' ABDUL LATIF KHAN, J.---This civil revision petition, under section 115 C.P.C. Is directed against the judgment and decree dated 28-1-2013 of the learned Additional District Judge-III, D.I.Khan, whereby appeal of the petitioner-defendant No.1 against the judgment and decree dated 31-3-2011 of the learned Civil Judge-X, D.I. Khan, was dismissed.
2. Succinct facts leading to the instant revision petition are that the respondent No.1/plaintiff filed a suit for cancellation of sale Mutation No.1011 dated 19-9-1998 regarding 1/4 share of plaintiff measuring 18 kanals 2 marlas from the property fully detailed in the head note of the plaint situated at Mauza Deyal Teshil and District D.I.Khan. Plaintiff also sought declaration to the effect that the said mutation is fictitious, bogus and without consideration, based on fraud and collusion and liable to be cancelled. The 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 arguments of the learned counsel for the parties, decreed the suit of the plaintiff vide judgment and decree dated 31-3-2011. Appeal preferred against the judgment and decree of the learned trial Court, was dismissed on 28-1-2013, hence the present revision petition.
3. Learned counsel for the petitioner contended that disputed Mutation No.1101 was attested on behalf of the respondent/ plaintiff along with three other sisters in favour of the petitioner duly attested by the marginal witnesses before the local commissioner appointed by Revenue Officer Circle in accordance with law. He contended that the impugned mutation was fraudulently attested and the instant suit has been filed by the husband of Mst. Kalsoom Bibi namely Liaqat Ali with -mala fide intention to pressurize the petitioner for getting benefits. He contended that the husband of one of the vendor Mst. Nusrat Bibi was marginal witness to the mutation who was the brother-in-law of the respondent No.1, Mst. Kalsoom Bibi and has fully supported the mutation. He added that Mst. Nusrat Bibi, real sister of the Mst. Kalsoom Bibi, one of the respondent, has also supported the mutation has fraudulently attested. He contended that the requirement for the proof of valid execution of mutation has been complied with by producing the attesting official, local commissioner, marginal witnesses, patwari halqa and Office Qanungo. He added that the burden as beneficiary has been successfully discharge by the petitioner even then the courts below have wrongly concluded against the petitioner. He added that the prayer for comparison of thumb impression on disputed mutation was wrongly refused by the court. He added that the husband of Mst. Kalsoom Bibi has deposed on her behalf as sole witness without being acquainted with the facts of the case and as unauthorised person because no source of information has been disclosed by him about the nature of transaction, as to its validity.
4. As against that, learned counsel for the respondents contended that mutation was entered on 2- 7-1998. Statement on mutation was recorded on 30-7-1998, order for appointment of commission was passed on the same day, who also visited the spot on the same day and submitted his report, however, mutation was attested on 19-9-1998 and termed the same as haste on behalf of the revenue authorities. He contended that no receipt for payment has been scribed nor produced. He added that the vendor Mst. Kalsoom Bibi had no independent advice at the time of alleged transfer who was married 40 years back and was residing in D.I.Khan. He supported the impugned judgment and decree with vehemence and argued that the same were passed on proper appreciation of evidence.
5. I have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.
6. Perusal of Mutation No.1101 reveals that the same was entered on 2-7-1998 which was presented on 30-7-1998 before the Revenue Officer who appointed Qanungo/Girdawar Circle as ahle commission for recording statement of Kalsoom Bibi, Nusrat Bibi, Farhat Bibi and Razia Bibi. The local commission went to the spot on the same day and recorded the statement of the vendors on the identification of Mulazim Hussain Shah and Sultan Ahmad and submitted his report to the Revenue Officer who in term attested the mutation in jalss-e-aam on 19-9-1998. The respondents have filed a suit in the year 2004 and during pendency of the suit Mst. Kalsoom Bibi died in the year 2006. The allegations made in the plaint are that the mutation in dispute bearing No.1101 is the result of fraud, collusion, without consideration, fake and frivolous and she had acquired the knowledge two months prior to the institution of the suit, as contained in Para No.4 of her plaint.
These allegations strongly rebutted by the other side with the plea that all the four sisters were duly identified by husband of one of the sisters and other close relative before the local commission and after receipt of sale consideration the vendors attested the mutation in favour of the vendee/petitioner real brother of the vendors. The mutation was thumb impressed by the vendors and was validly attested.
7. The .Plaintiff/respondent No.1 in support of her claim produced and examined P.W.1 patwari halqa, who placed the record on file. P.W.2 ADK was produced who brought on record the disputed mutation No.1101 as Exh.P.W.2/1 and the husband of the plaintiff namely Liaqat Hussain Shah appeared as attorney on behalf of the legal heirs of the plaintiff as P.W.3. The contents of plaint coupled with sole statement of Liaqat Hussain Shah is deficient to the effect that neither contents of fraud has been alleged nor proved. Merely allegations of fraud has been levelled but without aid of any evidence. The statement of P.W.3, Liaqat Hussain Shah is almost departure from the plaint, who was under obligations to prove the case as required under Articles 117 and 118 of the Qanun- eShahadat Order.
8. On the other hand, petitioner/ defendants have produced Hakim Girdawar Circle Muryali as DW- 1, who by then was posted as Patwari Halqa and has entered the mutation and deposed that the mutation was entered by him and after recording statement of vendors by the then Tehsildar attested the same. Abdur Rehman, Retired Tehsildar, was examined as DW-2, who fully supported the valid attestation of mutation and deposed that the same was attested on the basis of report of local commission who recorded the statement of vendor on 30-7-1998 and mutation was attested on 19-9-1998 in jals-e-aam. This witness was not subjected to cross-examine, however, a specific question was put to him that womenfolk has to be normally identified by a person related to her and are not observing parda from each other. However, he added that for this purpose the husband would have been the best witness. This trend of cross-examination suggests that the respondent/plaintiff has impliedly admitted that a person who is not observing parda and related to womenfolk can be a witness. In the instant case Mulzim Hussain was the husband of real sister of the plaintiff Mst. Kalsoom Bibi and as such the question of identification would not arise in the instant case. Abdul Haleem Retired Girdawar examined as DW-3 who happened to be local commissioner and has recorded the statement of the vendors. He deposed that he recorded statement on the identification of marginal witnesses in the presence of Patwari Halqa. Lqbal Hussain Shah defendant appeared as DW-4, Nusrat Bibi, one of the vendors and real sister of the plaintiff, Mst. Kalsoom Bibi was examined as DW-5, who has categorically stated that all the sisters have sold the property to the petitioner and they received Rs.36,000 each through Sultan Shah. This witness has not been .Cross examined specifically on the score of payment of sale consideration and attestation of mutation. Sultan Shah was examined as DW-6, who has specifically deposed that the vendors transferred the property in the name of petitioner/vendee, their brother for sale consideration of Rs.1,44,000. He further deposed that the same was handed over to him by the vendee/defendants and he made payment to each of the vendors to the tune of Rs.36,000. This witness too was not cross-examined with special reference to the payment of sale consideration, which amounts to admission on part of other side for a specific plea/version deposed in examination-in-chief, if not subjected to cross-examination, would tantamount to admission. DW-7 Mulazim Hussain Shah other marginal witness of the mutation has also deposed about the valid attestation of mutation and supported the payment of sale consideration through Sultan Shah and deposed that after the receipt of sale consideration all the sisters (vendors) put their thumb impression on the mutation and got the same attested including his wife, Nusrat Bibi.
9. All the important entities including patwari halqa, Tehsildar and Girdawar Circle/Ahle commission were examined apart from the marginal witnesses and one of the vendor Nusrat Bibi through which the payment of sale consideration as well as valid attestation of mutation has been proved. The marginal witnesses have identified the transferors, Mulazim Shah being close relative of the plaintiff (husband of the real sister of the plaintiff, Nusrat Bibi) one of the vendor, and the other marginal witness duly supported by attesting officer, suggest that transaction took place properly and mutation was validly attested, hence the beneficiary/ defendant has successfully proved the mutation through marginal witnesses coupled with statement of Nusrat Bibi. The plea of independent advice was not taken in her plaint nor deposed by P.W.3 namely Liaqat Hussain Shah.
Mere assertion that beneficiary has to prove would in no case exonerate the plaintiff from initial burden, lies upon him to allegation of fraud committed during the course of mutation proceedings.
Though the entry in the mutations register maintained by revenue authorities are not conclusive effects of the 'acts but the evidence produced in support )f the same including the important entities like revenue officials would amount to discharge the burden lies upon beneficiary and in such eventuality the mutation was duly proved through independent evidence and could not be annulled on the mere allegations. The sole statement of attorney of the plaintiff and that too departed from the pleadings, would not suffice to be termed, as evidence to prove the fraud alleged during the course of mutation proceedings. The plaintiff who desire the judgment in his father to any legal right or liability depends upon the circumstances of the case, he alleges, has to prove these facts. Particularly of fraud, where necessary must be given in the pleadings, and shall be proved through reliable evidence, which is lacking in the instant case and as such the plaintiff has badly failed to prove the case. Both the courts below have wrongly scanned and evaluated the evidence available on file and findings suffers from infirmity and are perverse in nature.
10. For the foregoing reasons, the present revision petition is accepted, set aside the impugned judgments and decrees of the learned lower courts and dismiss the suit of the plaintiff with no order as to costs.