' ABDUL LATIF KHAN, J.---Through the instant petition, the petitioner has called in question the judgment and decree dated 15-3-2010 passed by the learned Additional District Judge-VII, D.I.Khan vide which appeal filed by respondents/plaintiffs was accepted, the judgment and decree dated 18-7-2009 of learned Civil Judge-V, was set aside and their declaratory suit was decreea as prayed for.
2. Learned counsel for the petitioner contended that Sikandar, predecessor of parties made gift in favour of petitioner by dint of Mutation No,3069 attested on 17-1-1993 and Mutation No,2101 attested on 12-7-1994, when he was hardly 17/18 years of age, which was valid transaction. He contended that other legal heirs were also given lands/properties by said Sikandar, as gift and after his death, the remaining property was devolved upon all the legal heirs vide Mutation No,3454 attested on 26-7-1997, as per their shares. He contended that the donor was aged about 70 years but of sound health. He contended that property gifted to the petitioner was also inducted into possession and since then is in possession of the same as donee/owner. He referred to the statement of plaintiff Mst. Hayat Bibi, aged about 60/65 years, who deposed that Sikandar was healthy person. He contended that she was not given any property by her father but she was given house vide deed by the Sikandar for residence but no power to sell it. However, she gave it to her son who in turn sold it to the petitioner, Qayyum. He referred to arbitration dated 28-7-1997 conducted after two years of the death of Sikandar, wherein a house and landed property measuring 302 kanals, were distributed between the legal heirs of Sikandar and matter resolved but that property is not included in this case. He contended that burden to prove fraud lies on the person alleged. He argued that defence has produced marginal witnesses of the mutations in support of their stance.
3. As against that, learned counsel for the respondents contended that Mutations No,3069 and 2101 were attested for lands situated in mauza Yarik and Tulgi Yarik. Ahle Commission/Qanungo not produced in support of their claim of attestation of mutations. Marginal witnesses were not produced. The petitioner is shown in record to have done all the acts relevant but denied the same in his statement, with special reference to appointment of local commissioner and attestation of mutations. He referred to the statement of Mohammad Salim, DW-4, who has deposed in cross- examination that statement of Sikandar was recorded on the mutations by Nazir patwari. He supported the impugned judgment with vehemence.
4. I have given my deep consideration to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
5. The perusal of record reveals that Sikandar, predecessor-in-interest of the parties, had two wives. From Mst. Jindo widow, four daughters, plaintiffs Nos.2 to 5 born whereas .Respondent No,1 born from other wife. Landed property was gifted to respondent No,1 by said Sikandar vide Mutations No,3069 and 2101 attested on 17-1-1993 and 12-7-1994 respectively. The plaintiffs alleged in their plaint that these mutations were attested wrongly and based upon fraud, with specific allegation that his mother was divorced and he remained with maternal grandfather and uncles and never remained with father, rather was not on talking terms with his father and due to bitter relations, no gift made in his favour and mutations are based on fraud, got attested in connivance of Ahle commission. The defendant denied the version and contended that some of properties were gifted to the petitioners too by the predecessors of parties.
6. The plaintiffs produced official witnesses as P.W.1 to P.W.4 and Mst. Hayat Bibi plaintiff appeared as P.W.5, who reiterated their stance taken in the pleadings. She categorically stated that defendant did not come to attend the funeral ceremony of his father and later on after four months of death of his father, he came with claim of suit property and thereafter they came to know about disputed mutations. He denied the suggestion that certain properties were given to plaintiff by Sikandar, predecessor-in-interest of the parties. Mst. Bakhto plaintiff also appeared as P.W.6 for herself and attorney on behalf of other plaintiffs and fortified their claim made in the plaint. She also denied that father gifted any property in her favour. Both of them categorically stated that property in dispute is in possession of the respondent No,1 as he is the only male issue of predecessor of the parties, but not as donee. Plaintiff No,3 also appeared as P.W.7 and supported her pleadings with vehemence. Muhammad Ibrahim, son of plaintiff No,1, deposed as P.W.8 who also fortified the claim of plaintiffs. The entire evidence produced leads to conclusion that plaintiffs have successfully proved their case by producing sufficient and tangible evidence. All the plaintiffs appeared separately and deposed on oath and thus discharged the burden and onus shifts to other side to prove the validity of gift mutations, being beneficiaries of the A same.
7. The defendant Non has examined patwari as DW-1, son of petition writer as DW-2, who brought register of his father (deceased). He appeared as DW-3 and supported his version made in written statement. He admitted that due to Talaq to his mother, his father was not on talking terms with his maternal grandfather, till death of his father. He deposed that Mutation No,3069 was not entered by him and never appeared before Tehsildar for recording of statement of his father through Ahle Commission. He showed ignorance about venue where mutation was attested. The same version he made about Mutation No,2101 in his court statement but perusal of mutations reveals that vide order of Revenue Officer made on both the mutations at the instance of defendant No,1 for recording of statement on mutation through Ahle commission. The remarks column of Mutation No, 3069 also speaks about his statement recorded with patwari halqa, for gift on behalf of his father in his favour. This clear variation in his deposition and documentary evidence, makes his statement unbelievable as comparatively documentary evidence prevails and law to this extent has since been established by now.
8. Muhammad Salim has been produced as DW-4, as marginal witness of Mutation No,3069. He deposed that Qayyum, who happens to be his friend, had taken him to patwar khana, where his father was present, told by Qayyum that his father is going to transfer land in his favour. He knows nothing as who recorded the statement of father of Qayyum on the mutation. Admittedly he was neither councillor nor lumberdar. He deposed that statement of Sikandar on the mutation was recorded by Nazir patwari, which is clear negation to the contents of mutation, which speaks about the recording of statement of Sikandar on mutation by the Ahle commission. This shows the veracity of the statement of this witness and in no case, be treated as marginal witness to contents of mutation. Apart from this, other marginal witness namely Ahmad Hussain, was produced. He also deposed about affixation of his thumb-impression on the mutation before Nazir patwari, in the patwar khana, which is clear negation of contents of mutation and is sailing in the same boat like other marginal witness' and would be met with same legal approach as that of other marginal witness.
9. So far as Mutation No,2101 is concerned, no marginal witness to this has been produced. Ahmad Hussain has been cited as witness but he when appeared as DW-7 not deposed that he was marginal witness to this mutation, rather confined himself only to Mutation No,3069. Apart from these witnesses, none was produced in support of these witnesses. The patwari halqa who entered the mutations and the Ahle commission/ Qanungo, who recorded the statement on mutation and the Revenue Officer who attested the mutations were the most important entities were the bounden duty of beneficiary of these mutations to produce but no serious effort was made to this effect and as such failed to discharge the burden lies upon the defendant. Moreover, mutation does not create title and is meant only for fiscal purposes. Reliance in this respect is placed on PLD 2003 SC 688 wherein it was observed that:-- "It is a settled principle of law tha a mutation confers no title. Once a mutation is challenged, the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute. This oft repeated principle of law is quite logic because a mutation not being a title deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of mutation. Respondent Altaf Ahmad has utterly failed to revert back to any transaction and bring on record any oral or documentary evidence thereof The burden squarely lay on him to prove the transaction because the existence thereof has throughout been alleged by him in affirmative. He was bound to fail in the event of the non proof of transaction.
Only the trial Court realized it."
"In connection with the attestation of mutation, most important entities are the Patwari Halqa who happens 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 the absence of these two officials, the mutations cannot be said to have been proved."
10. The learned appellate Court has evaluated the evidence available on file in true perspective and has rightly reversed the impugned findings of trial Court, by awarding decree in favour of respondents, which is neither suffering from infirmity nor any wrong pointed out by the petitioner, with the impugned judgment, to which no exception can be taken.
11. For the reasons mentioned above, the instant revision petition being devoid of merit is hereby dismissed. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.