' On 25-4-1990 the petitioners filed a suit against the respondents. In the plaint, it was stated that the suit-land fully described in the plaint was owned by Ali Ahmad who died on 28-9-1984. He was survived by Muhammad Ramzan respondent No,1 as son and respondents Nos.2 and 3 as daughters as also Mst. Alam Bibi widow. According to them the respondent No,1 is their only brother and they had fully confidence in him and after the death of father he was looking after the land and had been paying produce share to them. About a month ago, when they asked for the share he refused and denied their title. They made inquiries and it revealed that, in the first instance, Mutation of Inheritance No,529 was attested on 15-10-1984. Thereafter, vide Mutation No,532 attested on 4-11-1984, the land of the petitioners was got mutated in favour of Mst. Alam Bibi and thereafter on 19-11-1984 Mutation No,536 was got attested. The result was that the land of the petitioners stood transferred to the respondent No,l. According to the petitioners, they had never transferred or gifted away their lands to the respondent No,1 or respondent No,2. They have their own children and there was no occasion for them to surrender their land. A declaration was accordingly sought that they are the co-sharers in the suit-land to the extent of 3/8th share and the said transactions are void. The respondent No,1 in his written statement admitted the fact that the land belonged to the father and devolved upon the parties. According to him, the land was lawfully transferred to the respondent No,1 and his mother by the petitioners who then transferred the same to the respondent No,l. He has pleaded a valid gift by his sisters in his favour. Following issues were framed by the learned trial Court:--
(1) Whether the suit is within time? OPP
(2) Whether the suit is not maintainable in its present form in view of preliminary objection No,2 of the written statement? OPD
(3) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation? OPD
(4) Whether the suit is based on mala fide and the defendants are entitled to special costs under section 35-A of the Code of Civil Procedure? OPD
(5) Whether the disputed Mutation No,536, dated 19-11-1984 in respect of Tamleek allegedly made by Mst. Alam Bibi in favour of Ramzan her son cannot be challenged? OPD
(6) Whether the disputed Mutations Nos.532, 536 and 462 were validly sanctioned in favour of defendants Nos.1 and 2? OPD
(7) If Issue No,6 is proved in affirmative, whether the disputed mutations are result of fraud, forged, illegal, void, without jurisdiction, ineffective, and inoperative qua the rights of the plaintiffs? OPP
(8) Relief.
'Evidence of the parties was recorded. The learned trial Court found Issues Nos.1, 5, 6 and 7 against the petitioners and dismissed the suit on 14-10-1992. A first appeal filed by the petitioners was dismissed by a learned ADJ, Sahiwal, on 26-3-1995.
2. Learned counsel for the petitioners contends that the impugned judgments and decrees apart from being result of gross misreading of the evidence on record have been passed in contravention of the dictum laid down by the Honourable Supreme Court of Pakistan in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1. According to the learned counsel, there is no evidence of any valid gift or C surrendering of their property by the petitioners in favour of the brother or the mother. The respondents are ex parte.
3. I have gone through the copies of the records. I have already reproduced above the respective pleadings of the parties. It will be seen that the petitioners having admittedly inherited the property of their D father, it was for the respondent No,1 to prove a valid transfer of the same in his favour.
The onus of Issue No,6 was accordingly placed upon him. D.W.1 Bashir Ahmad, Patwari, appeared to state that he has brought along the record of Mutations Nos.532 and 536. He produced the copy of Roznamcha Waqiati as Exhs.D.1 and Exh.D.2 pertaining to the said mutation. In his cross- examination, he stated that he had not brought along the original Roznamcha and that the mutations were not entered by him and were not attested in his presence. Nothing turns on the statement of this witness.
4. Muhammad Akhtar, Patwari, appeared as D.W.2 who stated that he had entered the mutations and he had done so on the asking of Khurshid Bibi, Zubaida Bibi, Inayatan Bibi and Mussarat Bibi who had approached him along with Sher Muhammad, Lambardar. He sought to give an impression as if the ladies were known to him. However, in his cross-examination, he was unable to answer even a single question pertaining to the identity of the said ladies. D.W.3 is Muhammad Akhtar Fazal, Tehsildar, who stated that he attested Mutation No,532 on 4-11-1984 and the ladies had stated before him that they are gifting away their property. In cross-examination, he admitted that the ladies were not known to him. He is making a statement on the basis of Part Patwar and it is not clear as to who identified the ladies. D.W.4 is Sher Muhammad, Lambardar, who stated that he knows the said ladies personally and they had gifted their land to their mother and he had identified them before the Tehsildar. In his cross-examination, he admitted that Khurshid Bibi is Married in Pakpattan. Zubaida Bibi is married in Tehsil Depalpur while Razia Bibi is married in Malka Hans while Inayatan Bibi is married in Okara and are living with their respective husbands. He did not know who brought the ladies. D.W.5 is Mst. Inayatan Bibi. She stated that her sisters and she transferred their land in favour of their mother. She stated in cross-examination that she is married in Renala Khurd and she has three sons. Mussarat Bibi has two daughters and a son and is married to Muhammad Hafeez. Khurshid. Bibi has three daughters and four sons and is married to Saeed.
Zubaida has two sons and three daughters while Razia has two sons and a daughter. According to her all the sisters remained in the house of their father till his Chehlam. Their husbands had come but left after Qul. D.W.6 is Muhammad Ramzan respondent No,
1. He has stated that his sisters proceeded to gift their lands to his mother in the name of Allah and the mother transferred the land to him. Now in his cross-examination, he states that the sisters came on the death of father and left after the Qul while the mutation of inheritance was attested 1-1/4 months thereafter. Alam 'Bibi D.W.7 stated that her daughters gifted their lands to her and she transferred it to her son. She stated that the transfer was gratis. Razia Bibi one of the petitioners appeared as P.W.1 to deny the factum of any gift or mutation.
5. The learned trial Court has dealt with the matter on the assumption that a mutation of gift incorporated into the Jamabandi enjoys presumption of genuineness. The learned ADJ has followed suit.
6. Both the learned Courts below have completely lost sight of the attending circumstances of the case apparent on the face of record: The sisters had come on the death of the father. The mutation of inheritance was attested. This was followed by the mutation in favour of mother and then by mother in favour of respondent No,1 resulting in the complete exclusion of the daughters of Ali Ahmad from his estate. There is no plea and, of course, no evidence as to why the petitioners who have their own children and husbands proceeded to gift away the land to mother and ultimately to the brother. This casts doubt on the genuineness of the transactions. Reference be made to the case of Barkat All through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCM R 1938. Similarly, the insistence of the learned Courts below that the mutation having been incorporated in the Jamabandi enjoys a presumption of genuineness is also without lawful authority inasmuch as notwithstanding the fact that a mutation stands incorporated in the Revenue Record, if dispute arises the burden squarely lies upon the beneficiary to prove the validity of the transaction. Reference be made to the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCM R 1245 and further affirmed in the case of Fida Hussain through Legal Heirs Muhammad Taqi Khan and others v. Murid Sakina 2004 SCM R 1043.
7. I also agree with the learned counsel for the petitioner that the impugned judgments proceed in direct contravention of the law laid down by the Honourable Supreme Court of Pakistan in the said case of Ghulan Ali and 2 others. The transaction on the face of it is void.
8. The question of limitation has also been wrongly decided. Admittedly, the parties are co-heirs and there is no question of any limitation running against the petitioners.
9. The civil revision accordingly is allowed. Both the impugned judgments and decrees passed by the learned Courts below are set aside and the suit filed by the petitioner is decreed as prayed for.
However, since the respondent No,1 has not opted to appear and contest this matter, no orders as to costs.