' JAWWAD S. KHAWAJA, J.---The petitioners-defendants are the sons of Mst. Amrai, who, admittedly, was the daughter of Kaku. Respondents Nos. 1 to 4/plaintiffs are the sons of Hashim, who was the son of the aforesaid Kaku. The relationship between the parties is not in dispute.
2. Kaku died in 1972, while Mst. Amrai, mother of the petitioners, died four years before on 22-7-1968.
Mutation No, 180 (Exh.P.5) relating to the inheritance of Kaku was sanctioned on 2-1972. The Part Sarkar reflected the proper shares of inheritance in accordance with the Family Laws Ordinance. As a result, the two petitioners were shown entitled to l/3rd of the estate left by Kaku deceased, as successors of Mst. Amrai, predeceased daughter of Kaku. The remaining 2/3rds was mutated in the name of Hashim, father of the respondents. However, according to the petitioners, the respondents, in collusion with the Patwari, forged the Fard Patwar in which the aforesaid Hashim was shown as owner of the entire property.
3. The petitioners were minors at the time when Mutation No, 180 (Exh.P.5) was sanctioned. On attaining majority, they filed an application before the Collector for correction of the Fard Patwar.
The case of the petitioners/defendants is that while that application was pending, the respondents fabricated an Iqramama (Exh.P.l) dated 4-5-1998 showing therein that the petitioners had relinquished their interest in the property in favour of the respondents and had also received a sum of Rs,5,00,000 for the same. It was also averred ,by the petitioners-defendants that the respondents fabricated a promissory note (Exh.P'.2) and a receipt (Exh.P.3). On the basis of these documents, they approached the Collector, who stayed the proceedings in - documents, as noted above, was not taken the application abovementioned.
4. The respondents-plaintiffs also filed a declaratory suit based on the aforesaid documents claiming that they had become owners of the entire property as a result of the Iqrarnama (Exh.P.l).
5. The learned trial Court framed as many as 7 issues. However, Issues Nos.5 and 6 are dispositive of the case. These issues were framed in the following terms:-
(5) Whether the plaintiffs are owner in possession of 'the suit-land vide relinquished deed dated 5- 5-1998 and gift Mutation No, 1304 dated 8-6-1998? OPP
(6) Whether the plaintiffs are entitled to a decree for declaration and permanent injunction as prayed for? OPP
6. Both parties led evidence, which was considered by the learned trial Court and the suit of the respondents-plaintiffs was dismissed on 8-12-2005. An appeal was preferred by the respondents, which has been allowed by the learned Appellate Court vide judgment and decree dated 10-5- 2006.
7. Learned counsel for the petitioners contends that the learned Appellate Court has based its finding entirely on the oral testimony of the P.Ws., who were produced with the object of proving the alleged Iqrarnama (Exh.P.l). The discrepancies in the testimony of the witnesses have not been adverted to by the learned appellate Court nor has it met the reasoning of the learned trial Court.
Additionally, learned counsel for the petitioners submitted that the fraud, established on the record through into account by the learned appellate Court.
8. Learned counsel appearing for the respondents has controverted the above submissions. He, firstly, took me through the plaint wherein the circumstances in which the Iqrarnama (Exh.P.l) and the receipt and promissory note (Exhs. P.3 and P.2) were obtained, have been fully explained. The fact that there was a difference between the Part Sarkar and Part Patwar has also been acknowledged by the respondents-plaintiffs in their plaint. It is, however, their case that the petitioners had transferred their interest in the suit property against receipt of Rs,5,00,000.
9. In view of the foregoing contention, the crucial point, which requires determination, is as to whether or not the petitioners executed Exhs. P.1, P.2 and P.3. This is of significance because the case set up by the petitioners was that they were neither aware of these documents nor had they put their thumb-impressions thereon. I have gone through the testimony of the witnesses and the record in great detail, with the assistance of learned counsel for both sides. It is quite apparent from the same that the respondents- plaintiffs were able to prove the execution of the aforesaid exhibits by the petitioners- defendants. The Iqrarnama (Exh.P.l) has been witnessed by a number of persons, two of whom, namely, Liaquat Ali Lumberdar and Amanat Ali were produced as P.W.3 and P.W.4, by the respondents. They deposed that the differences between the petitioners and the respondents were settled through a Punchait of the Baloch Bradri to which the parties belong. They also expressly stated that the above-referred documents were thumb marked by the petitioners in their presence.
10. The petitioner Waryam appeared as the sole witness in defence. Even he admitted that a punchait had been convened to resolve the differences between the parties. He also admitted that a number of persons were present in the punchait including Liaquat Lumberdar (P.W.3) and Amanat Ali (P.W.4). A review of the testimony of Waryam is instructive. To the questions relating to the receipt of money and execution of the above-referred documents, he replied mostly by stating that he did not know the answer or that he did not remember. He did, however, concede that an application had been filed by the petitioners before the Tehsildar for correction in the Revenue Record but the same had been dismissed. He also admitted that no appeal or revision was filed against such dismissal. It appears that a second application was then filed by the petitioners before the District Collector. This application, however, was kept pending because in the meanwhile the respondents- plaintiffs had filed their declaratory suit out of which this petition has arisen.
11. It is interesting to note that Waryam as D.W.l admitted that he and his brother had never attempted to obtain a copy of the revenue record after the death of their grandfather (Nana), namely, Kaku. It is also relevant that two specific questions, which were put to him in cross- examination relating to the thumb impressions of the petitioners on Exhs. P.1, P.2 and P.3, he stated that he did not know if he and his brother had affixed the same. Waryam petitioner as the sole witness in defence is not credible and his testimony has rightly been disbelieved by the learned appellate Court.
12. There is another important aspect of this case. After-the testimony of the P.Ws., including Liaquat Ali (P.W.3), Amanant Ali (P.W.4) and the scribe (P.W.2), it was established that the petitioners had thumb marked the Iqrarnama, promissory note and receipt, referred to above. The onus to show that the thumb impressions did not belong to the petitioners, therefore, shifted onto them. From the testimony of Waryam, discussed above, it is clear that this onus was not discharged. Furthermore, the easiest way in which it could have been discharged, would have been a comparison of the thumb impressions of the petitioners taken in Court with the thumb impressions appearing on the aforesaid documents. This was not done by the petitioners. Learned counsel representing them, who was also their counsel before the trial Court, admitted that this was a material omission. On the other hand, learned counsel representing the 'respondents stated that they would have welcomed any forensic examination of the thumb impressions appearing on Exhs.P.1, P.2 and P.3, but this was neither done in the trial Court nor did the petitioners make any attempt to seek such comparison before the appellate Court.
13. In the foregoing circumstances, I find the impugned judgment and decree to be unexceptionable being consistent with the record. Furthermore, learned counsel for the petitioners was unable to advert to any such jurisdictional error or other legal infirmity in the impugned judgment, which would justify interference therein while exercising revisional jurisdiction. In these circumstances, I find no merit in this petition which is, therefore, dismissed.