Through this civil revision the petitioners have challenged the judgment and decree dated 09.05.1994 passed by the learned Addl:, District Judge, Bahawalpur by way of which appeal filed by the respondent/defendant Ghulam Yaseen was accepted and suit for declaration filed by the present petitioners was dismissed.
2. Brief facts of the case are that Mst. Rabia alias Raiban daughter of Ghulam Qadir was owner of agricultural land measuring 18- Kanals situated in Mouza Budduh Tehsil Ahmadpur East District Bahawalpur. In the year 1978 the plaintiffs purchased 10-Kanals out of the said land measuring 18- Kanals from Mst. Rabia alias Raiban in consideration of Rs.7500/-. The remaining land measuring 08-Kanals was purchased by Mst. Ayesha etc. As the plaintiffs themselves purchased land 10- Kanals from their own pocket but in the registered sale-deed dated 17.04.1978 the name of their father Nizam Din was entered. In fact the plaintiffs were real owners in possession whereas the said Nizam Din was "Be-Namdar". Afterwards taking advantage of the entry regarding name of Nizam Din as 'Be-Namdar' in the revenue record, the defendants got mutated 08-Kanals of land in their own names vide gift Mutation No 1797 dated 06.05.1987. In fact the said Nizam Din was mere "Be- Namdar" regarding the said 10-Kanals of land and he did not have any authority to alienate the said land. Therefore the gift Mutation No. 1797 dated 06.05.1987 is illegal, void, against law and facts and inoperative upon the rights of the plaintiffs. The defendants were asked to get the revenue record corrected in view of the aforesaid facts but they refused to do so. Hence, suit for declaration was filed against them.
3. The Defendant No. 2 submitted her compromise mark A and got recorded statement on 07.11.1989 to the extent of her share in the Gift Mutation No. 179.7 dated 06.05.1987 and it was settled between the plaintiffs and Defendant No 2 that Plaintiff No 2 Essa would be entitled to the share of Defendant No. 2. While the suit was contested by the Defendant No. 1 alleging therein that Nizam Din was actual owner in possession of suit land and the disputed gift mutation was legal, valid and correct He further alleged that the plaintiffs have no concerned with the suit land. From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame five issues including relief. Thereafter both the parties were put to adduce their respective evidence.
The petitioners/plaintiffs produced five witnesses including Essa one of the plaintiffs and also produced documentary evidence Ex.P1 to Ex.P-4. While on behalf of the Respondent/Defendant No. 1 two, witnesses were produced and in documentary evidence he produced Ex D-1. and Ex.D-2.
4. Learned trial Court decreed the suit in favour of the plaintiffs with costs to the extent of 08-Kanals vide judgment and decree dated 08.09.1992. Feeling aggrieved thereby, appeal was preferred by the Defendant No. 1/respondent before the learned appellate Court which was accepted vide judgment and decree dated 09.05.1994 and decree passed by the learned trial Court was set aside. Hence, this civil revision.
5. Learned counsel for the petitioners argued that both the judgments passed by the learned Courts below are at variance. Learned trial Court passed a detailed judgment after going through the record and the whole evidence, while the learned appellate Court erred in law as well as in the facts. He further stated that in the sale-deed dated 17.04.1978 name of Nizam Din was shown as "Be-Nami" when the consideration amount was paid by the petitioners/plaintiffs and the Mutation No. 1797 dated 06.05,1987 was liable to be corrected which was against the rights of the petitioners/plaintiffs. Learned counsel further argued that the learned trial Court has rightly passed the decree in their favour. The decree passed by the learned appellate Court is illegal, void, against law and facts on record, inoperative upon the rights of the plaintiffs. Hence, the same is liable to be set aside.
6. Learned counsel for the Respondent/Defendant No. 1 argued that the judgment and decree passed by the learned appellate Court is based on cogent reasons and the same is outcome of the evidence on record. The instant civil revision is liable to be dismissed.
7. Arguments heard. Record perused.
8. After going through the whole record it reveals that no doubt the sale-deed executed on 17.04.1978 which was challenged by the plaintiffs is Ex.D-2 and the other important document is Ex.D-1 wherein it has been specifically stated that Nizam Din is the donor. Mushtaq Ahmad Clerk of Imtiaz-ul-Haq Advocate appeared as P.W-1 who is the marginal witness of the Ex.P-1 registered sale-deed. In his statement he stated that he signed the document Ex.P-1 and also identified before the Sub-Registrar. He further stated that total land was 18-Kanals out of which 06-Kanals was given to Mst. Ayesha, 02-Kanals to Khuda Bakhsh and rest of the land 10-Kanals was purchased by Essa and Moosa. The payment was made by the plaintiffs and name of their father Nizam Din was written in Ex.P-1 but their father was not present at that time. He also stated that the other P.W Qadir Bakhsh also signed the document in his presence and Mst. Rabia alias Raiban thumb marked on Ex.P-1.
Mst. Rabia alias Raiban appeared as P.W-2. She categorically stated that the land was sold to the plaintiffs and the consideration amount was paid to her by the plaintiffs. Ex.P-1 was executed and signed by her and she also thumb marked thereon. She further stated that the possession was given to Essa and Moosa plaintiffs but only for the respect the name of their father Nizam Din was written on Ex.P-1.
Qadir Bakhsh the marginal witness appeared as P.W-3 who also stated that he knows both the parties. P.W-2 sold the land to the plaintiffs and amount was given to her by the plaintiffs. He stated that consideration amount was paid in the office of stamp vendor who wrote Ex.P-1, however, he admitted that his niece was wife of Essa plaintiff but she was divorced.
Noor Muhammad appeared as P.W-4 who stated that the plaintiffs are in possession of land in dispute.
Essa one of the plaintiffs appeared as P.W-5 who supported the version of the plaintiffs and stated that the consideration amount was paid to Mst. Rabia alias Raiban by the plaintiffs, however, the sale-deed was executed in favour of their father Nizam Din only for his respect. The possession of suit property was also handed over by Mst. Rabia alias Raiban.
9. In rebuttal Ghulam Hussain appeared as D.W-1 who stated that the land was purchased by Nizam Din from Mst. Raiba and paid consideration amount to her at the time of execution of sale- deed and no objection was raised throughout in the life of Nizam Din father of the plaintiffs. In cross-examination he stated that the defendant is his son in law, however, he failed to explain that who wrote the registered sale-deed and who were the marginal witnesses. He also admitted that he did not appear before the Sub-Registrar. He failed to give any substantial statement in rebuttal of the plaintiffs.
Khuda Bakhsh appeared as D.W-2 who also supported the document Ex.P-1 which prepared in favour of Nizam Din. He stated that the possession was given to the plaintiffs since the sale-deed was made. He admitted in his cross-examination that the land in dispute is being cultivated by the plaintiffs since its purchase.
10.Learned trial Court discussed the whole evidence and decided Issue Nos. 1 and 2 in favour of the plaintiffs. Ultimately suit of the plaintiffs was decreed. Learned appellate Court vide its judgment dated 09.05.1994 decided Issue Nos. 1 and 2 against the plaintiffs and held that the plaintiffs failed to produce confidence inspiring evidence, that Nizam Din was 'Be-Nami' owner of the suit land.
11.In the light of what has been discussed above, this Court comes to the conclusion that all the P.Ws produced by the plaintiffs have fully supported the version of the plaintiffs. The defendant/respondent failed to shatter the evidence of the plaintiffs. D.W-2 Khuda Bakhsh admitted that defendant is his father-in-law and he was not present at the time of transaction and he did not know anything regarding the transaction/execution of sale-deed Ex.P-1. The defendant/respondent himself did not appear and D.W-1 and D.W-2 failed to rebut the version of the plaintiffs even they have admitted that possession of land in dispute is with the plaintiffs since the execution of sale-deed. The impugned judgment and decree dated 09.05.1894 passed by the learned appellate Court is not based on cogent reasons. Thus, I allow the instant civil revision by setting aside the impugned judgment and decree dated 09.05.1994. The suit of the petitioners/plaintiffs for declaration is decreed. Parties are left to bear their own costs.