' JAWWAD S. KHAWAJA, J.---The petitioners are the legal heirs of deceased defendant Muhammad Afzal. They claim that vide Mutation No,1098 (Exh.D-1 and Exh.P.5) sanctioned on 6-2-1970, the respondent/plaintiff, namely Ghulam Hassan sold land measuring 4 Kanals, 3 Marlas to the aforesaid Muhammad Afzal. The respondent/plaintiff filed a suit on 16-9-1996 i.e, more than 26 years after the aforesaid mutation, asserting that he had never appeared before a Revenue Officer for the purpose of the said mutation. He prayed that the said mutation be set aside and he be declared owner of the suit property. The suit was resisted by the petitioners.
2. Based on the pleadings, the learned trial Court framed a number of issues. However Issues Nos.2 and 5 are dispositive of the present case. These issues were framed in the following terms:-- "2. Whether Mutation No,1098 dated 6-2-1970 is against law and facts, based on fraud and ineffective upon the rights of the plaintiff? If so, its effect? OPP
5. Whether the suit is time-barred? OPPs?"
3. The parties led oral as well as documentary evidence. The learned trial Court after considering the same decided both issues in favour of the petitioners. As to Issue No,2, it was held that the respondent/plaintiff had failed to prove that the mutation had been fraudulently procured and was ineffective on his rights. As to Issue No,5, it was held by the learned trial Court that the suit was time-barred because the respondent/plaintiff was aware of the mutation and had not challenged the same within the period of six years prescribed by Article 120 of the Schedule to the Limitation Act. As a result of these findings, the suit of the respondent was dismissed vide judgment and decree dated 26-10-2004. Aggrieved, the respondent filed an appeal which has been allowed by the learned District Judge, Bhakkar, vide judgment and decree dated 23-1-2006. The findings of the learned trial Court on both issues reproduced above, have been reversed.
4. The learned appellate Court has observed that after the testimony of the respondent/plaintiff as P.W.1 the onus of proof in respect of Issue No,2 shifted to the petitioners but they failed to discharge the same. The. Learned appellate Court noted that the Pattidar, namely Khadim Hussain, who was the attesting witness to the impugned mutation, had appeared as P.W.2 and denied his signatures on the mutation. Learned counsel . For the petitioners, however, pointed out that in his cross- examination, this witness stated that he was not in a position to confirm if the signature on the mutation (Exh.D-1) was his. Learned counsel for the petitioners argued that 6-2-1970 is the date on which the mutation (Exh.D-6) was also sanctioned whereby the respondent/plaintiff gifted a part of his property to his son. Exh.D.6 was witnessed by Khadim Hussain (P.W.2) who identified the respondent/plaintiff as donor. It was contended that this mutation (Exh.D-6) belies the statement of the respondent that he did not appear before a Revenue Officer on 6-2-1970, and it also confirms the presence of Khadim Hussain (P.W.2) before the Revenue Officer, thus supporting the authenticity of the mutation (Exh.D.1).
5. In addition to the above it was pointed out that Ghulam Hassan (respondent No,1) had appeared before the Revenue Officer on 6-2-1970 to identify the parties in respect of inheritance Mutation No,1100 (Exh.D.5) which was sanctioned on the said date. According to this mutation the property of Muhammad Bakhsh, grandfather (nana) of respondent Ghulam Hassan, was transferred in the names of Murid Hussain and others. Murid Hussain is uncle (mamun) of respondent Ghulam Hassan. Learned Counsel argued that this mutation also proves that respondent Ghulam Hassan was present before the Revenue Officer when the disputed mutation (Exh.D.1) was sanctioned.
6. Learned counsel for the petitioners also contended that the petitioners are in cultivating possession of the suit property since 6-221970. This fact, which is confirmed by the Khasra Girdwari (Exh.D.9), also corroborates the defence set up by the petitioners that the property in dispute had been purchased by Muhammad Afzal as recorded in the mutation (Exh. D.1)
7. Issue No,5 raises a mixed question of law and fact. The circumstances noted above show that respondent Ghulam Hassan was aware of the mutation (Exh.D.1) but failed to challenge the same or to assert his right to possession of the disputed property for a period of 26 years. The suit, therefore, was time-barred.
8. Learned counsel for therespondent-plaintiffs was unable to controvert the above arguments. He merely reiterated the reasoning of the learned appellate Court as contained in paragraphs 21 and 22 of the appellate judgment. I have gone through the same and find that the learned appellate Court has misconstrued the record and has thus fallen in error. It has been noted in the appellate judgment that the respondents-plaintiffs had brought on record Khasra Girdwari from 1966 to 2002, while the petitioners/defendants had also produced Khasra Girdawries from rabi1992 to rabi- 1995. From a perusal of the Girdawries the learned appellate Court has reached the conclusion that the sale had been effected out of a joint Khata belonging to both parties who retained possession in the Khata. This conclusion, I am afraid, is a result of misreading of the record. The Girdawries produced by the parties had no relevance to the period when the disputed mutation was sanctioned. The respondents-plaintiffs should have produced the Jamabandi covering 1970 and the period prior thereto if they had wanted to establish that Muhammad Afzal had been a co- owner in the Khata prior to the disputed mutation which was sanctioned on 6-2-1970. No such document was brought on record by the respondents-plaintiffs. In the circumstances, the observation made by the learned appellate Court that the sale had been effected out of a joint khata in which Muhammad Afzal was a co-owner, is not based on the record.
9. Most importantly, however, it is clear from the evidence on record that the respondent/plaintiff was present before the Revenue Officer on 6-2-1970 when the disputed mutation was sanctioned.
This is established from mutation (Exh.D.6) noted above which was sanctioned at the behest of the respondent-plaintiff on the very same date i.e, 6-2-1970 on which the disputed mutation was sanctioned. The discussion appearing in paragraph 22 of the appellate judgment is entirely conjectural and flies in the face of the documentary evidence noted above. Added to this is the testimony of Muhammad Ramzan Patwari who appeared as D.W.1 and deposed at to the authenticity of the mutation in question.
10. In the foregoing circumstances, I find that the learned appellate Court fell in error by disregarding the available evidence merely on the basis of conjectures. The C appellate judgment is, therefore, set aside and, as a consequence, the decree of the learned trial Court dated 26-10- 2004 stands restored. The petitioners shall also be entitled to their costs throughout.