1. ' MRS. SYEDA TAHIRA SAFDAR, J.---The petitioners being aggrieved of judgments dated 24-10-2001 made by Senior Civil Judge, Pishin and dated 8-3-2003 made by Additional District Judge, Pishin, whereby suit and appeal filed by them were dismissed contrary to law and facts. They preferred present petition with contention that both the courts failed to appreciate the pleadings of the parties, evidence produced by them and revenue record, as such the concurrent findings are based on misreading and misappreciation of material present on record. Further, both the courts through their findings perpetuated an illegality, irregularity and forgery committed by the respondents in executing mutation entries in respect of property in question the mutations which were liable to be cancelled, but instead of the same the suit was dismissed. As such on coming to findings that gift made by respondent No,1 in favour of respondent No,2 is invalid, the relevant mutation entry was also not ordered to be cancelled. Further, they have proved their possession; it was wrongly held that they have not succeeded to establish their claim. They have prayed for setting aside of impugned judgments while the suit be decreed in their favour.
2. ' As per record the petitioners/ plaintiffs filed a suit for declaration to the effect that they be declared owners of property in question being sole legal heirs of previous owners namely Sufi and Mandak, who died issueless. Further, mutation entries Nos.26, 27, 28, 31, 32, 33, 34 and 35 Mohal Hisko, Mouza Takhoi Khan Muhammad, Tappa Behram, Tehsil and District Pishin be declared to be made with fraud and misrepresentation, thus liable to be cancelled. Furthermore, the gift made by predecessor in interest of respondents Nos.1 to 11/defendants Nos.1 to 11 in favour of respondent No,12/defendant No,12 be declared invalid. Further, sought injunction to the effect that the suit property be entered in their name, while respondents/ defendants be restrained from interfering in their possession, also restrained from alienating, transferring and disposing of disputed property. It is their case that property bearing khewat No,4 Khatooni Nos.11 to 13 measuring 95 rods and 34 poles plus 4 Shabanaroz water in Mohal Hisko, Mouza Takhoi Khan Muhammad, Tappa Behram, Tehsil and District Pishin consist of four shares, out of which they are owners of 3/4 share along with 3 Shabanaroz water, while the remaining 1/4 share was owned by Sufi & Mandak son of Saleho with water. As both Sufi and Mandak died issueless, therefore, the property devolved upon them (petitioners) being their close relatives, as such they are in possession of the land in question. It is further their case that as in year 1992 the predecessor in interest of respondents Nos.1 to 11/ defendants Nos.1 to 11 and respondent No,12 tried to interfere in their possession, Whereupon this fact came into their knowledge that the property in question had been mutated in name of one Din Muhammad, shown as son of Mandak, while on getting copy of mutation, on 14-10-1992 it further revealed that both the mutations were effected on 18-5-1989, while through mutation No,34 the property in question was attested in name of predecessor in interest of respondents Nos.1 to 11/ defendants Nos.1 to 11 namely Fazal Karam as sole heir of said Din Muhammad. Further, mutation No,35 was also effected on 18-5-1989 whereby. 1/2 share of property in question was gifted in favour of respondent No,12/ defendant No,12 by Fazai Karam predecessor in interest of respondents Nos.1 to 11. Thus during course of trial they for the first time get knowledge that mutations Nos.26, 27, 28, 31 and 32 Mohal Hisko, Mouza Takhoi Khan Muhammad, Tappa Behram Tehsil and District Pishin were fraudulently entered in name of the respondents/ defendants. Furthermore, these revenue entries were effected by respondent No,14/ defendant No,14 in connivance with remaining respondents/ defendants only in order to deprive them from their legal right. They further claimed to be in possession of property in question. They have prayed accordingly.
3. ' In their joint reply the respondents/ defendants strongly denied the title of the petitioners/ plaintiffs. According to them Fazal Karam is son of Din Muhammad, who was son of Mandak.
4. Further, the petitioners/ plaintiffs admitted this fact in their previously filed suit whereby Din Muhammad was arrayed as a party, now they cannot deny the same. It is further, their contention that as per practice in the area the 'mutations are not entered on basis of inheritance unless and until required, as such the position in present case, when necessity arise they approached Revenue Authorities for effecting of mutation on basis of inheritance, as such property in question was at first instance mutated in name of Din Muhammad son of Mandak and from his name to the name of Fazal Karam on basis of Fatwa issued by a Moulvi. They further denied the possession of petitioners/plaintiffs; according to them the property in question is lying vacant and barren. They strongly denied status of the petitioners/plaintiffs of being the legal heirs of deceased Mandak and Sufi, the recorded owners of property in question.
5. ' Issues were framed, while evidence from both the sides were called on completion the suit was decided through judgment made on 24-10-2001 by Senior Civil Judge, Pishin, holding therein that:- - "as the plaintiffs utterly failed to establish their claim to being legal heirs of said Sufi and Mandak and after their death, their property devolved upon them. Therefore, they are not entitled to any relief claimed for. Resultantly, the suit filed by the plaintiffs is dismissed, but there shall be no order as to cost."
6. ' The appeal filed by the petitioners/ plaintiffs was decided by the appellate court through judgment dated 8-3-2003, while dismissing the appeal the appellate court held that:-- "The perusal of these mutations shows that mutations were attested in favour of respondents without adopting the procedure and formalities, however, the mutations would have been attested in favour of respondents, if the respondents first have been able to establish that they are the legal heirs of said Sufi and Mandak. As far as its cancellation is concerned, the same cannot be cancelled from .The names of respondents, as the appellants have failed to establish that they are the legal heirs of Sufi and Mandak. It was also the claim of appellants that Fazal Karam who is father of respondents Nos.1 to 11 changed his name from Fazal Muhammad to Fazal Kareem during the pendency of this case. It may be observed here that this contention is not helpful to the appellants, as they have not established their claim of being the close relatives of Sufi and Mandak.
7. ' The perusal of record also shows that the gift made by the respondent No,1 in favour of respondent No,2 is illegal and invalid for the reasons that the same has not been made according to the provision of Muhammadan Law.
8. ' The appellants have not succeeded to establish their claim to be the legal heirs of Sufi and Mandak, so they are not entitled for any relief claimed for. Therefore, in view of above discussions, the learned Senior Civil Judge, Pishin has rightly dismissed the suit of appellants/plaintiffs and I find no merits in the appeal, which is consequently dismissed with no order as to costs."
9. ' Through same order the appellate court also rejected the cross objections filed by respondents Nos.1, 2, 4 and 5.
10. ' In present case the petitioners/ plaintiffs claimed their right of ownership in respect of property in question on basis that they being the close relatives of Mandak and Sufi sons of Saleho, as both of them died issueless, thus right of inheritance devolved on them. On basis of the same they also claimed to be in physical possession of property in question. Further, as they being sole survivors of previous owners they claimed that the mutation entries are required to be made in their favour, while the entries made in record in favour of respondents/defendants as effected through fraud and misrepresentation, thus liable to be set aside. On the other hand the respondents not only denied the title of the petitioners/ plaintiffs, but also denied the fact of having possession of property in question by them (petitioners). According to them Sufi and Mandak survived by his son Din Muhammad, whose sole legal heir was Fazal Karam, the predecessor in interest of respondents Nos.1 to 11. Respondent No,12 is the person in whose favour said Fazal Karam gifted half of the property in question, while respondent No,13 is the person who identified said Din Muhammad and also Fazal Karam before Revenue Authorities, while entries in questions were also effected in record on his attestation.
11. ' Keeping in view these assertions and facts at the first instance the burden lies on the petitioners/plaintiffs to establish that said Sufi and Mandak died issueless, while being close relatives they were survived by the petitioners. Though several witnesses were produced, but no specific evidence has come on record specifically describing the relationship existed between the petitioners and Sufi and Mandak. Their entitlement starts from very existence of this relationship, which they failed to establish. Both the courts come to correct conclusion to this effect.
12. ' As far as the fact of existence of legal heirs of Sufi and Mandak are concerned, though the respondents asserted that Sufi was survived by his brother Mandak, who survived by Din Muhammad, his son, while he survived by Fazal Karam being his son. Specific evidence in same respect has also not come on record. The witnesses appeared from both the sides given only formal statements. No such documents were placed on record to prove the existence of relationship between Mandak, Din Muhammad and Fazal Karam. The Revenue record Pedigree Table, produced before the trial court, reveals that there is no entry after names of Sufi and Mandak, describing their legal heirs. The courts below have rightly decided that Sufi and Mandak both died issueless as nothing contrary has come on record.
13. ' The disputed entries, which are present on record, were got exhibited during course of trial, while perusal of the same reveals that the property in question was entered in name of Mandak from the name of Sufi through mutation effected on 8-8-1982 being entry made on basis of inheritance ({{URDU TEXT}}). It is to be noted that as per parties said Sufi and Mandak died nearly 100 years ago despite the same the mutation was effected in 1982, while nothing is mentioned in the report that on whose instance the said entry was made in record. While on 8-8-1982 another mutation was effected whereby the property in question was got recorded in favour of Din Muhammad asserted to be son of Mandak, it is also inteqal-e-warasat, ({{URDU TEXT}}). As per report of office present on the same the said entry was made in presence and on verification of one Malik Abdul Qayyum son of Abdul Hameed. The Property was whereafter entered in name of Fazal Karam son of Din Muhammad on same date i,e, 8-8-1982; this is also mutation on basis of inheritance The office report present thereon reveals that the same was also attested on verification made by one Malik Abdul Qayyum son of Abdul Hameed. Thereafter, in respect of same property another entry was recorded in record of rights on 18-4-1989, whereby the property from the name of Mandak was transferred in name of Din Muhammad son of Mandak, while as per report present thereon the legal heirs were verified by one Jalat Khan i,e, respondent No,13 in present petition. This property was again transferred from the name of Din Muhammad to Fazal Karam, being his legal heir on 18- 5-1989; this entry was also effected on instance of Jalat Khan, respondent No,13. On the same date another mutation entry was made in record in favour of Abdul Wali (respondent No,12) by Fazal Karam, predecessor-in-interest of respondents Nos.1 to 11 whereby property was transferred in his name on basis of Hiba made in his favour, while Haji Jalat Khan was shown to be present to identify them as per office report. The record further reveals that as per mutation entry No,31 the property in question was transferred from name of Sufi son of Saleho to Muhammad Khair alias Laloo shown as son of Sufi this mutation was also effected on 18-5-1989. While on the same date i,e, 18-5-1989 mutation No,32 was effected whereby from the name of Muhammad Khair the property is transferred on the name of Abdul Wali, respondent No,12. Both these entries are also recorded on instance of Haji Jalat Khan respondent No,13, who appeared before the Authorities and made verification. An order of Deputy Commissioner/ Collector Pishin dated 25-1-1999 is also present on record, wherein all these facts in relation to these entries, are mentioned and the irregularities and illegalities are also pointed out.
14. ' From this set of evidence the trial as well as appellate court observed the flaws and defects present in these entries thereby rightly held that these are result of fraud and misrepresentation.
15. Despite the same both the courts held that as the plaintiffs have failed to establish their title, therefore, mutation entries cannot be cancelled. The view taken by both the courts are erroneous.
16. From material present on record as discussed above it can safely be presumed that due to the fact that said Sufi and Mandak died issueless, the parties are trying hard to get hold of property in question one way or the other. Respondent No,13 along with respondent No,12 and predecessor of respondents Nos.1 to 11 namely Fazal Karam managed to get transferred the property in question in their names, while respondent No,13 in his statement has admitted that he has purchased property in question from Fazal Karam. He is the main and most interested person and behind all these acts.
17. The conduct of concerned Authorities/officials are also objectionable as they accommodated the parties and permit all the process to be go on. The Authorities have to look after the interest of the true owner.
18. ' The trial as well as appellate court when once comes to the conclusion that the mutation entries in question are result of fraud and misrepresentation they were required to cancel the same, irrespective of the findings that the petitioners have failed to establish their title being legal heirs of Sufi and Mandak. As it is to be kept in sight that on cancellation of mutation entries in question the property was not required to be recorded in name of petitioners, as no title devolves on them, nor they able to prove legal title in their favour.
19. ' In view of above discussion as the petitioners have completely failed to make out any case in their favour, therefore, they are not entitled for any relief. But as it has been established that mutation entries bearing Nos.26, 27, 28, 31, 32, 33, 34 and 35 Mohal Hisko, Mouza Takhoi Khan Muhammad, Tappa Behram Tehsil and District Pishin being disputed in present case are result of fraud and misrepresentation, therefore, they are hereby cancelled. The previous entries in names of Sufi and Mandak son of Saleho stand restored. In the circumstances it will be just and proper to direct the concerned Authorities to examine the matter from very initial stage, whereafter, make appropriate orders and take steps thereon strictly in accordance with law. Further, the Authority shall also take legal steps and actions against the persons/ officials who found involved in this matter. Petition is disposed of in above terms.
20. ' No orders as to costs.