' JAWWAD S. KHAWAJA, J.-- This review application seeks modification/ clarification of the judgment dated 14-11-2005 whereby I have dismissed C.R. No.5 of 2000 filed by the applicant.
2. Learned counsel for the applicant contends that only Muhammad Boota (respondent No.3) had contested the suit on the basis of title conveyed to him by Ghulam Rasool (respondent No.1) who is the brother of the applicant. Ghulam Rasool had asserted his title to the land on the basis of the gift Mutation No.10619 made in his favour by the applicant. It is argued that Ghulam Rasool and Muhammad Khan (respondent No.2), who is not, in any manner, related to the applicant and also claims to be a donee of a part of the suit property vide gift Mutation No.10620, had been proceeded against ex parte before the learned Courts below. They had not produced evidence to controvert the claim of the applicant to their extent.
3. On the above basis, it is contended that even if the decrees of the learned Courts below were to be upheld to the extent of Muhammad Boota (respondent No.3) as a bona fide purchaser, the same B could not be said in respect of respondents Nos.1 and 2 who had not contested the suit and had not produced evidence to controvert the testimony of the applicant.
4. On the above basis, it is contended that the judgment dated 14-11-2005 may be modified and the decrees of the learned Courts below to the extent of respondents Nos.1 and 2, namely. Ghulam Rasool and Muhammad Khan be set aside.
5. The respondents have entered appearance through counsel. He has submitted that even Mutation No.10619 in favour of Muhammad Khan (respondent No.2) was by way of sale. It was not a gift as alleged by learned counsel for the D petitioner. This contention is well founded because the mutation has been brought on record as Exh.P .5 and confirms the assertion of learned counsel for the respondents. Furthermore, the petitioner acknowledged in her testimony that Muhammad Khan (respondent No.2) was in possession of the suit-land. She did not state as to when and how the said respondent took possession of the suit-land.
6. In view of the above, I find that the impugned decrees to the extent that the petitioner's suit has, been dismissed against Muhammad -Khan (respondent No.2) and Muhammad Boota (respondent No.3) do not require interference. However, so far as Ghulam Rasool (respondent No.1) is concerned, it is to be noted that he did not E appear in the witness-box to controvert the testimony of the petitioner. Furthermore, he is a brother of the petitioner and has asserted title on the basis of an alleged gift. It was for him to prove the gift after the petitioner had appeared in Court and denied the same. His failure to appear in Court and to adduce evidence is, -therefore material.
7. In the foregoing circumstances the two Mutations Nos .10619 dated 24-11-1974 in favour of Muhammad Khan, (respondent No.2) and No.851 dated 30-12-1992 in favour of Muhammad Boota (respondent No.3) are upheld. Mutation No.10620 dated 24-11-1974 to the extent of 11 Kanals 13 Marlas which remains in the name of Ghulam Rasool (respondent No.1) is set aside. As a consequence, the suit of the petitioner/plaintiff is decreed to the extent of 11 Kanals, 13 Marlas covered in Mutation No.10620.
8: This review application is partially allowed in the above terms.