' SHUJAAT ALI KHAN, J.--- By means of this revision petition the petitioner has challenged judgment and decree dated 25-10-2011 passed by the learned Civil. Judge, Hasilpur as well as that of the learned Additional District Judge, Hasilpur rendered on 27-6-2012.
2. Tersely, Khushi Muhammad filed a declaratory suit on 21-10-2006 challenging Mutation of Tamleeks bearing Nos.153 and 155 attested on 31-12-2002 and 3-1-2003 respectively on the ground of being forged, fictitious and based on fraud. The said Khushi Muhammad died on 12-1-2007 therefore his daughter (present petitioner) was arrayed as plaintiff. Further, as respondent No,2 shifted the land in favour of respondents Nos.3 and 4, .Amended suit was filed whereby Mutations Nos.388 and 389, attested on 26-10-2011, were also challenged. The respondents contested the suit by way of filing written statement. Out of divergent pleadings of the parties learned trial Court framed the following issues:---
(i) Whether the plaintiff was owner in possession of the disputed piece of land? OPP.
(ii) Whether the mutation of Tamleek No,153 dated 31-12-2002 and subsequent Mutation No,155 dated 3-1-2003 is against the law and facts and are liable to be cancelled? OPP.
(ii-A) Whether a valid Tamleek between Khushi Muhammad and Hashmat Bibi come into existence and Mutation No,153 dated 31-12-2002 is sanctioned according to law? OPD.
(ii-B) Whether a valid tamleek between Hashmat Bibi and Sakeena Bibi came into existence about the suit property and Mutation No,155 dated 3-1-2003 is sanctioned according to law? OPD.
(iii) Whether the suit is liable to be dismissed? OPD
(iv) Whether the suit is time-barred? OPD
(v) Whether the defendants are entitled to recover special costs under section 35-A of C.P.C.? OPD
(vi) Relief.
3. To discharge his onus, petitioner herself appeared as P.W.-1 and examined Nadeem Iqbal, Nazir Ahmad and Ch. Mushtaq Ahmad as P.W.-2 to P.W.-4 respectively. In addition to her oral evidence the petitioner tendered report of Local Commission (Exh.P-1), copy of Jamabandi for the year 1990- 91 (Exh.P-2), copy of Jamabandi for the year 1996-97 (Exh.P-3), copy of Khasra Gardawri for the year 2009-2010 (Exh.P-4), attested copy of Mutations Nos.153 and 155 (Exh.P-5 Exh.P-6) and copy of Khasra Gardawri (Exh.P-7) as documentary evidence.
4. On the other hand, Mst. Sakina Bibi (respondent No,2) appeared as DW-1 whereas Zafar. Iqbal entered the witness-box as DW-2. The respondents tendered copy of Mutation No,153 (Exh.D-1) as well as signatures of its marginal witnesses (Exh.D-1/1) and copy of. Mutation No,155 (Exh.D-2) as well as signatures of its marginal witnesses (Exh.D-2/2) as documentary evidence.
5. After thrashing out the oral as well as documentary evidence of both the parties the learned trial Court proceeded to dismiss the suit vide judgment and decree dated 25-10-2011 against which the petitioner preferred an appeal which too met with the same fate vide judgment decree dated 27- 6-2012; hence this petition.
6. The arguments advanced by learned counsel for the petitioner can be summed up in the words that the factum of Tamleek by late Khushi Muhammad in favour of Hashmat Bibi and Sakeena Bibi, respondents Nos.1 and 2, was not established as necessary ingredients for Tamleek are absent inasmuch as neither there was any offer by the late Khushi Muhammad nor the same was accepted by Hashmat Bibi and possession of the suit-land is still with the petitioner; that the respondents being beneficiary of the mutations were bound to prove their sanctity but nobody from the revenue authorities was examined by them; that as the findings of both the courts below run contrary to the spirit of section 129(g) of Qanun-e-Shahadat Order, 1984, adverse inference can be drawn against the respondents as they withheld the best possible evidence available with them; that the judgments of both the courts below do not encompass all the issues; that as the mutation in favour of respondent No,1 was sanctioned in violation of procedure postulated under section 42 of the West Pakistan Land Revenue Act, 1967, therefore,. No sanctity can be attached to the said document and that the judgments of both the courts below are result of misreading and non-reading of evidence. In support of his oral submissions, learned counsel has relied upon lie cases reported as Muhammad Ejaz v. Mst. Khalida Awan (2010 CLC 847), Rehmatullah and others v.
Saleh Khan and others (2007 SCM R 729), Aurangzeb through L.Rs, and others v. Muhammad Jaffar and another (2007 SCM R 236), Fida Hussain and others v. Abdul Aziz PLD 2005 SC 343, Zafar Muhammad v. Mst. Anwar Bibi 2004 SCM R 559 and Basir Bibi etc. v. Mst. Mehran Bibi etc. (2003 CLC 1452).
7. Conversely, learned counsel appearing for the respondents while defending the impugned judgments and decrees submits that the suit was filed after 3 years of attestation of mutations and Khushi Muhammad in his lifetime never challenged the same before any court; that name of Shah Muhammad has been incorporated in the Revenue Record as he was tenant of Khushi Muhammad; that Hashmat Bibi never challenged that Sakina Bibi was not real daughter of Khushi Muhammad; that judgments of both the courts below covered all the issues; that report of the Local Commission carries no weight as the same was prepared at the back of respondents inasmuch as they were not associated with the said proceedings and that, concurrent findings have been rendered against the petitioner which cannot be upset in revisional jurisdiction.
8. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition in addition to the case-law cited by learned counsel for the petitioner.
9. Firstly taking up the question as to whether concurrent findings of facts recorded by the courts below can be set aside in revisional jurisdiction or not, I am of the view that normally concurrent findings are considered to be immune to any interference in revisional jurisdiction but when the verdicts of the courts below otherwise are result of misreading and non-reading of evidence, the same can be set aside being never considered as sacrosanct. Reliance in this regard is placed on the case reported as Mubarak Ali through L.Rs v. Amroo Khan through L.Rs, (2007 SCM R 1714) wherein the august Supreme Court of Pakistan has inter alia held as under:- "The judgments which have been cited by the learned counsel for the appellant with regard to non-interference by the High Court with the concurrent findings of the Courts below i,e, Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din 1996 SCMR 813, Abdul Hakeem v.
Habibullah and 11 others 1997 SCMR 1139 and Roazi Khan and others v. Nasir and others 1997 SCMR 1849, in the circumstances of the case may not be of any help to the appellant firstly that the High Court has given cogent reasons for interference and also according to the aforesaid referred judgment Roazi Khan and others (supra), it is not only the misreading or non-reading of evidence, which justify the interference but even if the same suggests perversity whereby such findings can be interfered with or where approach of Courts below to evidence was perverse as held in the case of Abdul Hakeem (supra) or sd perverse that grave injustice would result therefrom as held in the case of Sheikh Muhammad Bashir Ali and others (supra) or the court fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court as held in the case of Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568. This Court in the case of Sheikh Muhammad v. Hashmat Sultana 1989 SCMR 34 has held that every finding of fact is not immune from interference in revision jurisdiction as possessed by the High Courts to be exercised when the Courts below commit jurisdictional illegality and this concept i,e,, of jurisdictional illegality has been considered . By this Court in the case of Kanwal Nain PLD 1983 SC 53, to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result. Applying this test, if the reasons advanced by the High Court are correct on the legal plane, then the two Courts deciding the controverted question of fact, cannot be said to have acted with jurisdiction, if the evidence has been misread or the conclusions drawn are perverse. In the case of Muhammad Bakhsh v. Ellahi Bakhsh and others 2003 SCMR 286, while placing reliance on a judgment of this Court Maj. Rashid Beg v. Rehmat Ullah Khan and 4 others PLD 2001 SC 443, the interference in the judgments of the Courts below in exercise of revisional jurisdiction was held to be justified when the findings are based on conjectural presumptions, erroneous assumptions of fact and wrong proposition of law and where unreasonable view on evidence has been taken. While relying on the principles as laid down by this Court in the afore referred judgments, it can be safely said that no injustice could be done greater than the one in the present case if the suit of the appellant succeeds by defeating the lawful process, of obtaining the possession by the respondent through execution, in roundabout manner through a collusion. "
(emphasis provided).
10. Now coming to the merits of the case, the question of proving the attestation of mutation in favour of Hashmat Bibi and then in favour of respondents Nos.2 to 4 is of vital importance. The petitioner has challenged the authenticity of Tamleek on the basis of which mutation in question was attested in favour of respondent No,1 who further transferred the same in the name of respondent No,2 who in her turn transferred the land in the name of respondents Nos.3 and 4.
Respondent No,1 while submitting her written statement under the preliminary objections inter alia averred that Sakina Bibi, respondent No,2, was from her earlier marriage with Shah Muhammad and that the plaintiff neither gifted her the suit-land nor she further transferred the same to Sakina Bibi by way of Tamleek rather Mutations Nos.153 and 155 were result of fraud. In a sense she filed consenting written statement. On the other hand, respondent No,2 contested the suit on the points that mutations in dispute were sanctioned after fulfilling all codal formalities. The said respondent under Preliminary Objection No,4 stated that she was stepdaughter of the complainant. It is astonishing to note that firstly the stance of respondents Nos.2 to 4 is that the land was mutated in favour of respondent No,1 on the basis of Gift Deed and then she transferred the same in favour of respondent No,2 by virtue of Tamleek but while replying to Para No,3 of the plaint respondent No,2 stated that plaintiff fully participated in the attestation of the mutations, fixed his thumb impressions thereon and received the amount of consideration. If the mutations were passed on the basis of Tamleek then the question of payment of consideration to the plaintiff was immaterial.
To prove a valid gift/Tamleek three ingredients viz. Offer, acceptance and handing over of possession are sine qua non but in the case in hand according to Revenue Record till date neither the name of respondents has been incorporated in the revenue record as owner nor they are in possession of the suit-land. Moreover, respondent No,2 while appearing as DW-1 did not utter even a single word regarding Tamleek by Khushi Muhammad in favour of Hashmat Bibi and then by her in favour of respondent No,2. It is high time to note that while filing written statement respondent No,2 herself stated that she is step-daughter of Khushi Muhammad being from earlier marriage of Hashmat Bibi with Shah Muhammad but in the opening sentence of her cross-examination she took a U-turn and stated that her father is Khushi Muhammad. She further admitted in her cross- examination that the process of attestation bf mutation was completed at the residence of Tehsildar concerned which is a clear cut violation of section 42 of the West Pakistan Land Revenue Act, 1967. She further went on to admit that the witnesses did not belong to Chak No,70-F Tehsil Hasilpur. There is material contradiction amongst the statements of D. Ws. Qua time of attestation of mutations inasmuch as according to DW-1 these were attested at 8/9 a.m. Whereas according to DW-2 the same were sanctioned at 3/4 p.m. Statement of DW-2 that both the mutations were attested at 3/4 p.m. Put a serious dent in the veracity of mutations when adjudged while putting the same in juxtaposition to the dates when the same have been shown to have been attested. It is not possible that the mutations which, were attested with a gap of about one year were sanctioned in one and the same sitting.
' The upshot of the, above discussion is that respondent No,2 miserably failed to prove execution of Tamleek Nama in favour of respondent No,1 and then in her (respondent No,2) favour.
11. Another interesting feature of the instant case is that respondent No,2 has not explained as to what were the reasons that her real mother went on to depose against her claim and in favour of the plaintiff. Prima facie, it appears that late Khushi Muhammad never offered the land to respondent No,1 by way of Tamleek nor she shifted the same in favour of respondent No,2 as is evident from consenting written statement filed by respondent No, 1.
12. Insofar as the question of limitation is concerned, suffice it to observe that when the mutations challenged in the suit otherwise proved to be result of fraud and forgery, the question of limitation cannot be pressed. Into service to put use as a shield. Reliance in this regard is placed on the case Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others (1987 SCM R 1543) wherein the august Supreme Court of Pakistan has inter alia held as under:- "As respects the question of limitation, the learned High Court found that the decree in the suit having been passed in utter contravention of the mandatory provisions of law, such order was a nullity against which no limitation could run. "
13. As far as plea of respondents that Khushi Muhammad in his life time never challenged the said mutations is concerned, I am of the view that the petitioner has perhaps asserted so in oblivion of the fact that suit was filed on 21-10-2006 by Khushi. Muhammad himself whereas he breathed his last on 12-1-2007. While submitting her written statement respondent No,2 never asserted that the suit was not filed by Khushi Muhammad rather her stance was that Khushi Muhammad filed the suit on the instigation of some other persons.
14.. Moreover, entries in the Revenue Record in the shape of mutations are not conclusive proof of ownership until and unless the transaction on the basis whereof the same were attested is fully established from the evidence. Insofar as the case in hand is concerned the same has been proved otherwise.
15. As a necessary corollary to the discussion made in the- foregoing paragraphs, instant revision petition is allowed and impugned judgments and decrees of both the courts below are hereby set aside. As a result the suit filed by the petitioner shall stand decreed. Parties are left to bear their respective cost.