that the sale mutation No.3, dated 10‑10‑1962 was challenged through the suit filed by respondent No.1 on 10‑10‑1974. The trial Court in these circumstances had held that according to Article 120 of the First Schedule to the Limitation Act 1908 the limitation was six years. from the date when the right to sue accrued, namely, 10‑10‑1962. Hence, the suit was barred by time. However, the High Court had held that Article 120 of the Limitation Act was not applicable to the facts of the present case on the ground that the plaintiff came to know of the alleged sale "very recently". The contention was the without determining the date of the accrual of the cause of action the question of limitation had been decided against the appellants, which was an error of law.

The fundamental question involved in this case is whether the land in dispute was, indeed, sold in favour of the appellants and the mutation of sale Exh.D.3, dated 10‑10‑1962 represented a genuine transaction.

In this connection, it is to be noted that there is no dispute that the land in question was earlier mortgaged with possession to the appellants. It is also not denied that the said mortgage was redeemed and the mutation of redemption was attested on 10‑10‑1962. The dispute centres solely on the question whether the land sold to the appellants was sold in favour of them contemporaneously with the above transaction on 10‑10‑1962, as asserted by them or was only given over to them under a lease as claimed by respondent No.l.

So far as the assertion of the appellants is concerned it is supported by the sale mutation sanctioned on 10‑10‑1962 (Exh.D.3) which was duly incorporated in the Jamabandi for the year 1967‑68 (Exh. D.7). The said entry in the record of rights has a presumption of truth under section 52 of the West Pakistan Land Revenue Act, 1967. No doubt, the presumption is rebuttable but it has got to be rebutted before it can be dislodged. This, we find the respondent No.1 has been unsuccessful in doing.

The case of respondent No. l is that after redeeming the mortgage, he gave the disputed land back to the appellants on lease (Theka) However, no document evidencing the said transaction is in existence. Even the oral evidence led by respondent No.1 on this point is discrepant According to P.W.1 (Abed Ali) the Theka was given through a written document but, according to the plaintiff (respondent himself) the Theka was given orally. Not a single entry from the Khasra Girdawaris from the year 1962 to 1974 to show that the appellants were holding the land as lessees under the respondent has been produced

The evidence regarding payment of the lease‑money by the appellants is also most nebulous. In these circumstances, we do not think that the legal presumption arising in favour of the appellants that the land stood sold in their favour has been rebutted.

The case of the appellants that the land was sold to them by respondent No.1 was supported by preponderance of evidence on the record and the judgment and decree of the learned trial Court rested on proper legal principles. The Additional District Judge and the High Court, therefore, erred in law in upsetting the order of dismissal of the suit passed by the learned trial Judge

The upshot is that the judgment and decree passed by the Additional District Judge and upheld by the High Court must be set aside and that passed by the learned trial Judge restored.

The appeal succeeds and is hereby allowed with costs.

M. Y. H. Appeal allowed.

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