' This revision petition has been preferred against the impugned order/judgment and decree dated 17.03.2014, passed by learned Additional District Judge-IV, Peshawar whereby the appeal of petitioners against judgment and decree dated 22.5.2012 passed by trial Court, was dismissed.
' Arguments heard record perused.
2. A perusal of record reveals that the plaintiffs/petitioners filed a suit against defendants for declaration to the effect that they are owners of the suit property and that Mutation No, 1302 attested on 28.10.2006 Ex.PW.1/3 was entered and attested on behalf of plaintiffs in favour of defendants, was fraudulent, based upon collusion, without consideration and is ineffective upon their rights. It is pertinent to mention that the parties are real brothers inter se.
' Admittedly the suit property is joint property not yet partitioned legally. No specific possession can be delivered without legal partition by meats and bounds.
3. Admittedly the plaintiffs were under obligation to prove their case as under Article 117 Qanun-e- Shahadat Order, burden squarely lies upon the plaintiffs to prove their case however deposition made by the plaintiffs to the effect that they have neither appeared before Patwari Halqa nor Tehsildar in Jalsa-e-Aam for attestation of mutation and have also not received the sale consideration, shifts the burden to the defendants who being the beneficiary of the mutation were legally bound to discharge the burden that mutation was entered and validly attested. A look of the column No, 13 of Mutation Ex.PW. 1/3 reveals that it was attested at the instance of with consent of the parties, in presence of Sharafat and Muslim Khan Numbardar in lieu of Rs,2,02,000/- on the basis of Mad No, 297 Roznamcha Waqiati dated 23.6.2006. Roznamcha Waqiati was posted as Ex.PW.1/X-2, perusal of which reveals that there is no consent on the part of complainant to this effect, however it is based upon 'the statement of Jirga members who have decided the alleged dispute of the property amongst the parties. The plaintiffs claimed that they have not signed the mutation rather a simple paper was produced by defendant who was believed by them being real brother and put their signature as they were told that signatures are being taken for some other purpose however they vehemently refuted to have entered into any bargain regarding suit property and have also denied the entry and attestation and disputed mutation. The beneficiaries of the mutation i.e, defendants have not produced Malik Sharafat and Muslim Khan Numbardar marginal witnesses of the mutation and as such failed to prove the mutation as the marginal witnesses being important entities have been abandoned from examination without any just and plausible explanation. Malik Ihsan Ullah was produced as DW.1 who has narrated almost a different story to the effect that the property infact was purchased by defendants and inadvertently the mutation and thereafter entries in the revenue record were made in the names of plaintiffs. It was also averred that a Jirga was convened wherein a house consistent of 12 marlas owned by defendant Fazal Subhan was given to Abdul Marian plaintiff apart from 6 Marias of land and Rs, 1,00,000/- cash was paid to the other plaintiffs and he was also inducted into service. All these benefits have not been proved by defendants through cogent evidence to have been delivered to the plaintiffs in lieu of the suit property allegedly decided by the Jirga members. The entire record is silent to this effect. Even otherwise this plea is altogether different to the stance of defendants and could be termed as departure from pleadings which is not permissible under the law. In cross- examination DW.1 has admitted that Muslim Khan Numbardar and Sharafat Khan both marginal witnesses of the mutation are alive which have not been produced by the defendants to prove the validity of attestation of mutation. He has so admitted in cross-examination that at the time m of attestation of mutation he was not present, therefore was unable to depose as to whether the defendants had paid sale consideration to the plaintiffs or not. DW.2 Maiik Khaista Khan also deposed about convening of Jirga however stated in examination in chief that he has not appeared before Revenue Officer Circle at the time of attestation of mutation. He has admitted in his cross-examination that the sale consideration has not been paid by defendants to the plaintiffs in his presence. He has also admitted that the marginal witnesses of mutation are alive. Defendant Fazal Subhan appeared as DW.3 who reiterated the stance taken in the written statement however in cross-examination he admitted that the marginal witnesses of mutation are alive and also admitted that they have not been produced by him as witness in the instant case. His statement is silent about the payment made to the plaintiffs. He was present in the Court and on query of the Court he deposed that he has paid Rs, 1,60,000/- to the plaintiffs before Tehsildar at the time of attestation of mutation in Tehsil building which is in total contradiction to the deposition made by DW.6 Naib Tehsildar who has categorically denied that payment of sale consideration in his presence at the time of attestation of mutation. The Revenue Officer was unaware about the place of attestation of mutation however self-stated that he does not remember the place of attestation of mutation. In cross-examination he admitted that no money exchanged hands in his presence in Jalsa-e-Aam. However the plaintiff admitted payment of sale consideration prior to the attestation of mutation. DW.5 Patwari Halqa was produced who has also admitted in cross-examination that in his presence the vendee/defendant had not made any payment in his presence to the vendor plaintiff and deposed that the mutation was attested on the basis of oral agreement at the instance of Jirga members.
4. The scanning of evidence leads to the conclusion that the defendants who happens to be the beneficiaries of mutation have failed to prove that the mutation was properly entered with Patwari Halqa and attested validly by the Revenue Officer as the marginal witnesses have not been produced. So far as the payment of sale consideration is concerned, which is most important ingredient of sale consideration has not been proved. There is not an iota of evidence on file to prove that the sale consideration was paid to the plaintiff. Even Patwari Halqa and Tehsildar also denied the payment in their presence. The other witnesses produced by defendants, and even his own statement is silent about the payment. His oral deposition before this Court is also negates the version of payment of sale consideration which is of vital importance and in case of failure to prove the payment of sale consideration is fatal to the case and as such the mutation has not been validly attested is hereby annulled.
5. After taking a careful scrutiny of the record, I am of the view that the Courts below have committed illegality and have misread the evidence available on file and finding arrived are entirely inconsistent with law and facts of the case.
' For the aforesaid reasons, I allow this petition, set aside the impugned judgments of Courts below and decree the suit in favour of petitioners against the respondents as prayed for.
(R.A) .