I.
IN THE SUpRE1V1E COURT OF 
PAICISTAN
(APPELLATE JURISDICTION)
PRESENT-
MR. JUSTICE IJAZ UL AN SAN
MR. JUSTICE SAJJAD ALl SHAH
Civil Petjt 
N 
of 2018
(On appej agaj, the
23.112017 
the
by the Lahore HiVh
Court at Lah Inc. R. No. 14 012007)
MUhmad Akbax and others
Province of Punjab through DOR,
Lodhran and others
ResPondent(S)
For the Petitioner(s): 
Mr. Aftab Alarn Yasir, ASc
For Respofldeflt#2 
Mr. Shahid Tabass 
ASC.
Date of Hearing: 
17.11.2021.
JUDGMENT
IJAZrJLA*fS,J 
Through the instant Petition
the Petitioners have challenged ajudgmerit
 of the Lore High
Court, Multan 
Bench Multan dated 23.11.2017 passed in
Civil Revision 
No. 14 of 2007 (hereinafter referred to as
"'n'Puglied Judgment-). The Respondents, through
Civil Revision, 
their
had challenged the judgment and decrees of
the lower foradated 03.11.2006 and 15.03.2004 
respectively,
whereby, the suit of the Petitioner was dismissed.
Court through the Impued Judg 
The High
allowed the Civil
Revision d set-aside the Udents of the lower 
fora noted
above while decreeing the suit of the Respondents
2. The brief facts giving rise to this controversy e
that the Respondents claimed that the 
parties to the us had
equal shes in the Jot holdings measuring 179 g
13 Maria5 
To settle their dispute regarding division the suit
Civil Petition No.715.f 2016 
2
property was divided through a family settlement. Pursuant
to the same, Award dated 25.05.2000 was made and, the
same was handed over to the Patwari (Consolidation) for its
incorporation in the Revenue Record. In spite of the family
settlement and Award, it has been alleged that Mutation No.
2332 dated 05.06.2000 (hereinafter referred to as "Impugned
Mutation") was sanctioned whereby the property was given to
the Petitioners. The Respondents filed an appeal against the
order dated 05.06.2000 which was dismissed on 28.06.2002.
The Respondents filed a revision thereagainst, under Section
164 of the Land Revenue Act, 1967, which was dismissed vide
order dated 04.02.2003. The Respondents then challenged
the order dated 04.02.2003 before the Member, Board of
Revenue, which was dismissed vide order dated 31.07.2003.
Thereafter, the Respondents filed a suit for declaration. The
suit in question was dismissed by the trial Court vide
judgment and decree dated 15.03.2004. The Respondents
preferred an appeal thereagainst, which too was dismissed
vide judgment and decree dated 03.11.2006. Aggrieved
thereof, the Respondents filed a Civil Revision which was
allowed vide the Impugned Judgment. The Respondents have
now approached this Court for redressal of their grievance.
3. The learned ASC for the Petitioners has argued
that the Impugned Judgment is a result of misreading and
non-reading of evidence. He has further argued that the
Impugned Mutation was sanctioned in the presence of the
parties and could not have been declared by the High Court
- 
Gin) Petition ivo. 715 OJIVId. 
3
to be the outcome of connivance and fraud. The learned ASC
has further argued that the findings of the High Court are
violative of the fundamental rights of the Petitioners.
4. The learned Counsel for the Respondents has
argued that the family settlement (hereinafter referred to as
"Settlement") was proved and was also admitted by the
Respondents. It has further been argued that Impugned
Mutation was a result of connivance and fraud. He has
further argued that there was another family settlement
reached between the parties, which escaped the notice of the
trial Court and the first Appellate Court. It has also been
argued that once the Impugned Mutation was denied; onus to
prove the same shifted on the Petitioners who failed to
discharge the same.
5. We have heard the learned Counsel for the parties
and have perused the record. The following questions require
adjudication by this Court: -
i. Was the Family Settlement proved and, the
effect thereof; and
ii. Could the Impugned Mutation be sanctioned;
WAS THE FAMILY SETTLEMENT PROVED AND, THE
EFFECT THEREOF
6. The learned High Court has held that the case at
hand is one of clear admissions on part of the Petitioners with
respect to the existence of the Family Settlement. In this
regard, the High Court has relied upon the statement of DW-5
Civil PctThon Vo.715 oJ2018. 
4
to hold that the admission(s) on part of the Petitioners
coupled with documentary evidence clearly establish the fact
that the Settlement in fact existed and, that the revenue
officials could not sanction any mutation which was contrary
thereto. The learned High Court has further held that the
Settlement was validly executed and, did not require
compulsory registration. The High Court has examined the
case thoroughly in reaching the said conclusions. It is worth
mentioning that DW-5 (Muhammad Shari]) was the Attorney
of the Petitioners and his admission of the existence of the
Family Settlement carries weight due to the fact that an
admission made by Attorney is binding on his Principal who
authorized him to do so, unless a contrary intention was
proved on behalf of the Petitioners or that he was not so
authorized. His statement has not been disowned. There is
nothing on the record, neither has it been argued, that DW-5
was not the Attorney of the Petitioners. At no occasion was
the said witness declared hostile or, his statement challenged.
Further, the said Attorney made an unqualified admission
regarding the existence of the Settlement between the parties.
As such, his statements during examination in chief and
cross examination were conclusive and can be used as
evidence to prove the fact that the Settlement was reached
and, the parties were well aware of it. Reliance in this regard
is placed on Anees A. Sheikh v. Cot (Retd) Ghu tam Rasoot
Qureshi (2005 SCMR 977 Supreme Court).
Civil Petition No, 725 of 20)8. 
5
7. The learned ASC for the Petitioners argued that
the Settlement was not registered. As such, ignoring it was
the right course of action adopted by the lower fora. We are
unable to agree with this contention. Firstly, a fact which has
been expressly and unequivocally admitted by the Petitioners
through their Attorney, would not require proof. Reliance in
this respect is placed on Karachi Metropolitan
Corporation, Karachi v. RaheelGhagas (2002 PL.D 446
Supreme Court) wherein, this Court held as follows: -
10. Legal position is that facts admitted are not to be
proved. After categorical admissions of the respondent No.
I that said plot was in Scheme No.28 the Petitioners were
not required to prove the same, although in spite of above it
was proved by the Petitioners that it was in Scheme No.28,
a planned area. Learned High Court brushed aside above
admissions of the respondent No. I categorizing it as
'innocent admission'. Both First Appellate Court and High
Court ignored the fact that the Petitioners in their written
statement clearly stated that said plot was not a part of
K.D.A. Scheme No.2, but it was a part of K.D.A. Scheme
No.28. This fact was very well-known to the respondent No.
I before he entered the witness-box.. He was, not taken by
surprise. He had admitted the facts) mentioned earlier.
Under the circumstances, there was absolutely no
justification to ignore the aforesaid admissions of
respondent No. 1 .. which by themselves were enough to
demolish his case.
Secondly, the deed in question was a family
arrangement and not a regular partition deed, as rightly held
by the learned High Court. As such, it did not require
compulsory registration. Reliance in this respect is placed on
Anwar Khan v. Abdul Manaf (2004 SCMR 1261, in which
this Court held as under: -
'5. We have carefully examined the contentions as agitated
on behalf of -petitioner in the light of relevant provisions of
law and record of the case. We have perused the judgment
dated 27-9-2000 passed by learned Rent Controller, Quetta
as well as the judgment impugned. We have thoroughly
scanned the entire evidence which has come on record. We
are not persuaded to agree with Mr. Basharatullah, teamed
Senior Advocate Supreme Court that the partition of
property by way of family arrangement by means of
settlement/agreement (ExltA/1) dated 19-4-2000 is
compulsorily registrable and in absence of registration the
CWUPCILTIOflNO,715012018. 
6
ownership could not have been devolved upon the
respondent-landlord and eviction application could not have
been filed by him having no A locus standi simply for the
reason that such family settlement is saved from
inadmissibility in evidence due to the elimination of sub-
clause (c) from section 49 of the Registration Act and the
prohibition contained in section 49 would no longer be
operative. A careful perusal of partition document (ExhAl 1)
executed between the parties would reveal that the
property has been distributed by way of family
arrangements. If the parties are not interested in partition of
property on permanent transfer basis they cannot be forced
or compelled to do so as it depends upon their whims and
wishes to distribute the property in any manner as may be
deemed fit and proper being their personal and family
affair. In such an eventuality the question of registration of
such agreement, does not arise. If any authority is required
reference can be made to case titled Jahauzeb and others
v. Muhammad Abbas 1999 SCMR 2182.
Essentially, the Settlement operated as an agreement
between the parties. This means that the parties to the
Settlement were bound by the terms which were agreed
between them. It has not been argued that the Settlement
was a result of fraud or undue influence. As such, there is a
presumption of validity attached to the said Settlement. It is
pertinent to note that, the fact that it has been argued that
the Settlement was not registered and therefore inadmissible
in evidence, is itself an admission with respect to the
existence of the Settlement. The Settlement in question was
executed through the intervention of close
relatives/ successors of the Respondents. As such, the High
Court has correctly held that it did not require compulsory
registration.
8. The Petitioners never challenged the Settlement
before any forum which effectively means that the Settlement
still binds the parties thereto and their legal heirs. It is a
settled principle of the law that a charge created on a
property passes with the property. The fact that a Settlement
00 ^tihOn No. 715 012018. 
7
was reduced into writing means that the pasties intended to
bind themselves by its terms. As such, the Petitioners at this
stage cannot wriggle out of the Settlement merely on the basis
that it was not registered. Reliance in this respect is placed on
Allah Dad and 3 others v.Dhuman Khan and 10 others
(ZOOS SCMR $64) wherein, this Court held as follows: -
'It is to be seen that the object behind the family settlement
is always to settle existing or future dispute of the property
amongst the members offamily and to create goodwill and
avoid future disputes between the successorsjn.interest
The bona fide transaction of family settlement would be
binding on the parties and if the settlement by conduct of
parties, is capable of receiving constant recognition for a
long time, the right to assert under the agreement must not
be subsequently allowed to be impeached and Courts may
not reject the family settlement on technical grounds.
COULD THE IMPUGNED MUTATION BE SANCTIONED
9. The learned High Court has held that Muhammad
Bashir, one of the Plaintiffs, stated on oath that the family
settlement was affected through Aizaz Ahmed, who divided
the shares of the parties vide the Settlement Award. The
Settlement Award was then handed over to the Patwari for
incorporation in the relevant Register. However, the Patwarj
procured their signatures/ thumb impressions on a blank
'Parat' of the mutation and, the Award was not given effect.
Contrarily, the property which was to be given to the
Respondents was given to the Petitioners through the
Impugned Mutation. The onus to prove the Impugned
Mutation shifted on the Petitioners as soon as its validity was
challenged. The father of the Petitioners being their Attorney,
specifically stated that the Settlement and Award were given
to the Patwari. One of the attesting witnesses also stated this
fact and further deposed that signatures and thumb
Qvilperihon N.. 715 012018. 
8
impressions were taken before the mutation could be
sanctioned in line with the Award/Settlement
10. The Patwari was duty bound to sanction a
mutation in accordance with the terms of the
Award/Settlement placed before him. It is settled law that a
Patwari does not have power to arbitrarily make entries in the
relevant register and, must make such entries based on
evidence before him. The fact that the Patwarj took signatures
of the Respondents on a blank 'Pant' and later sanctioned
the Impugned Mutation, goes to show that the Patwari did not
perform his duty in accordance with the law. This furthers
the stance taken by the Respondents that the Patwari's
actions were tainted with mala fide. It has been observed by
the High Court that the Patwari sanctioned the Impugned
Mutation based on oral assertions. The fact that the Patwari
did so is patently illegal and against the documentary
evidence which has been placed before all fora. It has time
and again been held by this Court that documentary evidence
takes precedence over oral evidence. This is especially so
when oral evidence/ assertions are in direct conflict with
documentary evidence i.e., the Award/ Settlement. Reliance in
this regard is placed on Sher Muhammad V. Muhammad
Khalid (2004 SCMR 826 Supreme Court) wherein, this
Court held the following: -
5. The concurrent findings of the said learned Courts are
based on the overwhelming documentary evidence
available on record. Both the Courts were one in holding,
., - 1Z41vr 1Qv cuma not be given areference over
ihtsidomenta,, evidence The only two entries i.e.
relating to Rabi 1973 and Kharzf 1973 which stood in
OinIPenhon No./Jbof 2018. 
9
favour of the petitioner-plaintiff were directed to be removed
by the Collector of the District on an appeal filed before him.
He had further ordered that the entries as they existed in
Rabi 1972 should be restored. This order of the Collector
was maintained in the second appeal filed by the petitioner
before the Additional Commissioner of Sargodha who had
dismissed the said appeal through an order dated
.73-6-1979. In this view of the matter, the Honourable High
Court and the learned A ppellate Court were justified in
holding that the oral evidence offered by the
Petitioner-plaintiff which was not su pported bt, the strong
docunienlan., evidence available on record, could not be
giver, can credit. The concurrent conclusions reached and
the reasons offered therefore could not be said to be based
either on misreading or non-reading of evidence.
(Underlining is ours)
The fact that the Patwari sanctioned the Impugned
Mutation is admitted by him in cross-examination. The
Patwari has claimed that he did not receive the
Award/ Settlement. Nonetheless, there is nothing on the
record which shows that the Patwari made any effort(s) to
inquire about the genuineness of the claims made by the
Petitioners. Rather, the Patwari has conceded that he
sanctioned the Impugned Mutation based on oral claims
made by the Petitioners. When the claim of the Petitioners
was specifically opposed by the Respondents, the burden of
proof shifted on the Petitioners to prove the authenticity of
their claim. The Petitioners were unsuccessful in doing so and
the learned High Court was correct in recording findings
against them.
11. The Impugned Mutation was then upheld upto the
level of Member (Consolidation), Board of Revenue, Punjab. It
has been held by this Court in various pronouncements, that
public officials owe a fiduciary duty to the public. They are to
act in utmost good faith while discharging their duties. If a
public official, especially one belonging to the revenue
department, acts in a careless manner, his actions are bound
On' Petition No.715 oJ2018. 
10
to cause not only distrust amongst the public, but also loss to
the public exchequer. As such, we find that the Impugned
Mutation could not have been sanctioned and upheld
especially since there existed an admitted document in the
shape of the Settlement, on the record. The Patwari so also
the other revenue officials misinterpreted the record and
passed orders which were unsustainable.
12.
We find that the learned High Court has
proceeded on correct factual and legal grounds in the
impugned judgment. The learned ASC for the Petitioners has
been unable to point out any misreading or non-reading of
evidence by the High Court while passing the Impugned
Judgment. Further, no jurisdictional defect, error or flaw in
the Impugned Judgment has been found that may warrant
interference of this Court. The learned Counsel for the
Petitioners has been unable to convince us to take a view
different from the one taken by the High Court.
13.
In view of the foregoing, this Petition is found to be
without merit. The same is accordingly
appeal is refused.
ISLAMABAD.
17.1 .2
Hnythtiaq LCP \
Approved For porting'