' JAWWAD S. KHAWAJA, J.---The petitioner-defendant, namely, Sher Muhammad impugns the appellate decree, dated 1-11-2005, whereby the decree of the learned Trial Court, dated 15-4-2003 was set aside and a suit filed by respondents Nos. 1 to 3. (L.Rs, of Mehran Bibi) seeking declaration of title and possession of the suit-land, was decreed.
2. The facts of this case are simple. The petitioner is in possession of the suit-land, which measures 8 kanals, on the basis of a sale made in his favor by the above-referred Mehran Bibi, vide Mutation No, 1065 (Exh. P-2) sanctioned on 29-2-1992. The said Mehran Bibi had earlier also filed a suit seeking possession of the disputed land, on 6-7-1992. In the said suit as also in the present suit, she alleged that the mutation (Exh. P-2) had been fraudulently procured by the petitioner and that, in fact, no sale had been effected in his favor.
3. The earlier suit was resisted by the petitioner. His defence was that the brother of Mehran Bibi, namely, Bhagmal, who was issueless and unmarried, had previously gifted 37 kanals, 2 marlas of his land to Mehran Bibi, vide Mutation No,1000 sanctioned in 1986. Subsequently, Bhagmal had also wanted to gift his balance land measuring 109 kanals, 12 marlas to Mehran Bibi and for this purpose, Mutation No,1064 (Exh. P-3) was entered in the register of Mutation on 12-2-1992. However, according to the petitioner, because Mehran Bibi did not have the money to pay for the expenses of the mutation and also to meet the bribe of Rs, 35,000 demanded by the Patwari, she made the impugned sale in favor of the petitioner against consideration of Rs,50,000, which was duly paid to her by the petitioner.
4. The earlier suit was duly contested and both parties led evidence therein. Even after evidence, the suit was fixed for arguments on various dates of hearing for a period of one year when Mehran Bibi filed an application for re-summoning of Sardar Muhammad Aslam, who had appeared as P.W.3 in the said suit. At this juncture, it is relevant to note the testimony of Sardar Muhammad Aslam. He was member Zila Council at the relevant time. He deposed that Mehran Bibi had complained to him against the Patwari for demanding a bribe. He had summoned the Patwari, who had admitted demanding Rs,35,000 and receiving the same from Mehran Bibi. The said witness also testified that the Patwari had returned the sum of Rs,35,000 to Mehran Bibi through him. The witness was credible and was never declared hostile. In the circumstances, the application for re-summoning him was dismissed by the trial Court in the earlier suit. Thereafter, on 4-1-1996, the said Mehran Bibi withdrew her earlier suit on the ground that there was some technical defect therein and sought permission to file a fresh suit. This permission was granted by the trial Court in a routine manner and without noting the technical defect on which the suit was sought to be withdrawn.
5. In the meanwhile, Mehran Bibi died and more than four years after the withdrawal of the earlier suit, her L.Rs, filed the second suit,out of which the present petition has arisen. The plaint in this suit repeats the averments in the earlier plaint. The only apparent difference is that Sardar Muhammad Aslam, who was examined as P.W.3. By Mehran Bibi in the earlier suit, has been impleaded as defendant No,3 The suit was resisted by the petitioner. Issues were framed by the learned trial Court on which the parties have led evidence. The petitioner has produced on record the testimony and pleadings of the earlier suit.
6. Considering the circumstances noted above as proved by the evidence on record, the learned trial Court dismissed the suit of the respondents/plaintiffs. On appeal, however, the learned appellate Court, as noted above, has reversed this finding. The reason, which has prevailed with the learned appellate Court, is that the Patwari had been convicted in anti-corruption proceedings in respect of his conduct relating to Mutation No,1064 (Exh.P-3). Learned counsel for the petitioner contends that the conviction of the Patwari in respect of Exh.P-3 has no relevance for the purpose of Exh.P-2, mutation No,1065. He has also contended that Muhammad Shafi, son of Mehran Bibi, (respondent No,1) was a witness to the Mutation (Exh.P-2). He never appeared in Court to deny that his mother had sold the disputed land vide mutation (Exh.P-2) and that he had been a witness to the said mutation. Only Naseebi Bibi (respondent No,2), daughter of Mehran Bibi, was produced as a witness to deny the sale recorded in Exh.P-2. Additionally, it is pointed out that the statement of Sardar Muhammad Aslam as P.W.3 in the earlier suit has been duly brought on record as Exh. D-2.
7. The above submissions are well-founded and have not been controverted by learned counsel appearing for the respondents. He could not explain as to why Muhammad Shafi respondent, who was a witness to the mutation (Exh. P-2) and was also the son of Mst. Mehran Bibi deceased, chose not to appear in the witness box. Learned counsel for the respondents merely stated that Mst.
Naseebi Bibi, who was the daughter of Mst. Mehran Bibi, had appeared as a witness. This, however, does not explain the failure of the respondents to produce Muhammad Shafi who would have been the best witness in the case.
8. The testimony of Sardar Muhammad Aslam, who appeared as P.W.3 in-the earlier suit and whose statement was adduced in evidence as Exh.D-2 in the present proceedings, is also sufficient for belying the stance of the respondents-plaintiff and for proving the defence set up by the petitioner.
9. The learned appellate Court has not taken note of the abovecircumstances and nor has it met the reasoning which prevailed with the learned trial Court for dismissing the suit, it is thus clear that the learned appellate Court has exercised its jurisdiction with material irregularity. The appellate decree, dated 1-11-2005 is, therefore, set aside and, as a result, the decree of the learned trial Court, dated 15-4-2003 stands restored.
10. The petitioner shall also be entitled to his costs throughout.