' Judgment of the learned Additional District Judge, Jhang dated 3-2-1998, whereby the appeal filed by the petitioners was dismissed and judgment dated 30-9-1996 of the trial Court was maintained, has been assailed through this revision petition.
2. Background giving rise to this litigation, briefly stated is that a suit for declaration with consequential relief was brought by the respondents-plaintiffs seeking annulment of orders passed by the Consolidation/Revenue Authorities and correction of entries in the Revenue Record.
Admittedly, the petitioner's predecessor-in-interest were occupancy tenants of the land in dispute as per entries in the Jamabandi for the year 1924=25 and onward which entry, however, was omitted in the year, 1938. Such omission continued till 1983 when the original entry was rectified and restored by the Consolidation Officer on 26-6-1983. Consequential mutation was also entered. An appeal was preferred by the respondents-plaintiffs thereagaisnt which was dismissed by the Collector (Consolidation) on 28-3-1984. The said order was not assailed in that hierarchy, however, the declaratory suit was filed by them assailing the order of the Consolidation Officer dated 26-6- 1983 and of the Collector (Consolidation) dated 28-3-1984 as also Mutation No.205 dated 31-12- 1983 that the same were illegal and ineffective qua the rights of the respondents-plaintiffs. The suit was contested by the petitioners. Controversial pleadings of the parties gave rise to the issues framed by the trial Court. After recording the evidence that was produced by the parties, the learned trial Court decreed the suit on 30-9-1996 which judgment as mentioned above was maintained by the learned Appellate Court on 3-2-1998.
3. The learned counsel for the parties have been heard in the matter.
4. Issues Nos.2, 7 and 8 had attained primacy and importance in the context of the controversy which are reproduced hereunder:-- "2. Has this Court no jurisdiction to entertain this suit?
7. Whether the order dated 26-6-1983 of Consolidation Officer relating to Fard Badar No.16, Mutation No.205 dated 31-12-1983, Mutations of Inheritance Nos. 212 to 215 dated 12-8-1985 and order dated 28-3-1984 of Collector.
' Consolidations are against law and facts, based on fraud, hence inoperative qua the rights of the plaintiffs?
8. If above issue is proved, whether the plaintiffs are entitled for consequential relief prayed for?"
' On Issues Nos.7 and 8 the view taken by the Appellate Court affirming the findings of the trial Court is that:-- "Admittedly, the copy of Mutation No.64 was never tendered in evidence by the respondents. No doubt in excerpt Report (Fard-iIntikhab) Exh.P .1 the reference was made to Mutation No.64 in Jamabandi for the year 1938-1939 at leaf No.7 thereof, but mere reference was not sufficient unless, the mutation was produced on the basis of which alteration was made in the Revenue Record. It is also settled law that mutation does not confer or deprive of anybody from any title, hence, it is to be determined from other evidence whether the appellant had abandoned the tenancy rights or not."
Such a question of abandonment or otherwise as noted by the Appellate Court arose in the context of averments made in paragraph 4 of the plaint which reads like this:-- {{URDU TEXT}} (Relinquisliment /abondonment)
' The assertion so made in such paragraph of the plaint was vehemently controverted and denied by the petitioners-defendants whose reply to paragraph 4 in the written statement was as follows:- {{URDU TEXT}} ' It may be noticed that a specific mention was made in paragraph 4 of the plaint by the respondents-plaintiffs to Mutation No.64 which was the foundation of their claim in the suit but as rightly noted by the learned Appellate Court in his judgment the said mutation was not produced by them in evidence. Non-production of such a material piece of evidence would have ordinarily been enough to non-suit the plaintiffs. His reliance, however, upon the other evidence was inapt for any entry in the Revenue Record to be made or omitted must have a valid basis. They should have proved the basis for the omission of entries in the Jamabandi of 1938, which was necessary even in view of denial of any such mutation by the plaintiffs-defendants. Mere absence of the plaintiffs- defendants from the village could not extinguish their right in the property nor it would amount to abandonment in law. Reference in this context may be made to Ghulam Hussain and others v.
Allah Bakhsh and others 1001 SCMR 1386, wherein it was observed that abandonment is an intentional relinquishment of a known right. Referring to paragraph 280 of the Punjab Settlement Manual by Sir James M. Douie, 5th Edn page 146, it was observed that "Thus no lapse of time, however, long, will of itself justify the removal of the name of an absentee from the record." Thus, in order to succeed, the respondents-plaintiffs had necessary to discharge the burden that the petitioners-defendants had relinquished their right or interest in the land. For that purpose production of Mutation No.64 was of immense importance which had to be produced by them. This was, however, not done. The rest of the evidence that was produced by them was of no avail in the context of the controversy. The crucial issue was thus decided by the Court, in the absence of the basic piece of evidence i.e. Mutation No.64. The learned counsel for the petitioners, however, has quite candidly and fairly stated that even now an opportunity can be afforded to the respondents- plaintiffs to produce such record/mutation if at all there was any. Thus in order to have the controversy determined justly and effectually, by setting aside the judgment of the Courts below, the matter is remanded to the trial Court enabling the respondents-plaintiffs to produce the copy/record of mutation so asserted by them in paragraph 4 of the plaint and if so done by them, the petitioners will be equally afforded an opportunity of rebuttal. Findings on Issue No.2 will also be recorded afresh in the light of the above observations.
' Thus accepting the revision petition, the case is remanded to the trial Court for decision afresh in accordance with law in the light of the observations made above. No order as to costs.