' JAWWAD S. KHAWAJA, J.---Bashir Ahmad petitioner/plaintiff impugns the concurrent decrees of the learned trial Court, dated 5-9-2002 and of the learned appellate Court, dated 18-10-2001 whereby a suit filed by him to impugn Mutation No,311 (Exh.P.1), dated 16-8-1978 has been dismissed.
2. The facts relevant for the disposal of this petition are simple. The petitioner admittedly is the brother of respondent No,1 Nazir Ahmad. It is also not in dispute that their family were refugees from Jammu and Kashmir. The ration card issued to the family shows the names of these two brothers, their mother Mehar Bibi and their sister Zulikhan Bibi. This fact is not disputed by the respondent.
P.W.1, who is the functionary of the Department for Rehabilitation of Refugees from Jammu and Kashmir, also mentioned the name of another sister Zubaida Begum as a member of the family, P.W.1, testified on the basis of the official record showing the petitioner to be a member of the family headed by the respondent Nazir Ahmad. However, the respondent obtained the mutation (Exh. P.1) in his name alone. It is in these circumstances that the petitioner filed his declaratory suit claiming that he being member of the family was also entitled to his share in the suit-land.
3. The sole question requiring determination in this case is whether the petitioner was a member of the family and, therefore, entitled to a share in the suit-land or if the respondent Nazir Ahmad alone was entitled to the same as asserted by him. The record shows that the suit-land was allotted on the basis of temporary allotment made in favour of the family by way of guzara allowance. The respondent, however, set out a false plea that the land was given to him by the Government in lieu of his service in the army. There is no basis whatsoever for this plea. I am not in any doubt that the respondent has been untruthful and his testimony cannot be relied upon. From the falsity of his plea the correctness of the petitioners' case can also be infered.
4. It is also evident that the mutation (Exh. P.1) was recorded in the name of the respondent as a result of Letter No,RL.1278/78/579, dated 30-4-1978, whereby it was directed that the permanent transfer of proprietary rights was to be made in the name of the head of the family. These instructions, however, were modified vide letter, dated 21-11-1978whereby proprietary rights were to be granted in the names of the heads of the family and other family members who otherwise would not inherit from the head of the family in the ordinary course. I am thus clear that the petitioner being member of the family was entitled to proprietary rights in his name along with the respondent Nazir Ahmad and his sister Zulikhan Bibi.
5. Unfortunately the learned Courts below have not noted the above facts and have not taken into consideration the letter, dated 21-11-1978 or even the testimony of P.W.1.
6. Before me learned counsel for the respondents conceded that in the allotment chit the number of family members is given as eight. He attempted to argue that the respondent had married a widow with children who comprised the family of the respondent Nazir Ahmad. This, however, is not the case of the respondent and has not been proved through any evidence on record. This plea, which is totally at variance with the record and with the above-noted testimony of the respondent as D.W.1; basing his exclusive title on his service in the army, read cumulatively, shows that the respondent lacks probity and has failed to prove his defence. On the other hand, the petitioner has been able to establish his entitlement for the reasons discussed above.
7. In the above circumstances, I find the impugned decrees to be a result of serious non-reading and misreading of evidence. The said decrees are, therefore, set aside. As a result, the suit of the petitioner is decreed as prayed for. The petitioner shall also be entitled to his costs throughout.