' CH. SHAHID SAEED, J.---Through the instant civil revision petitioners have challenged the impugned judgment and decree dated 17-7-2003, passed by learned Additional. District Judge Hafizabad, by way of which appeal filed by the respondents was accepted and their suit for declaration was decreed.
2. Brief facts of the case are that plaintiffs/respondents filed a suit for declaration against the defendants/ petitioners stating therein that both the parties are collaterals and Muhammad Khan was the common ancestor of both the parties. The plaintiffs have given a pedigree-table in the plaint according to which Rehmat Khan, Naseer Khan and Ghulam Rasool were sons, of Muhammad Khan. The plaintiffs are daughters of Rehmat Khan, whereas Irshad Ullah and Muhammad Usman defendants Nos.6 and 7 are sons of Naseer Khan while the other defendants are successor in interest of Ghulam Rasool. It was stated in the plaint that predecessors of both the parties were co-sharers of the landed property (detailed in para-2 of the plaint) which was commonly owned and possessed by both the parties. The common land was taken into possession by both the parties on specific number khasras but by this temporary partition, the parties never intended to partition the joint land on permanent basis rather it was just a temporary arrangement. The plaintiffs further stated in the plaint that predecessors of plaintiffs and defendants Nos.6 and 7 were uneducated and very simple people whereas Ghulam Rasool, predecessors of other defendants, was very clever person and was leader of the family and he just to get undue advantage of the simplicity of his brothers, got sanctioned Mutation No, 824 dated 20-9-1963 in his favour against the facts which is illegal, void and based on fraud because in fact the predecessors of the plaintiffs and defendants Nos.6 and 7 never appeared before the Tehsildar and that a fictitious mutation was sanctioned in a village namely Kalianwala which is at a far of distance from the village of the parties namely Kolo Tarar. It was further pleaded in the plaint that Ghulam Rasool, predecessor of the defendants Nos.1 to 5 and .8 to 14 got land more than his due share and further he got entered the better type of land mutated in his favour. The plaintiffs further stated that they came to know about the said mutation only one year before the institution of the suit. They further maintained that the above mentioned mutation is illegal, void, and ineffective, based on fraud and not binding upon the plaintiffs; that the landed property mentioned in Para-2 of the plaint is still joint and the plaintiffs prayed a decree for declaration to the same effect.
3. On the other hand, defendants No,1 to 3 and 5 contested the suit and filed their written statement whereas the other defendants did not contest the suit. Out of the divergent pleadings of the parties, learned trial Court framed the necessary issues including relief. Both the parties led their oral as well as documentary evidence in support of their versions. The learned trial Court vide judgment and decree dated 7-3-2002 dismissed the suit of the plaintiffs. They preferred an appeal which was allowed and the suit of the plaintiffs was decreed. Feeling aggrieved by the judgment and decree of the learned appellate court petitioners have filed the instant civil revision.
4. Learned counsel for the petitioners contends that the impugned judgment and decree passed by the learned appellate court is against law and facts and also based upon misreading and non- reading of evidence; that the judgment of the two courts below are at variance. Further argued that the Mutation No,824 regarding partition of agricultural land was sanctioned on 20-9-1963.
Respondents filed the suit on 17-1-1998 after the lapse of 35 years. The suit was barred by time. That the attorney of the respondent Nos.1 and 2 namely Khuda Bakhsh who appeared as P. W.1,. Was 11 years old at the time of the Mutation No,824 dated 20-9-1963. He was not in a position to give any evidence regarding aforesaid mutation. The respondents Nos.1 and 2 never appeared in the witness box and there lies strong adverse inference against them in this regard.
5. Despite repeated calls none has appeared on behalf of the respondents. Name of learned counsel for the respondents duly reflects in the cause list but no intimation regarding his absence has been received. So the respondents are proceeded against ex parte.
6. Arguments heard. Record perused.
7. Undeniably, Mutation No,824 regarding the partition of agricultural land was sanctioned on 20-9- 1963, whereas the suit for partition was filed on 17-1-1998 by the respondents Nos.1 and 2 after the lapse of 35 years which is hopelessly barred by time. Respondents have not given any reasonable explanation that why they remained mum for more than three decades and did not challenge the same. No averment was made as to how and when disputed mutation first came to their knowledge except making a vague averment without any particular fact. Admittedly, parties are in possession of their portions of land since 1963 and the mutation in dispute was practically acted upon by the parties. So the contention of the plaintiffs that they came to know about the mutation in question one year before the institution of the suit is without substance and the same is repelled.
Reliance can be made to the case of Jamila Khatoon and others v. Aish Muhammad and others (2011 SCM R 222). It is also settled law that suit brought beyond the period of six years was barred by law of limitation and was not protected on the principle that in, inheritance cases there is no period of limitation.
8. Record further reflects that the mutation in dispute was sanctioned with the approval of owners in the khata. The parties to the mutation are in possession of the land since 20-9-1963. The mutation regarding partition of agricultural land was implemented and acted upon. Record further shows that mutation in dispute had already been given effect to in record of rights and the father of the plaintiff did not challenge the mutation in dispute. The plaintiffs claimed the property through Rehmat Khan as her heirs and filed the suit about 35 years after the mutation. Therefore, while relying upon the case-law 2002 SCM R 1330 I am of the considered view, that plaintiffs had no locus standi to challenge the mutation independently for Rehmant Khan through whom they claimed inheritance himself had not challenged the same during his life time.
9. Another important aspect of the case which the learned appellate court has ignored is that domestic partition between the predecessor in interest of the parties on the basis of which mutation in dispute was sanctioned has been admitted by the plaintiffs in paragraph No,5 & 6' of their plaint. Moreover special attorney of the plaintiffs while appearing as P. W.1 also admitted the, aforesaid domestic partition as correct. From the perusal of evidence it appears that Khuda Bakhsh attorney of the plaintiffs was 11 years old at the time of mutation in dispute. He was not in a position to give any evidence regarding aforesaid mutation. Record further denotes that plaintiffs never appeared in the witness box. There is no explanation whatsoever on the record for their failure to enter the witness box in support of their case. The conduct of the respondents shows that they were not interested in the suit and filed the same just to blackmail and overawe the petitioners.
10. The other contention of learned counsel for the petitioners is that earlier the respondents got attested the mutation of inheritance No,1519 in their favour on the ground that their deceased father professed Shia faith just to deprive the other legal heirs of Rehmat Khan from the property.
' But this court vide judgment dated 21-10-2004 in another Civil Revision No,1124 of 1999 has decided that father of the plaintiffs belongs to Sunni sect. Therefore, in view of the previouslitigation between the parties and earlier conduct of the respondents apparently it seems that they have not come to the court with clean hands.
11. Moreover the respondents have also alleged that the mutation in dispute was the result of fraud and misrepresentation but they have not produced any solid and confidence-inspiring evidence to prove the fraud. It also settled law that one who alleges fraud has to prove the same.
12. The findings of the learned appellate court to the effect that mutation in dispute is not tenable in the eye of law because the same was not sanctioned in the estate to which the land belonged. The said findings of learned appellate court are contrary to law because provisions of section 42 of the Land Revenue Act are not mandatory and the mere fact that the mutation has been sanctioned in a different estate will not be a ground to invalidate the transaction embodied in the mutation.
Reliance can be placed upon 2000 SCM R 519.
13. Furthermore on the basis of preponderance of evidence I am of the considered opinion that the learned appellate court has committed illegality and material irregularity while passing the impugned judgment and decree which is not sustainable in the eyes of law.
14.
For the foregoing reasons, the instant civil revision is allowed and the impugned judgment and decree dated 17-7-2003 passed by the learned Additional District Judge Hafizabad is set aside with no order as to costs.