1. Through this appeal, the appellants have impugned the judgment and decree of the learned Single Judge of the Peshawar High Court, Bench at Abbottabad dated 15.04.2003, who reversed the judgment and decree of the District Appeal Court, Haripur dated 07.05.2005 and restored the judgment and decree of the Civil Judge, Haripur, who had dismissed the suit of the appellants. We have heard the learned Advocate Supreme Court (“ASC”) for the appellants and learned ASC for the respondent and have carefully gone through the record.
2. The epitomestic history of the controversy is that, the appellants including two illiterate ladies are stated to have transferred the suit land, consisting of different “Khataz” and “Khasras” number, through disputed mutation No.44, allegedly attested on 07.06.1969. The case of the appellants is that, they were neither present nor were having knowledge of the mutation because appellants including Ghulam Farid were living in Sindh Province and after coming back to the village, when he demanded the share of produce, the defendant refused to pay the same, rather claimed that he had already purchased the suit property through the above mutation thus, paddling up the appellants to file the suit for decree of declaration, possession and permanent injunction. The respondent, namely Sher Rehman (deceased), now represented by LRs., filed written statement and contested the suit.
3. After holding trial, the learned Trial Judge dismissed the suit mainly on the point of limitation, however, the learned Additional District Judge, Haripur reversed the findings of the Trial Court and after setting aside the judgment & decree so passed, decreed the suit in favour of the appellants for cogent reasons, attending to each and every material aspect and also the issue of limitation.
4. The learned Single Judge in the High Court, in revisional jurisdiction set aside the judgment & decree of the learned Additional District Judge on the issue of limitation alone and further held that the attestation of mutation in another “Mauza”, other than where the suit property situates, was not an illegality while placing reliance on the view held by this Court.
5. The learned Judge further relied on the view taken in the case of LAL KHAN v. Muhammad Yousaf (PLD 2011 SC 657) however, the reliance placed on this judgment is entirely misconceived one because the view held in the said case supports the case of the appellants.
6. It is a century old principle of law that mutation entry and its attestation is not a document of title and the transaction of sale must be proved independently through cogent evidence where passing of sale consideration to the vendors is fully established. This principle shall apply more stringently without any pause and stop where such transaction is between the male beneficiary/purchaser and “Parda Nasheen lady” as in this case two of the plaintiffs were ladies.
7. The plea of appellant No.1 that, he had gone to Sindh Province for earning livelihood before the year 1961-62, was not seriously challenged by the defendant in the course of crossexamination. This plea is amply supported by the statement of Shahzada (PW-4), admitting that he was appointed as a caretaker by appellant No.1, of the suit property through a letter, which the appellant had sent to him from Sindh Province and that, the land was given on rent/tenancy basis to the defendant who had paid the share of produce to him in the first instance. He further stated that at the time of attestation of the disputed mutation, Ghulam Farid appellant was not in the village being away to Sindh Province.
8. The contention of appellant No.1 is further supported by Dilshad Khan (PW-5) who stated that he was retired from the Sindh Police after serving there for 30/40 years and; that at the time of attestation of the impugned mutation, the appellant and his mother were residing with him because plaintiff No.2, Mst. Afroz Begum was his wife. Both the statements of above PWs were not challenged by the defendant during cross-examination. The suit was filed on 21.11.2001 when appellant No.1 returned from Sindh Province to his village and defendant claimed hostile title to the suit and possession over it. On verification of the revenue record, appellant No.1 came to know about the attestation of the impugned mutation No. 44 dated 07.06.1969.
9. Under the law and principle of justice, when mutation is never held to be a document of title and when a negligible presumption is attached to it, provided it is proved fairly and its entry and attestation is conducted in the laid down manner, the mere incorporation of it into the “Jama Bandi” and its repetition periodically, would not confer title on the purchaser unless the transaction of sale is independently established, through cogent and convincing evidence. In the case of transaction with illiterate village lady this principle assumes the status of rule of law as in that case the onus of the beneficiary of it becomes manifold. To discharge the burden of proof he has to satisfy the court of law that the entire transaction was completed in a transparent manner and all the required precautions were faithfully and honestly observed before the attestation of mutation, dispelling every suspicion that it was tainted with fraud and misrepresentation.
10. In the present case, it is admitted fact that none of the vendors have thumb impressed the disputed mutation as has been stated by Malik Muhammad Taj, Halqa Patwari (PW-1) and Shakeel Ahmad, Qanoon-go (PW-2). Even the daily diary, maintained by the ‘Patwari’ was not produced as it was destroyed after 12 years however, the defendant did not obtain a certified copy of the same, while u/s. 42 of the West Pakistan Land Revenue Act, 1967 it is essentially provided to the informer.
11. Neither the two attesting witnesses to the mutation, namely,(i) Muhammad Asif Khan and (ii) Malik Mir Haider Zaman, Lambardar, nor the then Halqa Patwari who made entries in the daily diary, were produced to substantiate the claim of the defendant/purchaser. Even the Revenue Officer, who attested the mutation, was not produced.
12. To avoid the commission of fraud, misrepresentation or foul play, the provision of sub-s.(8) of S.42 of the Act, has made it mandatory that an inquiry under sub-s.(6) of the said provision shall be made and the mutation, the subject matter, should be attested in the common assembly in the estate to which the mutation relates. In this case, admittedly the mutation was attested entirely in a different “Mouza” situated 3/4 miles away from the “Mouza” where the property situates. The maxim, “Expressio Unis Est Exclusio Alterius” commanding that when law requires that a thing be done in particular manner then, it should be done in that manner as anything done in conflict of the command of law shall be unlawful being prohibited.
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