MUHAMMAD MUZAMMAL KHAN J.--- This civil revision assails the judgment and decree dated 21.1.1987 and 15.9.1995 passed by the learned Civil Judge and the learned Additional District Judge Shaikhupura, whereby the suit of the respondents Nos. 1 to 4 was decr'eed and the appeal of the petitioners was dismissed, respectively.
2. Precisely relevant facts are that Mst Hussain Bibi respondent No.1 and Hussain Bakhsh alias Muhammad Hussain predecessor of the respondents Nos. 2 to 4 filed a suit for declaration claiming 25 shares in the estate of Karim Bakhsh, who died in the year 1959, and was real paternal uncle of the plaintiffs. Predecessors in interest of the respondents Nos.1 to 4 while claiming their hereditary rights challenged the inheritance Mutation No. 2969 sanctioned on 7.1.1965 after the death of Karim Bakhsh. They pleaded that though Karim Bakhsh had died in 1959 yet his name continued in the Revenue Record which was inspected by the Settlement Officer, who was incharge of settlement operation in the village and incorrectly sanctioned Mutation No.2969 because none of the brothers of the propositus was alive at the time of death of Karim Bakhsh who was succeeded by Muhammad Hussain and Hafiz Bux, father of the respondent No. 1 being the nearest collaterals. The plaintiffs before filing their suit, filed an application for review of the mutation which was refused on technical grounds and they were directed to file a civil suit plaintiffs also averred that they became owners to the extent of their Sharai share of 2/5, on the death of Karim Bakhsh and they were in possession of the land according to their share.
3. The respondents Nos. 5 to 4 who . Were defendants in the suit contested it denying the right of inheritance of the predecessors of the respondents Nos. 1 to 4 by filing their written statement wherein certain preliminary objections were raised regarding lack of cause of action and non- maintainability of suit on account of dismissal of their review petition against the Mutation No. 2969. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge, who was seized of the matter after doing the needful vide his judgment and decree dated 21.1.1987, decreed the suit of the predecessor of the respondents No. 1 to 4.
4. The petitioners being purchasers from other respondents, aggrieved of the decision of the Trial Court dated 21.1.1987, filed an appeal before the learned Additional District Judge, but remained un- successful as their appeal was dismissed vide judgment and decree dated 19.9.1995. The petitioners thereafter filed the instant revision petition, which was admitted to regular hearing and after completion of service, has now been placed for final determination
5. The learned counsel for the petitioners submits that the respondent Nos.1 to 4 had claimed share in the estate of Karim Bakhsh who died in the year 1956 and his inheritance mutation was sanctioned on 7.1.1965, thus, the suit filed in the year 1985 was barred by limitation. He further submitted that the petitioners are purchasers from heirs of Karim Bakhsh in whose name the property stood in the Revenue Record and they having been impleaded on 16.4.1979, the suit against them, in view of provisions of section 32 of the Limitation Act was beyond time. It was also contended by the learned counsel for the petitioners that a plaintiff in the suit has to succeed at the strength of his own evidence and no decree in favour of a plaintiff can be granted on the basis of any lapse in evidence of his adversary. He in this behalf relied on the case of Ghulam Haider Versus Hafiz Allah Bakhsh (NLR 1985 CLJ 444). He further elaborated his arguments by saying that statement of one of the plaintiffs recorded in.The rebuttal cannot be read in support of his affirmative case in view of the law laid down by this Court in the case of Al-Haj Khalil Ahmad Versus The Australasia Bank Limited, Lahore and another (1979 CLC 484). It is also submitted that mutation is not a document of title and if is simply sanctioned for fiscal purposes. He relied on the case of Muhammad Lehrasab Khan Versus Mst. Aqeel un Nisa and 5 others (2001 SCM R 338).
6. The learned counsel for the respondents refuted the arguments of the petitioners, supported the concurrent judgments of the two Courts below and urged that the Mutation No. 2969 was wrongly sanctioned because at the time of death of Karim Bakhsh Hussain Bakhsh alias Muhammad Hussain real nephew of the deceased was alive alongwith father of Hussain Bibi (Hafiz Bakhsh) and they were entitled to 2/5 share in the property of the propositus. It was also contended that the concurrent findings of facts recorded by the two Courts below after due appraisal of evidence on the file, cannot be disturbed in revisional jurisdiction.
7. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably Karim Bakhsh son of Umer Bin died issueless in the year 1965 and his 5 brothers I .e. Mehr Bakhsh, who died in the year 1907, Allah Bakhsh who died in 1988, Maula Bakhsh who died in 1935, Muhammad Din died in 1950 and Allah Din died in 1955 was not alive at the time of his death. Hussain Bakhsh one of the plaintiffs was real son of Maula Bakhsh whereas Hussain Bibi was real grand-daughter of Mehr Bakhsh. A real brother of Karim Bakhsh, Hussain Bakhsh and Hafiz Bakhsh, father of Hussain Bibi were real nephews and were the nearest collaterals, alive, at that time Hussain Bakhsh, above-mentioned appeared in the witness- box and detailed all these facts in his examination-in chief but veracity of the deposition could not be shattered during the cross examination. The Revenue Record produced shows that inspite of death of Karim Bakhsh the land remained continued in his name till sanctioning of mutation No. 2969. Dated 7.1.1965 in the names of real brothers of the propositus who had already died Revenue officials during the proceeding for review of this Mutation had reported that mutation was wrongly sanctioned in the names of dead persons but review was refused on technical grounds. The estate left by Karim Bakhsh was to be inherited by the persons who Were alive at the time of his death in 1956. Vendors of the petitioners are descendent of one Noor Din who was son of Allah Bakhsh. This Noor Din was not alive at the time of death of Karim Bakhsh and being of the same degree that of Hussain Bakhsh, his children could not excluded. Hussain Bakhsh from inheritance who had preferential prior to right of inheritance against sons and daughters of Noor Din, being the heir of a degree nearer to them.
8. Muhammad Hussain one of vendees, predecessor-in-interest of the petitioners appeared in the witness-box and stated that they inquired from Hafiz Bakhsh, father of Hussain Bibi regarding purchase of disputed land and he allowed them to purchase it. It appears from the statement of.
Muhammad Hussain that Hafiz Bakhsh father of Hussain Bibi who was also real nephew of Karim Bakhsh of the same degree of that of Hussain Bakhsh never denied his own claim of inheritance in the estate of the propositus. To my mind this solitary statement, even if accepted to be correct, does not make an un authorized transaction, as lawful. Muhammad Hussain DW. Has not uttered a word that the persons in whose favour mutation in question was sanctioned were alive at the time of death of the proposituts and thus, the said mutation was rightly sanctioned.
9. The respondents Nos. 1 to 4 in order to establish their entitlement have examined PW.1 Sardar Ali PW.2 Muhammad Ashiq PW 3 Allah Ditta Patwari. All these witnesses materially supported the case of the predecessors of the respondents Nos. 1 to 4 that all the 5 brothers of the deceased Karim Bakhsh were dead at the time of death of Karim Bakhsh. DW. 1 Hakim Ali though stated that 4 sons of Umer Din were alive at the time of death of Karim Bakhsh but he admitted that he does not know that who out of son of Umer Din, was the eldest. He also admitted that his real nephew is married with the daughter of Muhammad Hussain DW.3 (defendant No. 37). He also admitted in cross- examination that he did not attend the funeral Umer Din. Above all this witness has not disclosed his relationship or source of his knowledge of relationship of the respondent's family. Similarly DW. 2 Muhammad Ali is a close relation of DW. 3 as his daughter is married with son of Muhammad Hussain (DW.3) such an evidence is not enough to deprive the respondents Nos. 1 to 4 of their hereditary rights which vested in them on the death of Karim Bakhsh.
10. Respondents have claimed in the plaint that they are in possession of the property falling to their shares and cause of action accrued to them only on sanctioning of mutation on 7.1.1965 and thereafter on dismissal of review petition. There is no evidence on the file to show that predecessor of the respondents Nos. 1 to 4 were not in possession of the land falling to their share. An heir becomes owner of his Sharai share, the moment the person dies to whom he inherits. It is settled proposition that a person continuing in possession, limitation would start against him from the time of denial of his title Respondents claimed in para 9 of the plaint that their rights to the property was denied only a week earlier to the filing of the suit. The petitioners while replying to para 9 in their written statement simply said that there is no necessity of reply of this paragraph which means that they admitted para 9 of the plaint. In view of this admission, it does not lie with the petitioners, now to assert that suit is barred by limitation. This is also a correct proposition that mutation is only sanctioned for fiscal purposes and is not document of title. Irrespective of entries in the Revenue Record, owner continues to hold his title unless that is denied. All these propositions stand settled by the alighted judgment by the Honourable Supreme Court in the case of Ghulam Ali and 2 others Versus Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Adverting to other objections of the learned counsel for the petitioners that respondents did not appear in their affirmative evidence and instead appeared in rebuttal by reserving the statement of the plaintiff till the close of case by the defendants though this practice was held to be not in accordance with law and was deprecated by this Court in the case Al-Haj Khalil Ahmad (supra) but there is no provision of law to the effect that such an evidence, is to be excluded from consideration or some adverse presumption will be drawn, therefrom. Evidence in the case was recorded without any objection by the petitioners and thus it is too late in the day to raise such an objection in revisional jurisdiction. The petitioners should have objected at the time of recording of evidence that is, at the first available opportunity.
The petitioners filed a detailed memorandum of appeal before the first Court but no such objection was raised therein
11. For what has been discussed above I am constrained to hold that both the Courts below returned findings in consonance with evidence on the file, and no part of it was misread or non- read. They did not commit any illegality or amenable to revisional jurisdiction, consequently their judgments are affirmed. This revision petition has no merits in it and is accordingly dismissed, with no order as to costs.
Civil .