1. ABDUL LATIF KHAN, J.--- Through this revision petition, petitioners have impugned the judgment and decree dated 13-4-2011 passed by learned. Additional District Judge-VI, D.I. Khan vide which the appeal of petitioners was dismissed and confirmed the judgment and decree dated 20-9-2010 passed by learned Civil Judge-VII, D.I.Khan vide which the suit of the petitioners-plaintiffs was dismissed.
2. 2.Short facts of the instant revision petition are that petitioners-plaintiffs filed a suit for declaration- cum-injunction in respect of property detailed in the head note of the plaint. The respondents- defendants appeared before the learned trial Court and filed their written statement. The learned trial Court after framing issues, recorded evidence of the parties and hearing learned counsel for the parties, dismissed the suit of the petitioners-plaintiffs on 20-9-2010.
3. 3.The petitioners-plaintiffs dissatisfied from the above mentioned judgment and decree preferred an appeal before the appellate Court, which was dismissed on 13-4-2011, hence the instant revision petition.
4. 4.Learned counsel for the petitioners contended that burden to prove the mutation lies upon the beneficiary, once it is challenged. It was argued that transfer of property by Mst. Allah Wasai in favour of respondents Nos.1 to 3 has not been proved. He added that respondents' plea that she was divorced by her husband on her act of transfer of suit property in favour of her nephews/respondents Nos.1 to 3 is totally misconceived, as the same has not been proved. He argued that in presence of her own daughters the alleged transfer does not stand to reason. He argued that the ingredients of Hiba are not fulfilled nor proved as besides offer and acceptance no possession was transferred under gift. He argued that courts below have travelled beyond jurisdiction vested in them and non-suited the plaintiffs/petitioners without any jurisdiction. He contended that alleged talaqnama has been produced by the defendants/respondents Nos.1 to 3 from their custody, who are not supposed to be in possession of same, shows malice on their part and this aspect in isolation suffice to disbelieve the same. He contended that wrong admission, if any, made by the witness could not be binding upon the party, who produced him. He argued that suit property is situated at a distance of 30 kilometer in Mauza Khuti and DW-3, Mehr Dad deposed that she was sitting with gate of Tehsil when mutation was attested, which makes the attestation of mutation highly objectionable and possibility of fraud and impersonation cannot be ruled out. He vehemently questioned the impugned judgments, as passed in disregard of law and prayed for their reversal.
5. 5.As against that, the learned counsel for respondents contended that suit is hopelessly time- barred as the cause of action arose in the year 1985 while instant suit has been filed in the year 2002. He argued that Mutation No.76 was correctly attested with her free consent as the respondents rendered services and in lieu thereof she transferred suit-land in their favour, who happened to be her real nephews. It was argued that she had no male issue and had opted to make gift in favour of respondents on her own accord. He vehemently argued that she was divorced by her husband at the eve of transfer of land in dispute in favour of respondents. He contended that she had never challenged the transaction in her lifetime, meaning thereby that she was concluded with the situation. It was argued that marginal witnesses of the mutation were produced and burden to prove the same as beneficiary has been discharged and supported the impugned judgments.
6. 6.I have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.
7. 7.The perusal of record reveals that suit property was originally owned by Mst. Allah Wasai, transferred in the name of respondents through Mutation No.76 attested on 15-12-1985. The petitioners-plaintiffs, daughters of Mst. Allah Wasai instituted the instant suit for declaration in their favour as owners of property in dispute to be devolved in inheritance upon them out of the legacy of their mother. The transfer was not valid, with free consent of the donor. The question as to whether independent and impartial evidence was available and being pardanasheen and illiterate rustic villager, she was advised of the consequences of her act. The reply would be definitely in negative. P.W.-4 has produced fard and posted as Exh.P.W.4 /1. P.W.-6 deposed in favour of version of plaintiffs. P.W.-7 and P.W.-8 also deposed in line with plaintiff's version. The simple deposition on Oath would not be sufficient on the part of plaintiffs, who challenged the transaction and burden shifts to other side, who are beneficiary to prove that transaction took place transparently and validly. The defendants have focused on divorce which is not that relevant issue between the parties and the issue is of gift by dint of Mutation No.76. DW-1 petition writer produced, who scribed divorce deed. Attorney for the defendants/respondents deposed as DW-2, that since Mst. Allah Wasai had no male issue and she wanted to transfer the land in favour of her nephews but her husband used to compel her not to do so and was divorced. The question is that a lady of 80 years having spent 40/50 years in tie of marriage with her husband would in no eventuality take risk of being divorced on this issue to transfer her property to nephew at the risk of her life with special reference to bad name due to Talaq to be faced in rural society, which does not stand to reason.
8. This allegation has not been proved. Even the alleged divorce deed is not proved as required under the law. Again it is irritating that why a prudent man would divorce his wife for the reason given by the defence. Moreover, an illiterate rustic villager at the eve of Talaq to his wife would come to katchery and get the deed scribed for divorce is an incident which does not appeal to mind because in rural area wherefrom parties belong, even nikanamas are very rare and not accustomed and that too 50 years back, what to talk of divorce deed, which is totally incorrect and manipulated and prepared simply to justify gift mutation as supporting document to it. DW-3 also supported the version of defendants.
9. 8.The marginal witnesses of alleged divorce deed are not produced, hence not proved. The marginal witnesses of mutation are also not produced, except DW-3, who deposed in its favour but his statement is of no avail to the defence rather has damaged the entire case of defence.
10. Admittedly, he is not related to Mst. Allah Wasai in any degree. He deposed in examination-in-chief that he has identified her, who was sitting with the gate of Tehsil and Tehsildar directed him to get her consent for attestation of mutation. Meaning thereby that Tehsildar has not asked and inquired from the lady sitting with gate of Tehsil, rather opted to get consent through him. The question is why the lady was let to sit in the gate of Tehsil and where Tehsildar was sitting at that time and, whether mutations are normally attested in this mode and manner, as alleged by this witness and the initial question is whether the lady sitting in gate was in fact Mst. Allah Wasai or some other lady was planted to sit there, are the issues still in mystery and defence had to clarify the same but lacking in the instant matter. He poses to be the identifier of the lady but mutation does not speak of it. The mutation reveals that attestation took place in Jals-i-Aam, which is Mauza Khuti, situated at a distance of 30 kilometers from the City where Tehsil is situated. This clearly shows that DW-3 has narrated a false version to the extent of attestation of mutation in Tehsil. None of the marginal witnesses were close relatives of the lady, Mst. Allah Wasai which casts heavy doubt on her identification at the time of attestation of mutation. The patwari halqa who entered the mutation and Tehsildar who attested the same are the most important entities but were also not produced by the defendants and as such failed to discharge the burden lies upon them, as beneficiary of the same.
11. 9.So far as the question of limitation is concerned, the instant suit has been filed for the shari share in inheritance by the plaintiffs out of legacy of their mother for which no limitation runs. Even otherwise the wrong entries in jamabandi repeated in the subsequent jamabandi, gives fresh cause of action to the plaintiffs and as such the suit cannot be termed as time-barred. In the impugned judgment the learned appellate court has observed that though the petitioners being legal heirs of the deceased was entitled to inherit the legacy of their predecessor to the extent of their respective shares and the burden of proof lies on beneficiary of mutation, Exh,P.W.2/1 but decided the matter against the petitioners on the ground that the witnesses have admitted the transfer of suit-land by Mst. Allah Wasai to respondents and she was divorced by her husband in old-age, the admissions of the statements made by witnesses of the plaintiffs are totally misconceived as no such admission has been made rather a fact has been narrated that Mst.
12. Allah Wasai was divorced by her husband and that she had transferred the property in favour of her nephews. It was never admitted that the plaintiffs had the knowledge at that time or the free consent of the donor was available for the transaction which cannot be termed as admission, even otherwise fact admitted, if any, by witness in cross-examination would be treated as inferential evidence and would not be binding upon the parties. Moreover, admission of fact is only relevant and are not conclusive may be shown to be wrong. Law expressly proved that admissions are not conclusive proof of the matter even if amounts to clear admission. Admission of a party in ignorance of legal right is not binding and admission on the wrong title of fact is not admissible in evidence. Reliance is placed on Mst. Farrukh Jabin's case (PLD 2004 Supreme Court 499), wherein the apex court observed that:--- "His submissions were that since one of the witnesses of petition i.e. D.W. Jaffar Khan had admitted the relationship between the vendors and vendee in his cross-examination, therefore, there was no need to prove the same. We are not inclined to accept this argument for the reason that the evidence given by one of the witnesses of defendant in cross-examination would not bind the petitioner in view of the judgment reported as Jalal Din v. Nawab (AIR 1941 Lahore 55) and secondly for the reason that in cross-examination if an obligating statement is made by a witness, it would be treated only as inferential evidence."
13. 10.For the forgoing reasons, I allow the instant revision petition and set aside the impugned judgments and decrees of the learned courts below and decreed the suit of the petitioners- plaintiffs as prayed for in the plaint with no order as to cost.