' CH. SHAHID SAEED, J.--- By way of filing the instant civil revision, the petitioners have challenged the judgment and decree dated 17-8-2002 passed by learned District Judge, Kasur whereby he dismissed the appeal of the petitioners.
2. Precisely stated the facts scanned from the record are that the petitioner No,1 namely Sugra filed a suit for declaration challenging Mutation No,3966, dated 26-3-1980 alleging therein that he is son of the Roora, original owner of the property in dispute fully described in the plaint; that after death of Roora, he got due share from inheritance of Roora as his son vide Mutation No,326, dated 20-5- 1960; that he also received his due share from the inheritance left by his deceased brother Hassan Khan vide Mutation No,327, dated 16-6-1960; that on the death of another son of Roora namely Ghuman, respondent No,1 namely Imam Khan got sanctioned disputed Mutation No,3966, dated 26-3-1980 in his favour excluding the petitioner and mutated the land further in favour of his son vide gift Mutation No,5238.
3. The'' suit was hotly contested by the respondents mainly on the ground that the petitioner- plaintiff was not real son of Roora, rather he was adopted son of Tipu from whom he had also inherited property. The respondents also took plea that the petitioner had got sanctioned Mutations Nos.326 and 327 fraudulently and when the objection was raised, the petitioner promised before the respectables of brathery that he will get the said mutations cancelled and return the property to the respondents.
4. Keeping in view the divergent pleadings of the parties, the learned trial court framed issues and after recording oral as well as documentary evidence of the parties dismissed the suit vides judgment and dectee dated 13-5-1992. Feeling dissatisfied, the petitioners filed appeal which also met with the same fate vide judgment and decree dated 23-9-1992 which was further assailed in Civil Revision 1576-D of 1992. This Court remanded the case to the learned first appellate court vide order dated 4-6-2002 to decide the appeal of the petitioners afresh. After remand, the learned District Judge again dismissed the appeal of the petitioners vide impugned judgment and decree.
Hence this civil revision.
5. Learned counsel for the petitioners inter alia contend that the petitioner No,1-plaintiff is real son of Roora which factum is clear from earlier Mutations bearing No,326, dated 20-5-1960 (Exh.P-9) and 327 dated 16-6-1960 (Exh.P.10). By virtue of Mutation No, 326, dated 20-5-1960, the petitioner inherited property from Roora as his real son. Thereafter, the petitioner also got his share out of the property left by his deceased brother Hassan Khan vide Mutation No,327, dated 16-6-1960 (Exh.P- 10). Neither any objection, whatsoever, was ever raised nor the said mutations were challenged by the other side. Further aver that the respondents have continuously been admitting the parentage of petitioner No,1 as son of Roora and it is the first time, when Mutation No,3966 dated 26-3-1980 has been sanctioned depriving the petitioner from his due share out of inheritance of his brother Ghaman on the pretext that petitioner No,1 is not real son of Roora. So the principles of lathes and estoppel will be applicable to the respondents. The documents even produced by the respondents' side themselves show that petitioner No,1 Sugra is son of Roora. The case was remanded by this Court in Civil Revision No,1576-D of 1992 vide order dated 4-6-2002 to the learned first appellate court to decide the appeal of the petitioners afresh but the learned first appellate court has badly failed to resolve the only question before it as to whether petitioner No,1 Sugra was son of Roora or not. After remand, the learned first appellate court has only seen first pert of Pedigree-table wherein the name of the petitioner does not exist but it has failed to look at second pert of the same wherein the petitioner No,1 is duly mentioned as son of Roora. He argues that the appeal withdrawn before the Assistant Collector was in fact a fraud which was challenged before the Revenue authorities who advised to file a civil suit. The learned lower courts below have failed to properly appreciate the evidence available on record, therefore, the civil revision in hand be accepted, the impugned judgments and decrees be set aside and the Mutation No,3966 dated 26- 3-1980 as well as subsequent Mutation No,5238 be declared null and void.
6. Conversely, learned counsel for the respondents has vehemently opposed this civil revision and supported the impugned judgment. He contends that after having inherited property from Roora vide Mutations Nos.326 and 327 by Sugra, the matter was placed before a Punchait, where Sugra promised and also returned the said property in favour of the petitioners, so there was no need to challenge the said mutations before any forum and also even if his name appears in the Mutations Nos.326 and 327 as son of Roora is of no consequence. He further argues that according to Pedigree-table (Exh.Pl), Sugra was not son of Roora but adopted son of one Tipu. He also points out that an appeal was filed before the Assistant Collector in the year 1989 against the impugned Mutation No,3966, dated 26-3-1980 which was, later on, withdrawn by the petitioners admitting the claim of the respondents. The petitioners-plaintiffs have failed to prove that Sugra was son of Roora, therefore, this civil revision having no force be dismissed.
7. I have heard the arguments advanced by learned counsel for the patties and also perused the record with their able assistance.
8. The moot point in this case whether Sugra was son of Roora or not. If he proves to be the son of Roora, he is eligible to inherit the property of Roora as well as of his deceased sons, however, in other case, he will be a stranger and cannot get anything from the inheritance of Roora or his sons.
9. The whole stress of the petitioners is on Mutations Nos.326, dated 20-5-1960 and 327 dated 16-6- 1960, whereby Sugra inherited property from Roora as his son as well as from Hassan Khan, admitted son of Roora, as his brother. There is no dispute uptil this point. However, the respondents' claim is that Sugra returned the whole property inherited vide said Mutations Nos.326 and 327 through a Panchaiti decision to the respondents, therefore, the matter was not agitated before any forum. However, there is nothing on record to show that even if the property was returned, what was its purpose: whether it was excessive or whether it was returned in result of exchange of some other land or some other settlement. However, it is nowhere mentioned on the record that Sugra has ever admitted that he was not son of Roora.
10. On the other hand, the respondents emphasize more on Pedigree-table (Exh.P1), wherein, no doubt, the name of Sugra is not mentioned below the name of Roora as his son along with other sons: Imam Khan, Hassan Khan and Ghaman. Nevertheless, at some distance, Sugra adopted son of Tipu is written. But this does not mean that Sugra was not real son of Roora, rather it might happen that he was son of Roora but was adopted by one Tipu. The record is also silent about who was Tipu. It has also been pointed out by learned counsel for the parties that Roora had another son namely Jhaman who died before the partition. But the Pedigree-table (Exh.P1) is silent about Jhaman. The name of Jhaman is totally missing in the Pedigree-table which makes it doubtful. The record reveals that learned counsel for the respondents produced Exh.P1 before the trial court during its proceedings on 9-5-1991 and no evidence or cross-examination occurred regarding Exh.P1. Above all, submission of one document is not enough; particularly when if a dispute arises between the parties upon a document, it becomes incumbent upon the party relying upon it to prove the same through cogent evidence which has not been done in this case. On the other hand, the name of Sugra is duly mentioned in the Mutations Nos.326, dated 20-5-1960 and 327, 16-6-1960 whereby Sugra inherited property from Roora as his son and from Hassan Khan (admitted son of Roora) as his brother.
11. The respondents have also asserted that the appeal filed by the petitioners before the Revenue authorities was withdrawn vide order dated 16-9-1989 which was not challenged further. But the record shows otherwise. The petitioners challenged the order dated 16-9-1989 with the averments that it was result of fraud and misrepresentation, however, the revenue authorities advised the petitioners to approach the civil court for decision in the matter, therefore, the instant suit was filed.
12. The Mutations Nos.326 dated 20-5-1960 and 327 dated 16-6-1960 (Exh.P-9 and Exh.P-10) are more than fifty-one years old and under Articles 100 and 101 of Qanun-e-Shahadat Order, 1984, any document having age of more than 30 years is presumed to be true, if it comes from proper custody. Admittedly, the said Mutations Nos.326 and 327 are part of Revenue Record and were never denied by the respondents' side, so the execution of said mutations is beyond any shadow of doubt and admitted by both sides. When it stands proved that Mutations Nos.326 and 327 pertaining to the year 1960 wherein petitioner Sugra has been mentioned as son of Roora are true, then there remains nothing to disbelieve otherwise. On the opposite side, there is a Pedigree-table (Exh.P-1). Though Exh.P1 is much older than the Mutations Nos.326 and 327 but its veracity is disputed and doubtful as no one has testified Exh.P1. There is only stamp of Central Record Office on Exh.P1 which is not sufficient when contents of the same are doubtful. In the circumstances, the preponderance of evidence lies in favour of the petitioner. Furthermore, under Article 117 of Qanun- e-Shahadat Order, 1984, one who desires a judgment in his favour on the basis of certain facts, the onus probandi to prove such facts lies with him. In the present case, the petitioners have been successful to prove their case. Particularly, in the presence of Mutations Nos.326 and 327, there is nothing on the record to disbelieve the averments of petitioners.
13. In a nutshell, the learned courts below have failed to properly appreciate the evidence available on record, especially, they have relied more on Pedigree-table (Exh.P1) and did not give proper weight to the Mutations Nos.326 dated 20-5-1960 and 327, dated 16-6-1960 (Exhs.P9 and 10) wherein Sugra has been mentioned as son of Roora, therefore, this civil revision is allowed, the impugned judgments and decrees are Set aside and the suit of the petitioner is decreed as prayed for.