IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Civil Rev. Appln. S-35 of 2021 Farman Ali & Another
v. Sanaullah & Others
For the Applicant : Mr. Abdul Rehman A. Bhutto
Advocate
Date of hearing : 04.02.2022
Date of announcement : 04.02.2022
ORDER
Agha Faisal, J. Briefly stated the plaintiffs had filed a suit for declaration and permanent injunction which was dismissed by the learned Senior Civil Judge, Kandhkot vide judgment dated 11.12.2019. The crux of the findings of the learned trial court is reproduced herein below.
"08/- Since these issues are interconnected and based on same piece of evidence, therefore, I would like to discuss the same together in order to avoid conflict in findings and repletion of reasons. It is the case of plaintiffs that they had purchased the suit property and possession thereof was handed over to them by the vendors. Plaintiffs' claim their ownership not eh basis of entry No.35 dated 12.02.1988 of the record of rights.
09/- plaintiffs' attorney Abdul Khalique was examined at Ex.23. He deposed that the plaintiffs had purchased the suit property and such entry No.35 (Ex.23/B) was kept in the record of rights, however, he admitted that the plaintiffs are capable of recording their evidence but they have not turned up before the Court deliberately and the suit property was mortgaged with National Bank of Pakistan by the father of private defendants.
10/- It is a matter of record that plaintiffs have neither produced any document of title nor produced any witness of the sale transaction nor even disclosed the names of the witnesses in whose presence possession of the suit property was handed over to them by the owners. Plaintiffs claim their right over suit property on the basis of entry of mutation only however, it is settled law that mere entry of mutation does not create any right, because it is not a document of title.
11/- In case of Mst. Tajrian v. Zarshaid Khan and another (2016 YLR 1883-Peshawar), it has been held as under:-
"16. Besides that it is well settled law that whenever mutation is challenged on the basis of fraud and collusion, it is the bounden duty of its beneficiary to fall back to the original transaction and prove the same through cogent and trustworthy evidence, that before entering the mutation, the transaction was struck between the parties which was later on incorporated in mutation and attested in his favour. On failure to prove the genuineness of the transaction, beneficiary is to face the consequences. Mere entry of mutation does not create any right in his favour because it is not a document of title. The revenue record is maintained for fiscal purposes. It neither creates nor extinguishes right of a party unless it is proved to the satisfaction of the Court that it was genuinely entered into any attested after payment of consideration with free consent of the vendor. In the instant case beneficiary as failed to prove geniuses of the transaction, hence the mutation in question is not sustainable on this count too."
12/- In case of Raza Quli Khan and others V. Mahmud Jan and others (2017 YLR 199-Peshawar), it has been held as under:-
"It is very much settled that mutations are prepared for fiscal purposes and to maintain the record of rights up-to-date. These can never be held as documents of title and cannot created any title Entering a mutation reporting a factum of acquisition of any right in the property with Patwari is a ministerial act which cannot confer or extinguish any right tint property unless the very acquisition of any right is established through evidence. "
13/- For the foregoing discussion and reasons, it is evident that the plaintiffs have failed to establish their lawful right over the suit property, therefore, issues No.2 & 3 are replied in negative."
2. The appeal against the impugned judgment was also dismissed by the learned I-Additional Sessions Judge, Kandhkot vide judgment dated 16.03.2021 and the pertinent findings are reproduced herein below:-
"From the perusal of the R & Ps, it reveals that attorney of the plaintiffs/appellants has only produced revenue entry No.32 dated 12.02.1988, in favour of the appellants/plaintiffs which is not sufficient document to establish the title of suit land even no agreement to sale or registered sale deed between appellants/plaintiffs and vendors Muhammad Bux and Muhammad Ibraheem Khoso, has been produced. The citations relied upon by learned trial court are very much relevant with regard to the status and value of the revenue entries as the revenue entries neither created nor extinguish the title to the property due to reason that revenue entries are not an instrument devolving the title.
12. From the perusal of impugned judgment no misreading & non-reading of evidence appears and there appears no illegality or irregularity on the part of learned trial court and findings of the learned trial court are based upon proper appreciation of evidence resultantly same is hereby maintained and instant civil appeal having no merit stands dismissed with no order as to cost. "
3. The present revision application is rested entirely on the premise that the question of the mutation entry was not properly appreciated by the courts below. It is not that the issue of mutation was disregarded; on the contrary the learned trial court has dealt with the matter extensively decided the same in the light of the judgments of the superior courts cited therein. The ambit of civil revisions is circumscribed by section 115 CPC and it is apparent that the same is not a subsequent forum of statutory appeal. Unless one or more of the ingredients of Section 115 CPC are apparent, a revision does not ordinarily lie[1]. The original judgment as well as judgment in appeal appear to have considered the record and the law and no infirmity in respect thereof has been identified to this Court.
4. It is settled law that in the presence of concurrent findings, coupled with preponderance of claim supported by evidence, a revisional court ought not to interfere even if another view was possible. Reappraisal of evidence was even otherwise undesirable in revisional proceedings[2].
5. This Court has considered the contentions of the applicant and has noted the inability to cite a single ground based upon which the jurisdiction of this Court could be exercised under section 115 of Code of Civil Procedure. There is no suggestion that the impugned judgments are either an exercise without jurisdiction or a failure to exercise jurisdiction or an act in exercise of jurisdiction illegally or with any material irregularity.
6. It is trite law[3] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.
7. It is the considered view of this court that the applicant has remained unable to demonstrate any infirmity with the respective judgments, meriting interference in revision under Section 115 C.P.C, therefore, this revision is hereby dismissed in limine.
JUDGE
[1] 1997 SCMR 1139; 2000 SCMR 431; 2002 CLC 1295; 2004 SCMR 877.
[2] 2011 SCMR 758; 2007 SCMR 236; 2006 SCMR 5; 2006 SCMR 1304.
[3] Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.