23/05/2023, 12:53 2007 S C M R 729
2007 S C M R 729
[Supreme Court of Pakistan]
Present: Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ
REHMATULLAH and others----Petitioners
Versus
SALEH KHAN and others----Respondents
Civil Petition No.1081 of 2006, decided on 11th December, 2006.
(On appeal from the judgment, dated 13-9-2006 passed by the Peshawar High Court
D.I. Khan Bench, in Civil Revision No.118 of 2003).
(a) Constitution of Pakistan, 1973---
----Art. 185---Appeal to Supreme Court---Fresh plea---Not allowable to be raised
before Supreme Court---Principles.
Ashfaqur Rehman's case PLD 1971 SC 766 and John E. Brownlee's case AIR 1940 PC
219 ref.
(b) Pleadings---
----Parties would be bound by their pleadings.
Mst. Murad Begum's case PLD 1974 SC 322 rel.
(c) Specific Relief Act (I of 1877)---
---Ss. 8 & 42---Transfer of Property Act (IV of 1882), S.54---West Pakistan Land
Revenue Act (XVII of 1967), S.42---Suit for declaration and possession of land---
Mutation of sale---Vendor, an illiterate woman---Statement of Lambardar before
Revenue Officer that vendor had admitted receipt of Rs.240 as sale price---Statement
of vendor before Revenue Officer that she could not tell as to how much amount she
had received---Vendee alleged that vendor had received Rs.1,000 as sale price---
Vendor having died in the meanwhile, Revenue Officer in view of such contradictory
statements of parties and Lambardar ordered presentation of mutation in presence of
legal heirs of vendor---Revenue Officer attested mutation in absence of vendor's legal
heirs mentioning receipt of Rs.240 as sale price---Validity---Vendor being an illiterate
woman knew nothing about contents of impugned mutation and was incapable of
understanding the nature of transaction---Vendor had never admitted receipt of sale
price---Nothing was available on record to establish payment of alleged sale price---
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Held, attestation of mutation was result of fraud and collusion, thus, was ineffective on
the rights of plaintiffs being successors-in-interest of vendor.
(d) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Mutation Registers, entries in---Evidentiary value---Such entries not
conclusive evidence of facts that they purport to record.
(e) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Mutation---Burden of proving transaction embodied in mutation would lie
on person acquiring title thereby.
(f) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Mutation---Validity---Mutation by itself would not create title---Mutation
had to be proved through evidence of title---Person deriving title under mutation had to
prove that transferor did part with ownership of property in favour of transferee and
that mutation was duly entered and attested.
Hakim Khan's case 1992 SCMR 1832; Muhammad Ali's case PLD 1993 Lah. 33;
Ghulam Muhammad's case 1992 MLD 1335; Muhammad Din's case 1992 ALD 459
rel.
(g) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Mutation---Presumption---Attested mutation may carry a. rebuttable
presumption.
Karam Shah's case 1988 CLC 1812 rel.
(h) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Mutation, recording of---Essentials---Mutation must be recorded in
presence of parties with their consent or upon due notice to them.
Muhammad Shah's case 1992 MLD 833 rel.
(i) Transfer of Property Act (IV of 1882)---
----S. 54---Sale---Proof of payment of price, absence of---Effect---Such was not a sale
in eyes of law.
Muhammad Shafi's case PLD 1986 SC 519 rel
(j) Practice and procedure---
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----When basic order is without lawful authority, then all superstructure built on it
would fall on the ground automatically.
Yousaf Ali's case PLD 1958 SC 104 and Crescent Sugar Mills' case PLD 1982 Lah. 1
rel.
(k) Limitation---
---Void order---Limitation would not run against such order.
Pakistan Post Office's case 1987 SCMR 1119; Raja Muhammad Fazil Khan's case PLD
1975 SC 331 and Muhammad Masihuzzaman's case PLD 1992 SC 825 rel.
(l) Limitation---
----Inheritance---Question of limitation would not arise in such cases.
Mst. Fazal Jan's case PLD 1992 SC 811 and Ghulam Ali's case PLD 1990 SC 1 rel.
(m) Fraud---
----Fraud vitiates even solemn order.
Raja Muhammad Fazil Khan's case PLD 1975 SC 331 rel.
(n) Civil Procedure Code (V of 1908)---
----O. I, R.9---Non-impleading of party---Effect---Suit could not be dismissed for such
reason.
Central Government of Pakistan's case PLD 1992 SC 590 rel.
(o) Constitution of Pakistan (1973)---
----Art. 185---Appeal to Supreme Court---Concurrent findings of fact of Courts below-
--Interference with such findings by Supreme Court---Scope---When such findings
were reasonable and not arrived at in disregard of any provision of law or any accepted
principle concerning appreciation of evidence, then Supreme Court would, normally,
not interfere with same even though different view might also be possible---Supreme
Court in such case would give due weight and consideration to opinion of Courts
below.
Malik Muhammad Ishque's case PLD 1977 SC 109 rel.
(p) Constitution of Pakistan (1973)---
----Art. 185---Appeal to Supreme Court---Jurisdiction of Supreme Court---
Discretionary in nature-He who seeks equity must come with clean hands.
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Muhammad Sharif's case PLD 1988 Lah. 725; Haji Saifullah's case PLD 1989 SC 166;
Nawabzada Raunak Ali's case PLD 1973 SC 236 and Qutubuddin's case 1976 SCMR
524 rel.
(q) Equity---
----He who seeks equity must come with clean hands.
Abdul Karim Khan Kundi, Advocate Supreme Court with Ch. Muhammad Akram,
Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 11th December, 2006.
JUDGMENT
CH. IJAZ AHMED, J.--- Respondents Saleh Khan and others filed suit for
declaration against the petitioners in the Court of Civil judge Tank on 12-12-1991. The
contents of the plaint reveal that Saleh Khan and others filed suit against the present
petitioners/defendants for declaration to the effect that they are owners in possession of
land measuring 421 Kanals, 5 Marlas according to their Shari share being legal heirs of
Mst. Zar Bibi and Mst. Janat Bibi and the petitioners/defendants have got no concern
with the land exceeding Sharie share of their father Sarwar Khan and that Mutation
No.3763 attested on 17-12-1939 being wrong, fictitious, collusive, based on fraud is
ineffective upon the rights of respondents/plaintiffs. They also prayed for possession of
the land. They have also-made a prayer for permanent injunction restraining the
petitioners/defendants for making interference in their possession and use of trees and
grass etc. The petitioners/defendants filed written statement, controverted the
allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court
framed 10 issues and vide judgment and decree, dated 29-7-2002 dismissed the suit.
Respondents/plaintiffs being aggrieved filed appeal in the Court of District Judge Tank
which was accepted vide judgment and decree, dated 26-6-2003. Thereafter, the
petitioners filed civil revision in the Peshawar High Court, D.I. Khan Bench which was
dismissed vide impugned judgment. Hence, the present petition.
2. The learned counsel for the petitioners submits that trial Court was justified to
dismiss the suit of the respondents whereas the First Appellate Court and learned High
Court erred in law to reverse the same. He further submits that both the Courts below
had misread the record and decided the case against the petitioners without any
justification. He further submits that it was in the knowledge of the respondents well in
time and the respondents had filed the suit after 52 years and this fact was not
considered in its true perspective. The learned trial Court was justified to dismiss the
suit as time-barred. He further submits that one of the legal heirs of Mst. Zar Bibi filed
suit for declaration which was dismissed and it was in the knowledge of the
respondents but this fact was not considered by the Courts below. He further submits
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that petitioners had secured a decree on the basis of mortgage and this fact was also not
considered in its true perspective. He further submits that affidavits were filed before
the First Appellate Court and the High Court by the respondents that the case was filed
by the respondents only on political reasons and they did not want to proceed with the
case and this aspect of the case was also not considered by the Courts below. He
further submits that collateral were not made party, therefore, learned Courts below
were not justified to reverse the judgment of the trial Court and this fact was also not
considered in its true perspective. He further maintains that one of the legal heirs of
Mst. Bani objected to the mutation before Revenue Authorities in the year 1939 which
was rejected, therefore, respondents had knowledge of the mutation since then as the
Mutation No.3763 was attested on 17-12-1939, hence Courts below erred in law that
respondents/plaintiffs got knowledge of the mutation in 1986. Moreover
respondents/plaintiffs were the mortgagees of the land, therefore, they had knowledge
of proceedings in relation to the redemption of mortgage to the mortgager. He further
urges that petitioners/their predecessors-in-interest, have taken possession of the land
in question in view of oral sale agreed/accepted between Mst. Bani, the vendor and
Sarwar Khan, the vendee. The said alienation was completed when the sale
consideration was received by the vendor. After the said sale the respondents/plaintiffs
acquired their inheritance respective predecessors i.e. Mst. Janat Bibi and Mst. Zar
Bibi vide Mutation No.3849 dated 11-5-1941, Mutation No.61.05 dated 23-7-1963,
Mutation No.6611 dated 11-2-1966, the suit-land was not included in the inheritance,
therefore, they did have knowledge and this fact was not considered by the Courts
below in its true perspective.
3. We have considered the submissions made by counsel for the petitioner and perused
the record. It is better and proper to reproduce issues framed by the trial Court out of
the divergent pleas of the parties to resolve the controversy between the parties:
"(1) Whether plaintiffs have got a cause of action'?
(2) Whether this Court has got jurisdiction?
(3) Whether plaintiffs have waived their right if any'?
(4) Whether suit is liable to be dismissed being mala fide?
(5) Whether suit is within time?
(6) Whether plaintiffs are owners in the suit-land being legal heirs of Mst. Zar
Bibi and Mst. Janat Bibi?
(7) Whether Mutation No.3762 dated 17-12-1993 in favour of the predecessor
of defendants is wrong, collusive, fraudulent and ineffective on the rights of
plaintiffs?"
(8) Whether plaintiffs are entitled to the decree for declaration and permanent
injunction as prayed, for'?
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(9) Whether plaintiffs are entitled to the possession of suit-land in the
alternative?
(10) Relief."
Some of the grounds i.e. (i) respondents/plaintiffs are legal heirs of Mst. Bani or not,
(ii) validation of mutation of sale, (iii) limitation and (iv) non-impleadment of
necessary parties, raised before us are exactly the same which were raised before the
learned High Court and were rejected with cogent reasons by the learned High Court in
the impugned judgment vide paragraphs Nos.7 to 10. The remaining grounds which
were contended before us by the learned counsel for the petitioners were not agitated
before the learned High Court as is evident from para.3 of the impugned judgment. It is
a settled law that parties are bound by their pleadings as law laid down by this Court in
Mst. Murad Begum's case PLD 1974 SC 322. It is also a settled law that this Court
does not, normally, allow the parties to raise fresh pleas before this Court as law laid
down by this Court and Privy Council. See Ashfaqur Rehman's case PLD 1971 SC 766
and John E. Brownlee's case AIR 1940 PC. 219. In view of the law laid down by this
Court remaining pleas raised by the learned counsel of the petitioners have no force.
The learned High Court had taken lot of pain to consider each and every piece of
evidence to find out the validity of mutation of sale in question as is evident from
para.8 of the impugned judgment which is reproduced herein:
"As far as the validity of impugned sale mutation is concerned it was entered at
the instance of Sarwar the predecessor of petitioners on 19-8-1939 and in
Column No.13 of the mutation the sale consideration was shown as Rs.500.
The mutation was presented before the Revenue Officer for attestation on 27-8-
1939 but on that day Mst. Bani, the alleged vendor, did not appear before him.
On 27-9-1939 the mutation again came up before the Revenue Officer and on
that Mst. Bani had appeared before him. She was accompanied by one
Habibullah Lumberdar who told the Revenue Officer that she admits the receipt
of sale consideration of Rs.240. However, when questioned by the Revenue
Officer Mst. Bani told him that she cannot tell as to how much amount she had
received. At the same time the alleged vendee told the Revenue Officer that she
had received Rs.1,000 as sale consideration. In view of the above contradictory
statements of the parties and that of Lumberdar the Revenue Officer made an
order that the mutation be put up in the presence of the heirs of Mst. Bani.
However, soon after 27-9-1939 Mst. Bani died and the Revenue Officer
attested, the sale mutation on 17-12-1939 in the absence of her legal heirs
mentioning the receipt of sale consideration of Rs.240. It is admitted fact that
Mst. Bani was an illiterate lady. The entry dated 27-9-1939 recorded in the
impugned mutation reveals that she knew nothing about the contents of
impugned sale mutation and she was incapable of understanding the nature of
the transaction. She had neither admitted the receipt of sale consideration nor
there is any evidence on record establishing the payment of alleged sale
consideration. It was, therefore, rightly held by the learned District Judge that
the attestation of impugned mutation was the result of fraud and collusion and
it was ineffective over the rights of the plaintiffs who being the successors-in-
interest of Mst. Bani are entitled to get their share in the suit property."
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4. Mere reading of the aforesaid paragraph we are of the view that learned High Court
had rightly come to the conclusion that attestation of impugned mutation was the result
of fraud and collusion. It is settled law that entries in the mutation registers are by
themselves not conclusive evidence of the facts which they purport to record. It is
settled law that any person who is acquiring title through mutation, the burden of proof
of proving transaction embodied in the mutation, is upon him. It is also settled law that
mutations by themselves do not create title and the persons deriving title thereunder
have to prove that transferor did part with the ownership of the property, the subject of
mutation in favour of the transferee and that the mutation was duly entered and attested
as law laid down by this Court in Hakiin Khan's case 1992 SCMR 1832 and
Muhammad Ali's case PLD 1993 Lah. 33. It is settled law that an attested mutation
may carry a rebutable presumption. See Karam Shah's case 1988 CLC 1812 and
Ghulam Muhammad's case 1992 MLD 1335. Mutation is to be proved through
evidence of title. See Muhammad Din's case 1992 ALD 459. Even mutation has to be
recorded in the presence of the parties with: their consent or upon due notice to them.
See Muhammad Shah's case 1992 MLD 833. The petitioners have failed to prove that
sale price was paid to the original owner as evident from para.8 of the impugned
judgment, therefore, there was no sale in the eye of law as law laid down by this Court
in Muhammad Shafi's case PLD 1986 SC 519 it is settled law when the basic order is
without lawful authority then all the super structure shall fall on the ground
automatically as law laid down by this Court in Yousaf Ali's case PLD 1958 SC 104
and Crescent Sugar Mills' case PLD 1982 Lah. 1. It is by now settled law that
limitation cannot run against void order. See Pakistan Post Office's case 1987 SCMR'
1119, Raja Muhammad Fazil Khan's case PLD 1975 SC 331 and Muhammad
Masihuzzaman's case PLD 1992 SC 825. It is also settled law that question of
limitation does not arise in inheritance cases. See Mst. Fazal Jan's case PLD 1992 SC
811 and Ghulam Ali's case PLD 1990 SC 1. It is pertinent to mention here that fraud
vitiates even solemn orders as held by this Court in Muhammad Fazil Khan's case
(supra). It is settled law that for non -impleading of party, still cannot he dismissed as
law laid down by this Court in Central Government of Pakistan's case. PLD 1992 SC
590. It is admitted fact that both the Courts below had held that mutation was proved to
be fraudulent and thus, it was a question of fact on which both the Courts below
including the High Court had rightly come to a conclusion to declare mutation as not
genuine. This Court, as a rule should give due weight and consideration to the opinion
of the Courts below, therefore, this Court, does not normally interfere with the findings
of fact reached by a High Court when it is satisfied that the findings of the Courts
below are on the whole reasonable and are not arrived at by disregarding any provision
of law or any accepted principle concerning the appreciation of evidence as law laid
down by this Court in Malik Muhammad Ishaque's case PLD 1977 SC 109.
5. We do not find any infirmity or illegality in the impugned judgment. It is settled law
that constitutional jurisdiction is discretionary in nature. He who seeks equity must
come with clean hands. In view of the conduct of the petitioner we are not inclined to
exercise our discretion in favour of the petitioners as law laid down by this Court in the
following judgments:--
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(1) Muhammad Sharif's case PLD 1988 Lah. 725, (2) Haji Saifullah's case PLD
1989 SC 166, (3) Nawabzada Raunak Ali's case PLD 1973 SC 236 and (4)
Qutubuddin's case 1976 SCMR 524.
6. In view of what has been discussed above, we do not find any infirmity or illegality
in the impugned judgment. This Court does not, normally, interfere in the concurrent
conclusions arrived at by the Courts below while exercising powers under Article
185(3) of the Constitution. The petition has no merit and the same is dismissed. Leave
refused.
S.A.K./R-26/SC Leave refused.
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