' MUHAMMAD NAWAZ ABBASI, J.--- This petition for leave to appeal is directed against the judgment, dated 31-5-2004 passed by a learned Single Judge of the Peshawar High Court, Peshawar, whereby the civil revision filed by the present petitioner arising out of civil suit filed by Mst. Sahib Jan, respondent in this petition, was dismissed.
2. Mst. Sahib Jan filed a suit for declaration that Tamleek mutation dated 31-3-1947 was ineffective to her right in the property left by her father. Initially, the suit was dismissed by learned Senior Civil Judge, Kohat, vide judgment, dated 23-12-2002 but in appeal the learned Additional District Judge, Kohat, decreed the suit vide judgment, dated 7-4-2004 which was affirmed by the High Court in civil revision.
3. The facts of the case have been given in the memo. Of petition and also in the impugned judgment, therefore, the same need not to be repeated in detail. The petitioner No,1 is real brother of Mst. Sahib Jan, respondent herein, whereas petitioners Nos.2 and 4 are successors-ininterest of Gul Hussain, another brother of Mst. Sahib Jan. The claim of petitioner No,1 and his brother, Gull Hussain was that Mst. Sahib Jan and their other sisters, relinquished their right in the inherited property left by their father vide Tamleek Mutation dated 31-3-1947 in their favor. The case of Mst.
Sahib Jan, on the other hand, was that neither she consented to the attestation of mutation nor surrendered her right in the property.
4. Learned counsel for the petitioners has contended firstly, that mutation of inheritance was attested in 1947 when the respondent admittedly was not minor and was mother of a child and that she and her other sisters while voluntarily appearing before the Revenue Officer, willingly relinquished their share in the property through the mutation in question and secondly, the suit challenging the mutation dated 31-3-1947 having been filed in 1996 was hopelessly barred by time.
5. The basic question would relate to the proof of genuineness of transaction and unless it is established that transaction by virtue of which the right of a person in the inherited property extinguished, the question of limitation would not be relevant. The learned Judge in the High Court, having dealt with the matter in detail, held in the concluding paragraphs of the impugned judgment, as under:-- "The perusal of the available record indicates that Mst. Sahib Jan respondent/plaintiff in her plaint has clearly stated that she was minor at that time and never gifted her share in favor of the petitioners. From the statement of Roohul Amin A.D.K. (P.W.) it is clear that the mutation in question was attested on the identification of Mir Alam Khan, Lambardar. He further stated that there was no signature or thumb-impression of the identifier on the crucial document or Mehrban petitioner.
Neither the parentage of Gul Hussain was mentioned therein nor the identification had taken place by the Girdawar when on 31-3-1947 in compliance with order, dated 28-12-1946 the mutation was attested on the statement of lady but he cannot say as to whether the said lady was present at the time of attestation of mutation or not. There is no entry whatsoever about the presence of identifier or the lady nor their signature or thumb-impression was obtained on 28-12-1946 and 31-3-1947.
There is nothing on record to show that the statements of Pardanashin ladies including the petitioner were taken through Local Commissioner. The petitioners also failed to bring on record as to the age or majority of the respondent/plaintiff.
' In this background, there is no justification to interfere with the impugned judgment and decree passed by the learned Appellate Court which is maintained accordingly. This revision petition is, therefore, dismissed in limine."
6. The learned counsel for the petitioners while placing reliance on a judgment of this Court in Muhammad v. Mst. Sardar Bibi and others Civil Petition No, 1477 of 2002), contended that in the case under reference, the suit in similar circumstances, was filed after 23 years of the attestation of mutation which was dismissed by the trial Court and the judgment was upheld by the First Appellate Court as well as the High Court and was also not disturbed by this Court. We are afraid; the facts of present case being entirely different to the above-referred case, the judgment in the said case would be distinguishable.
7. There is no cavil to the proposition that a suit to challenge the old entries in the Revenue Record if is filed beyond the prescribed period of limitation, may fail but the presumption of truth attached with such entries being rebuttable, the crucial question for determination would be as to whether by afflux of time, the right of a person in inheritance is extinguished on the basis of adverse entries in the Revenue Record, the genuineness of which is disputed by the such right holder. This Court in an identical case, Arshad Khan v. Mst. Resham Jan and others Civil Petitions Nos.1611 and 1612 of 2004 recently decided, held that the mere delay in filing a suit by a legal heir claiming of his share in the inherited property would not be sufficient to defeat his right in the property. The relevant portion of the judgment is reproduced as under:--- "This is settled principle of law that if the genuineness of a transaction entered on behalf of a Pardanashin lady is disputed by the said lady, heavy onus would lie on the person who asserts right through it, to prove the good faith and genuineness of the transaction as envisaged in Article 127 of Qanun-e-Shahadat, 1984, wherein it is provided that the burden of proving good faith of a transaction is on the party which is in a position of active confidence. This is settled law regarding the disposition of property of Pardanashin ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the person who claims its genuineness or who is to be benefited by such transaction through the reliable, cogent and convincing evidence. There can be no departure to the rule that if the good faith and genuineness of a transaction by virtue of which a right is created in the property, is disputed by its maker, the same in absence of proof of good faith and genuineness, would be voidable and in consequence thereto the entries on the basis of such transaction in the official record, would have no legal sanctity. The express or oral relinquishment of the right of a female heir in the inherited property in favor of a male heir, through gift or any other legal device, may in the normal circumstances, take effect but if the existence of such a transaction is denied and disputed by the said female heir, a presumption would be raised that the transaction was not genuine and the onus to prove that it was entered in good faith and was a genuine transaction, would be on the person who was claiming its genuineness and if such onus is not discharged satisfactorily, the document of relinquishment of rights of female heir in the property in favor of a male heir, would not ipso facto, confer title adverse to the interest of female heir. The mutations are entered and sanctioned to keep the Revenue Record in order which do not as such create right of title in the property, therefore, the entries in the Revenue Record based on a wrong mutation, would have no legal effect on the title of property. We having examined the question of limitation, find that mutation of gift was challenged on the ground of fraud and in such cases of fraud, the limitation would start from the date of knowledge and not from the date of fraud, therefore, the dismissal of the suit involving the dispute relating to the right in respect of inherited property on the ground of limitation, would not be proper as the mere delay in claiming the share in the inherited property, would not defeat the right of a person in inheritance and if he is non-suited on such technical ground, his right of inheritance would definitely be defeated. In the light of law laid down by this Court in Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, we may observe that the petitioner was not only under the legal obligation to protect the right of his sisters in the suit property rather it was also his moral duty to accept their claim and deliver the possession of the land of their share to them voluntarily."
8. The dispute in the present case relates to the extent of share of Mst. Sahib Jan in the inherited property and the burden of proving the genuineness of the disputed transaction was on the petitioners who pleaded the extinguishment of right of Mst. Sahib Jan in the property but they, except placing reliance on the disputed mutation, have not been able to bring on record any satisfactory and convincing evidence to discharge this heavy burden, therefore, question of limitation would not be of much significance in such a case of fake transactions defeating the right of inheritance. Mst. Sahib Jan in her statement has categorically stated that the mutation was the result of fraud and misrepresentation and she came to know about the attestation of mutation only three years before filing of the suit but the petitioners have not been able to bring on record any independent evidence in rebuttal showing that she had the knowledge of transaction since the attestation of mutation and knowingly kept silent, therefore, she was estopped by her words and conduct to challenge the mutation at this belated stage. In these circumstances, the suit was rightly treated within time as the limitation would start from the date of knowledge of transaction and not from the date of mutation.
9. The learned counsel for the petitioners when confronted that it was legal and moral duty of the petitioners to hand over possession of share of female heirs to them in the light of law laid down by this Court in Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, he submitted that the petitioners would be prepared for an amicable settlement. The parties being closely related inter se, may if so desire settle the matter in the manner they like with or without the intervention of the executing Court. However, the executing Court must complete the execution proceedings within three months and submit compliance report through the District Judge to the Registrar of this Court.
10. For the reasons given above, this petition is dismissed and leave is refused.