' RAUF AHMAD SHEIKH, J.--- Both these connected civil revisions are directed against the single judgment dated 14-9-2001, passed by Mushtaq Ahmad Tarar, learned Addlitional District Judge, Talagang, in two connected civil appeals, whereby the consolidated judgment and decree dated 16-11-1999 passed by the learned Civil Judge, Talagang were set aside and resultantly the suit filed by the respondent No,1 was decreed, whereas the suit filed by the petitioners was dismissed.
2. The respondent No,1 had filed a suit for declaration to the effect that Mutation No, 242 dated 25- 5-1992 on the basis of alleged hibba in respect of the land measuring 7 Marlas fully described in the head note of the plaint is forged, fictitious, without knowledge, without consent, fraudulent and based on forgery and as such the same is void and liable of cancellation. As consequential relief it was prayed that defendants/ petitioners be restrained from interfering in his possession over the disputed land. It was contended that the plaintiff/respondent No,1 is owner of the disputed property and defendants/petitioners have no right over it. Neither the plaintiff/respondent is related to the defendants/ petitioners nor they belong to one brethren. It was alleged that father and guardian ad litem of the minors without his knowledge and consent got the impugned mutation attested in their favour and kept the matter secret from him and he attained the knowledge about the attestation of the mutation only on filing of the suit for partition by them. It is urged that neither any 'hibba' was made nor the possession was ever transferred and he had been defrauded due to his illiteracy. He further contended that he only puts the thumb impressions and does not know how to sign so his signatures on the mutations are forged.
3. The petitioners filed a suit for partition against the respondents contending that they are co- sharers to the extent of 7/29 share in the joint Khata and the respondents are in possession of more land than their entitlement. The learned trial Court framed the following consolidated issues:---
(1) Whether the father of defendant without notice to the plaintiff with fraud, mala fide intention and mala fide got alienated in favour of defendants vide Mutation No,242 dated 24-5-1992? OPP (1-A) Whether the defendants are entitled to get possession to the extent of 7/29 share on partition? OPD
(2) If issue No,1 is proved whether plaintiff is entitled to get cancellation Mutation No,242 dated 24- 5-1992? OPP
(3) Whether the suit is vexatious and frivolous and thus the defendants are entitled to special costs? OPD
(4) Whether the plaintiffs have no locus standi and cause of action? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether the suit is hit by the principle of res judicata and Order II, Rule 2, C.P.C.? OPD
(7) Relief.
4. After recording the evidence and hearing the arguments, learned trial Court dismissed the suit filed by respondent No,1, whereas the suit for partition filed by the petitioner was decreed. Through two separate appeals, the respondent No,1 assailed the consolidated judgment and decree of the learned trial Court before the learned Addl. District Judge, Talagang, which resulted into impugned consolidated judgment and decree.
5. Learned counsel for the petitioners has contended that the learned Additional District Judge, fell in error due to misreading and non-reading of evidence and ignored the copy of plaint Exh.D-5, wherein the respondent No,1 had admitted attestation of the mutation but had contended that it was for the mortgage. It was urged that the evidence on record proved that the disputed transaction was in fact "hibba bil Ewaz' so the non-delivery of possession was not a valid ground to non-suit the petitioners though the delivery of possession was also established on record. In support of his contentions raised reliance is placed on 1985 SCM R 1131 and 1996 CLC 1525.
6. Controverting these arguments, the learned counsel for the respondent No,1 has contended that the learned Addl. District Judge, rightly rectified the error committed by the learned trial Court and took notice of the fact that neither the declaration for making hibba was made nor the possession was ever transferred. It is urged that even if alleged gift was in respect of undivided share in the property the same would be invalid due to non-delivery of possession. In support of these contentions reliance is placed on 1980 CLC 1216.
7. The copy of the plaint in the previous suit filed by the respondent No,1, Exh.D-5 clearly shows that the plaintiff/respondent had contended that he had mortgaged the disputed property for a sum of Rs,3000/- and the next friend of petitioners had got the mutation of hibba entered from the Patwari through fraud. The first suit was withdrawn by the plaintiff/respondent No,
1. In the plaint of subsequent suit he did not make mention of said suit. In the cross-examination the next friend of the petitioners was asked if it was true that in fact it was a transaction of sale and was shown to be hibba. He replied in the affirmative. This suggestion coupled with the contents of the previous plaint Exh.D.5 proves that this was a 'hibba-bil-ewaz' which was made for a sum of Rs,3000. D.W.2 and D.W.3, who are attesting witnesses of the mutation Exh.P.1 have categorically stated that the plaintiff/respondent had made hibba in their presence in favour of the petitioneRs, The contents of mutation show that the respondent No,1/plaintiff had transferred the land measuring 7 Marlas through gift. His original contention as is evident from the copy of the plaint Exh.D.5 was that this transaction took place for a sum of Rs,3000. It is not proved that the land was mortgaged for a sum of Rs,3000 so the evidence of D.Ws. Coupled with the contents of mutation has to be relied upon. It is thus obvious that the plaintiff/ respondent made a hibba in favour of the petitioners for consideration of A Rs,3000. This was "hibba bil Ewaz", which is equal to sale in the eyes of law. In this regard reference is made to para No,168 of the Principles of the, Muhammadan Law by D.F. Mulla and reliance is placed on Mst. Willayat Jan and another v. Muhammad Sharif and another 1985 SCM R 1131. The contention of the respondent that he does not know how to make signatures is falsified from the documentary evidence available on record. The copy of sale deed Exh.D.3 shows that he had put his B signatures on it. Above all, he not only put signatures on the disputed mutation but also got his- identity card number incorporated therein. His contention that the fraud has been committed with him, is thus false. D.Ws. Have stated that the plaintiff/respondent took the possession subsequently after institution of the suit. Even if for the sake of arguments, is admitted that the possession was not delivered at the time of attestation of mutation, the transaction would not be void as making of 'hibba bil Ewaz' is proved in this case. The non-delivery of undivided share in the property would not render this hibba as invalid. The learned C trial Court had appreciated the evidence properly and arrived at just conclusions. The learned Additional District Judge, committed material irregularity in reversing the judgment of learned trial Court due to misreading of oral as well as documentary evidence available on the record.
8. For the reasons supra, both the civil revisions are accepted. The impugned judgment and decree passed by the learned Addl. District Judge, are hereby set aside and the consolidated judgment and decree passed by the learned trial Court are restored with costs throughout.