MUHAMMAD AMEER BHATTI, J. --- Through this civil revision the judgment of the learned 1st Appellate Court dated 19 10.2000 has been challenged whereby the judgment and decree of the learned Trial Court dated 30.11.1995 was modified and the suit was decreed in favour of the respondents /plaintiffs.
2. The brief facts for the case are that the respondents tiled a suit for declaration and permanent injunction about the land measuring 8 Kanals, 18 Marlas situated in Chak No. 25/NB Tehsil and District. Sargodha which was illegally got transferred from Mst. Marrium Bibi to the predecessor-in- interest of the present petitioners through mutation. The claim of the respondents/plaintiffs as averred in the plaint is that the impugned mutation has been got sanctioned fraudulently.
Although, Mst. Marrium Bibi, their mother had not sold the land and this mutation had been obtained behind the back of the present petitioners, who are legal heirs of Mst. Marrium Bibi. The present petitioner filed the written statement and controverted the facts. From divergent pleadings of the parties, issues were framed and vide judgment and decree 30.10.1995, the learned Trial Court decreed the suit to the extent of permanent injunction. It is appropriate to mention here that the mutation impugned has also been declared void and ineffective against the rights of the plaintiff while deciding the issue, however, dismissed the suit for declaration but appeal (filed by petitioners/plaintiffs) before the learned 1st Appellate Court was accepted and suit was totally decreed.
3. The contention of the learned counsel for the petitioners is that the point of limitation though has not raised by the petitioner at the time pf filing of written statement, yet being a question of law, it was the foremost duty of the learned Courts below to determine whether the suit was within the limitation or not as provided by law. Although, the learned Trial Court has failed to frame this issue, yet the evidence produced by both the parties is available on the record and same was to be appraised by the Courts even without raising any objection from any party. Reliance has been placed on Maj. Rashid Beg v. Rehmat Ullah Khan and 4 others (PLD 2001 S.C. 443), Haji Muhammad Shah v. Sher Khan and others (PLD 1994 S.C. 294) and Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 S.C. 263). Further contends that both the Courts below while mis-reading the evidence of the parties wrongly held that the mutation is void and ineffective against the rights of the plaintiffs. It is apparent from the evidence that the petitioner has proved the passing of the consideration and sanction of mutation in favour of the predecessor-in-interest of the petitioners. Moreover, the respondents/plaintiffs were aware of the sanction of the mutation from the very first day, even then, they have filed the suit after six years which is the maximum period of limitation as provided under Art. 120 of the Limitation Act for challenging it in the Court of competent jurisdiction, hence the suit was hopelessly time-barred.
4. On the other hand learned counsel for the respondents contends that the petitioner has failed to point out any mis-reading and non- reading of the evidence. Since the petitioner has failed to prove on record the impugned mutation as required by law and both the Courts below have rightly declared it to be based on fraud and ineffective on the rights of the plaintiffs. On the point of limitation, learned counsel for the respondents contends that since the impugned mutation has been sanctioned by committing fraud, it is a void document and no limitation runs against a void document. Morever the respondents are co-sharer, hence no limitation runs against the co-sharer as held by the Hon'ble Supreme Court as well as this Court Wali and 10 others v: Akbar and 5 others (1995 SCM R 284), Sher Baz Khan and others v. Mst. Malkani Sahibzadi. Tiwana and others (PLD 2003 S.C. 849) and Mohsin Khan and 3 others v. Ahmad All and 2 others (PLD 2004 Lahore I).
5. I have considered the arguments of the parties and meticulously perused the record. It is found from the record that Mst. Marrium Bibi, who was (living) in the house of Muhammad Sharif (step- son of the said Mst. Marrium Bibi)" but mutation has been got sanctioned in the absence of her real sons and daughter, whose residence is also nearer to Muhammad Sharif. It is also deposed by the petitioners/defendants that the mutation was sanctioned in the house of Muhammad Sharif and also not disputed by any party that the lady was above sixty. It has already been, settled by the Hon'ble Supreme Court that in the matter of an old illiterate "pardanasheen" lady, a. Strong proof must be given that she had advice of relatives such as husband or sons. Reliance can be placed on Muhammad Tufail and 4 others v. Akbar All and 4 others (2004 SCM R 1370) in another case reported as Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst, Wazir Mai (PLD 2005 SC 658). The Hon'ble Supreme Court has laid down that in the case of a semi-illiterate "pardanasheen" lady, it has to be proved on record that the executant had the independent advice at the relevant time. On this touchstone, the petitioners have failed to establish that the transaction was fair and with independent consent of the lady. It is not understandable that "lumberdar" of the village had been Accompanying the executant (lady) at the time of execution of document but the real son (a person of trust and confidence) who was living in the same village/vicinity, had not been associated while executing such transaction. This state of affairs reinforces that impression that the transaction has been executed through some underhand deal and the same cannot be allowed to sustain.
6. Since both the Courts below have already reached to this conclusion that the transaction is based on fraud and misrepresentation. Heavy onus. In circumstances, lay on defendants to prove the transaction which they failed to discharge. Concurrent findings of facts has been recorded by the learned both the Courts below, which are well-reasoned; no misreading or non-reading of evidence had been pointed out therein; even otherwise no illegality or infirmity was found in the impugned judgment so as to warrant interference by this Court.
7. This petition has no merits and dismissed accordingly. No order as to costs.