1. WAQAR AHMAD SETH, J.--- This revision petition under section 115, C.P.C. is directed against the judgment and decree dated 24-3-2006, whereby Additional District Judge-II, Mansehra accepted the appeal of respondent No.1, set aside the judgment and decree of trial Court dated 15-5-2002.
2. 2.The petitioners and pro forma respondents Nos.2 to 10 instituted a suit for declaration and possession regarding property fully described in the heading of the plaint. The respondent No.1 appeared and contested the suit by filing written statement and learned trial Court after recording proandcontraevidenceandhearingthepartiesdecreedthesuit on 15-5-2002. Feeling aggrieved, respondent No.1 filed appeal and learned appellate court after hearing the parties vide impugned judgment and decree dated 24-3-2006 allowed the same and partially decreed the suit in favour of Fida Muhammad while rest of the suit was dismissed. Hence, this revision petition.
3. 3.Arguments heard and record perused.
4. 4.A perusal of record would reveal that suit of petitioners was that they being the legal heirs of Qabool are owners in the suit property, described in the plaint, and Mutation No.402 attested on 14- 11-1973 Exh.P.W.1/2 in the name of Mst. Zever Jan is wrong, against the law and shariat, as she was divorced by deceased Qabool, hence, subsequent Mutation No.403 attested on 14-11-1973 in favour of respondent No.1 is based on fraud and misrepresentation.
5. 5.The record reveals that Mutation No.402 Exh.P.W.1/1 is transfer of land of ownership to the extent of 95/176 share by the Provincial Government in the name of Mst. Zever (widow) and 3 sons of Qabool and Exh.P.W.1/2 is mutation in the name of respondent No.1 by said Mst. Zever Jan and 2 sons, on the same day, leaving the share of one son Fida Muhammad out as reserved. Exh.P.W.2/4 and jamabandi for the year 1964-65 would reveal that the disputed land is in the possession of Mst.
6. Zever Jan (widow), 3 sons and 8 daughters of Qabool. The Mutation No.256 shows the transfer of ownership in the name of above said person/legal heirs of Qabool, hence, Exh.P.W.2/6 the jamabandi for the year 1968-69 showed entries of the above said heirs in the column of ownership.
7. 6.As per statement of P.W.4 Qabool had three wives, out of them Mst. Zever Jan had been divorced by Qabool in the year 1958 and he along with others was witness to divorce deed Exh.P.W.3/3 scribed by Maulvi Abdul Latif. P.W.4 has acknowledged his thumb-impression and payment of Rs.300 as dower amount paid to divorcee. Likewise. P.W.5 is the other witness to the divorce deed, who also supported the deed Exh.P.W.3/3.
8. 7.As regarding the sale consideration in respect of Mutation No.403 Exhs.DW1/2, DW1, DW2 sand DW3 denied the payment of sale consideration in their presence nor they were having any receipt of the same. Petitioners/plaintiffs have proved through documentary and reliable evidence the execution of deed Exh.PW3/3 i.e. the divorce deed with no rebuttal from other side. Even otherwise burden was on respondent/defendant No.1 to have produced evidence regarding this fact, thus, it stood proved that Mst. Zever Jan was divorced by Qabool in his life time in the year 1958, hence, she was not entitled to claim inheritance, therefore, both the Mutations bearing Nos.402 and 403 dated 14-11- 1973 attested on one and same day are not legal. The payment of sale consideration is also unproved, hence, in the given circumstances and available record it is held that appellate court has misread the same whereas the trial Court passed the judgment and decree on proper appreciation of evidence.
9. 8.Consequently, this revision petition is allowed, impugned judgmentanddecreeofappellateCourtdated24-3-2006areset aside and that of trial Court dated 15-5-2002 stand restored. No order as to costs.