Atir Mahmood, J.: Through this single judgment, I intend to dispose of Civil Revisions No.417 and 418 of 2001 as common questions of law and fact are involved therein.
2. Brief facts of the case are that predecessors of respondents Mst. Khurshid Bibi and Mst. Mukhtar Bibi filed suits for declaration against the petitioners whereby they challenged gift mutation No.692 dated 26.06.1973 alleging that they never appeared before the Revenue Officer or made statement in favour of the defendants for gifting out their property; that they are in construction possession of the land, fully described in the headnotes of the plaints, through the defendants who happened to be their real brothers and have been giving them share of produce regularly till 1990 when they refused to do so.
3. The suit was contested by the petitioners-defendants by filing writing statement. Out of divergent pleadings of the parties, issues were framed and evidence led by the parties was recorded. Afterwards, learned trial court decreed the suit to the extent of defendants No.3 to 9 on their conceding statements, however, it dismissed the suits of the plaintiffs to the extent of other defendants vide judgments and decrees dated 14.03.1998. The appeals preferred by the plaintiffs were allowed and their suits were decreed by learned Additional District Judge, Rahimyarkhan vide judgments and decrees dated 01.06.2001 to the extent of all the defendants. Hence this civil revision.
4. Learned counsel for the petitioners inter alia contends that the judgments and decrees of learned courts below are at variance; that the learned lower appellate court has failed to consider that the onus to prove the issues was upon the plaintiffs who have failed to discharge the same; that the learned lower appellate court has incorrectly held that the mutation in question is illegal and has misconstrued the provisions of Section 42 of the Land Revenue Act; that finger expert could not be produced by the plaintiffs to rebut affixation of their thumb impressions on the disputed mutation; that the learned lower appellate court has travelled beyond its jurisdiction while decreeing the instant suits; that there are material illegalities, irregularities, misreading and non- reading of evidence in the impugned judgment and decree, therefore, it be set aside and the judgments and decrees of learned trial court below be restored by way of allowing the instant civil revisions.
5. On the other hand, learned counsel for the respondents have vehemently opposed the civil revisions in hand and fully supported the impugned judgments and decrees.
6. Arguments heard. Record perused.
7. The moot point in this case is as to whether the disputed tamleek mutation was validly sanctioned or otherwise.
8. Admittedly, the original owner of the suit land was one Qutab ud Din who had three sons namely Muhammad Ishaq, Muhammad Iqbal and Muhammad Razzaq and two daughters Mst. Mukhtiar Bibi and Mst. Khurshid Bibi. The record of rights duly reflects the names of all the aforementioned persons. The defendants have also not denied that the plaintiffs were their real sisters, as such, they were admittedly co-heirs of the defendants and were in constructive possession of the suit property through their real brothers.
9. According to the plaintiffs, they came to know about the disputed tamleek mutation Exh.P4 allegedly got executed by them in favour of their brothers-defendants when the brothers stopped to give them share of produce. They have taken a specific plea that the disputed tamleek mutation is result of fraud and forgery as they never gifted out their property to their brothers and neither appeared before the Revenue Officer nor thumb marked the tamleek mutation nor participated in any such proceedings. When the execution of the disputed tamleek was denied by the plaintiffs, the onus to prove the same shifted upon the defendants being its beneficiaries. The record reveals that the disputed tamleek was sanctioned in village Mouza Amangarh in presence of only one identifying witness, i.e. Lumberdar of Mouza Amangarh whereas the property is situated in Mauza Channa which is situated at about 8 miles away from the village Amangarh where the mutation was sanctioned which is in violation of Section 42(8) of the Land Revenue Act which reads as under: "(8) An inquiry or an order under subsection (6) shall be made in the common assembly in the estate to which the mutation, which is the subject matter of the inquiry, relates."
(Emphasis provided)
10. Under Section 42(7) of the Land Revenue Act, there must be at least two identifying witnesses including preferably Lumberdar of the same village where the property is situated but astonishingly, the Lumberdar of some other village, i.e. Amangarh identified the plaintiffs which makes the case of the defendants doubtful as even if the plaintiff ladies were not parda-observing ladies, they are not expected to be known to Lumberdar of village Amangarh situated about 8 miles from their village. Even the identifier was not produced as a witness by the defendants who could be the best available evidence. Non-production of said witness casts serious doubts about the genuineness of the disputed documents. The plaintiffs are ladies but at the time of mutations neither their husbands were present nor any other independent advice was available to them. In addition, the plaintiffs have categorically denied the execution of disputed tamleek mutation in favour of their brothers while asserting them forged documents and denying their thumb impressions thereon but the defendants never opted to move the court for comparison of their thumb impressions which strengthens the version of the plaintiffs. In the circumstances, learned lower appellate court has rightly struck off the disputed tamleek mutation No.692, dated 26.06.1973 while holding them illegal and unlawful and having been sanctioned against provisions of Section 42 of the Land Revenue Act. Learned counsel for the petitioners has miserably failed to point out any illegality, irregularity, misreading or non-reading of evidence in the impugned judgment and decree. No interference is called for.
11. For what has been discussed above, both the instant civil revisions have no merit. The same are accordingly dismissed.