' IKRAMULLAH KHAN, J.---Through the instant civil revision petitioners have challenged the impugned order dated 7-2-2009, passed by the learned Additional District Judge-IV, Swabi, whereby the appeal of the petitioners against the judgment of the learned Civil Judge, Swabi dated 23-7-2007 was dismissed.
2. The briefly stated facts of the case are that respondents instituted thereof a civil suit for declaration in regard to their legal Sharai share in the suit property duly mentioned therein the heading of the plaint, against the petitioners. The respondents also challenged thereof the mutation No,18476 dated 21-1-1988, attested in favour of the petitioners. The petitioners contested the suit filed by the respondents and took therein the plea that the suit property was duly purchased by the petitioners; however, the deceased petitioner Jalat Khan real brother of the respondents being dully nominated attorney through power of attorney dated 2-2-1968, mutated me disputed land in the name of rest of the petitioners (sons of the attorney).
3. The learned trial Court framed thereof the respective issues arising out therefrom the divergent pleadings of the parties. Both the parties led their respective evidence before the trial Court whereof on the conclusion of the trial the learned Civil Judge, Swabi decreed the suit in favour of the respondents. The petitioners being aggrieved of the impugned order of the Civil Judge, preferred thereof an appeal before the learned District Judge, Swabi, which was dismissed by the learned Additional District Judge, Swabi through impugned judgment being under challenge before this Court in the instant civil revision.
4. The learned counsel for the petitioners contended thereof that the impugned judgments passed by both the Courts below are based on incorrect perception of law, is illegal and not sustainable; that the suit filed thereof by the respondents was hopelessly time barred as the suit land was mutated in favour of the respondents in the year 1988 while the present suit was filed by the respondents in the year 1997 after more than 9 years while such like suit may be filed thereunder the provisions of Article 120 of the Limitation Act, 1908 within a period of six years, but both the learned Courts below while giving finding on the issue of limitation illegally held that the suit filed by the respondents was within time; that the petitioners through cogent and tangible evidence had proved the power of attorney duly executed by the respondents and the suit property had been sold to the petitioners in lieu of sale consideration mentioned therein the disputed mutation duly paid to the respondents, but, both the learned Courts below failed to appraise and appreciate the evidence brought on record by the petitioners in its true perspective thereby rendered a judgment based on misreading and non-reading of the evidence; that both the learned Courts below had caused gross illegality and irregularity while delivering impugned judgments which may be set aside out rightly.
5. On the other hand, the learned counsel for the respondents argued that the respondents being Pardah observing ladies never appeared before any competent forum for the purpose of execution of the alleged power of attorney in favour of the deceased petitioner (Jalat Khan). The petitioners were legally bound to prove the said power of attorney but they did not discharge their obligations in this regard; that the sale consideration mentioned therein the disputed mutation dated 21-4- 1988, had not been proved that it was ever paid to the respondents; that the respondents being the legal heirs of the deceased Hayat Khan are entitled to their Sharai shares in the legacy of their father which was duly entered in their name in the Revenue Record on the death of their father, but, in the year 1988 it was fraudulently mutated in the name of petitioners by deceased petitioner without payment of any consideration to the respondents and supported the impugned judgments.
6. Arguments heard and record gone through with the assistance of learned counsel representing both the parties.
7. It is an admitted fact which has also not been controverted by the petitioners that the suit property was the legacy of the deceased 'Hayat Khan, the father of respondents and deceased petitioner Jalat Khan. It has also not been made disputed by the petitioners that the respondents were not the legal heirs of deceased Hayat Khan. As on the death of the Hayat Khan, the disputed property was entered in the name of the deceased petitioners, his brother Hikmat Khan and respondents, according to their Sharai shares thereunder the Muhammadan Law, the only question which has to be resolved by this Court would be to determine the validity, genuineness and authenticity of the alleged power of attorney made disputed by the respondents and the transaction of sale incorporated through Mutation No, 18476 dated 21-4-1988.
8. Both the learned lower Courts have also dealt with this sole controversial and crucial point after thoroughly discussing the evidence adduced by the parties in this regard and thereupon have given their concurrent findings, in regard to it.
9. It is by now settled proposition of law, enunciated by the superior Courts of this country, through their judicial pronouncement, that the burden of proof, shall always be on the person, who derives or has to derive, any benefit of any transaction ordain ownership through such deed.
10. The trial Court was well aware of the legal proposition mentioned hereinabove had placed burden of proof in regard to the disputed power of attorney on the shoulder of petitioners.
11. In order to prove, the factum of due execution of the general power of attorney dated 2-2-1968 being allegedly executed by the respondents in favour of the deceased petitioner Jalat Khan (predecessor in interest of present petitioners) the petitioners did not produced in Court the original script of the deed; however, in this regard, tried their best to prove, that the original power of attorney, had lost.
12. To substantiate their this plea, the petitioners had examined one Bakhtiar, as DW-3, who produced an attested copy of DD Nos. 42 and 43, incorporate therein, the relevant register of the concern Police Station on the report of the deceased petitioner, that he had lost the original power of attorney. However the said report had been made thereto, after the institution of the suit on 10- 10-1997.
13. The said power of attorney as stated thereof was attested by two witnesses but none of them appeared in the witness box to verify their signature, before the trial Court for the reason that one of the witness Fazal Dad has stated to be dead his son DW3, Muhammad Amin was examined who deposed therein before the trial Court disputed power of attorney was signed by his late father.
14. According to the rule of evidence, to prove and to verify the signature of a dead person, it is incumbent upon the person, who alleges that the witness is not alive, has to produce before the Court, any other document, signed by the deceased for comparison of the one thereunder consideration. The said statement of a relative or friend of the deceased would not be a sufficient proof in this regard that the deceased had signed the document. It is not the requirement of law that the mere signature of an attesting witness has to be proved but actually, the real due execution of the document shall be proved, by the executant.
15. No witness, any where had deposed thereof during the course of trial, that the disputed power of attorney was signed or thumb impressed by the respondents, in their immediate presence.
16. The petitioners had also miserably failed to prove the factum of payment of the sale consideration to the respondents.
17. The DW-3 Muhammad Khan had not been confronted with original script of the disputed power of attorney for the purpose to recognize his father signature thereof, while reference to a copy in absence of the original one, shall not be amounted to an admissible evidence. The witness shall not be confronted with a copy of document, without prior permission in this regard, to be obtained from the trial Court, to prove such missing documents through secondary evidence. No such permission has been sanctioned by the trial Court in this regard as such; the evidence of DW-3 is inadmissible and shall not be brought under consideration.
18. It is by now settled proposition of law that where the execution of a purportedly registered document was denied by alleged excutant, such registered documents would lose sanctity of being presumed to be correct and its veracity would depend upon quantum and quality of evidence to be produced to prove is execution, unless it was proved by some reliable, tangible and unimpeachable evidence.
19. Though in the present case, the disputed power of attorney was executed some where in the year 1968, while the disputed property was mutated in the year 1988, in such state of affairs, the petitioner were under their legal obligation to examine at least one attesting witness, as required thereunder the provisions of section 68 of the Evidence Act, 1897, in proof of due execution of the power of attorney and two witnesses thereunder the provisions of Article 79 of the Qanun-e- Shahadat Order, 1984, to prove the transaction of sale, effected thereof through Mutation No, 18476 dated 21-4-1988 and the payment of sale consideration of Rs, 5,00,000 as incorporated therein the sale transaction.
20. In this regard reliance may be place on the judgment of apex Court rendered therein the case of "Maqsood Ahmad and others v. Salman Ali" (PLD 2003 SC 31).
21. It is also by now a settled principle of law enunciated by the Superior Courts that every thing finds mention in the registered deed, or revenue papers must not invariably be accepted without proof of their due execution, genuineness and authenticity.
' In this regard reference may be placed on the Judgment of the apex Court delivered therein the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1991 SCMR 1245).
22. This Court in case of Mst. Kishwar v. Abdul Dahyan and others (2004 CLC 203) has held that:-- "Mere attestation of mutation, would not convey any title to vendee/donee and the very transaction must be proved independently through cogent evidence by the beneficiary claiming title thereunder."
23. In matter of inheritance, neither limitation nor conduct of plaintiff could estop him from claiming his legal share, mere passage of time does not extinguish right, and every fresh Jamabandi accrue fresh cause of action to the plaintiff.
' Reference may be given hereto the Judgment of this Court passed therein the case of Redi Gul and 16 others v. Haji Sawab Gul and others (PLJ 2009 Peshawar 39).
24. In so far as the point of limitation is involved it is by now settled proposition of law that no limitation shall run against a co-sharer.
25. Every co-owner shall be considered in possession on behalf of all other co-owners.
26. Every legal heirs become the co-owners in the legacy of their predecessor as soon as he died irrespective of the fact, whether entries in the revenue record in regard to an agriculture land is made in the name of a. Legal heirs or not.
27. To oust a co-owner from the joint corpus of an undivided immovable property, cogent, tangible and unrebuttal evidence is required in this regard. Doubtful and dubious kind of entries in the record of right could not be made basis to deprive a legal owner of its ownership in the legaey of its predecessor in interest. ##TE# The parent Judgment in this regard, rendered by the apex Court therein the case of Ghulam Ali and 2 others v. Mst: Ghulam Sarwar Naqvi (PLD 1990 SC 1), may be relied in this regards as a reference hereto.
28. Concurrent findings of facts delivered thereto by both the Courts below could not be disturbed in revisional jurisdiction unless and until gross illegality and irregularity is found out to be floating on the surface of the record. Reference may be given to the Judgment of the apex Court, delivered therein the case of Riaz v. Muhammad Saleem and 4 others (1989 SCMR 1491).
29. Both the Courts below had arrived at concurrent conclusion that the Mutation No, 18476 dated 21-4-1988 was not a genuine one and not duly executed by the respondent No,1, in such a situation, when the case is not that of misreading or non-reading, concurrent finding on facts shall not be varied or altered on mere bald assertion of the petitioners.
' Reference may be given to the Judgment of the apex Court, delivered therein the case of Anwar Zaman and 5 others v. Bahadur Sher and others reported as 2000 SCMR 431.
30. Women folk in this conservative type of society where female folk were considered interior to male members of the same family, in regard to their proprietary rights in immovable property in the legacy of their predecessors and whereas it was a common practice, that the legal shares of women folk, in the legacy of their predecessor were not acceptable to male members of the family, and whereas illegal tactics to deprive their women folk of their proprietary rights is common practice in such state of affairs the Courts shall be vigilant to curb such type of injustice, prevailing over such society' since centuries.
31. It is the constitutional as well as the legal duty of every Court established in this country either thereunder the provisions of constitution or any statute in this regard to keep check and balance in strive of administering Justice and to save the rustic and the most restituted segment of our society from being deprived of their valuable property on the premises of execution of forged and factitious mutations and unregistered sale documents.
' In this regard reference may be placed on the Judgment titled Yaqoob v. Muhammad Jan (PLD 2004 Karachi 543).
32. A heavy responsibility cast upon the Courts, to scrutinize all such documents strictly in accordance with the applicable law, to save and protect not only the property of female folk from the hands of grabbers but also to discourage such novel practice of execution of forged and fake deeds.
33. Non-payment of usufruct or being in continuous possession of N such a land, where the other co-owners are woman folk, could not confer any proprietary rights on such possessor of the property; in this regard reliance may be placed on the Judgment of Saabran Bibi v. Muhammad Ibrahim (2005 CLC 1160).
34. No gross or patent illegality or irregularity has been pointed out by the learned counsel for the petitioners, in the concurrent findings on fact given by both courts below, thereby made the instant revision petition meritless and devoid of any justifiable ground which otherwise require to interfere in the concurrent findings of the Courts below, accordingly the instant revision petition is dismissed with no order as to costs.