AMIN-UD-DIN KHAN, J.---Through this appeal appellants have challenged the judgment and decree dated 10-4-2007 passed by learned Additional District Judge, Mianwali whereby appeal filed by the appellants was dismissed and the judgment and decree dated 19-7-2006 passed by learned Civil Judge, Piplan whereby suit filed by the respondents-plaintiffs was decreed.
2. Brief facts of the case are that plaintiffs-respondents on 30-12-2002 filed a suit for declaration that they are legal heirs of deceased Sher Muhammad son of Ahmad and are entitled to inherit him. They challenged Mutation of sale bearing No,1309 attested on 17-8-1994 in favour of defendants. The case pleaded by the plaintiffs that deceased Sher Muhammad was their cousin, he died issueless, therefore, plaintiffs and defendants are his legal heirs. The defendants filed written statement and contested the suit. Learned trial Court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. After closing the trial, the learned trial Court vide judgment and decree dated 19-7-2006 decreed the suit. Appeal was preferred, which was dismissed by the learned first appellate court vide judgment and decree dated 10-4-2007. Hence, this, second appeal.
3. Learned counsel for the appellants argues that both the courts below fell in error while considering the case to be of inheritance Whereas the mutation was 'challenged in the suit and suit. Was time-barred; that both the courts below erroneously held that it is a matter of inheritance, therefore, ignored the objection of limitation raised by the appellants; that when after a valid attestation of mutation in the year 1994 the names of the appellants were incorporated in "Khana Kaifiyat" for the "Jama Bandi" pertaining to the year 1989-1990, which was "lair-e-Kaar", which has been produced by the plaintiffs themselves as Exh.P.5, in "Khana Kaifiyat" there is mention of mutation and in the subsequent "Jama Bandi" the names of the appellants were incorporated as owners of the suit land, therefore, states that when in the consecutive "Jama Bandies" the names of the appellants were mentioned as owners and when mutation was incorporated in the record and the "Jama Bandi" being a document of title and presumption of correctness is also attached to entries of Jama Bandi, therefore, it was the duty of the plaintiffs- respondents to rebut the same but they miserably failed to rebut the same, therefore, states that both the courts below fell in error while decreeing the suit and dismissing the appeal of the appellants. In this regard he has relied upon "Muhammad Amir v. Mst. Beevi and others" (2007 SCM R 614) and "Abdul Ahad and others v. Roshan Din and 36 others" (PLD 1979 SC 890). Further states that it is admitted by the plaintiffs that defendants-appellants are in possession of the suit property and they have improved the land by installing Tubewell as well as other improvements.
While relying upon "Muhammad Sadiq represented by Muhammad Sarwar and others v. Amir Muhammad and others" (2006 SCM R 702) argues that when possession of the appellants was admitted qua the suit property, therefore, their plea that cause of action accrued to them two days prior to filing the suit, is factually incorrect. Further argues that it is admitted that the Khata in question was separated after the consolidation proceedings, therefore, while relying upon "M.
Imamuddin v. Sh. Bashir Ahmad and 7 others" (1989 CLC 2309) states that plaintiffs-respondents were debarred from filing the suit. States that even "Patti Dar" of the Mouza was produced as DW-3 and Lumberdar who identified the seller was no more in this world at the time of evidence, therefore, states that as the suit was filed after more than 8 years of attestation of mutation, therefore, revenue officials were not available. Further while relying upon Order VII Rule 6 of the C.P.C. Argues that when the suit was filed after the prescribed period of limitation, special explanation was required to be given in the pleadings but no such explanation has been given.
Further argues that even in Para No, 4 of the plaint it is impliedly admitted that the deceased appeared before the Revenue officers and the impugned mutation was attested. States that under Article 120 of the Limitation Act the period of limitation was six years and suit has been filed long after the prescribed period of limitation, therefore, was liable to be dismissed. While relying upon "Jamila Khatoon and others v. Aish Muhammad and others" (2011 SCM R 222), "Atta Muhammad v.
Maula Bakhsh and others" (2007 SCM R 1446) and "Lal Khan through L.Rs, v.. Muhammad Yousaf through L.Rs," (PLD 2011 SC 657) argues that when the possession of the appellants is admitted, improvements made by them as well as installation of Tubewell is admitted and according to Para No, 4 of the plaint impliedly appearance of the deceased before the Revenue officers is admitted, therefore, while referring the above said judgments of the august Supreme Court of Pakistan states that even in the matters of inheritance the august Supreme Court of Pakistan has taken notice of the limitation provided for filing of the suit and states that though the suit in hand is not with regard to the inheritance even in the matters of inheritance the courts have determined the matter of limitation on the basis of evidence produced by the parties. As the mutation was attested in the adjoining village where the suit property situates learned counsel while relying upon "Mst. Salto (Sattan) v. Gaman (Deceased) through his legal rep.," 2003 CLC 456 states that it was not in the power of the appellants-defendants to force the revenue officers to pass the mutation in the village where the land situates and if there is any deviation of section 42 of the West Pakistan Land Revenue Act, 1967 that cannot be attributed to the appellants and is not fatal for the appellants.
While relying upon "Abdul Hag and another v. Mst. Surrya Begum and others" (2002 SCM R 1330) states that the deceased died even about more than 8 years after attestation of mutation but he never disputed the mutation, therefore, plaintiffs have no right to challenge the same. Further that the plaintiffs have admitted that they have not challenged the mutation before the revenue hierarchy which was the proper forum to determine, therefore, states that the suit was not competent. Further that the simple suit for declaration was not competent under section 42 of the Specific Relief Act when the plaintiffs were able to ask for the possession as a consequential relief and they opted not to ask the possession of the suit property, therefore, suit was not. Competent.
While relying upon "Kilawaja Muhammad Naeem and others v. Tasleem Jan and others" (1980 CLC 1483) states that the suit was not maintainable and there is no claim by the plaintiffs that the deceased ever received any share of produce after the sale of the suit property in favour of the appellants.
4. On the other hand, learned counsel for the respondents argues that there are concurrent findings of fact recorded by both the courts below; that the mutation does not create or confer any right or title in the property and the sale was fake and fictitious one; that mutation was attested in the adjoining Mauza, therefore, it was defective; that DW-1 has admitted that prior to 1994 they were tenant on the suit land, therefore, the sale could not come in the knowledge of the plaintiffs; that huge amount of Rs,6,84,000 was not given to the deceased, the owner of the land; that as the plaintiffs came to know about the mutation in question at the time of death of the owner, therefore, the suit has been filed within the limitation; that as under the law all the legal heirs of the deceased become joint owner at the time of death of propositus, therefore, they became automatically owner to the extent of their share receivable through the inheritance, therefore, there was no need to ask for possession of the suit property and suit was competently filed and that appellants are to plead and prove their case in accordance with section 100 of the C.P.C.
5. I have heard learned counsel for the parties at full length and have gone through the record with their able assistance.
6. As per the facts of the case the mutation of sale by Sher Muhammad son of Ahmad deceased is Exh. P.1 bearing No,1309 was attested on 17-8-1994 and the seller admittedly died on 13-12-2002 and plaintiffs claiming to be collaterals of said Sher Muhammad and filed the suit on 30-12-2002. By no stretch of imagination the suit can be presumed to be a matter of inheritance as the sale was made by Sher Muhammad through Mutation No, 1309 attested on 17-8-1994 and Sher Muhammad died on 13-12-2002. Both the learned courts below fell in error while considering this case that it is a case of inheritance, it is a case where the sale mutation by the deceased has been challenged, therefore, it cannot be termed a suit for the implementation of right of inheritance, therefore, both the courts below ignored the limitation and all the other factors determinable while considering the real nature of the suit in their view. Pleading of the plaintiffs-respondents specially Para 4 of the plaint speaks volumes, it shows that the proceeding of the mutation and attestation thereof was in their knowledge as pleaded by them that at the relevant time the deceased Sher Muhammad who was living with the plaintiffs-respondents accompanied the defendants. It is on the record that the seller in his life time never claimed right of ownership of the suit property after the sale and he never claimed share of produce and by the trend of cross-examination upon DW-1 Khuda Bakhsh one of the defendants by the learned counsel for the plaintiffs, where he replied that it is correct .That prior to 1994 he was cultivating the land as tenant, meaning thereby that it is admitted that after 1994 their status was not of a tenant. For filing a suit for declaration the limitation is provided under Article 120 of the Limitation Act, which is residuary article, the limitation is six years when the right to sue accrues. In this case if .The wrong' mutation was attested, the right to sue accrues from the time of attestation of a wrong mutation and the seller never challenged the mutation in question in his lifetime and he remained alive after 8 years of the attestation of the mutation, therefore, the suit was not within the limitation prescribed under the law. It was also the responsibility of the plaintiffs to plead the delay in accordance with Order VII, Rule 6 of the C.P.C.
Which has not been pleaded.
7. The case of the plaintiffs as set up through evidence when one of the plaintiffs namely Ahmad appeared as P.W.1 stated that impugned mutation was not sanctioned by the free-will and consent of seller Sher Muhammad and it is based upon fraud. In this eventuality plaintiffs were bound to plead and prove fraud specifically with full details. As the case of plaintiffs is not of a total denial from attestation of mutation, therefore, they were not only bound to plead 'and prove fraud with full details but also were bound to prove that what steps were taken by the original owner Sher Muhammad when the mutation was not sanctioned upon his free consent and will, they miserably failed to plead and prove the same, therefore, findings recorded by both the courts below while ignoring this important legal aspect of the case are not sustainable under the law.
8. It is on the file that in the Jamabandi "Zair-e-Kaar" which was for the year 1989-1990 which has been produced as Exh.P.5, in "Khana Kaifiyat" attestation of mutation has been entered therein and for the coming Jamabandi which has been produced as Exh.P.7 for the year 19971998 name of the vendees i.e, defendants was mentioned in the column of ownership and same is the position in the next Jamabandies. When a mutation is incorporated in the Jamabandi and being document of title presumption is attached to that Jamabandi then it is the duty of the person who challenges the validity of the Jamabandi to prove the position otherwise than mentioned in the Jamabandi and further when it is admitted that defendants-appellants have improved the land and have spent the money from their own pocket and have installed Tubewell also and further that the Khata was separated in the consolidation proceedings, in this view of the matter when I came to the conclusion that it was not a case of inheritance, in these circumstances, the case-law relied by the learned counsel for the appellants is fully applicable to the facts of this case. The suit has been filed after the prescribed period of limitation and the improvements made by the defendants- appellants have been admitted, therefore, the suit was barred by time.
9. So far as proving the mutation by the beneficiary is concerned, it is not the case where the party to a transaction has challenged the transaction or the mutation. The plaintiffs are the third person, therefore, the rule that the beneficiary must prove the valid attestation of mutation is not applicable here. In the circumstances of this case when mutation was attested more than 8 years prior to filing of the suit and the vendor remained alive for 8 years and he never disputed the mutation in question and admittedly the same was incorporated in the Jamabandi, possession is with the appellants-defendants and they made improvements, in this case, it was the responsibility of the plaintiffs to prove that the mutation was invalid and was not sanctioned in accordance with law. They miserably failed to prove the case pleaded by them and in this case it cannot be expected from the defendants to produce the witnesses i.e, the Revenue Officer attesting the mutation, Patwari as well as Lumberdar who identified the parties. It is on the file that Lumberdar who identified the parties died during this period and the Patwari as well as Revenue Officer were also transferred from their place of posting. In the circumstances of this case, expecting the defendants to prove the same was not the requirement of the law. The attestation of mutation in the adjoining village, unless any prejudice is proved, the same cannot be set aside on the sole ground as it is the responsibility of the Revenue Officers to attest the mutation and it is not in the discretion/domain of the defendants or parties to the transaction that Revenue Officer shall attest the mutation where the land is situated though it was the responsibility of the Revenue officials. Admittedly, the possession is of the appellants-defendants on the suit property from the date of attestation of the mutation and when it is not the case of inheritance, therefore, without asking the possession of the suit property, simple suit for declaration without prayer of consequential relief in the light of what has been discussed above, of section 42 of the Specific Relief Act, 1877 was not competent.
10. For what has been discussed above, the findings recorded by both the learned courts below are absolutely against the facts as well as applicable law upon the subject, therefore, same are not sustainable. Resultantly, while allowing this appeal same are set aside and suit of the plaintiffs- respondents stands dismissed with costs throughout.