elnc2 fAiDrl ()AMIN-UD=DIN :KHAN, J. 'Through-L-this. .RimOmteyision,., the petitipnedefendants have challenged the judgment and decree dated 13.11.1997, passed by the learned Addl. District Judge, DahawalYAir, whereby the appeal filed by the respondents' was accepted and cross-objectidi filed by the petitioners were dismissed against the judgment and decree datedlet.09.1994 passed by the learned Civil Judge 1st Class, Khairpur Tamewali, District Bahawalpur, whereby the suit filed by the plaintiff was dismissed.
2. Briefly, the factsterring to this civil revision are that plaintiff , Ghulam Qadir, filed a .As.' Or declaration and possession on 10.01.1988 claiming to be the owner of suit property fully mentioned in the head note of plaint and also challenged. Various .Mutations of inheritance, exchange and gift. The case as pleaded by the plaintiff was that Wahid Bakhsh son of Jewan was the original owner of suit property. He was issueless and he left Mst. Bakhtan, the real sister of plaintiff, only. The whole of his property was transferred in favour of Mst.- Bakhtan through Mutation No. 126 sanctior :.c1 on 14.09.1938. Mst. Bakhtan remained asOwner in possession till her death in the year 1950 and further that no one:except the plaintiff was alive at the time of death of Mst. Bakhtan, therefore, he being brother of said Mst. Bakhtan is entitled to be declared as owner of iiitipk-bi3eftilaiWoiseW011 be also given to him. He has challenged various mutations and reventietVPOnfib",tym The written statement was filed, some 4.,theAdefenkt,s_copfesd the suit , whereas some.Of.The defendants filed rated Trial Court framed; ecessary issues and invited the parties to-poduce ,their respective evidence.
Both the parties led. Their oral as well a0ocunientary ol evidence and after.Close of trial, Trial,cqurt,decided some of the isasues in favour ty.):of plaintiff butAistnissed his suit vide- judgment And decree ,dates M: Feeling aggrieved by the said decree, an appeal was filed by the plaintiff and the :defendants also filed cross-objections. Vide judgment and decree dated 5!.)t 13.11.1997 learned first Appellate Court accepted the .Appeal filed by the .3:plaintiff and dismissed cross-objections filed by the defen*.4.;.1-Agince,,this civil revision by-the defendants-petitionersqiiik,.0q01q Dirt, filpy brill 5[6, tOl 3. The further necessary facts are that on sanctioning of Mutation No. 126, an application within one month of attestation of said mutation, for review of this mutation No. 126 was filed by Karim Bakhsh, Rahim.13alchsh and Sultan sons of Muhammad Bakhsh claiming to be collateral of deceased Wahid Bakhsh, therefore, claimed 3/4th sharelifithe'AlitpropertOis WaitidRakhsh was issueless and his widow Mst. Bakhtalliwas erttitled,04 1/4 share, According to the record the permission for review was sought andsifi 20.04.1939,ne was panted and afteritlielinin% mutation was reviewed on 05.06.1939, according to which, 1/4th share was the widow, Mst. Bakhtan and 3/4th shafe was{{BLUR PAGE}} {{BLUR PAGE}} given to Karim 'Bakhsh, Rah ifiti Biagh41 and suh4r13;)9ThAlc:/51FAtll of Mst. Bakhtan, mutation rof inheritanoei-iNft.u5000,AvAkalictiRriciliPn 22.11.1952 and whole. Of the -property in her:tigwimas`garisferrediini favour of said Karim Bakhsh, Rahim Bakhsh andAultwandf3thcoitighi,,MtAtion No. 661A-tested on 244343967 ,suiti property was* eXphangeclEM41:34iPf9PLt%pf#,49p 4*. 14 sittiateduatoKehror-Pacca :ancl the suitpropertykiwasbtritgsferred in favour of defendant No. 14, who through Mutation No. 1076 attested on 23.06.1981 gifted his property to his sons i.e. Defendants No. 15 to 17.
4L:N i.i bLearnecLcounsel for topetitioners-defendants states that from the yearaA938,10i ISQA till her- cleatili, ga Bakhtan has not ,cliallenged the review cifIVI-utaticirt No;1124 thrOttgkoder dated 05.06.1939 angurther after the death of said Mst. BakittanOpbtintiyespopileAt,49, 1 has fi1os1",suit for declaration and possession on 10.01.1988. Further contended that D.W-3 Ghulam Qadir has stated in his statemetiethaikarinitakhsh de. Are theimternal sons of deceased Wahid I3akhsh, this poritiM of Statement nfiffaif''wttiiegnas not beenatiss-eXt-diiiii ; tWai &tiring the cross-examination oft.i4i4 A* bedigtee ,'.q,-. ' f. Oiftwil ...:2-tf I . ta4elinftn this 41 tress was not denied; who is also the Atrornef of defendants, the case of defendan :have been a the by trerd of cross-examina ion. It has ' I etitiq,d t - . t` been further,contended.That GhulamQadir appeared'in his affirmative as well asis rebuttal eVidenee after recording Of defendants' evidence, ;therefore, his this statement cannot be consideted iTaftinWifive evidence.
5. On the other hand,-Learned,-counsol for plaintiff-respondent No 1 states that some of the defendants, admitteld,hisAaim and filed consenting written statement, therefore, the findings Iopprded,4y)leamedlifiTONpellate Court are in accordance with law and need no interference by this Court.
6. 1 have heard the leatirted counsel for them-tics ,atfull, length and also gone through theirgt4hrd witbititeir ableassistancerriFfin P:-; t.Ici-- ). Nrrs
7. Learned counsel kettle petitioners has referred Mtitation No. 128, copy of which is available on the filCas'-Ex.P-3. 'fr have notittd that' thOrough inquiry was made and mutation was reviewectinitkipteeneelifiVik Bakhtan after hearing her and she never challenged thig TeViekked imithtiiiiViri" tier life-dme, 'whereas she remained ahve:for,more:than a decade and even after her deathythefilaintiff (brother of said-Mst. Bakhtan) has challenged through this suit ,the given 3/4th share from the inheritance of Wahid Bakhsh. Thorough inquiry which has been challenged after 50 years and plaintiff failed to prove his case pleaded by him against the review of Mutation No. 126. In this view of the matter, the fmdings on issue No. 7-B recorded by the learned first Appellate Court are not in accordance with the documentary as well as oral evidence available on record, therefore, the same are modified. The proceedings of review of Mutation No. 126, dated 14.09.1938 and subsequently reviewed mutation are correct.
Whereas the attestation of Mutation No. 366 of inheritance of Mst. Bakhtan is concerned. The plaintiff-respondent No. 1 succeeded in proving that this mutation was erroneously sanctioned in favour of Karim Bakhsh etc. As he proved himself to be the brother of Mst. Bakhtan, therefore, this mutation has rightly been set aside by the learned first Appellate Court.
8. In the above circumstances, I declare that plaintiff-respondent No. 1 proved himself to be the sole legal heir of Mst. Bakhtan and the inheritance of said deceased lady will devolve upon him and Karim Bakhsh, Rahim Bakhsh and Sultan proved to be collaterals of Wahid Bakhsh, therefore, Mutation No. 126 was rightly reviewed and reviewed mutation was attested in accordance with the entitlement of parties, wherein 1/4th share was given to Mst. Bakhtan and 3/4th share was given to the collaterals of original owner Wahid Bakhsh. In this view of the matter, the property transferred through Mutation No. 366 sanctioned on 22.11.1952 in favour of Karim Bakhsh, Rahim Bakhsh and Sultan will go to the plaintiff and subsequent mutations which effect the rights of plaintiff to the extent of 1/4th share of whole of the suit property for which he is entitled to receive, will not effect his rights.
9. No doubt, the statement got recorded by the plaintiff after recording of defendants' evidence in affirmative as well as in rebuttal, cannot be considered as affirmative evidence. Further, the points which remained unchallenge in the cross-examination of defendants' witnesses will be presumed to have been admitted by the plaintiff. In this view of the matter, the petitioners/defendants succeeded in proving their pedigree-table and their link with their propositus Wahid Bakhsh.
10. In the light of what has been discussed above, this civil revision is allowed and the judgment and decree dated 13.11.1997 passed by the first Appellate Courts are set aside to the extent that 3/4th share of suit property as to this extent property was rightly inherited by Rahim Bakhsh, Karim Bakhsh and Sultan from the inheritance of Wahid Bakhsh, whereas plaintiff-respondent No. 1 is entitled to receive 1/4th share, the property which went to Mst. Bakhtan.
Civil .