' AMIN-UD-DIN KHAN, J.---Through this civil revision, the petitioners have challenged the judgment and decree passed by the Addl: District Judge, Bahawalpur dated 24-7-1994, whereby the appeal filed by the respondents was accepted and judgment and decree passed by the Civil Judge 1st Class, Bahawalpur dated 18-2-1991 were set aside.
2. Briefly, the facts as leading to this civil revision are that the petitioners-plaintiffs filed a suit for declaration alleging therein that they are owner in possession of suit property No,38-A Zimindara- Colony Model Town A, Bahawalpur, on the basis of family settlement. In the alternate they prayed that they are owner in possession to the extent of their share of inheritance, being legal heirs of deceased Ahmad Din.
' Admittedly the predecessor of petitioners and respondents Nos.2 to 5, namely, Ahmad Din was allottee of the residential plot in dispute, who after allotment constructed a house. After his death defendant No,2 Muhammad Anwar by presenting an affidavit allegedly on behalf of all the legal heirs of deceased Ahmad Din, got the plot transferred in his name from the previous improvement trust and then the Municipal Committee Bahawalpur on 31-1-1974. After that he has shown to have given this property in exchange to defendant No,1 (Sahibzada Irshad Ahmad Abbas) and got some agricultural land in lieu of the suit property. The petitioners-plaintiffs coming to know filed the suit in hand on 3-3-1974. The suit was, contested by defendant No,1 only. The trial court after framing of issues, invited the parties to produce their evidence. Both the parties produced oral as well as documentary evidence in support of their respective version. The suit was decreed on 18-2-1991 by the trial court. The appeal was filed by defendant No,1 only, which was accepted on 24-7-1994 and judgment and decree of the trial court were set aside. Hence, this civil revision.
3. Learned counsel for the petitioners-plaintiffs states that plaintiffs and defendants Nos.2 to 6 are the legal heirs of Ahmad Din deceased and through a family settlement dated 1-7-1973 (Exh.P-1) the suit property was given to the plaintiffs; that through a forged and fictitious alleged affidavit, the copy of which has been produced by defendant No,1 as Exh.D-1, defendant No,2 got transferred the suit property in his favour and sale deed was executed in his favour by the Municipal Committee, the copy of which is Exh.D-2, and through Exh.D-4 dated 28-2-1974 this residential house was given to defendant No,1 in lieu of the agricultural land in exchange. Further states that the first appellate court fell in error while misinterpreting the evidence available on the record; that the first appellate court, has opined that the statements of Mst. Sakina Mia and Mst. Jindan Mai were necessary which have not been recorded; states that the statements of both these ladies were got recorded by the trial court through Local Commission which are part of the file and also available on the record; that the findings of first appellate court are absolutely against the record on this point. It has been further argued that the plaintiffs are in possession of suit property till today; that plaintiff No,6 was admittedly a minor at the time of alleged affidavit on the basis of which the rights in the suit property of the minor have been transferred by the Municipal Committee in favour of defendant No,2, who further exchanged the property with defendant No,1; that Mst. Jindan Mai-defendant No,5 was not available here as she had gone to perform Hajj in those days, so the plaintiffs have proved the absence of said lady in those days when the alleged affidavit (Exh.D-1) was prepared. Further stated that admittedly Mst. Farhat Bibi has been endorsed as minor in Ex.D-1; that an affidavit can be in support of any deed or document but on the basis of alleged affidavit the rights in the property have been shown to have been transferred in favour; of defendant No,2 which was not permissible under the law; that the stay order was confirmed in favour of plaintiffs on 26-11-1974 by the trial court and the petitioners-plaintiffs are in possession of the suit property till today. Further contended that Exh.D-1 is an unregistered document and it cannot be claimed to be a relinquishment deed and that the witnesses of defendants have proved the case of plaintiffs.
4. On the other hand, learned counsel for respondent No,1 states that on the basis of a sale deed, he got this property in exchange of his agricultural land, therefore, he has supported the findings recorded by the first appellate court and prays for dismissal of this civil revision.
5. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
6. The findings recorded by the first appellate court are factually incorrect. The finding of the court that the statements of one of the plaintiffs, Mst. Sakina Mai, and Mst. Jindan Mai-defendant No,5 were not recorded is factually incorrect. I have noticed that the statements of both these ladies were got recorded by the trial court through Local Commission (Muhammad Saleh Siddiqi Advocate) on 7-1-1977 and 1-12-1977, respectively, who also had faced cross- examination and thumb marked their respective statements which are available at pages 61 to 63 of this civil revision, the certified copies of which are taken from the trial court. I do not agree with the counsel for the petitioners with regard to Exh.P-1 which is allegedly an agreement of family settlement. This document has not been proved in accordance with the requirement of law. Moreover, in my view this document cannot extinguish the rights of any party, therefore, on the basis of this document the decree cannot be granted to the petitioners-plaintiffs.
7. So far as, the right claimed by the petitioners-plaintiffs in the suit property as being legal heirs of Ahmad Din deceased is concerned, this claim can be scrutinized. The document Exh.D-1 has been placed against the rights of plaintiffs contending by the defendant No,1 that through this document the rights of plaintiffs have been extinguished in the suit property. This document is allegedly a copy of joint Hallaf-Nama from the legal heirs of Ahmad Din. Admittedly one of the parties to this document Mst. Farhat Bibi was minor at that time. Mst. Jindan Mai has been proved to have gone to perform Hajj and was not available in the Pakistan at that time, therefore, her alleged thumb impression on this document proved it to be a forged one. Furthermore, no permission was sought from the Guardian Judge for transfer of property of the minor in favour of any person. Even against other plaintiffs this document has not been proved by the defendants, when the foundation of claim of defendants is on the basis of forged document. Therefore, Exh.D-2, Exh.D-3 and Exh.D-4 being superstructure of Exh.D-1 have no value against the rights of the petitioners.
8. The trial court granted a stay order in favour of petitioners-plaintiffs. There is a report of Local Commission dated 4-10-1974 who visited the spot and confirmed the possession of petitioners- plaintiffs. When they are in possession of the suit property till today, therefore, the plaintiffs rightly filed a suit and the form of suit was also correct.
9. In the light of what has been discussed above, this civil revision is allowed and the impugned judgment and decree passed by the first appellate court dated 24-7-1994 are set aside. The suit of the plaintiffs is decreed in their favour being legal heirs of Ahmad Din deceased. The plaintiffs and defendants Nos. 2 to 6 to inherit the suit property being legal heirs of Ahmad Din deceased according to their share in accordance with law.