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Regular Second Appeal No. 464 of 1973, decided on 7th October, 1986.

‑‑‑S. 101‑‑Punjab Land Revenue Act (XVII of 1887), S. 44‑‑Burden of proof‑‑Mutation‑‑Record‑of‑rights‑‑Alienation of land‑‑Entries of duly sanctioned mutation not incorporated in record‑of‑rights or annual record‑‑Initial onus lies on party who relied upon alienation.‑‑[Burden of proof].

Muhammad v. Sardul P L D 1965 (W .P.) Lah. 472 ref.

‑‑‑S. 100‑‑Punjab Land Revenue Act (XVII of 1887), S. 44‑‑Second appeal‑‑Alienation of land‑‑Appellant's own evidence and statement of Tehsildar showing that proceedings of alleged attestation of mutation were held in a secretive manner which fact casting grave shadow of doubt on their authenticity‑‑Evidence regarding passing of consideration being full of material inconsistencies and contradictions‑‑Concurrent decision of Courts below arrived at on proper appreciation of evidence, held, could not be displaced in second appeal‑‑Judgments of Courts below, held, were unexceptionable demanding no interference.

Muhammad Aqil Mirza for Appellant.

Talib H . Rizvi for Respondents.

Date of hearing: 7th October, 1986.

This appeal is directed against the appellate judgment and decree of the learned District Judge, Sahiwal, passed on the 30th November, 1973, affirming the judgment and decree of the learned Civil Judge, Pakpattan Sharif, dated the 17th January, 1968, whereby the respondent's suit for possession of 196 Kanals 9 Marlas of the land in dispute, situate in the area of village Bahawal Das, Tehsil Depalpur, District Okara, was decreed against the appellant. The late Khushi Muhammad son of Haider, was the owner of the land in question. Respondents 1 to 5 are his father's brothers' sons and respondent 6 is his sister. Bala, appellant, is not a collateral heir of Khushi Muhammad though the former's sister's husband is the latter's mother's brother. Mutation No 114 (copy Exh. D.2) witnessing sale of the land in suit by Khushi Muhammad in favour of Bala, appellant, for a sum of Rs.22,000 was entered on the 1st and attested on the 27th July, 1965. On the 11th September, 1965, Khushi Muhammad, who was unmarried, expired. On the 1st November, 1965, the respondents instituted suit against the appellant for recovery of possession of the land in dispute. They averred that in fact Khushi Muhammad had neither sold the land to the appellant nor had received any sale consideration. They described the revenue proceedings culminating in the sanctioning of the mutation to be fictitious and a manufactured affair. They maintained that Khushi Muhammad had neither got the report entered with the Patwari nor he had appeared before the Tehsildar at the time of attestation of the mutation. They dubbed the alleged transaction of sale to be void and ineffectual on their rights.

2. The appellant asserted that Khushi Muhammad had sold the land of his own accord and after receiving the price of Rs.22,000 had got the mutation of sale attested and had delivered the possession of the land to him. He asserted that Khushi Muhammad had appeared before all the Revenue Officers and had participated in the proceedings pertaining to the attestation of Mutation.

3. The parties went to trial on the following issues:‑

(1) Whether the Civil Court has no jurisdiction over the suit property

(2) Had Khushi Muhammad deceased sold the suit land to the defendant and Mutation No. 114 of the 27th July, 1965, was attested and sanctioned in accordance with law

(3) Did the defendant pay any consideration for the suit land

(4) Relief .

4. The decision of the learned trial Court that it possessed jurisdiction to try the suit is no longer in dispute. The learned trial and the appellate Courts below recorded concurrent finding of fact that Khushi Muhammad had not sold the land to the appellant nor he had received sale consideration and that the proceedings touching attestation of mutation No. 114 lacked authenticity and were bereft of legality.

5. The learned counsel for the appellant contended that the burden of proof of issue No.2 had been wrongly placed upon the appellant and that it ought to have been put upon the respondents. The learned trial Court in the first instance placed the onus to prove the issue upon the respondents but on their application and after hearing the appellant, in view of the rule laid down by this Court in Muhammad v. Sardul P L D 1965 (W .P.) Lah. 472 shifted the onus on to the appellant. As observed in the precedent the initial onus in case of entries of Ii duly sanctioned mutation but not incorporated in record of rights or annual record, as is the case of mutation of the sale in dispute, lies on the party who relies upon the alimentation. Therefore, the appellant' was rightly burdened with the proof of the issue.

6. Some of the considerations which influenced the learned Courts to reach the conclusion they formulated are quite weighty. Admittedly the Tehsidlar, Khan Maqbool Hasan Khan, D.W.7, sanctioned the mutation without notice to anyone and not in the presence of any gathering of people. He deposed that he had visited village Bahawal Das to carry) out surprise check of the work of the Patwari and, therefore, had not informed anyone. No Lambardar of village Bahawal Das identified the parties before the Tehsildar. The name of Abdul Karim, D.W.2, resident of village Khara Dukkeywala, which is at a distance of three miles from village Bahawal Das, who claim himself to be a member of Union Council Nadir Singh, is mentioned in the order of the Tehsildar sanctioning the mutation as one who had identified the parties. Nothing touching attestation of mutation of the sale in dispute finds entry in the relevant register of the Patwari. No note of the Tehsildar relating to the surprise check was found recorded in his hand in the Patwari's register. From the appellant's own evidence and the statement of Khan Maqbool Hasan Khan it is clear that the proceedings of the alleged attestation of mutation were held in a secretive manner which fact casts a grave shadow of doubt on their authenticity. As noticed by the learned Courts below the evidence regarding passing of consideration being full of material inconsistencies and contradictions was not reliable. In his statement taken by the learned trial Court before settling issues the appellant said that he had paid the price of the land before the Tehsildar. However, he led evidence to the effect that sale consideration had been paid at the house of Khushi Muhammad. Noor Muhammad, D.W.5, and Khushi Muhammad, son of Jalal Din, D.W.6, came into the witness box to bear out the payment of consideration. However, their depositions were inconsistent on material points. Noor Muhammad, D.W.5, testified that the appellant had taken out money, consisting of hundred‑rupee currency notes, from his Dub and handed it over to Khushi Muhammad without counting the notes. He added that Khushi Muhammad shuffled the notes and kept them with him. Khushi Muhammad son of Jalal Din D.W.6, narrated a different story. According to him, the appellant had taken money from his pocket, counted the notes and given to Khushi Muhammad who had again counted them. In these circumstances, the concurrent decision of the learned Courts below, arrived at on proper appreciation of evidence, is difficult to be displaced in second appeal. The learned Courts cannot be said to have misread the evidence to the prejudice of the appellant.

7. The learned counsel for the appellant made grievance of the fact that the learned Courts were unfavourably impressed by the failure of the appellant to disclose the source of procuring money requisite for paying price of the land to Khushi Muhammad though he had not been asked any question relating to the source nor it was necessary for him to tell the Court as to from where he got the money. When the appellant had not been called upon to explain as to how he collected money for paying the price no presumption could have been drawn against him that he was incapable of raising money for payment of sale consideration. Nevertheless, even if the appellant's inability to pay the sale price is kept out of consideration, the finding of the learned Courts touching non‑payment of sale price by the appellant on the basis of other evidence remains unaffected. The judgments of the learned Courts are unexceptionable and demand no interference. The appeal is dismissed with costs.

S. Q. Appeal dismissed.

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