' CH. SHAHID SAEED, J.---By way of filing this civil revision, the petitioners call in question the judgment and decree dated 27-5-1999 passed by learned Additional District Jude, Wazirabad who accepted the appeal of respondents Nos.1 and 2-plaintiffs and set aside the judgment and decree dated 24-3-1998 passed by learned Civil Judge, Wazirabad whereby the suit of the respondents for declaration was dismissed.
2. Succinctly, the facts of the case scanned from the record are that the respondents Nos.1 and 2- plaintiffs filed a suit for declaration on 7-11-1995 challenging therein the validity and legality of Mutation No,235, dated 11-1-1995. 'It was alleged in the plaint that brother of the plaintiffs, namely Ch. Sanaullah fraudulently mutated their land, fully described in para 1 of the plaint, through gift Mutation No,235, dated 11-1-1995; that they, in fact, have gifted land measuring 10 kanals, 4 marla in favour of a Madrisa Darul Aloom Sultania Rizvia Ajleelul Arifeen, Kot Sanaullah vide Mutation No, 232, dated 28-12-1994 but no land was gifted to Ch. Sanaullah. The plaintiffs prayed that the Mutation No,235, dated 11-1-1995 be declared unlawful, invalid and inoperative upon their rights.
' The suit was hotly resisted by the petitioners. The written statement was filed, the issues were framed, the oral as well as documentary evidence adduced by the parties was recorded and the learned trial court concluded that -the plaintiffs could not prove their case that fraud has been played with them and accordingly proceeded to dismiss the suit vide his judgment and decree dated 24-3-1998. However, the appeal preferred by the plaintiffs was accepted by the learned Additional District. Judge, Wazirabad vide impugned judgment. Hence this civil revision has been filed by the petitioners-defendants challenging the order of learned Additional District Judge, Wazirabad.
' Learned counsel for the petitioners-defendants contends that the Mutation No,235, dated 11-1-1995 was validly sanctioned in favour of husband of petitioner No,1 Ch. Sanaullah; that since the plaintiffs have alleged the fraud played with them, as such, the onus to prove the same through cogent evidence lies with them, which is missing on the record; that only plaintiffs appeared as P.Ws. 1 and 2 and made statements before the trial court which are not supported by any corroborative evidence; that disputed mutation was sanctioned legally and duly singed by the plaintiffs; that the rosnamcha waqiati (Exh. P-7) also carries thumb-impressions of the plaintiffs; that when the plaintiffs admit that the Mutation No,232, dated 28-12-1994 was validly _sanctioned in favour of madrisa, they cannot deny the validity of gift Mutation No,235, dated 11-1-1995 made in favour of Sanaullah; that contrary presumptions cannot be taken against the officials until and unless some mala fide on their part is proved; that the learned trial court has properly, dealt with the Issue No,10 regarding validity of Mutation No,235, dated 11-1-1995 and rightly dismissed the suit on the around that the plaintiffs have failed to prove the fraud played with them but the learned first appellate court has fallen in error while passing the impugned judgment and decree; that the subsequent Mutations No,236 dated 26-1-1995 and 239, dated 29-6-1995 are also valid and lawful; that neither Ch. Sanaullah has committed any fraud nor there was any connivance of revenue officials; that the DWs support the defence version that the land in question was mutated in favour of Ch. Sanaullah which is evident from roznamcha waqiati (Exhs.P7 and P8), therefore, the civil revision be accepted, the impugned judgment and decree be set aside and the judgment and decree of learned trial court be restored.
5. On the contrary, learned counsel for the respondents argues that Exh.P-7 is roznamcha waqiati wherein Entry No,166/02 was entered in the register on 21-12-1994 wherein thumb impressions were made by the plaintiffs regarding Mutation No,232, which was sanctioned on 28-17-1994; that apparently, some blank space was left with mala fide intention and to commit fraud with the plaintiffs in connivance with the Revenue officials to make Entry No,166/01 regarding 235, dated 11-1- 1995 which was inserted afterwards whereunder no signatures and thumb impressions exist, which were required to be put before the Revenue authorities. Learned counsel for the respondents further points out that as per Entry No,5 present on Exh. PR, the Entry No,166 of 2001 was made by Patwari Khizar Hayat, DW-2 under duress and coercion exerted by Ch. Sanaullah - wherefrom the connivance of the officials of Revenue Department becomes vivid; that the disputed Mutation No,235, dated 11-1-1995 is result of fraud, therefore, civil revision lacking force be dismissed. In support of his contentions, learned counsel has placed reliance on the law laid down in case Rana Muhammad Ramzan v. Malik Saeed Hussain and another (2001 YLR 2567).
6. Arguments advanced by learned counsel for the parties have been heard and the record to the extent made available before me has also been perused.
7. From the contentions of learned counsel for the parties, it is very much clear that both the parties have confined themselves to the question of validity of mutation of Gift No,235, dated 11-1-1995, which matter has been covered under Issue No,10 and is also crucial. In this case. So, decision regarding validity and legality of said mutation will determine the fate of the civil revision.
8. The evidence of DW-2 Khizar Hayat, the then Patwari, is very important who deposes that he made Entry No,166 of 2001 under duress and coercion of Ch. Sanaullah for which Rapat No,175, dated 31-12-1994, Serial No,5 (Exh. P8) was also sent to the higher authorities. During cross- examination, he states that the Tehsildar had ordered him and Gardawar Muhammad Din for identification and attestation of the parties. He also admits that neither signatures/thumb- impressions were made in his presence nor Tehsildar was present on 11-1-1995. DW-2 further states that part patwar also does not contain signatures of the parties or marginal witnesses. DW-3 Ghulam Rasool also admits that the Tehsildar was not present at the time of attestation of the mutation in dispute.
9. Tehsildar Muhammad Mohsin appeared before the court as DW-4. He states that he went to the baithak of Ch. Sanaullah on 10-1-1995 when the statements were recorded and signatures/ thumb- impressions were put. He further states that on 11-1-1995, he again went to Dera Sanaullah and sanctioned the Mutation No,235 on that day. According to him, separate proceedings were conducted on 10-1-1995 and 11-1-1995. He, however, admits that the mutation is usually sanctioned on the same day when the rapat is entered, however, no date is present on Mutations Nos.235 and
236. He also stated that he never asked the patwari or gardawar to get signatures and thumb- impressions with regard to mutation in dispute.
10. I have carefully perused Mutation No,235, dated 11-1-1995 (Exh.P1) and roznamcha waqiati (Exh.P7 and Exh.P8). From bare perusal of Exh.P7,, it is clear that Entry No,166 of 2001 was not made but adjusted in the space wilfully left blank earlier. The style of writing at entry No,166 of 2002 is spacious while style of writing in disputed Entry No,166 of 2001 is much condensed and both the entries can easily be differentiated, meaning thereby the Entry No,166 of 2001 was made fraudulently afterwards. Furthermore, DW-2 Khizar Hayat, Patwari, as noted above, has admitted that the Entry No,166 of 2001 was made by him under coercion of Ch. Sanaullah, report of which was made to the' higher authorities vide Rapat No,175, dated 31-12-1995 which fact is also mentioned at Serial No,5 of roznamcha waqiati (Exh. P8). He has further deposed that signatures/thumb- impressions were never made in his presence. There are also material contradictions in the statements of DWs.
11. The respondents-plaintiffs ladies, who according to the assertion of the petitioners-defendants have gifted away their land to their brother Sanaullah, donee. There is no denial that the donors have their own children and spouses. The petitioners-defendants have failed to adduce any cogent evidence as to why, they, in presence of their own children and spouses, had preferred their brother or nephew. Petitioners-defendants had neither rendered any special service to donor nor had such relations that the donors prefer the donees over their own children and spouses.
Admittedly, the petitioners-defendants were already in possession of the land as co-sharer, so no actual possession in result of the disputed gift mutation was delivered to them.
12. The Mutation No,232 under Entry No,166 of 2002 was sanctioned earlier on 28-12-1994 in favour of a madrasa while disputed Mutation No,235 under Entry No,166 of 2001 was sanctioned later on 11-1- 1995 in favour of Sanatillah, but both the entries have wilfully and dishonestly been made on the same date i,e, 21-12-1994 in the register so as to adjust the fraudulent Entry of 166 of 2001, which in fact was incorporated 'afterwards as a result of afterthought and to deceit and deprive the respondents-plaintiffs frOm their lawful share. No separate signatures/thumb impressions exist under Entry No,166 of 2001 but only under Entry No,166 of 2002. The bare perusal of Exh.P-7 makes it crystal clear that Entry No, 166 of 2001 has been adjusted deceitfully to show the consent of the donors, which otherwise was not available. All this makes the latter mutation and its entry dubious.
13. Further, when the plaintiffs alleged fraud -against the petitioners-defendants; the onus to prove the same shifted on the petitioners-defendants as they were the beneficiaries of the disputed mutation. But, the petitioners have miserably failed to prove that the Mutation No,235, dated 11-1- 1995 was validly and lawfully sanctioned. DW-2 Khizar Hayat, Patwari and DW-4 Muhammad Mohsin Tehsildar were produced by the defence who also did not support the version of the petitioners-defendants. It is also incredible that the plaintiffs in presence of their spouses and children have gifted out their share to their brother Sanaullah. In the circumstances, I am fully convinced that the Mutation No,235, dated 11-1-1995 was fraudulently got sanctioned by Ch. Sanaullah in connivance with the Revenue officials in order to deprive the plaintiffs from their lawful right/share, so Mutation No,235, dated 11-1-1995 is invalid, illegal and inoperative upon the rights of the plaintiffs. It is settled law that when basic order is void, then the whole structure constructed thereupon will automatically fall. As a result, the subsequent mutations made on the basis of Mutation No,235, dated 11-1-1995 will also be invalid and unlawful. The law relied upon by learned petitioners' counsel is not helpful to the petitioners in the facts and circumstances of the case in hand. The judgment and decree passed by learned first appellate court is in accordance with law and facts and is accordingly maintained.
14. The outcome of whole discussion is that the civil revision in hand is bereft of any force, hence dismissed.