' MIAN SAQIB NISAR, J.---Briefly stated the facts of the case are that the dispute between the parties, relates to a piece of land measuring 8 Kanals and 11 Marlas, bearing Khasra No,412, situated in the village Akbarabad, Tehsil and District Sialkot; the land was originally owned by one Jumman, who died, leaving behind him four sons, out of whom Mala died issueless, whereas the remaining three namely, Elahia, Amira and Phalla, inherited this land along with other estate left by their deceased father and the brother, however, they subsequently in the year 1865, dedicated the income of the said land in favour of the shrine of Hazrat Imam Sahib of Sialkot. However, on account of the Martial Law Regulation, No,64 of 1960, the concession of the land revenue, which was available to the land, of which the income was dedicated for the religious and charitable purposes was withdrawn, necessitating the requisite change to be made in the Revenue Record. Therefore, a Mutation No,561 dated 7-4-1960, was attested, but envisaging that the land was exclusively reverted to Elahia. The legal heirs of Amira and Phalla, thus filed a suit challenging the said mutation and claimed themselves to be the co-owners of the property. This suit after contest was decreed in favour of the plaintiffs on 29-5-1963; appeal filed by the respondents was dismissed on 9-1-1964. However, both the judgments and decrees were set aside, when challenged before this Court in R.S.A. No,155 of 1964, which was accepted, resulting into the dismissal of the suit. Aggrieved, the plaintiffs took the matter to the Honourable Supreme Court in C.P. No,161 of 1979, which was allowed on 26-3-1990, the case was remanded to the trial Court, with the direction to frame a further issue, for ascertaining, why and how, Amira and Phalla were excluded from the Mutation No,591 dated 17-4-1960 and the land was given to Elahia alone. Thus in the post remand proceedings, the learned trial Court on 12-9-1990, framed an additional Issue No,3-A, which reads as follows: "On what basis the names of Amira and Phalla were deleted from the Revenue Record."
' The respondents thereafter moved an application under Order VI, Rule 17 C.P.C., seeking amendment in their written statement, so as to add the plea that on account of some private partition between the brothers, of their joint properties, Mutation No,17 dated 18-8-1988, was sanctioned by virtue whereof, the suit-land came to the share of Elahia. This amendment was disallowed by the trial Court, but on revision of the respondents, which was accepted, the amendment was permitted vide order dated 27-3-1991; thereafter, .The learned Civil Judge proceeded with the trial of the case. The plaintiffs examined four witnesses, P.W.1 to P.W.4, and produced twelve documents, Exh.P.1 to Exh.P.12. Mr. Ahmed Waheed Khan, the leaned counsel for the appellant, when questioned, has stated that out of this documentary evidence, Exh.P.6 to Exh. P.9 are important. Whereas defendants examined D.W.1 and D.W.2, and produced documentary evidence Exh.D.1 to Exh.D.4, which includes the Mutation No,17 dated 18-8-1888 as Exh.D-4.
2. The learned trial Court on 23-1-1992, decreed the suit, however, on appeal of the respondents, the parties consented for the remand of the matter, enabling the trial Court to summon the original record of the documentary evidence, such as Exh.P.6 to Exh.P.9 and Exh.D.4 and to re-decide the matter. In the post remand proceedings, the original record was requisitioned and perused by the learned trial Court and I am told that photocopies were retained on the record after comparison, and the original whereof was returned. This time, the suit was dismissed vide judgment' and decree dated 20-9-1995; the appeal of the present appellants also failed on 11-7-1998.
3. I have heard learned counsel for the parties. There is no dispute rather it has been admitted before me by the learned counsel for the parties, that the ownership of the land was never dedicated, but it is only the income, which was dedicated to the Shrine of Hazrat Imam Sahib of Sialkot in the year 1865. Now in view of the consequences of the M.R.L. No,64, when exemption/concession of the payment of the land revenue was withdrawn, obviously in the ordinary circumstances, the property should have been, as earlier, deemed and treated to be the ownership of the original owners and the Mutation No,561 dated 7-4-1960, should not have been sanctioned only in favour of Elahia. But for the additional Issue No,3-A and on account of the amendment allowed to the respondents, in their written statement, to set up their defence on the basis of the mutation dated 18-8-1888, Exh.P.4, whereby the joint properties of all the three brothers were duly partitioned and the land in question had fallen to the share of Elahia alone. Obviously, if the above partition, which is envisaged by the mutation Exh.D.4 is valid, the suit property had gone out of the common pool and became exclusive ownership of Elahia, resultantly, when the Martial Law Regulation No,64 came into force, the suit property had to be mutated in his name to the exclusion of the others.
4. Both the Courts below have concurrently found in favour of the respondents about the validity of the mutation of partition, but the learned counsel for the petitioner has attacked the findings, mainly on the ground that the mutation has not been sanctioned in accordance with the provisions of section 123 of the Punjab Land Revenue Act 1887, inasmuch as no instrument of partition was drawn as was even required in the private partition. It is further stated that from the bare reading of Exh.D.4, it does not stand established, if the common properties of all the brothers were being partitioned and the suit-land was given to Elahia.
5. The mutation Exh.P.4, was duly entered and has been sanctioned by the Revenue Officer on 18-8- 1888. Although presumption of correctness is not attached to the mutation, yet it is longstanding entry, which never ever was challenged by the plaintiffs. It is not their case that the same is invalid on account of any fraud or misrepresentation. From the evidence on the record, especially Exh.P.4, it seems that the parties had orally entered into a family settlement, whereby the land in question had come to the share of the Elahia, whereas the other brothers inter alia got some other common property. This partition has been duly acted upon. Because when questioned in the Court 'today, learned counsel for the appellant instructions of his client has conceded that the parties are holding their own shares of the common properties, independently and strictly in accordance with Exh.P.4, falling to their share in exclusion of each other. Thus notwithstanding of any amiss, in the sanctioning of the mutation, the parties by virtue of their own conduct, have effected and accepted the oral/verbal family settlement, which has been acted upon.
' The appellant, thus having got the benefits under the family settlement, which is envisaged by the mutation Ehx.P.4, cannot now claim any right or interest in the shares, which had gone to the other side, on the basis of this settlement.
' In the light of above, I do not find this to be a fit case for interference in the second appeal. This appeal thus has no merit and the same is hereby dismissed.