' Respondent No.1 is brother of the petitioner and respondent No.2. Two sisters brought a suit on 6- 6-1990 against respondent No.1 stating that they along with their brothers had inherited land of their father vide Mutation No.594 attested on 27-12-1972. The plaintiffs are married and living with their husbands while defendant is occupying the suit-land and used to give them the share in the produce till the year 1988. He stopped giving the produce and inquiries were made whereupon it revealed that the respondent No.1 has got attested Mutation of Sale No.322 on 17-2-1963, whereby the land stands mutated in his favour for consideration of Rs.1,000. The said plaintiffs denied having appeared before any Revenue Officer. It was also stated that Abdul Ghafoor Lumbardar is not known to them and he is Lumbarder of a village which is 10 miles away from the village of the plaintiffs. They also denied having thumb-marked any mutation. They accordingly sought a declaration and joint possession. Respondent No.1 objected that the suit is barred by time. The jurisdiction of Civil Court was also objected. On merits he admitted the relationship and asserted that the plaintiffs had sold the suit-land measuring 12 Kanals to him voluntarily and lawfully vide the said mutation which bears their thumb-impressions and that this mutation was 'sanctioned in ( (uq./A's ). It was then stated that he was delivered possession under the said sale. Following issues were framed by the learned trial Court:--
(1) Whether the plaintiffs are owners of the disputed land and as such entitled to the decree as prayed for? OPP.
(2) Whether impugned Mutation No.322 dated 17-2-1963 is illegal based on fraud, forged and misrepresentation and has no effects against the rights of the plaintiff? OPP.
(3) Whether this Court has no jurisdiction to try the present suit? OPD.
(4) Whether the suit is not maintainable in its present form? OPD
(5) Whether the suit is time-barred? OPD
(6) Whether the plaintiff has got no cause of action and locus standi to file the present suit? OPD
(7) Whether the defendants are entitled to special costs under section 35-A, C.P.C. So to what extent? OPD
(8) Whether the plaintiffs have not come to the Court with clean hands? If so its effect? OPD.
(9) Relief.
Evidence of the parties was recorded. Learned trial Court answered Issues Nos.1, 2, 5 and 6 against the plaintiffs while Issues Nos.3, 4, 7 and 8 were decided against respondent No. 1 . The suit was dismissed on 1-11-1995. A first appeal filed by the petitioner was heard by a learned Additional District Judge, Lahore, who confirmed the findings of the learned trial Court on all issues and dismissed the appeal on 18-12-1997. Earlier respondent No.2 withdrew the appeal to her extent.
2. I may note here that vide judgment dated 4-9-2002 I had allowed this civil revision. The Honourable Supreme Court vide judgment dated 16-5-2003 converted the C.P. No.3665-L of 2002 into an appeal and allowed the same and the said judgment was set aside with direction to decide the petition afresh both on merits and on the question of limitation.
3. Learned counsel for the petitioner contends that evidence on record has been misread by both the, learned Courts below. According to the learned counsel this was a case involving illiterate village lady and depriving of daughter in property of her father by the son. According to him there is no evidence of valid sale or valid mutation. On point of limitation he asserts that the mutation is not a document of title and once it is held that facts narrated therein had not taken place, no question of limitation arises. Particularly refers to the case of Ghulam Ali and 2 others v. Mst.
Ghulam Sarwar Naqvi PLD 1990 SC 1. Learned counsel for respondent No.1, on the other hand, contends that the valid sale in favour of his client for consideration stands proved on record and this being so, suit filed years after acquiring knowledge of the sale would be barred by limitation.
4. I have examined the copies of the evidence on record with the assistance of the learned counsel for the parties. It has been held by the Honourable Supreme Court in the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCM R 1245 that where as there is dispute regarding a mutation then notwithstanding the fact that it stands incorporated in the Revenue Record, the burden will be upon the beneficiary to ' prove the factum of sale. It has been specifically stated by the petitioner in her plaint that she never sold the land to her brother, did not receive any consideration and did not appear before any Revenue Officer and never thumb-marked any mutation. On the other hand, respondent No.1 has made assertion in affirmative that the petitioner sold her land to him voluntarily for consideration and got the mutation attested. Now requirements to prove a transaction that had been effected by means of a mutation have been laid down in the case of Muhammad and others v. Sardul PLD 1965 (W.P.) Lahore 472. To begin with no attempt was made to produce the original mutation and its record. The Patwari who entered the mutation had not been produced. No copy of the report in Rozenamcha Waqiati has been produced. According to the copy of the mutation (Exh. D.1) the vendors were identified by Abdul Ghafoor, Lumbardar of village Kamas. It has come on record that Lumbardar is dead. Now D.W.1, Khuda Bakhsh son of Jalal Din, who has stated that the plaintiffs had sold away the land to respondent No.1 for Rs.1,000 and got the mutation entered in Raiwind. And received consideration; that he was present at the time of mutation and receipt of consideration. He states that he also wanted to purchase the land. In his cross-examination he stated that he is not related to the parties. The mutation was taken up by Ch. Iqbal Tehsildar and consideration amount was paid in his presence. The deal was made in the village. He states that he is not witness in the deal and mutation and he did not put up his thumb- impressions anywhere. He states that the plaintiffs put their thumb-impressions in his presence.
5. D.W.2 is Haji Taj Din. He has stated that respondent No.1 purchased the land from the plaintiffs for Rs.1,000 then it was mortgaged to him and he remained in possession for 8/9 years when respondent No.1 returned the mortgage money of Rs.4,000 and got the land redeemed and he delivered the possession to him. Now in his cross-examination he states that the sisters sold 12 kanals to respondent No.1 and put their thumb-impressions and these thumb-impressions were put in their house. Then he states that he does not know as to where the thumb-impressions were put by the petitioner. According to him the deal was made in his presence and consideration amount was paid at home. He does tfot know as to whether the thumb-impressions were put after receipt of amount or not. According to him Khuda Bakhsh, D.W.1, was also present at that time. No Officer of Revenue Department was present.
6. D.W.3 is Chiragh Din respondent No.
1. Now he states that his sister sold the land for Rs.1,000. The deal was struck at home while the mutation was attested in the {{URDU TEXT}} by the Tehsildar at Raiwind; that the consideration was paid in the presence of Tehsildar. He reiterated that the plaintiffs appeared before the Tehsildar and received money and in his presence the petitioner put their thumb-impressions on mutation.
According to him D.W.1 was present there. He stated that the daughter of the petitioner was married to his son Tufail but she got the divorce and then filed a suit for maintenance and it is for this reason that the suit has been filed. In his cross-examination he stated that Khuda Bakhsh identified the plaintiffs at the time of mutation and he had taken along both the identification witnesses. He states that the husbands of the plaintiffs were along but they did not identify them.
7. The petitioner appeared as P.W.4 to state that she had never sold the land to respondent No.1 and did not receive its price and that she had never appeared before Revenue Officer and she does not know Abdul Ghafoor, Lumbardar.
8. A reading of the said evidence led by respondent No.1 would show that the false statements have been made by the witnesses and it is not at all proved on record that a valid sale was made for consideration by the petitioner in favour of the respondent No. 1 .
9. So far as the comparison referred to in the impugned judgment of the learned trial Court is concerned I wonder as to how he managed to compare the specimen of thumb-impressions with Exh.D.1 which is photocopy and it is matter of record that the original mutation was never produced.
The silence on this point in the judgment of the learned Additional District Judge is quite understandable.
10. Now coming to the question of limitation. Admittedly the land devolved upon the parties by way of inheritance. They are thus Muslim Law heirs. The possession of the respondent is, therefore, of no relevance whatsoever. Once it is held that sale had not taken place, his possession would ensure for benefit of the petitioner as well throughout. The petitioner having been in joint possession throughout, even if it be held that she had the knowledge of the mutation at earlier stage, the suit by no means can be said to be barred by time for reasons that the possession of one co-sharer is not to be adverse to other. Needless to state that mere non-payment of share in the produce or profit does not constitute ouster. It has been observed by the Honourable Supreme Court in the case of "Ghulam Ali" PLD 1990 SC 1 with reference to Khutba given by Holy Prophet (p.b.u.h.) at Hajjatul-l-Wida, that it is against the spirit of rights of the female declared by Holy Prophet (p.b.u.h.) for a brother to claim adverse possession against his sister. The redemption on the basis of the said mutation which records a nonexistent fact would be of no avail to respondent No. 1 . I, therefore, do held that the suit filed by the petitioner was within time.
11. For the reasons stated above, this civil revision is allowed. The impugned judgments and decrees of the learned Courts below are set aside and the suit filed by the petitioner (to the extent of her share in the suit-land) is decreed, without any order as to costs.