SAYED ZAHID HUSSAIN, J. --- A declaratory, suit with consequential relief instituted by respondent No. 1 was dismissed by the Trial Court on 01 12.2001 which judgment, however, was reversed by the first Appellate Court by accepting the .Appeal on 20.01.2003. This is revision petition . qua the same.
2. Sultan, deceased had three daughters. Hajjan Bibi (plaintiff/respondent No.1) from his wife Khadija Bibi and Naziran (petitioner/defendant) and Bishiran (respondent/ defendant) from Roshan Bibi. Hajjan Bibi, respondent No. 1 brought a declaratory suit with consequential relief on 03.01.1996 that being daughter of Sultan, deceased, she was entitled to 1/3rd share in the leftover of her father. i.e. Land measuring 43 kanals, 16 Marlas (description whereof . Was given in the plaint). It was her case that Tamleek Mutation No. 259 of 24.12.1980 and Mutation No. 465 of 08.06.1993 purporting the transfer of. Land in favour of Naziran were fictitious, collusive, forged etc. And were ineffective upon her rights. Only the petitioner/defendant No. 1 contested that suit whereas respondent No. 2 remained out of contest and was proceeded ex parte by the Trial Court. The pleadings of the parties' gave rise to the issues mentioned below:--- "ISSUES:
(1) Whether oral gift Mutation No. 259, dated 24.12.1980 and oral Mutation No. 465, dated 08.06.1993 from deceased Sultan in favour of defendant No. 1 are against facts, and law, collusive, fraudulent, in-effective qua the rights of plaintiff and liable to be cancellation? OPP
(2) Whether plaintiff is entitled her 1/3rd share from the estate of deceased Sultan? OPP.
(3) Whether suit is un-proceedable in its present. Form? OPD-1 . (4) Whether plaintiff has no cause of action? OPD- 1
(5) Whether suit is liable to be dismissed due to deficiency in Court-fee? OPD-1 '(6) Whether suit of the plaintiff is false and frivolous and defendants are entitled to special costs under Section 35-A of CPC?OPD-1
(7) Whether suit of the plaintiff is time-barred?. OPD-1
(8) Relief."
3. On consideration of the evidence so produced by the parties, the learned Trial Judge decided vital issues Nos. 1 and 2 against the plaintiff/respondent No. 1 whereas issue No 3 was decided .Against defendant No. 1 (the petitioner), issue No. 4 in favour of the petitioner/defendant :No. 1, issue No. 5 against petitioner/defendant No. 1, issue, No, 6 was decided partially in favour of defendant No. 1 and issue No. 7 (limitation) was decided against petitioner/ defendant No,.
1. The suit was dismissed accordingly. As mentioned above, plaintiff/respondent No. 1 preferred appeal against the judgment of the Trial Court which was accepted by the learned Additional District Judge, Depalpur on 20.01.2003 who set aside the judgment and decree passed by the Trial Court and decreed the suit of plaintiff/respondent No 1.
4. The learned counsel for the petitioner has endeavoured to assail the findings recorded by the Appellate Court primarily on the ground that since Sultan deceased was not happy with the conduct of plaintiff/respondent No: 1 in such peculiar circumstances, he had of his own free-will decided to deprive her of any right in his property and, thus, alienated the suit property in favour of the petitioner/ defendant No. 1 in his life-time and for such a disposition he had absolute right under the law. It is further contended that the other defendant namely Bashiran Bibi had never assailed the alienation so made by Sultan in favour of the petitioner and she even did not contest or participate in the Court proceedings. It is contended that the suit filed by plaintiff/respondent No. 1 was barred by.Time and findings to this effect also is incorrect. He has made reference to Muhammad A.I and 25 others v. Hassan Muhammad and 6 others (PLJ 1994 SC 265). And Lal Shahadat Khan and another v. Mst. Gul Marjana (1989 CLC 803).
The learned 'counsel for respondent No. 1, on the other hand, points out contradictions in the depositions of Muhammad Hassan DW.1 and Mst. Naziran DW.2. According to him no such alienations or mutations had been made by Sultan in his life-time and the whole affair was result of collusion, forgery and fraud,. It is contended that the beneficiary of such mutations had to prove the existence of transaction preceding the mutation. Places reliance upon Muhammad Akram and another v. Altaf Ahmad (PLD 2003 SC 688) and Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCM R 1832).
5. At The out set, let there remain no doubt about he relationship of the parties. As noted above Mst.
Naziran. (petitioner) and Bashiran (respondent No 2) are real sisters from Mst Roshan Bibi, whereas Mst. Hajjan is their stepsister from Knadija Bibi. Thus non-challenge of alienations in favour of Naziran Bibi by Mst. Bashiran Bibi her real sister is well-understandable. Since the 'judgments of the two Courts below are at variance, I have gone through the pleadings' and the evidence led by the parties with the assistance of the learned counsel. There are two mutations, firstly No. 259 of 24.12.1980 Ex.P.1 which relates to land measuring 11 kanals, 15 marias which was entered 'on 15.12.1980 and sanctioned on 24.12.1980. From this mutation it is evident that an oral Tamleek had been made by Sultan in favour of Mst. Naziran the petitioner. The other Mutation No. 465 was entered on 19.05.1993 for the land Measuring 32 kanals, 7 marlas and was attested by the Revenue Officer on 08.06.1993. The two mutations are of different dates and period and the correctness and authenticity of both need to be determined separately Mutation No.. 259 as mentioned above is of the year 1980 and the other No. 465 of the year 199,3. Copies of both these mutations were produced by. The plaintiff/respondent No. 1 as Ex.P.1 and Ex.P.2 respectively.
Both are in different handwriting and entered and attested by different Revenue Officials. Ex.P.4 is the copy of Register Haqdaran Zamin for the year 1990-91 which incorporates the factum of alienation of land measuring 11 kanals,
15. Marlas and the ownership of Naziran Begum, the petitioner. This entry obviously was the result of Mutation No. 259 'of year 1980. It also find support from Ex.P.3 which is a copy of Register Haqdaran Zamin for the year 1978-79 containing a note as to Tamleek Mutation No. 259 of 24.12.1980. Moreover for sixteen long years this alienation was not challenged by respondent No. 1. There, thus, remains' no doubt as to the authenticity of alienation made by Sultan deceased in favour of Naziran Bibi, petitioner, in the year 1980 of land measuring 11 kanals, 15 marlas.
The other Mutation (465) about alienation of land. Measuring 32 kanals, 7 rnarlas which was sanctioned on 08.06.1993 now need to be examined in the light of 'the evidence brought on record by the parties. Unfortunately the exact date of death of Sultan has not been disclosed by either of the parties. -He, however, before his death was left. With land measuring 32 kanals, 7 marlas which the petitioner claims to have been transferred' in her favour through alleged . Oral Tamleek and Mutation No. 465 was sanctioned on 08.06.1993. In Muhammad Akram and another v. Altaf Ahmad (PLD 2003 SC 688), the settled position of law was reiterated by the Hon'ble Supreme Court of Pakistan that "Once a mutation is challenged, the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute. The oft repeated principle of law is quite logical because a mutation not being a title deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of a mutation. Respondent Altaf Ahmad has utterly failed to revert back to any transaction and bring on record and oral or documentary evidence thereof. The ,burden squarely lay on him to prove the transaction because the existence thereof has throughout being alleged by him in affirmative. He was bound to fail in the event of the non-proof of transaction. Only the Trial Court realized it." It was further observed in the same .Case the "In connection with the attestation of a mutation most important entitles are the Patwari Halqa who happens to enter the mutation and the Revenue Officer who happens to attest the same. Both of them were not produced and, examined in. Court. In the absence of these two officials. The mutations cannot be said to heave been proved." It may be observed that Sultan deceased was an old person with weak and feeble health who had remained bedridden for long and was putting up with Mst. Naziran, petitioner. In this context, the. Testimony of Muhammad Hassan DW.1, Lambardar, and that of Naziran Begum DW.2, the petitioner has been considered and evaluated. She makes two important disclosures in her cross-examination one that the mutation took place at Tehsil Depalpur and second that his father had died 6 years ago. The date of recording of her statement is 25.7.2001 which means that Sultan died some time in the year 1995. As against her, Muhammad Hassan, Lambardar DW.1 deposed that 21 years ago Sultan had alienated 11/2 acre of land to his daughter Naziran Bibi whereas the remaining land was alienated by means of gift about 8 years ago. It was also stated by him in cross-examination that at the time of sanction of Mutation No. 465, Ratwari/Tehsildar had come to his Dera' in the village where some other persons were also present. He thus contradicts Naziran Begum DW.2 about the place of attestation of mutation. In. View of such . Untrustworthy stance of the petitioner, it was incumbent for her to have produced the Patwari and the Revenue Officer to prove the credibility and authenticity of Mutation No. 465. This was not done by her which gives rise to adverse inference against her. The evidence thus produced by the petitioner in support of her assertion about Tamleek and Mutation No. 465 is not convincing.
6. The contention of the learned counsel for the petitioner about the suit being barred by time so far Mutation No. 259 of 1980 is concerned may have force but qua Mutation No. 465 of 1993 by no means can be countenanced. The suit instituted in 1996 qua 'Mutation of 1993 was well within limitation.
7 Tough the learned Appellate Court has considered the evidence quite thoroughly yet the effect of entries in the Register Haqdaran Zamin of the year 1990-91 about 11 kanals, marlas in favour of Naziran Bibi petitioner appear, to have escaped his notice.
Mutation No. 259 of year 1980 had been attested long before the death of Sultan and the factum was carried forward in the revenue record i.e. The record of rights. The plaintiff/respondent thus had no cause of action qua Mutation No. 259 of 1980. No decree could be granted in her favour about the 'same. So far as decree about the remaining land i.e. Subject-matter of Mutation No. 465 of 1993 is concerned, the judgment of the learned Additional District Judge is maintained though for somewhat different reasons.
As a result of the above, by modifying the judgment/decree of the learned lower Appellate Court, the suit filed by respondent No. 1 plaintiff qua Mutation No: 259, dated 24.12.1980 stand dismissed whereas qua Mutation No. 465, dated 08.06.1993 is decreed.
The revision petition is thus partially accepted, and partially dismissed to the extent indicated above. No order as to costs.