' MRS. IRSHAD QAISER, J.---The present petitioners (legal heirs of defendant Abdul Saboor deceased) filed the present revision petition under section 115, C.P.C. Against the judgment and decree dated 27-6-2012 passed by the learned Additional District Judge, Ghazi- Haripur in Civil Appeal No.13/13 vide which the judgment and decree dated 25-2-2012 passed by the learned trial Court was set aside and the case was remanded for decision afresh.
2. The brief facts of the case are that plaintiff/respondent Mst. Khyber Jan has brought the suit for declaration to the effect that she is the owner in possession of the suit property, the detail of which is given in the heading of the plaint, being the legal heirs of deceased Faqir Muhammad who was the predecessor-in-interest of both the parties. That she had neither sold her share to the defendant nor had executed any sale mutation or received any sale consideration against the sale mutation. That sale Mutation No.1469 dated 9-7-1964 allegedly executed by her is fake, fictitious, based on fraud and misrepresentation being without any sale consideration and thereby ineffective, in any manner whatsoever, upon her rights and is liable to cancellation. She also sought permanent injunction in order to restrain the defendant/petitioner from interference in the disputed property on the basis of wrong entries and also prayed for possession if she is dispossessed during the trial proceeding.
3. The defendant was summoned who attended the Court and contested the suit. Issues were framed from the divergent pleadings of the parties. Both the parties produced their respective evidence and after hearing the arguments, the learned trial Court vide judgment and decree dated 25-2-2012 dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiff filed an appeal which vide judgment and decree dated 27-6-2012 was accepted by the appellate Court and the case was remanded back to the trial Court with the direction to decide the case afresh by giving cogent reason and discussing the documentary material as well as oral evidence of the parties, hence the present revision petition.
4. I have heard learned counsel for the parties and perused the record with their assistance.
5. It is admitted fact that Mst. Khyber Jan and Abdul Saboor were the real brother and sister and the children of Faqir Muhammad who was the original owner of the property and after his death his property was devolved amongst his legal heirs. As a result, the plaintiff/respondent became the owner in possession to the extent of 1/6 share being legacy of his late father. The defendant/petitioner admitted the claim of the plaintiff; however, his contention is that she had alienated her share in his favour through sale Mutation No. 1496 dated 9-7-1964 against a valuable consideration. The plaintiff denied the execution of any sale mutation and contended that she being illiterate lady had neither received any sale consideration, nor appeared before any competent revenue authority and never signed or put her thumb-impression on any document.
The alleged mutation is fake, fictitious and is the result of fraud and connivance of the defendant with the revenue staff.
6. Now the question for determination is that whether plaintiff had transferred her share for consideration through the impugned sale mutation in favour of her brother defendant or it is the result of fraud, without sale consideration, against law and is the result of collusion with the revenue official.
7. The law of the land on the subject is well-established and settled that wherever an illiterate, old age person, pardanasheen lady or female issue of a Mohammaden is deprived of her property through sale, exchange, gift, inheritance etc., then in such like situation, the beneficiary of the.
Transaction, whether the same is effected through mutation, registered deed or the same is oral, would legally be required to prove its genuineness. Beside he would also be required to prove with confidence inspiring evidence that same was the result of free and independent advice of the person parting with the property etc. Factum of fraud, no doubt is a fact to be proved by the person alleging the same but in such like circumstances mere assertion in pleading and evidence of the above stated facts are sufficient to discharge their burden and then the beneficiary in rebuttal of the same has to prove the genuineness of the transaction in his favour. Reference is made to Muhammad lqbal v. Mukhtar Ahmed (2008 SCMR 855), wherein it is held; "Section 45 West Pakistan Land Revenue Act 1967:-- ' Mutation---Onus to prove-Mutation proceedings are not judicial proceedings and do not at all happen to confer title---whenever genuineness of any mutation is challenged, the burden squarely lies on the parties relying upon the mutation, to prove the actual transaction."
' It is further held: "Section. 45---Mutation, challenging of---Effect---Where a mutation is challenged, the beneficiary has to fall back upon and prove the original transaction.
' In case Muhammad Akram and another v. Altaf Ahmed (PLD 2003 SC 688) it is held; "Once a mutation is challenged. The party that relies on such mutation is bound to revert to the original transaction to prove such Original transaction which resulted into the entry or attestation of such mutation in dispute--In case Masood Akhtar v. Manzoor Ahmed (2005 CLC Lahore 1651) it is held; "Mutation by itself would not create title and person deriving title thereunder had to prove the transferor did part with ownership of property subject of mutation in favour of transferee and that mutation was duly entered and attested--. Any person, who was acquiring title through a mutation, burden of proof of proving transaction embodied in mutation was upon him.
' In case reported in 2005 MLD Lahore 1013 it is held; "Mutation whether attested or unattested, would not create any title and was not even evidence of title---Important thing was to find out whether transaction recorded in the mutation had taken place or not." Reference is also made to 1990 CLC 1968, 1986 CLC 545.
' In case Muhammad v. Mst. Rehmon (1998 SCMR 1354) in respect of Parda Nasheen Lady it is held; "Execution of sales-deed by an illiterate lady---Burden of proof---Ingredients to prove the bona tides of transaction---Where any sale executed by an illiterate lady, it is for the purchaser to establish that she had executed the same of her own free-will under independent advice from her relations and fully knowing the nature of transaction.
' Guidance is also sought from case Mst. Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642, Mst. Badshah Begum v. Ghulam Rasool and others PLD 1991 SC 1140 and Ghulam All and two others v. Ghulam Sarwar Naqvi PLD 1990 SC 1.
' In case PLD 2011 Peshawar 10 it held that; "Beneficiary of any document was bound to establish its genuineness. Reference may also be made to 1993 SCMR 6187, 1994 CLC Lahore 1774 and 2000 SCMR 346.
8. Defendant claimed the ownership of the suit property on the basis of sale mutation in his favour.
Here defendant is required to strengthen the legal sale transaction in his favour to defent the claim of the plaintiff for which the essential ingredients being proved are;
(i) Sale by seller in favour of purchaser.
(ii) Fixation of sale consideration as well as receipt of sale consideration between the 'parties concerned.
(iii) Delivery of possession of transferred property to the purchaser.
(iv) Marginal witness.
9. In the present case, the plaintiff/ respondent to prove her case has produced Muhammad Sadeeq Patwari Halqa Moza Kundi who was examined as P.W.7 who produced revenue record Exh.P.W.1/1 and Exh.P.W.1/2 and the Parth of disputed mutation Exh.P.W.1/3 are states that:--- {{URDU TEXT}} ' In his cross-examination he admitted" {{URDU TEXT}} ' Jamil Ahmed SOK Tehsil Ghazi was examined as P.W.3. He produced original impugned Mutation No.1469 dated 9-7-1964 the photocopy of which is Exh.P.W.2/1. He states:-- {{URDU TEXT}}
8. Defendant claimed the ownership of the suit property on the basis of sale mutation in his favour.
Here defendant is required to strengthen the legal sale transaction in his favour to defeat the claim ' He has not been cross-examined the defendant. Plaintiff herself was examined as P.W.3 and in her statement she has given the detail in respect of attestation of mutation wherein she stated that she had never executed any mutation. She had neither appeared before any revenue officer nor signed any document or put her thumb impression. Now the burden shift on the defendant to prove the genuineness of the mutation but he himself did not appear in the witness box to prove the execution of mutation and payment of sale consideration. He also failed to produce the Tehsildar or the concerned Patwari Halqa to prove that they have prepared and attested the mutation at the instance of plaintiff and that she had received the sale consideration:-- ' In this respect reference is made to PLD 2003 SC 688 wherein it held; "Most important entries in connection with the attestation of mutation were the Patwari Halqa who had to enter the mutation and the revenue officer who, happens to attest the same. Both of them were not produced and examined in Court. In absence of the two officials, the mutation cannot be said to have been proved"
10. It was also the duty of the vendee/ defendant to produce the marginal witnesses of the mutation to prove that it was executed in their presence. Defendant/ petitioner produce only his son as DW.1 who was his attorney. He has not uttered a single word about the inability of his father to appear in the witness box. But the trial Court had not considered all these facts at the time of decision of the case. In such view of the mater it has rightly been held by the appellate Court that the finding of trial Court on issue No.7 which are bone of deep contention of the parties are ambiguous in nature and evidence' and material highlighted on record is not discussed at all.
Moreover, as per contents of the plaint the plaintiff clearly stated that she neither appeared before any revenue officer nor signed/thumb-impressed any mutation in question, followed by her statement, where she narrated the same story. The prevailing customs of year 1964 regarding obtaining of signature/thumbmarks on the mutations including the vendor as well as witnesses required comprehensive discussion. On the other hand the defendant contended to have purchased the subject matter by way of sale, where the learned trial Court failed to appreciate all these facts.
11. Here the petitioners have failed to point out any illegality or irregularity in the impugned judgment. No jurisdictional defect in the exercise of jurisdiction by appellate Court was pointed out.
The resolution of disputed issue on merit is the cherished goal of administration of justice.
12. Accordingly, for the reason stated hereinabove, the revision petition having no force is hereby dismissed with no order as to cost.