' KHALID MAHMOOD, J.--- This revision petition under section 115, C.P.C. Is directed against the judgment and decree dated 11-6-2010 whereby learned District Judge, Mansehra dismissed the appeal of petitioners and upheld the judgment and decree passed by Civil Judge VII, Mansehra dated 17-4-2011.
2. Brief facts of the case are that plaintiff/respondents Nos.1 to 7 instituted Suit No.515/1 while respondents Nos.8 to 17 filed Suit No.87/1 both for declaration challenging Mutations Nos.9741 and 2779 attested on 26-6-1989, injunction and compensation of property acquired for New Balakot City was also sought regarding property fully described in the heading of the plaint against petitioners, which after contest was decreed by the trial court on 17-4-2011. Petitioners and pro forma respondents preferred appeals while legal heirs of Mst. Dakhoo daughter of Abbas moved an application under Order I, Rule 10, C.P.C., which was turned down by the appellate court and learned appellate court after hearing the parties dismissed the Appeal No.70/13 while partially accepted Appeal No.69/13. Hence, the instant revision petition before this court.
3. Learned counsel for the petitioners argued that judgments and decrees of both the courts below are against law, facts and evidence on record, therefore, liable to be set aside. He further argued that suit of the plaintiff was filed after a lapse of 22 years without any plausible explanation of delay and being hopelessly time barred was liable to be dismissed but both the courts below have ignored this legal aspect of the case. He contended that original claimant Mst, Safeda Jan has not challenged the impugned mutation in her life time and after her death her husband respondent on the ground of bitter relations with petitioner filed instant suit with main fide intention and that both the courts below have misinterpreted the relevant provisions of law in respect of entries of Revenue Record and wrongly and illegally focused their decisions on the mutations. However. Learned counsel for the petitioner declared the both the judgments of both the courts below to be illegal, against law and facts and prayed that the same is liable to be set aside.
4. On the other hand, learned counsel for the respondents opposed the contentions of petitioners and supported the impugned judgments and decrees of the courts below.
5. Arguments heard and file perused.
6. Parties are L.Rs, of Haroon deceased after his death the entitlement of Haroon deceased was devolved in favour of Musharraf and his sisters. The suit property is situated in moza Dhudial and Shanai. Two Mutations Nos.9741 and 2779 attested on 26-6-1989 were executed in favour of Musharraf petitioner by his other sisters. First Suit No.515/1 was filed on 5-7-2007 by L.Rs, of Mst.
Chan Safeda deceased sister of Musharaf petitioner, whereas subsequent Suit No.87/1 was instituted by Mst. Mehr Angaze etc. On 13-10-2007. Both suits were instituted on the basis of same mutations regarding the same property, however as cause of action was narrated being different therefore, both the suits were proceeded separately.
7. The main contention of the respondents was that their thumb-impressions on the suit mutations were fraudulently obtained on wrong pretext that as inheritance mutation of Haroon predecessor of the parries was going to be attested in their favour wherein their thumb-impressions are also required. It has been admitted by respondents/plaintiffs that at the time of attestation of suit mutations one Isa Khan attesting witness was present. So far question of presence and putting of thumb impression/signature on the suit mutation, has been admitted by the respondents in their plaint as well as in their own evidence. Now question is left only to prove that mutations were attested on .The wrong pretext or same was executed voluntarily or knowingly regarding transfer of entitlement of the respondents. The contention of learned counsel for the petitioner was for attestation of inheritance mutation, the presence and putting signature or thumb-impression is not required. In this respect, section 42 of Land Revenue Act is reproduced below for ready reference which is meant for execution of inheritance mutation. The same is as follows:--
42. (7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a court, the Revenue Officer shall make the order under subsection (6) in the presence of the person whose right has been acquired after such person has been identified by two respectable preferably from Lambardars or members of the Zila Council, Tehsil Council or Town Council'] or. Union Council concerned, whose signatures or thumb- impressions shall be obtained by the Revenue Officer, on the register of mutations."
' One important marginal witness namely Issa Khan whose presence has been admitted, was produced by the petitioner who categorically supported the version of petitioner and admitted that suit mutations were correctly executed by the respondent/plaintiff after 'admitting the same as correct. Nothing during his cross-examination has been brought on record to prove which prejudice the rights of the petitioners or to discard the voluntarily attested suit mutations.
8. DW.4 Inayat ur Rehman though was not marginal witness of suit mutation but had supported the version of the petitioner. P.Ws.2 and 3 Patwari Halqa who had entered the mutations were produced by the petitioner and categorically stated that the mutation was in fact sale mutation..
The said P. Ws. Were not cross-examined' regarding factum of sale mutation or that of inheritance mutation rather no suggestion regarding the fraud or regarding the inheritance was put to the said witness. If the witness what has stated in his statement is not cross-examined, then the portion of the said statement will presumed to he stand proved. It is also admitted fact that all the sisters of petitioner are married and are residing in different places. So, coming for execution of said suit mutation the knowledge of entire family including husbands of the said sisters of petitioner cannot be ignored and so far knowledge of suit mutation is concerned, not only respondent rather all family was presumed to be aware of the suit mutation. In the present case, P.W.7 namely Mst. Bibi Zaitoon had admitted that at the time of attestation of suit mutation one Issa Khan was present who is one of the marginal witnesses is first cousin of the parties L.Rs of Haroon as admitted by P.W.5 Abdul Manan attorney of the plaintiffs.
9. Mutation was attested in 1989 whereas suit has been filed in 2007 after a lapse of 18 years during which period nonpayment of share of produce is established. No plausible explanation whatsoever has been filed that why at so belated 'stage suit has been filed. Moreover, there is contradiction in the statements of P.Ws. In para No.4 of the plaint, Mst. Mehr -Angaze etc. It was stated that Mst.
Chan Safeda deceased was not present and instead of her thumb-impression, wife of petitioner Musharraf had put her thumb-impression on the suit mutations, In the same para, it was asserted that the plaintiffs were taken to the Tehsildar by the petitioner Musharaf on wrong pretext regarding the execution of inheritance mutation. In other words, all sisters remained silent rather participated in the proceedings wherein fraud was committed by producing Mst. Khalil-un-Nisa wife of petitioner in place of Mst. Chan Safeda, wherein alleged inheritance mutation was got attested by putting a thumb impression through impersonation. The version of respondents negate their stance.
10. It is also pertinent to note that attorney of respondents Nos.2 to 7 husband of Mst. Chan Safeda is co-owner in the suit property and has the knowledge of the entries in revenue record. It also admitted in his own statement that a dispute, over the jungle also arose with petitioner which culminated into litigation. Respondent No 1 after the death of his wife and due to dispute over jungle has instituted Suit No.515/1, later on others sisters of petitioner filed Suit No.87/1 at his instigation. However, one of the sister of petitioner Mst. Jamila did not challenge the mutations rather supported the claim of petitioner.
11. In the present case, fraud has been alleged against the petitioner but no particular of fraud has been asserted in the plaint. Respondents/defendants are obliged to give the detail of fraud in their plaint, same is necessary as envisaged in Order VI, Rule 4 of C.P.C. Which describes the mode of filing of suit wherein fraud is alleged. Attorney of respondent husband of Mst. Chan Safeda co- sharer of, the suit property was aware of the attestation of mutation but the same is never challenged during her life time. Abdul Marian and petitioner are first cousin inter se, but both the courts below halve not discussed and appreciated the close relationship and enmity arose due to jungle dispute.
12. The main contention that respondents came to know when they approached for getting the compensation regarding the acquired suit land. But respondents failed to substantiate that when they approached the authorities for the payment of compensation. There is nothing on record regarding the acquisition of the suit property to verify the stance of the respondents. When a party alleges a specific factual point then-he is duty bound to prove the same by supporting 'evidence.
In the present case, respondent failed to prove this specific issue, because it disclosed the cause of action.
13. Whereas in the subsequent suit filed by Mst. Mehrangazae etc. It was stated in Para 5 of the plaint that they came to know regarding the suit mutation from the earlier suit filed by legal heirs of Mst. Chan Safeda whereas in statement of their attorney P.W.6 Dilawar it was stated that he along - with his aunt came to Mansehra and consulted the revenue record wherefrom they came to know regarding the suit mutation. Not only the version of said respondent is contradictory from their own written statement rather this divergent stance has been taken without amendment in the pleadings. As no one can go beyond his own pleadings without sorting the amendment. In this respect Order VI, Rule 7, C.P.C. Is clear on the legal point. Moreover, wisdom can be drawn from the case of Din Muhammad and another v. Subedar Muhammad Zairian 2001 SCM R 1992 wherein it has been held that:--- "Plaintiff cannot be conveniently allowed to make departure from his stand taken by him in plaint.
Departure from pleadings under 0.11, R. 7, C. P. C. Is subject to amendment with the permission of trial court---Without seeking amendment by plaintiff from the trial court, he cannot be allowed to set up a new case for obtaining relief as prayed for."
14. Both the courts below had not properly discussed the evidence produced by the parties.
Specially statement of P.W.6 Dilawar and P.W.5 Abdul Manan has not been properly appreciated. I would like first to discuss the statement of P.W.6 Dilawar which is full of contradictions and concealment of facts. P.W.6 attorney of plaintiff in Suit No.87/1 is attorney of the plaintiff and is son of Mst Taj Paro. P.W.6 has admitted in his cross examination that his mother Mst. Taj Paro died in 2006. He also admitted that what he had stated were- narrated to him by his mother in 2005.
Hence, it has been admitted that respondents/plaintiffs were in knowledge of the attestation of suit mutations in 2005. The rest of story that they came to know regarding the mutation when they consulted the Revenue Record at Mansehra is false and concocted one. Both the courts had also ignored the important feature of the case that as per version of P.W.6 Mst. Taj Paro died in 2006 whereas suit was filed in 2007 but neither her legal heirs were arrayed as party nor she was shown dead at the time of institution of the suit. Moreover, power of attorney which was executed on behalf of respondents/plaintiffs it has been executed by the plaintiffs/respondents but astonishing enough that Mst. Taj Paro has been shown alive but instead of her thumb-impression Dilawar attorney/son of Mst. Taj Paro had put his signature. The very suit and power of attorney is illegal apparently seems to be based on fraud. As no suit can be filed by a dead person nor any dead person can execute a power of attorney, hence very suit is incompetent and speaks otherwise.
P.W.5 Abdul Manan is father in law of P.W.6 and Isa Khan marginal witness of the suit mutation is first cousin of wife of P.W.5, He admitted that before institution of the suit contacted her other sisters-inlaw/Mst. Zaitoon and Mst. Jamila. P.W.5 has admitted that his wife Mst. Chan Safeda died about 13/14 years before institution of the suit. Though he is co-sharaer in the suit property but never bothered to attest the inheritance mutation of his wife. Moreover, it is admitted fact that Mst.
Chan Safeda had not filed any suit regarding the suit mutations during her life time. He has also admitted that there is dispute between him and petitioner. He also admitted that in the light of compromise regarding dispute over jungle, he in writing has given undertaking that he will not cut the trees of Isa Khan and Musharraf and also will not interfere in the property of the petitioner. It is also pertinent to note that he was instrumental for present litigation. Though he had informed two sisters in law but initially they did not join as plaintiff in his suit. In the subsequent suit, this fact regarding information by P.W.5 has not been mentioned, rather it was alleged that when they inspected the revenue record then they came to know about the suit mutations. These tnaterial contradictions and suit filed by a dead person and forged power of attorney executed in favour of P.W.6 has been ignored by both the courts below. Hence, in the light of filing of suit after delay of 18 years, deviation from the pleadings without amendment in the pleadings, forged power of attorney issued in favour of P.W.6, filing of suit on behalf of a dead person (Mst. Taj Paro) in light of statement of Issa Khan common witness, admitting mutations as correct by Mst. Jamila one of executants, material contradictions in the statements of P.Ws. Led me with no option only to set aside the judgment and decree of courts below.
15. In the light of above stated reasons, the present revision petition is allowed. The judgment and decree of trial court is set aside. With no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.