' SHAH JEHAN KHAN AKHUNDZADA, J.---Petitioner herein brought a suit for declaration to the effect that the predecessor-in-interest of the parties namely, Abdul Karim deceased was exclusive owner of the suit property fully described in the heading of the plaint and Mutation No,3644 attested on 4-2-1996 in favour of Muhammad Ismail, predecessor-in-interest of defendants Nos.3 to 12 and defendants Nos.3 and 4 as well as registered deed No, 831 dated 19-12-1994 in favour of Muhammad Ismail predecessor-in-interest of defendants Nos.3 to 12 and Tamleek Mutation No,4003 attested on 30-11-2000 in the name of Abdur Rauf respondent No,1 on behalf of said Abdul Karim predecessor-in-interest are forged, illegal, against law and facts and ineffective upon the rights of the plaintiffs and as such liable to be cancelled. Averments of the plaint briefly stated are that the above mentioned property along with other property was the exclusive ownership of late Abdul. Karim who died on 27-12-2003. That after the death of Abdul Karim the plaintiffs and defendants are his legal heirs. It was also asserted that plaintiffs Nos.7 to 10 are the real daughters of Abdul Karim deceased, whereas plaintiffs Nos.1 to 6 and defendants Nos.13 and 14 are the legal heirs of Abdul Qadous s/o late Abdul Karim and are grandsons and granddaughters of late Abdul Karim. That Abdul Karim deceased has not either sold or transferred the suit property by way of tamleek and the mutations as well as registered deed mentioned above are wrong against law facts and ineffective upon the rights of the plaintiffs because their predecessor-in-interest had no need to sell his immovable property as his monthly' income from the shops and houses was more than of his expenditure. That the plaintiffs after the death of their predecessor-in-interest, checked the revenue record and came to know about the entry of inheritance mutations and registered deed in favour of defendants Nos. 3, 4, 3 to 12 and defendant 1, which are forged fraudulent and ineffective against the rights of the plaintiffs. That the mutations and registered deed mentioned above have been entered/scribed just to deprive the plaintiffs from their legal right to receive their share in the legacy of their processor-in-interest, which are liable to be cancelled. That the defendants without any lawful justification have deprived the plaintiffs from their share in the disputed property as well as from the income of the shops and quarters despite demand of the plaintiffs. That the defendants are posing themselves to be the owners of the disputed property.
That the defendants were repeatedly asked to separate the share of the plaintiffs and to handover monthly income to the extent of share of the plaintiffs derived from the shops and houses but they refused. Hence the present suit.
2. The defendants/respondents filed written statement, wherein various factual as well as legal grounds (pleas) were taken and thus divergent pleadings of the parties were reduced into the following issues by the learned trial Court:-- ISSUES:
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff is estopped to sue under Article 114 of the QSO, 1984?
(3) Whether the suit is time barred?
(4) Whether the suit is liable to be dismissed for non-affixation of Court-Fee?
(5) Whether the Court has got jurisdiction to entertain the instant suit?
(6) Whether the Mutation No,3644 attested on 4-2-1996, registered deed No,831 dated 19-12- 1994.Tamleek Mutation No,4003 dated 30-11-2000 and the subsequent Mutation No,086 dated 24- 7-2002 and Mutation No,4075 dated 26-3-2002 are illegal, fake, fictitious without consideration of sale price, hence inoperative upon the rights of the plaintiffs and so, liable to be cancelled?
(7) Whether the plaintiff is entitled to the decree as prayed for in relief Alif, and Daal?
(8) Whether the plaintiff is entitled to the decree as prayed for in relief Bay and Jeem?
(9) Relief.
3. After recording pro and contra oral and documentary evidence, the learned trial Court after hearing arguments of the counsel for the parties dismissed the suit vide judgment and decree dated 13-4-2005. Feeling aggrieved the plaintiffs/petitioners filed appeal which was heard by the learned Additional District Judge-VII Peshawar and the said appeal was accepted and vide judgment and decree dated 11-1-2005 remanded the case to the learned trial Court with the direction to decide the case afresh on the ground that the judgment of the learned trial Court dated 13-4-2005 was not in accordance with the provisions of Order XX, Rule 3, C.P.C. After remand the learned trial Court re-heard the arguments of the learned counsel for the parties and again dismissed the suit of the petitioners/plaintiffs vide judgment and decree dated 8-4-2006.
Dissatisfied with the said judgment, the petitioners/plaintiffs filed appeal, which was dismissed by the learned Additional District Judge-VIII, Peshawar vide judgment and decree dated 14-11-2006
4. Dissatisfied with the judgment and decree dated 14-11-2006, passed by the learned lower appellate Court, the petitioners preferred revision petition bearing No,191 of 2007 before this Court which was allowed, judgment and decree of the appellate Court was set aside and the case was sent back to the lower appellate Court for decision afresh in accordance with law vide judgment and decree dated 29-10-2007. After the remand of the case by this Court, the learned Additional District Judge-VIIL Peshawar vide his judgment and decree dated 17-7-2008 dismissed the appeal of the petitioners and upheld the judgment and decree dated 8-4-2006 passed by Civil Judge, Peshawar whereby he dismissed the suit or the plaintiffs/petitioners. Hence, this revision petition against the concurrent findings of the two Courts below.
5. I have heard the learned counsel for the parties and perused the available record.
6. The case of the plaintiffs/petitioners is that Abdul Karim predecessor-in-interest of the parties was owner and in possession of the suit property described in the heading of the plaint and Mutation No,3644 attested on 4-2-1996 vide registered deed No,831 dated 19-4-1994 in favour of Muhammad Ismail deceased predecessor of defendants/ respondents Nos. 3 to 12 as well as Mutation No, 4003 attested on 30-11-2000 in favour of Abdul Rauf defendant/respondent No,1 on behalf of Abdul Karim is illegal, wrong, contrary to the facts, fictitious, fraudulent and without sale consideration, therefore, they are liable to be set aside. Further Mutations Nos. 4075 and 4086 attested on 26-3-2002 and 24-7-2002 respectively on the strength of the above mutation are illegal and also liable to be set aside.
7. The moot question for determination by this Court is as to whether Abdul Karim the predecessor- in-interest of the petitioners who was the owner and in possession of the suit property had transferred the same on the basis of mutations and registered deeds in the name of predecessor- in-interest of the defendants/respondents by means of fraud and misrepresentation or through valid transaction by way of various mutations and registered deeds in accordance with law. Per contention of counsel for petitioners the burden of proof was lying on the defendants/ respondents to prove that the same had been transferred by Abdul Karim original owner bonafidely on the basis of valid registered sale deed and mutation because they were beneficiaries of the same. So far as this contention of the counsel for petitioners is concerned, it is established from perusal and appreciation of evidence on record that they have fully discharged this burden by producing the marginal witnesses of the mutations and registered deeds. Abdul Khaliq, DW-2, Sahibzada Abdul Qayum, DW-3, Ismail DW-4, Abdul Rashid, DW-6, Abdul Ghafoor, DW-7 and Abdul Jalil, DW-8 who are marginal witnesses of the different suit mutations and registered deeds appeared on behalf of defendants/ respondents and they have categorically admitted their signatures and thumb impressions on the suit mutations and registered deeds. However, burden of proof is always on the claimant/plaintiffs to prove his claim. Perusal of the evidence produced by petitioners/ plaintiffs in the suit in hand shows that they have bitterly failed to substantiate their claim through cogent, conclusive and trustworthy oral and documentary evidence and perusal of the suit mutations and the registered deeds clearly contain the endorsement of the revenue officials/ officers to the effect that these were signed and thumb impressed by the vendor and were attested in his presence.
8. So in view of the above discussion, I am of the considered that the findings of the learned two Courts below given on all issues in the impugned judgments and decrees are based on proper appreciation of evidence on record and thus the same are well founded and learned counsel for the petitioners during his arguments could not point out any illegality, material irregularity, misreading or non-reading of evidence or any jurisdictional error or defect in the concurrent findings of the two Courts below to warrant interference by this Court in exercise of its revisional jurisdictional.
9. Both the learned lower Courts have rightly dismissed the suit of the petitioners/plaintiffs, hence this revision petition being devoid of any substance, is dismissed with costs.