JUDGMENT MUHAMMAD NASEEM AKHTAR KHAN, J.---The petitioners have filed this civil revision against the judgment and decree dated 15-2-1999 passed by the learned Additional District Judge, Sadiqabad through which the judgment and decree dated 26-11-1995 passed by Civil Court in civil suit for declaration with permanent injunction filed by the respondents was upheld.
2. The revision petition is resisted from the side of the respondents.
3. Briefly stated the facts of the case are that one Rehmat Ullah, predecessor-in interest of the parties was owner of land and after his death his property was mutated in the name of his three sons namely Ghulam Rasool, Khushi Muhammad and Ghulam Muhammad as well as his three daughters namely Mst. Zainab Bibi, Mst. Sughran Bibi and Mst. Amina Bibi. Afterwards Mst. Zainab and Mst. Sughran Bibi sold their shares in favour of their three brothers for a consideration of Rs.30,000 through Mutation No. 725 attested on 19-1-1979 whereas Mst. Amina Bibi remained owner of her share. Afterwards Khushi Muhammad, transferred his share of land measuring 200 kanals in favour of his two sons namely Arif Ali and Shabbir Hussain through Mutation No.10 dated 28-12- 1988. Ghulam Muhammad gifted his share of 200 kanals to his sons through Mutation No. 156 dated 30-11-1991. Ghulam Rasool, the third son through Mutation No. 162 dated 4-1-1992 gifted his property measuring 175 kanals 6 marlas in favour of his sons except Muhammad Yaqoob and the remaining 200 kanals also transferred to his sons and were Mst. Khurshid Bibi through Mutation No.154 dated 30-10-1991 excluding Muhammad Yaqoob. Muhammad Yaqoob filed a civil suit against his father and brothers for depriving him from the legal shares of the property with a contention that the same was already given to him as share along with other sons of his father before 1987 and the said possession and share was admitted by Ghulam Rasool in his statement on 21-5-1987 before the Court. The above-mentioned Mst. Zainab is mother-in-law of Muhammad Yaqoob because Mst. Khurshid Bibi daughter of Mst. Zainab Bibi is were of Muhammad Yaqoob son of Ghulam Rasool. Mst. Zainab Bibi also filed a suit for declaration with permanent injunction on 30-2-1992 against her brothers and their offspring with a contention that she has not sold her share to anybody else nor received any consideration. The petitioners filed their written statements. The learned trial Court framed the following issues arising out of the pleadings of the parties:--
(1) Whether the suit is time-barred ?OPD .
(2) Whether the suit is not maintainable in the present form? OPD.
(3) Whether the value of the suit property is not less than Rs.15,00,000 and have the court-fee has been IN correctly ascertained? OPD
(4) Whether the plaintiff is estopped by her words and conduct to file this suit? OPD.
(5) Whether the description of the suit property is incorrect ?OPD.
(6) Whether the defendants Nos.1 to 3 are bona fide purchasers and are in possession of the suit- land for over 12 years ?OPD.
(7) Whether the actual suitor is Muhammad Yaqoob and the plaintiff is Benami? OPD.
(8) Whether the plaintiffs have no cause of action to tile this suit? OPD.
(9) Whether the suit is false and frivolous and hence the defendants are entitled to special cost?
OPD.
(10) Whether the plaintiff is owner in possession of the suit-land? OPD.
(11) Whether the defendants Nos.1 to 3 in collaboration with defendants Nos.4 to 16 have fraudulently transferred the suit-land in their names through the Mutation No. 725 dated 19-1-1979?
(12) Whether the plaintiff is entitled to the decree as prayed for?OPD.
(13) Relief?.
4. Mst. Zainab Bibi, plaintiff, appeared' in the Court in support of her contentions and produced Mukhtar Ahmed as P.W.1 and Abdul Haq as P.W.2 along with documents Exh.P1 to Exh. P.13. Ghulam Rasool (petitioner) appeared as DW.5 and produced Muhammad Hussain Patwari halqa as DW.1, Muhammad Saleem Girdawar (retired) as DW.2, Muhammad Ali, Naib Tehsildar as DW.3 and Mst.
Sughran Bibi, sister, as DW.4 along with documentary evidence, Exh.D1 to Exh. D-13.
5. The learned trial Court proceeded to decree the suit vide judgment and decree dated 16-11-1995.
The petitioners filed appeal which was dismissed on 15-2-1999 by the Additional District Judge.
Hence, this revision petition.
6. Arguments heard. Record perused.
7. After considering the respective contentions of the parties, it is found that Mst. Zainab Bibi, real sister of Ghulam Rasool, Khurshi Muhammad and Ghulam Muhammad as well as Mst. Sughran Bibi allegedly sold their shares through Mutation No. 725 dated 19-1-1979 for the land measuring 243, kanals 19 marlas for a consideration of Rs. 30,000. Mst. Sughran Bibi appeared as DW.4 and admitted the sale as well as receipt of price along with Mst. Zainab Bibi.
8. There is another Civil Revision No. 119-D/1995 titled "Muhammad Yaqoob v. Ghulam Rasool etc".
The suit of which was filed by Muhammad Yaqoob on 3-2-1992 when he was deprived of his share of property by his father Ghulam Rasool Mst. Zainab Bibi, who is mother-in-law of the said Muhammad Yaqoob also filed suit on 30-2-1992 challenging the sale in favour of his brothers including Ghulam Rasool father of the said Muhammad Yaqoob. It is noteworthy that Mr. Masood Ahmed Bajwa, Advocate is counsel for Mst. Zainab Bibi in her suit uptill date and also counsel for Muhammad Yaqoob in his suit uptill date. This litigation is clearly prompted one by the said Muhammad Yaqoob, otherwise, the ingredients of sale are very much complete which was going to he effected between the sisters and brothers. The possession of share of Mst. Zainb Bibi was with the vendees-brothers from the very inception and there is no question of payment of any share of produce since 19-1-1979 to date. As far as the Mutation No. 154 dated 30-10-1991 and Mutation No.162 dated 4-1-1992 are concerned in which Muhammad Yaqoob was deprived of his share of property by his father Ghulam Rasool are being dealt with separately in the Civil Revision No. 119-D of 1995.
9. The respondent Mst. Zainab Bibi has failed to prove any misrepresentation on the part of the petitioners with regard to mutation in dispute. The perusal of the documents and evidence on record shows that Mutation No. 725 dated 19-1-1979 was rightly got sanctioned by Mst. Zainab and Mst. Sughran Bibi in favour of their three B brothers for a consideration of Rs. 30,000. The payment of the consideration price is also proved on record. The learned trial Court as well as lower appellate Court have failed to consider the actual facts of the case rightly. The judgment and decree of the learned trial Court as well as the lower appellate Court are not sustainable in law.
10. Hence, the civil revision in hand is accepted. Both the judgments and decrees of the lower Court, dated 26-11-1995 and the appellate Court dated 15-2-1999 are, hereby, set aside and the suit filed by Mst. Zainab Bibi for declaration etc. Is dismissed. Keeping in view the close relationship of the parties, there is no order as to costs.