' AMIN-UD-DIN KHAN, J.--- Through this civil revision the petitioners have challenged the judgment and decree passed by the learned first appellate court on 6-6-2005 whereby the appeal filed by the petitioners was dismissed against the judgment and decree passed by learned Civil Judge, Hasilpur on 11-9-2004 whereby suit filed by the plaintiffs was dismissed.
2. Brief facts of the case are that the plaintiffs/petitioners filed a suit for declaration on 8-9-1987 challenging therein Mutation No,31 of Tamleek sanctioned on 20-7-1995 by Muhammad Ramzan in favour of Muhammad Mansha defendant No,
1. The petitioners/plaintiffs contended that they are real sisters of Muhammad Ramzan deceased therefore, they are entitled to inherit him. He died on 2-8-1997. They stated that after his death they came to know about the impugned mutation, therefore, they have filed instant suit. In the suit they have alleged that said Muhammad Ramzan was deaf and dumb person and was of an insane person, therefore, he was not able to transfer his owned land through mutation in favour of respondent No, 1 . Defendants Nos.1 to 7 by filing contesting written statement contested the suit, whereas defendants No,8 to 10 admitted the suit and filed consenting written statement. The main defence of defendants Nos.1 to 7 as pleaded in preliminary objection No,1 was that Muhammad Ramzan was of their real paternal uncle. He was sane and prudent person. There was only fluency problem in his conversation; otherwise he was absolutely a complete person. The learned trial Court framed the issues and finally the parties produced their evidence. Both the parties produced their oral as well as documentary evidence which is mentioned in the judgment of the learned trial Court need not be reproduced herein.
3. Learned counsel for the petitioners contends that both the courts below fell in error while recording the findings on issues and ignoring the legal position which was to be proved by the parties. He states that defendants being beneficiaries of .The impugned mutation were bound to prove mutation. Further that they were beneficiary therefore, they were bound to prove the event of Tamleek and that too prior to the incorporation of the mutation. Further contends that defendants miserably failed to prove this legal requirement.
4. Conversely taught counsel for the respondents states that there are concurrent findings of fact recorded by both the courts below. The defendants have proved the mutation in accordance with law. Further that Muhammad Ramzan was sane and prudent person, therefore, he validly transferred his owned land in favour of the defendants.
5. I have heard the learned counsel for the parties and have perused the record.
6. The learned trial Court decided Issues Nos.2 and 4 jointly and found that plaintiffs failed to prove Issue No,2, whereas found that defendants have proved Issue No,4 therefore, both the issues were decided against the plaintiffs. On the basis of these issues all the issues were answered according to these issues. I have noticed that the learned trial Court though has written very lengthy findings on these issues but failed to take into consideration the real facts in issue and legal position of the ease.
7. The following legal points were to be kept in mind while deciding the suit:--
(i) When the defendants/respondents were beneficiary of the impugned mutation, were they bound to prove the mutation;
(ii) Mutation itself does not create or confer a right but it is an instrument to incorporate any event in the revenue record.
(iii) The transaction of Tamleek was independently required to be proved;
(iv) S
(v) If said Muhammad Ramzan was an insane, deaf or dumb person and was he able to transfer his property without the permission of the court.
8. From the perusal of the findings of the learned trial Court it is visible that it was in the mind of the learned trial Court that the plaintiffs should have proved themselves to be owners in possession of the suit property and they have to shatter validity of the mutation as it was an admitted document but the legal position is otherwise. The relationship between the parties is not denied. Under the law the beneficiary of the document was bound to prove the transaction of Tamleek. There is not a single word in pleadings with regard to the transaction of Tamleek prior to the attestation of mutation; therefore, there is absolutely no evidence available with regard to the event of Tamleek before the attestation of the mutation. Defendant No,1 being beneficiary was bound to prove event of Tamleek but he has not alleged even in his pleadings nor has any evidence been led on this point. Without first proving the event on the basis of which the mutation has been entered and attested is not sufficient. Now I come to the point whether defendant No,1 beneficiary has proved the validity of attestation of mutation. First of all, I have noted that in the written statement the defendants have stated that only there was fluency problem in conversation, otherwise Muhammad Ramzan was absolutely sane or complete person, whereas it is against the record and even if this pleading of the defendant is admitted to be true whole of the evidence led by him is against this part of pleading. I have noted that at the time of attestation of the impugned mutation Exh.P.1 on the record, the Revenue Officer has noted in his order dated 19-6-1995 that the said Muhammad Ramzan was deaf and dumb person, therefore, an Expert be arranged from Goverhment School of Deaf and Dumb of Bahawalpur for proceedings of the mutation in the next date when the mutation was attested. Mutation was attested on 20-7-1995. According to statement of D.W.4 the Expert who claims to be Assistant Oral Master admitted in his examination- in-chief that Muhammad Ramzan met him in his house and he stated his contention that he wants to transfer his land to Muhammad Mansha, whereas according to the endorsement in the impugned mutation this witness was summoned by the Revenue Officer at the time of attestation of mutation and he only went there to translate the signals responding by Muhammad Ramzan.
The other thing which is very material is Exh.D.2 which is Roznamcha Waqiati No,351 for entry of impugned mutation. This roznamcha bears the signatures of said D.W.4 Abdul Jabbar whereas this roznamcha was entered on 7-6-1995. The attesting officer has even not bothered to comply with the provisions relating to the person of unsound mind, deaf and dumb. He was bound to refer the matter to the court of competent jurisdiction to get permission with regard to the transfer of property. Even the documentary evidence produced by the defendants proved the case of the plaintiffs. Exh.D.5 is a copy from the court record which clearly shows that said Muhammad Ramzan had been made party in the proceedings through his next friend. The proceedings of mutation clearly shows that it is a result of connivance between Mansha, the said expert D.W.4 and the Revenue Officer. Both the courts below failed to take into consideration these legal positions, therefore, they reached to a wrong conclusion. Patwari admitted in his evidence that at the time of entry of rapat roznamcha said Abdul Jabbar was not present but he got his signatures on that rapat on 20-7-1995 on the asking of the revenue officer. This fact indicates that at least roznamcha waqiati on the basis of which impugned mutation had been entered is a forged one. The beneficiary has not proved the ingredients of gift. He failed to prove event of gift prior to the incorporation of the event in the impugned mutation. He has consumed his full energy to prove the impugned mutation. Even then he failed to prove impugned mutation in accordance with law. The event of Tamleek prior to the mutation has not been proved under the law. It is true that mutation itself does not create or confer any right but it is an instrument to incorporate any event in it and then to enter the same in the record of rights. The defendants/beneficiaries miserably failed to prove their case. Both the courts below while ignoring all these legal points recorded their findings which are absolutely against the law.
' In the light of what has been discussed, I accept this civil revision and set aside the impugned judgments and decrees passed by both the courts below. Mutation No,31 dated 20-7-1995 is no more in the field. Resultantly original owner Muhammad Ramzan will be presumed to be owner of the suit property at the time of his death and his legal heirs will inherit the property in accordance with their legal shares.