' MIAN SAQIB NISAR, J.----The suit of the petitioners, claiming declaration about their ownership of the suit-land measuring 7 Kanals 10 Marlas, has been dismissed by the learned trial Court, vide judgment and decree dated 18-5-2000; appeal of the petitioners has also failed on 26-4-2003.
2. Briefly stated the facts of the case, are that inter alia, the land in question, was owned by one Khairati, who died, and on account of this, the mutation of his inheritance to the extent of 1/8th and 1/2 share of the estate left by him, was attested in favour of Mst. Umri, his widow, and Mst. Ghulam Fatima, the daughter. Khairati, at that time, was also survived by the collaterals including Ali Bakhsh, who by excluding the other heirs of the equal right namely Mangta, Roora and Sadu, got the mutation of inheritance No,114, dated 3-12-1951, attested in his own name to the extent of the remaining 3/8th share. He thereafter, made some sales out of the aforesaid share in favour of Sadu or his legal heirs Badar Din and Aziz Din. Anyhow, Mst. Bakhtawar, the widow of Aziz Din, on account of such sale after the death of her husband, inherited 10 Kanals and 4 Marlas, which further came to the share of her heirs, who allegedly through oral sale sold 10 Kanals and 4 Marlas in favour of the petitioners, vide sale mutation dated 8-3-1984. In the meantime, the significant development taking place, is that Badar Din and Aziz Din, the sons of Sadu, filed a suit challenging the mutation of inheritance No,114, dated 3-12-1951, in favour of Ali Bakhsh; this suit was dismissed by the learned trial Court on 15-12-1966, but their R.F.A. No,7 of 1967, was allowed by a Division Bench of this Court, on 12-5-1984.
' The matter was further challenged by Ali Bakhsh before the Hon'ble Supreme Court, but without any success. In these decisions, however, it was observed that, as Ali Bakhsh, was entitled to 3/32 share on account of his inheritance, and therefore, his such share was kept intact meaning thereby that any sales made by him corresponding to the said share were declared valid. Anyhow, after the decision of the Hon'ble Supreme Court, the Revenue authorities, with a view to give effect the said judgment, brought back the parties to the position, which could have been, on the date of the inheritance of Khairati, and perhaps ignored the sale made by Ali Bakhsh, to the extent of his share to the other collaterals and the third parties. Thus, in this way the alleged sale of the petitioners was also clouded, moreover the legal heirs of Bakhtawar, allegedly taking advantage of the entries made in the Revenue Record ignoring the sale of the petitioners, resoled the same land measuring 7 Kanals and 10 Marlas to the contesting respondent. Therefore, the petitioners brought a suit for declaration claiming that, the sale in their favour by the legal heirs of Bakhtawar to the extent of 7 Kanals and 10 Marlas, is valid. In proof of their sale, they produced in evidence the Rapt Exh.P.7, entered in the register of the Patwari and the Mutation No,2552, dated 8-3-1984; besides, they examined Muhammad Ismail as P.W.2, who has stated that the land in question was sold by the legal heirs of Mst. Bakhtawar to the petitioners for a consideration of Rs,25,000, and that the price was paid in his presence. Moreover, Muhammad Sharif/P.W.2, one of the petitioners/plaintiffs, has also made the statement about the purchase of the property and attempted to corroborate the deposition of the P.W.2.
2. It is submitted by the learned counsel for the petitioners that, the Rapt Exh.P.7, about the sale, was duly got entered by the legal heirs of Mst. Bakhtawar on 6-2-1984, in which they had acknowledged the oral sale, the certified copy in this behalf was duly brought on the record. Furthermore, the sale Mutation Exh.P.4, was duly attested, resultantly, the petitioners, had proved the sale and the contrary findings of the two Courts below, are erroneous and the result of misreading and non- reading of the evidence on the record.
3. I have heard the learned counsel for the parties. The statement of Muhammad Sharif (P.W.1), one of the petitioners/plaintiffs, is not convincingly corroborated by the only witness Muhammad Ismail (P.W.2); moreover, both stated that, Boota, Mushtaq, Noor Muhammad, were present at the relevant time, but except Ismail, the others have not been examined; this falls within the mischief of withholding the best evidence; moreover, it is not stated, as to when the bargain was struck, the day, date, time, the specified month and the year, are conspicuously missing, rather there is discrepancy at 11/12 and 12/13 years deposed by the witnesses. From these two depositions, the two Courts below, as also myself, not convinced that, the oral sale has been proved, because for the proof of an oral sale high quality evidence is necessary, which is not there.
4. As far as Exh.P.7 and Exh.P.4, are concerned, the admitted position, is that no person has been examined to prove this document. It is not established, whether the legal heirs of Mst. Bakhtawar, were the persons, who were present and got the Rapt Exh.P.7 endorsed and the mutation attested.
It is well settled that, no presumption about the valid entry or attestation can be raised and this fact has to be proved like the proof of any other document, therefore, the duty of the petitioners, who were relying upon the Rapt mutation, to prove its due attestation and also the contents thereof. But, no evidence either from the side of the Revenue staff or any independent person, who could witness the mutation and identify the legal heirs of Mst. Bakhtawar, has been produced. Even the subsequent Jamabandis, on the basis of this mutation, have not been brought on the record, to establish, if the same mutation was given effect in the record of rights; moreover, except the bald statements of the P.W.1 about the possession, no evidence was produced to show if the possession was delivered to the petitioners on the basis of the alleged sale, even the khasra girdawaris were not adduced in evidence to show their possession and the nature thereof. With this quality of evidence, like the Courts below, I am not convinced, if the petitioners have proved any sale in their favour, thus, entitling them to seek the declaration of the ownership of the land measuring 7 Kanals 4 Marlas, which admittedly, has been sold by the legal heirs of Mst. Bakhtawar in favour of the contesting respondent No .