' MUHAMMAD SAYEED AKHTAR, J.---A common question of law and fact is involved in C.R. No,814 of 1996 and C.R. No,815 of 1996 I propose to dispose of them by a common judgment.
2. The plaintiffs/petitioners filed a suit on 7-9-1993 against defendant/ respondent for declaration to the effect that he was owner of land measuring 16 Kanals situate in Mauza Akbar, Tehsil Daska District, Sialkot and the mutation of oral Sale No,75 attested on 25-12-1972 for a consideration of Rs,4,000 was void, illegal and ineffective upon their rights. The plaintiffs had neither entered into any sale transaction with the defendant nor received any consideration nor appeared before the Revenue Officer at the time of the attestation of the mutation. Even otherwise the plaintiffs being minors at the time of alleged sale, the contract of sale was void. By way of consequential relief the prayer for possession was also made.
' As a counterblast the respondent Din Muhammad also filed a suit on 24-4-1994 for declaration and permanent injunction that the was owner-in-possession of the suit-land and the defendants be permanently restrained from illegally interfering in this rights.
' Both the suits were consolidated and the following consolidated issues were framed:--
(1) Whether both the suits are not maintainable in the present form? 0.P. Part
(2) Whether both the parties have got no cause of action to file their respective suits? 0.P.Part
(3) Whether the suit titled Rahim Shah etc. v. Din Muhammad is time-barred? OPD
(4) Whether this Court lacks territorial jurisdiction to try both the suits? 0. P. Part
(5) Whether both the suits have not been properly valued for the purposes of court-fee and jurisdiction? 0.P. Part.
(6) Whether the plaint of the suit titled Rahim Shah etc. v. Din Muhammad is liable to be rejected under Order VII, rule 11, C.P.C.? O.P.D.
(7) Whether the plaintiff Rahim Shah etc. Are estopped by their words and conduct to file their suits? O. P. D
(8) Whether the plaintiffs Rahim Shah etc. Are owners of the suit-land and the defendant cultivate it as tenant? O.P.P.
(9) Whether the defendant Din Muhammad is owner in possession of the suit property? O.P.P.
(10) Whether the plaintiffs Rahim Shah etc. Were minors at the time of sale of the suit-land and Mutation No,75 dated 25-12-1972 is null and void, against the facts and law and ineffective upon their rights? O.P.P.
(11) Whether the suit titled Din Muhammad v. Rahim Shah etc. Is liable to be dismissed being sub judice? O.P.P.
(12) Whether both the parties are entitled to their respective reliefs as prayed for? 0.P.Part
(13) Relief.
' The learned trial Court after recording the evidence of the parties decreed the suit titled Rahim Shah etc. v. Din Muhammad and the suit titled Din Muhammad v. Rahim Shah was dismissed vide judgment/decree dated 3-5-1995. Din Muhammad, respondent preferred two appeals before the learned Additional District Judge, Daska who vide his judgment dated 6-3-1996 allowed the same, reversed the judgment of the learned trial Court and dismissed the suit titled Rahim Shah etc. v. Din Muhammad and decreed the suit of Din Muhammad v. Rahim Shah.
3. Learned counsel for Rahim Shah, petitioner contended that it was specifically averred in the plaint that the plaintiffs had not appeared before the Revenue Officer nor entered into any sale transaction nor received the alleged sale consideration of Rs,4,000. The petitioners have been receiving the 'Hissa Batai' from the respondent. They had no knowledge of the sale. The suit had been filed within time after coming to know of the sale. He further argued that the thumb- impression of the vendors/petitioners were not obtained at the time of the attestation of the mutation. Learned counsel further contended that the fraud vitiates the most solemn proceedings and that no limitation runs against fraud until it comes to the knowledge of the person defrauded.
Reliance was placed upon Syed Mahmud Alam v. Syed Mehdi Hussain and 2 others (PLD 1970 Lahore 6), Muhammad Iqbal v. S.A.M. Khan, Member Board of Revenue, West Pakistan, Lahore and 3 others (PLD 1970 Lahore 614) and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331).
' Conversely the learned counsel for the respondent submitted that the mutation of sale was rightly attested in the presence of the witnesses. Nawaz Khan, D.W.2 has proved the same There is no misreading or non-reading of the evidence.
4. I have gone through the judgments of the Courts below, perused the record and considered the arguments of the learned counsel for the parties. No doubt the minority of the petitioners at the time of the sale has not been proved on the record. Exh.P.2 is the character certificate issued by the school. It shows the name of student as Anwar Khan son of Ameer Khan. It does not pertain to either of the petitioners. Secondly it has been proved by the author of the document. The school leaving certificate Exh.P.3 pertains to Rahim Shah alias Bani son of Ameer Shah. Again the same has not been proved by the author of the document and it can be read in evidence.
' The oral sale Mutation No,75 was attested on 25-12-1972 which shows that the petitioners were present before the Revenue Officer and were identified by Nawaz Khan Lamberdar, Ameer Shah their father and Fajroo Lamberdar, Manjipur. The thumb-impressions of identifiers are present on the mutation register. The petitioners had specifically alleged in the plaint that they neither entered into any contract of sale with the respondent nor appeared before the Revenue Officer for the attestation of the mutation nor received any sale consideration. When the sale is denied, the onus to prove the same shifts to the vendees/beneficiary of the sale. In the instant case only Nawaz Khan appeared as D.W.2 to prove the sale and supported the case of the respondent. Ameer Shah, the father of the petitioners identified them. Neither he nor Fajroo Lamberdar, the other witness of attestation was produced in evidence. Similarly the Revenue Officer was not produced as witness.
Under section 42(7) of he Land Revenue Act, 1967, the person whose right has been acquired has to be identified by two responsible persons preferably from Lamberdar or Members of Union Committee, Town Committee or Union Council concerned whose signatures or thumb-impressions are to be obtained by the Revenue Officer on the register of mutation. The other witness produced by the respondent is his uncle who appeared as D.W.3. He is not an independent witness. The respondent also appeared as his own witness as D.W.1. Only one attesting witness of the mutation of sale has been produced which in my view is not sufficient to prove the sale. No reason has been given for non-production of the other witnesses i.e, father of the petitioners who was alive and Lamberdar Fajroo. The P.Ws. Have supported the case of the petitioners.
' It has been specifically stated that the petitioners had no knowledge of the attestation of the Mutation No,75. When they came to know of the same, they filed the suit. It is well-settled that the limitation runs from the knowledge of the fraud. The respondent has not been able to prove the knowledge of petitioners. In my view the learned Additional District Judge has misdirected himself and simply laid stress on the minority of the petitioners.
5. For what has been stated above these petitions are allowed and the judgment/decree dated 6- 3-1996 passed by the learned Additional District Judge, Daska is set aside and the judgment of the learned trial Court dated 3-5-1995 is restored but for different reasons.