JAWWAD S. KHAWAJA, J.---The petitioners-defendants are the legal heirs of one Allah Wasaya.
Falak Sher (respondent-plaintiff) is the brother of Jamal Din Khan (predecessor-in-interest of respondents Nos.2 to 9). Vide Mutation No.270 (Exh.D.8) sanctioned on 8-9-1986, Allah Wasaya purchased 8 Kanals, 18 Marlas of land from Jamal Din.
2. Eighteen years later, on 14-6-2004, Falak Sher (respondent-plaintiff) filed a suit to challenge the mutation (Exh.D.8). It was his case that he and Jamal Din were owners in a joint Khata to the extent of 65 Kanals, 14 Marlas each. It was averred in the plaint that Jamal Din had sold a total area of 73 Kanals, 8 Marlas through various mutations and, therefore, had exceeded his entitlement. On this basis, it was contended that the mutation (Exh.D.8) was void because it was in excess of Jamal Din's entitlement.
3. The suit was resisted by the petitioners who claimed that Jamal Din was the owner of the disputed land when he sold the same vide mutation (Exh.D.8).
4. The sole issue, therefore, is whether Jamal Din, through the mutation (Exh.D.8) had made a sale beyond his entitlement in the joint Khata. The petitioners do not dispute the fact that Jamal Din was entitled to an area equivalent to 65 Kanals, 14 Marlas in the joint Khata. They have brought on record Exh.D.1 to Exh.D.9 which are copies of mutations through which Jamal Din sold land out of his share in the Khata. Particulars of these mutations are given below:- Exh. Mutation No. Date Measurement Kanals Marlas D.1 61 20-2-1972 8 4 D.2 76 16-7-1974 2 7 D.3 168 15-9-1981 8 18 D.4 95 20-1-1976 8 18 D.5 203 24-7-1983 4 9 D.6 304 19-10-1987 2 5 D.7 241 23-1-1985 9 2 D.8 270 8-9-1986 8 18 D.9 282 20-11-1986 1 7 Total Area 73 Kanals, 8 Marlas
5. The mutation Exh.D. 1 was entered in the register of mutations but was not sanctioned. Vide order, dated 20-2-1971 passed by the Revenue Officer, this mutation was cancelled, if this cancellation is taken into account, it will become evident that Jamal Din did not exceed his entitlement by making the impugned sale vide mutation (Exh.D.8). Here I may add that the cancellation of mutation Exh.D.,1 is recorded on the mutation itself and is, therefore, not in dispute. In addition, the petitioners produced on record the Jamabandi (Exh.D.10) for the year 2003-2004 which shows Jamal Din even in 2004 to be the owner of 10 Marlas in the joint Khata.
6. Learned counsel for the petitioners has argued that in view of the above circumstances, it is established through documentary evidence that the mutation (Exh.D.8) was within the entitlement of Jamal Din and that Allah Wasaya (predecessor of the petitioners) had acquired valid title in the suit-land through the said mutation.
7. The learned Courts below have decreed the suit of the respondent-plaintiff by relying on Mutation No.36, dated 18-1-1969. This mutation is not on record. The learned Courts below have, however, proceeded to hold that through the said mutation Falak Sher (respondent-plaintiff) and Jamal Din along with a third brother, had mortgaged 8 Kanals, 8 Marlas each in favour of one Najeeb Ullah and the mortgage has not been redeemed as yet. D.W.2, who is the son of Jamal Din and nephew of Falak Sher (respondent-plaintiff), admitted that his father had mortgaged 8 Kanals, 8 Marlas through Mutation No.36, dated 18-1-1969. This admission was made the basis of holding against the petitioners although it is wholly contrary to the documentary evidence referred to above which was produced by the petitioners to show that Jamal Din was vested with title in the suit-land which he conveyed to the petitioners through mutation (Exh.D.8). It is also worth-noting that the admission made by the son of Jamal bin to favour his uncle (Chacha), without any documentary proof to corroborate the same, could not possibly have been treated as evidence against the petitioners.
8. Learned counsel for the petitioners also argued that even if the contents of the plaint are accepted as correct, Mutation No.282 (Exh.D.9) and Mutation No.304 (Exh.D.6) for a cumulative area of 3 Kanals and 12 Marlas are dated subsequent to the mutation (Exh.D.8) and to this extent also the petitioners were protected being prior vendees from Jamal Din.
9. Learned counsel for the respondent-plaintiff Falak Sher was not in a position to controvert the above submissions. He merely reiterated the observations of the learned Courts below that the property stood mortgaged in favour of Najeebullah. This contention is without merit. As noted above, there is no proof of the mortgage on record. Moreover, the learned Courts below fell in error by treating the statement of D. W.2 relating to the alleged mortgage, as an admission binding the petitioners. This could not have been done, firstly, because the admission was not made by the petitioners and, secondly, because the alleged mortgage was not proved through any documentary evidence.
10. In the above circumstances, the decrees of the learned Courts below are set aside and, as a consequence, the suit filed by the respondent-plaintiff is dismissed. The petitioners shall also be