' ATTAULLAH KHAN J.--- Muhammad Afzal Khan petitioner has filed this revision petition under section 115, C.P.C. Against the concurrent judgments and decrees dated 30-11-2004 and 14-5-2005 passed by the learned two Courts below, whereby his declaratory suit was dismissed.
2. Succinctly stated facts of the case are that the plaintiff/petitioner Muhammad Afzal Khan had sued Muhammad Ashiq etc; defendants to the effect that according to the revenue record, he is owner-in-possession of the suit-land fully described in the plaint and that Mutation No,942 attested on 19-8-1968 is void, fictitious and of no legal effect. It was further averred in the plaint that Mutation No,940 attested on 10-10-1967 in respect of the suit-land be also declared null and void. -
3. The suit was hotly contested by the defendants who filed written statement and divergent pleadings of the parties gave birth to the framing of eleven issues.
4. On evaluating the evidence brought on record and hearing pro and contra arguments, suit of the plaintiff was dismissed by the trial Court whereagainst his appeal also met the same fate vide judgments and decrees mentioned above which are now under challenge in this revision petition.
5. Learned counsel for the petitioner argued that both the Courts below have erred in dismissing the suit of the plaintiff/petitioner. According to him, the plaintiff has challenged the validity of Mutation No,942 dated 19-8-1968 and it was the burden of the defendants to prove that the same was correctly entered and attested. He urged that the Courts below have also wrongly held the suit as time barred because the petitioner remained in Punjab after the attestation of Mutation No,940 dated 10-10-1967 and when he came back to D.I. Khan in May, 1998, he got the copy of Mutation No,942 dated 19-8-1968 and his suit is, therefore, well within time.
6. On the other hand, learned counsel for the respondents/ defendants argued that the burden was on the plaintiff because he had alleged fraud in the attestation of Mutation No,942 dated 19-8- 1968 which he has failed to discharge, therefore, his suit was correctly dismissed by both the Courts below. He further submitted that the suit is time barred because the plaintiff had failed to prove that he was away from D.I. Khan in 1995.
7. I have gone through the record carefully and considered the arguments of the learned counsel for the parties.
8. The impugned mutation is placed on file as Exh.P.W.1/2 which was attested on 19-8-1968. Para-3 of the plaint reveals that the plaintiff had alleged that the disputed mutation was attested on the basis of fraud and is, therefore, void. This para shows that the plaintiff has labeled the impugned mutation as fraudulent. Since fraud has been alleged, therefore, it was the duty of the plaintiff to prove the same and not the duty of the defendants.
9. It has been held by the Superior Courts that when fraud is alleged by a plaintiff, it becomes his duty to prove the same. So in this case the burden was on the plaintiff to prove that the impugned mutation was fraudulently attested.
10. The evidence shows that the plaintiff has failed to shoulder this burden. I may refer to 1969 SCM R 299 and PLD 1969 Supreme Court 169.
11. The plaintiff appeared as P.W.3 and in cross-examination he has conttadned the contents of para-2 of the plaint. In the said para, he alleged that after the attestation of mutation in 1967, he left D.I. Khan and remained, settled in Punjab and returned to D.I. Khan in May, 1995 where he got knowledge about the impugned mutation. While in cross examination he admits that he left D.I.
Khan for Karachi in the year 1967. This means that he was settled in Karachi and not in Punjab, or in Punjab and not in Karachi. So these two versions are self-contradictory. Moreover, the impugned mutation available on file reveals that at the time of attestation of impugned mutation, the petitioner was present which is clear from Column No,14 of the said mutation.
12. Moreover, the impugned mutation is based on the agreement deed available on file as Exh.P.W.6/1. This deed has been proved by the defendants through evidence on record. So in my opinion, the plaintiff has failed to prove that the impugned mutation was fraudulent and wrong. For the sake of arguments if we presume it the burden of defendants to prove the impugned mutation as genuine, they have discharged it. According to them, the mutation in question is based on agreement deed (Exh.P.W.6/1). This fact is mentioned in para-3 of the written statement. In support of this deed, P.W.2 appeared and proved its execution. Marginal witness of agreement deed appeared as D.W.7 and confirmed his signature. Other marginal witness also confirmed the agreement deed while appearing as D.W.8. Beside this document, the mutation in question also stands proved through officials of Revenue Department. According to them, the plaintiff was present at the time of attestation of impugned mutation and alio it was he who entered it. So through evidence, the defendants have succeeded to prove the mutation in question.
13. The suit has also been declared as time barred by the two Courts below.
14. Learned counsel for the defendants argued that the plaintiff visited D.I. Khan off and on and he was in the knowledge of the attestation of impugned mutation in the year 1968 and, therefore, he has to bring the present suit within six months from the date of attestation.. Evidence is available on file to prove that the plaintiff was aware of the impugned mutation before the date of institution of the present suit. He has failed to prove that the suit was filed within six months under Article 120 of the Limitation Act. Copy of registered deed Exh.D.W.1/1 shows that it was executed in favour of the plaintiff on 2-12-1968 which means that he was available in D.I. Khan even four 'months after the attestation of mutation in dispute. So knowledge would be counted from 2-12-1968 while the present suit was filed in 1995 which is hopelessly time-barred.
15. In this revision petition, the concurrent Judgments and decrees of the Courts below have been assailed which relate to the controversy of facts and such judgments cannot be interfered by this Court in exercise of its revisional jurisdiction under section 115 C.P.C. In view of the dictum handed down by the apex Court in 2002 SCM R 1114 and 2007 SCM R 368.
16. Consequently, I find no merits in this revision petition which is accordingly dismissed leaving the parties to bear their own costs.