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‑‑‑S. 15‑‑Pre‑emption suit‑‑Plaintiff claiming to be owner of the land in state‑‑Mutation‑‑Evidentiary value‑‑Where there was prohibition under law against attestation of mutation, that would not mean that transaction of sale or exchange on the basis of which mutation was to be entered had not taken place‑‑Fact that agricultural land was obtained for residential purposes would not make any difference till it was converted to residential purposes‑‑Such land would retain agricultural character for the purpose of maintaining suit for pre‑emption.

Muhammad Bashir v. Ghulam Akbar 1982 S..C M R 1018 ref.

‑‑‑S. 115‑‑Revisional jurisdiction‑‑Findings of Lower Appellate Court suffered for no material irregularity amounting to illegality‑‑Lower Appellate Court had passed judgment after considering evidence which was not shown to have been kept out of consideration‑‑Exercise of revisional jurisdiction declined by High Court.

Iqbal Muhammad Bhatti for Petitioners.

Mirza Manzoor Ahmad for Respondents.

Nemo for Respondent No.2.

Date of hearing: 23rd June, 1987.

The petitioners, filed a suit for possession through pre‑emption of land in dispute, sold by Mst. Kalsoom Azra. The claim of superiority in the right of pre‑emption was based on the petitioner being owner of the land in the Estate. Karim Bakhsh, vendee contested the suit on the ground that he was also owner of the land in the estate vide mutation sanctioned on 31‑12‑1974 Exh. D.4 vide which he got 2 kanals of land in exchange. The petitioners disputed the said fact and the learned trial Court after recording evidence held that the said mutation of exchange was entered and sanctioned in violation of West Pakistan Consolidation of Holdings Ordinance, 1960, since the entire mouza was under consolidation and under the provisions of said Ordinance, during Consolidation operations no mutation could be sanctioned. Even otherwise it was held that the mutation itself was doubtful and therefore, the vendee did not become owner in the estate. It was also held that the vendee got this land as per entries of mutation. itself for residential purposes, therefore, he was not owner of agricultural land in the estate, therefore, the suit of the petitioners was decreed as having got superior right of pre‑emption.

2. The vendee/ respondent No.l filed appeal before the lower appellate Court which vide its judgment dated 13‑10‑1979, accepted the appeal set aside the judgment and decree of the trial Court and dismissed the suit of the petitioners which has been challenged in this revision petition. Lower appellate Court in the impugned judgment held that the prohibition against sanction of mutation provided in Consolidation Laws do not make the mutation itself or the transaction on the basis of which mutation was sanctioned ineffective or that no sale or exchange could take place. It was also held that even if the vendee has got the land for residential purposes the same shall remain agricultural till such time it is actually built up and converted to residential use which having not been done it remains agricultural and, therefore, the vendee was held to be owner in the ,estate and both the parties being equal, therefore, the suit of the petitioner was dismissed.

3. The learned counsel for the petitioners contended that the said mutation of exchange was sham transaction which was got sanctioned by the vendee by under hand means irt order to defeat the right of pre‑emption of the petitioners and being also violative of the Consolidation Laws, therefore, could not have been used against the petitioners and the petitioners suit was rightly decreed by the trial Court. I am afraid the contention has no force. If there is any/ prohibition under the law against attestation of mutation it does not mean that the transaction of sale or exchange on the basis of which mutation is to be entered as not taken place. There is no bar for exchange of land during the Consolidation proceedings. In order to satisfy myself as to whether there was any exchange and that this fact was otherwise independently proved apart from the said mutation or not, I have examined the record from where I find that the vendee has produced D.W.1 who is one of those persons from whom the vendee got the land in exchange which is subject‑matter of Exh. D.4 i.e. the mutation. This witness has admitted to have given the land in exchange to vendee‑ and his statement could not be shattered by the petitioner in cross‑examination and otherwise also it inspires confidence. In view of this statement, the exchange evidenced by Exh.D.4 has been proved, independent from mutation itself. The fact that it was obtained for residential purposes does not make any different because it had not yet been converted to any other use, than the agricultural purposes. It' is held in Muhammad Bashir v. Ghulam Akbar 1982 S C M R 1018 that unless and until the land is actually converted to some other use even if purchased for residential purposes, would retain agricultural character for the purpose of maintaining a suit for pre‑emption. The findings of the lower appellate Court suffers from no material, irregularity amounting to illegality or any legal infirmity. The lower appellate Court has passed the judgment after considering evidence which has not been shown to have been misread or that any piece of evidence has been kept out of C consideration. No case has been made out for interference in revisional jurisdiction of this Court. The revision petition fails, it is hereby dismissed leaving the parties to bear their own costs.

M . B . A . /L‑15/L Petition dismissed.

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