' JAWWAD S. KHAWAJA, J.---The parties to this petition are the legal heirs of Salehoon deceased.
Mst. Ghulam Fatima (petitioner No.1) is the widow of Salehoon, while petitioners Nos.2 to 5 are the daughters of Salehoon and Mst. Ghulam Fatima. The respondents Nos.1 to 4 are the sons, while respondent No.5 Mst. Naseem Bibi is the daughter of Salehoon from his marriage with Mst.
Sardaran deceased.
2. Salehoon was owner of the suit-land measuring 316 Kanals, 15 Marlas. It is the case of the respondents/defendants that vide Mutation No.79 sanctioned on 5-4-1980 Salehoon sold the suit- land to them. At this point, it may be noted that Salehoon died in 1996.
3. After his death, the petitioners, for the first time, came to know that the respondents had obtained the aforesaid Mutation No.79. They assailed the said mutation by filing a declaratory suit on 8-7-1996 alleging therein that the Mutation No.79 was fraudulently procured by the respondents and, in actual fact, Salehoon had not sold the land to the respondents.
4. On the pleadings, the learned trial Court framed as many as 12 issues on which the parties lcd evidence. The learned trial Court proceeded to decree the declaratory suit filed by the petitioners holding that Salehoon had not made any sale to the respondents. The appellate Court, however, vide judgment and decree dated 3-2-2005, had reversed this finding. Hence, this revision petition.
5. Learned counsel for the petitioners has drawn my attention to the testimony of Samiullah (respondent No.1), who appeared as D.W.1. In his own evidence, he admits that he was approximately 14 years old in 1980 when the impugned mutation was purportedly sanctioned. He did not disclose any independent source of funds or means of income which could have enabled him and the other respondents to purchase the property. At this juncture, it is to be noted that the sale consideration, mentioned in Mutation No.79, was Rs.30,000 only. Samiullah (D.W.1) also deposed that the other respondents were younger to him. On the basis of the testimony of Samiullah (D.W.1) himself, learned counsel for the petitioners stated that the impugned sale mutation was fraudulent and also without consideration because D.W.1 could not disclose any source of income for himself or for his mother Mst. Sardaran, who, according to him, had provided the amount of Rs.30,000.
6. Learned counsel for the respondents was unable to advert to any evidence from which it could be established that Mst. Sardaran had any independent source of income. Mst. Sardaran also did not appear as a witness in Court to prove that she was in possession of the sum of Rs.30,000 which she had given to the petitioners for the purpose of making the purchase vide Mutation No.79. In these circumstances, no passing of consideration A is proved on the record.
7. Learned counsel for the respondents argued that the mutation itself showed that Salehoon had appeared before the Revenue Officer and had acknowledged receipt of the sale consideration. This contention is wholly devoid of merit. The presence of Salehoon at the time of the sanction of Mutation No.79 is itself a disputed question of fact. The respondents did not produce the Lamberdar, Khuda Bakhsh, who had purportedly identified Salehoon before the Revenue Officer and nor did they produce the Pattidar, Muhammad Riaz, whose alleged presence at the time of the mutation has been recorded in the order of the Revenue Officer. The mutation by itself does not, therefore, suffice for the purpose of proving the alleged sale. At this juncture it is relevant to note that a mutation is merely B a record of a previously concluded transaction, and it does not by itself create title. In these circumstance, it was all the more necessary for the respondents to have produced the Lamberdar, Khuda Bakhsh and the Pattidar, Muhammad Riaz, to prove their case.
There is nothing on record to show that these persons had died and were otherwise unavailable.
The alleged sale, in the given circumstances, has not been proved. Consequently, Mutation No.79 is set aside being without basis.
8. The learned appellate Court has also non-suited the petitioners on the ground that their suit is time-barred. This conclusion has been arrived at on the short ground that the mutation was sanctioned in 1980, but the suit was filed by the petitioners in 1996. It has been held by the learned appellate Court that the provisions of Article 114 of the Schedule to the Limitation Act are attracted in "the case whereunder the suit should have been filed within three years from the date of the mutation. I am afraid the learned appellate Court has proceeded on the basis of a misconception of the law. Salehoon died in the year 1996. It was the case of the petitioners that they became aware of the mutation only after his death, whereafter they filed their declaratory suit and the suit was, therefore, within time.
9. There is' another aspect of this case. Having concluded that Salehoon had not made any sale in favour of the respondents, it follows that he remained owner of the suit property until his death in 1996. Since the petitioners and respondents are collectively the legal heirs of Salehoon, they were entitled to seek declaration of title on the basis of inheritance from Salehoon.
10. Learned counsel for the respondents referred to the case titled Arbab Jamshed Ahmad and another v. Ghazan Khan and others (1995 CLC 695), to, argue that a strong presumption of correctness is attached to entries in the record of rights, particularly when such entries are of longstanding and have been repeated in successive Jamabandies. As a general rule there can be no dispute with this legal proposition. However, the cited precedent also provides that the presumption in favour of the entries in the Revenue Record is rebutable. In the present case the respondents have failed to prove the alleged sale reflected in Mutation No.79 and, therefore, no presumption of correctness can attach to the entries in the Revenue Record based on the said mutation.
11. In view of the foregoing discussion, it is clear that the learned appellate Court has committed material error in the exercise of its jurisdiction by dismissing the suit filed by the petitioners, the appellate Court's decree dated 3-2-2005 is, therefore, set aside. As a result, the decree of the learned trial Court dated 24-6-2004 stands restored.
12. The petitioners shall also be entitled to their costs throughout.