JAWWAD S. KHAWAJA, J.--- The respondents have been served, but none has appeared on their behalf despite service. They are, therefore, proceeded against ex parte.
2. Noor Muhammad petitioner/plaintiff filed a declaratory suit against the respondents Muhammad Ramzan and Taj Muhammad who are his full brothers. It was his case that the father of the parties, namely, Gul Muhammad was owner in possession of 10-1/2 Marlas of land in Abadi Deh. This land originally was occupied by evacuee owners who emigrated at the time of partition.
According to the petitioner, after the death of Gul Muhammad the land was partitioned in equal shares between the three brothers by their uncle (Chacha), namely Ghulam Yasin. Muhammad Ramzan (respondent No.1) denied the assertion of the petitioner/plaintiff while Taj Muhammad (respondent No.2) conceded his claim. The defence set up by Muhammad Ramzan was that he had obtained title in the suit property through Mutation No.258(Exh.D.1) sanctioned on 29-9-1995.
3. Learned counsel for the petitioner has taken me through the mutation (Exh.D.1). This document shows that the land was vested in the Federal Government but was transferred to Muhammad Ramzan pursuant to some order, dated 1-11-1984 passed by the A.D.C.(G). The order of the Revenue Officer sanctioning the mutation has made reference to some official letter bearing No.11559 dated 28-5-1989 to approve the mutation in favour of Muhammad Ramzan.
4. In order to prove his case, the petitioner produced his uncle (Mamun), namely, Ibrahim who appeared as P.W.2 and confirmed that the land was originally occupied by Gul Muhammad father of the petitioner and had subsequently been partitioned by their uncle (Chacha) Ghulam Yasin who had died and was, therefore, not produced. However, his son Zakaullah appeared as P.W.3 and confirmed that the land, originally held by Gul Muhammad, had been equally partitioned between the three sons.
5. Muhammad Ramzan himself appeared as his own witness. He did not produce either the letter of the A.D.C.(G) dated 1-11-1984 or the official letter dated 28-5-1989 referred to in the order of the Revenue Officer sanctioning the mutation.
6. Considering the above evidence, the learned trial Court decreed the suit of the petitioner.
However, on appeal, the learned Additional District Judge has reversed the finding of the learned trial Court and, as a consequence, has dismissed the suit. The learned appellate Court has dealt with the case in a cursory manner. It has held that the petitioner did not prove his case. It is contended by learned counsel that P.Ws.2 and 3, who are closely related to the parties, had proved the contention of the petitioner. On the other hand, the respondent did not produce the most material documents referred to above which could have proved his title. The mere production of the mutation (Exh.D.1), according to learned counsel, was not sufficient because the mutation does not confer title. It merely records title created previously through some other means.
7, The above contentions are borne out from the evidence on record and have merit. Unfortunately, the learned Appellate Court has not noted that after the testimony of P.W.2 and P.W.3, who are closely related to the parties in equal degrees, the onus of proof shifted on to the respondent No.1.
In the circumstances, it was incumbent upon the said respondent to produce the purported letters dated 28-5-1989 and 1-11-1984 referred to above Mutation (Exh.D.1) does not confer any title. In fact, if the said mutation is examined, it is quite evident that it is based on the aforesaid letters and there was no independent determination made by the Revenue Officer as to the interests of the three brothers inter se in the suit property. The mutation, therefore, could not have been made the basis for non-suiting the petitioner/ plaintiff.
8. In view of the above discussion, I am left in no manner of doubt that the petitioner/plaintiff was entitled to the declaratory decree prayed for by him. In the circumstances, the appellate judgment and decree dated 28-11-2005 are set aside and the decree of the learned trial Court dated 18-5- 2005 stands restored.