' MIAN SHAHID IQBAL, J.---This revision petition is directed against the judgment and decree dated 30-10-2006 whereby appeal filed by the respondents was accepted with the result that suit decreed in favour of the petitioners was dismissed.
2. Brief facts of the case as alleged that a suit for declaration with permanent injunction was filed by one Abdul Majeed son of Muhammad Sharif in respect of 50% share in land measuring 101 Kanals and 12 Marlas comprising Khatoni No, 1178 Mauza Autar District Kasur. By virtue of said suit he challenged Mutation No,1113 entered through Ruppat No,546 dated 30-6-2001 and placed on record for sanctioning the same on 2-7-2001. The .Defendants Nos.1 to 3 contested the matter; defendants Nos. 2 and 3 filed written statement on 4-12-2001 whereas defendant No,1 filed written statement on 18-3-2002. Needless to mention here that defendant No,3 is the real paternal uncle of the petitioner whereas defendants Nos. 1 and 2 are maternal nephew of petitioner. After filing of written statement learned trial court framed 9 issues on 15-5-2002. In order to support the claim in his plaint present petitioner Abdul Majeed who was plaintiff in the trial court appeared as P.W.1 and also produced Manzoor Ahmed as P.W.2; he also produced certified copy of mutation and death certificate of Muhammad Sharif on record as Exh. P1 and Exh.P2. Learned counsel for petitioner submits that on the reverse defendants produced Naseer-ud-Din Lumbardar as DW-1. Out of the defendants Habib Khalid appeared as DW-2 and Muhammad Siddique paternal uncle appeared as DW-3.
3. Learned counsel for the petitioner while arguing the case submits that learned trial court on the basis of evidence on record validly decreed the suit when it was shown that Muhammad Sharif died after three days of entering of mutation; there is no evidence on record as to how the amount was utilized. However, amount given by the alleged purchaser on purchase of disputed property was again disputed regarding denomination of currency notes P. Ws. Have differently explained regarding tendering of money. The learned trial court while decreeing the suit decided issues Nos. 1 and 2 in favour of petitioner basing his opinion that one of the witness had explained that they went on bus in order to get the ruppat entered whereas other witness narrates that they went on car to get the deal completed. Moreover, deceased real brother Muhammad Sidique who alleged that he has been living with deceased could not tell as to how within remaining three days deceased had utilized amount of Rs,5,00,000 which was received by him. Learned counsel for petitioner further submits that present respondents even failed to place on record either the agreement on the basis of which property was purchased and failed to place before the learned trial court any receipt which was made basis for delivery of money. In view of submission learned counsel for petitioner submits that judgment and decree passed by the learned trial court was well-reasoned, based on evidence, whereas, the learned lower appellate court while reversing the findings on issues Nos. 1 and 2 had fallen in error while passing the impugned judgment and decree, where it was held that gift through mutation was entered, thus property was legally transferred.
4. Learned counsel for petitioner further submits that word gift was incorporated from outside whereas the claim was that property was purchased from Muhammad Sharif thus learned lower appellate court had totally misread the evidence, therefore, judgment and decree of the learned appellate court in view of the said basis cannot hold the field.
' Learned counsel for petitioner submits that even the judgment and decree passed by learned lower appellate court forming basis of opinion that civil court has no jurisdiction to enter into and decide the matter pertaining to revenue subject is also incorrect, as civil court being the court of ultimate jurisdiction is competent to decide where fraud and forgery is being alleged in respect of document impugned for. Learned counsel further submits that while ousting the jurisdiction of civil court learned lower appellate court has failed to consider section 53 of Land Revenue Act, 1967, which provided that determination of matter in respect of fraud and forgery Civil Court has the exclusive jurisdiction. Learned counsel for petitioner placed his reliance on 1993 MLD 76, 1992 CLC 125 and 2000 CLC 814.
5. On the reverse, learned counsel for respondents submits that authenticity of a document called into question by petitioner is proved through Exh.D2 a ruppat which was entered on 30-6-2001. A bare reading of said ruppat confirms the fact that Muhammad Sharif and Muhammad Siddique two sellers appeared before the concerned Halqa Patwari and placed their thumb-impressions where their I.D. Card numbers have also been so mentioned. Both the persons were identified by Muhammad Sher son of Muhammad Sharif Patti Dar of the said village. Moreover, Naseer-ur-Din and one Akbar Ali ex-Lumbardar also appeared and signed the same in presence of the parties.
Learned counsel, further submits that said ruppat was subsequently entered for mutation which was so numbered as 1113 and matter was placed before the attesting officer in presence of the parties, witnesses in Jalsa-e-Aam, identifier appeared also signed that document. Thus justifying the execution of ruppat by virtue of which sale of property took place. Learned counsel further submits that learned lower appellate court after proper appreciation of evidence reversed the findings of fact for more than one reason firstly that plaintiff has been changing his stance which is visible from paragraph No,3 of the plaint where he alleged that property was transferred by Muhammad Siddique in favour of defendants Nos. 2 and 3 so that after the death of Muhammad Sharif, they could get the property transferred in the name of sons of Muhammad Siddique.
Learned counsel for the respondents submits that as per arguments of learned counsel for petitioner that Muhammad Siddique was issueless, whereas P.W.1 in his examination-in-chief has stated that Siddique in connivance with Muhammad Sharif had got the property transferred in favour of defendants Nos. 2 and 3.
6. Learned counsel further submits that present respondents are in possession of property though it was wrongly alleged by P.W.1 that after twenty days of death of their father property was taken over by the present respondents whereas in plaint he admits that at the time of filing of suit respondents are in possession of the property. Learned counsel further submits that only one independent evidence in the shape of P. W.1 was produced who in his examination-in-chief has totally not adverted to the gist of allegations raised in the plaint and 'even not uttered a single word regarding sale of property, transferring of amount as well as appearance of the parties before the concerned officer. Learned counsel further contends that not only defendants have proved the case to the hilt but their statements were fully supported by Lumbardar D.W.1 of the said village who had narrated the whole facts on the basis of which property was transferred. He further submits that in spite of lengthy cross by petitioner, evidence could not shake and thus it was sufficient to prove the case of respondents regarding bona fide transfer of suit property. Learned counsel further submits that defendant No,1 who was also a witness to the fact that deceased received Rs,10,00,000 out of which each of them had a share of Rs,5,00,000 admitted the receipt of amount and delivery of payment as such in presence of evidence of said witnesses judgment passed by the lower appellate court was fully justified."
7. Learned counsel for respondents further submits that in his cross-examination D.W.2 had fully explained that transaction of property who had gone independently whereas the other executants had gone on their own appeared before the Revenue Officer for identification and execution.
Learned counsel further submits that D.W.3 in cross-examination stated that he and his brother (Sharif) had gone on car and after receipt of money he came back along with his brother. It is also admitted in cross-examination that Muhammad Sharif was suffering from only "Asthma" and after five days of entry of mutation he died. In cross-examination he accepted that amount was received by Muhammad Sharif deceased. In cross-examination he explained that amount was paid in shape of currency notes of 500 and 1000. Learned counsel for respondents submits that learned trial court while decreeing the suit has concluded his opinion on the ground that no amount was paid whereas on the reverse the other respondent Muhammad Siddique who had received the amount along with his brother appeared and categorically stated that he and his brother received Rs,10,00,000 whereas Rs,5,00,000 each came to their share. Learned counsel further submits that non-sanctioning of mutation on the said day has been fully explained in the said document which gave the reason that since the property was subject to consolidation as such attesting officer who at that time attested the presence of parties who appeared before the Revenue Officer for the purpose of sale of transfer, had directed the concerned Girdawar to apprise him regarding latest position of consolidation proceedings so that decision regarding transfer of property could be made.
8. Learned counsel for respondents further submits that in court the fact regarding issueless of Muhammad Siddique defendant No,1 was self-created which could not be proved. Learned counsel further submits that as the burden to prove issue No,1 was on the petitioner who miserably failed to prove the same, therefore, judgment passed by learned lower appellate court was fully justified, hence present revision petition is not maintainable and is liable to be dismissed. Learned counsel while concluding his arguments has placed reliance on 2000 M LD 720 and 1986 SCM R 306.
9. With the able assistance of both the counsel I have gone through the evidence as well as judgment of learned trial court and that of learned appellate court.
10. The matter which strikes at the very outset is the judgment passed by learned lower appellate court on two points. One is that learned lower appellate court while passing the impugned judgment and decree while taking facts into consideration in respect of mutation in question which was challenged by petitioner/plaintiff was that of gift. The other question which weighed before the learned lower appellate court was that in respect of revenue matters it is not the civil court who has got jurisdiction to decide the same rather the matter can only be entertained and resolved by Revenue courts.
11. Taking up the question of gift in the present case looks to be imported from outside as none of the parties before the learned trial court had pleaded that Mutation No,1113 was got sanctioned on the basis of gift deed rather case of the parties was that property was purchased in lieu of consideration, which was 'challenged on the ground that transferor who had got the mutation sanctioned for transfer of the property was at a very old age and he was also suffering from disease, and was in the vague of Marz-ul-Maut. Thus the learned lower appellate court without looking and instead of discussing the evidence on record presumed that it was gift and after discussing its three essentials finally determined in favour of present respondents. Not only this, learned lower appellate court have finally concluded that matters with respect to revenue subject thereby holding that it is only the Revenue courts who had got jurisdiction and civil court as such cannot assume the same. This view of the learned lower appellate court cannot be accepted in view of the law laid down in a judgment reported as "Khushi Muhammad and others v. Member, Board of Revenue and others" (1992 CLC 125) which says that:-- "---Revenue Officer was not authorized to review and scrutinize merits of decree of Civil Court and question its correctness---Revenue Officer must accept decree of Civil Court and act upon it to give effect to it, in Revenue Record---Revenue authorities were under obligation to sanction mutation on the basis of decree of Civil Court---Degree in question, having apportioned respective shares of parties by giving them. Specified shares, same was binding upon the parties, and Revenue authorities were obliged to mutate the land in accordance with it."
12. As, the findings of learned lower appellate court are based on wrong assumption of facts and incorrect application of law. Therefore, judgment and decree passed is set aside withla direction to the said court to properly appraise the evidence on record and after discussing the same should decide the matter in the light of oral as well as documentary evidence thereon.
13. There is another important aspect of the matter which both the learned Courts have not adverted to, which is the statement of Muhammad Siddique D.W.3 who has admitted that he along with Sharif had transferred property in lieu of certain considerations. The learned lower appellate court shall also take into consideration statement made by Muhammad Siddique while deciding the appeal in question.
14. With these observations this revision petition is accepted and case is remanded to the learned lower appellate court to decide the same .Afresh after taking into consideration oral as well as documentary evidence on record.