' ROOH-UL-AMIN KHAN, J.--- Challenged herein are the concurrent findings of the two Courts below dismissing the petitioners' suit.
2. Arguments of the learned counsel for the petitioner heard and record perused.
3. Before dilating upon the merits of the case, I would like to take the application of the petitioners filed under section 5 of the Limitation Act, 1908 for condonation of delay. The main revision petition has been filed with one day delay on the grounds mentioned in the application. The application is supported by an affidavit. The controversy involved in the main revision petition is in respect of valuable property, thus in the interest of justice, I deem it appropriate to dispose of the revision petition on merit, rather knocking out the same on the ground of technicality. Resultantly, the application is allowed and delay of one day is condoned.
4. It appears from the record that plaintiffs Asmat Khan and others (petitioners herein) filed a declaratory suit against defendants Abdul Qayyum and others (respondents herein) in respect of property situated within the revenue estate of Moza Shnawa Guddi Khel, fully described in the preamble of the plaint alleging therein that entries in the record of rights for the years 1974-1975 with regard to share of late Imran in favour of his sons Shaman and Gunbar and Niaz Bat, Karamat and Jahan Khan to the extent of half shares vide Mutations Nos. 6074 and 6075 attested on 24-2- 1918, being based on mala fide and fraudulently attested in favour of predecessor of the defendants, effecting the rights of the petitioners are liable to cancellation. It is averred by the petitioners that Imran (predecessor of the parties) died on 8-10-1917 before the attestation of impugned mutations. Besides cancellation of the impugned mutations and subsequent mutations thereto, cancellation of partition Mutation No,6073 has also been sought and have prayed for partition of the suit property in accordance with the shares of the parties and possession thereof.
The suit was contested by the defendants-respondents by filing their written statement raising therein variety of objections, legal as well as factual. From the controversial pleadings of the parties, issues were framed by the trial Court, on which the parties were invited to lead their respective evidence, which they did. On conclusion of trial, after hearing both the sides, the learned trial Court vide judgment dated 29-9-2012, dismissed the suit of the petitioners, against which, the petitioners preferred appeal before the learned Appellate Court which met the same fate vide judgment dated 10-7-2013. Hence, this revision petition.
5. The controversy in this case is with regard to the legacy of late Imran. The stance of the petitioners is that Mutations Nos.6074 arid 6075 dated 24-2-1918 have not been attested by their late predecessor Imran during his life time as he had died on 8-10-1917 much before the attestation of the impugned mutation, thus are the result of fraud and mala fide. Burden to prove the demise of late Imran before the date of attestation of impugned mutations, was on the petitioners. In support of their claim Khan Saeed Central Supervisor EDO-II has been examined as P.W.3. He produced Register pertaining record of deaths Certificates and at S.No,652 there is entry in respect of death of Imran Khan but in his cross-examination he categorically admitted that S.No,652, does not bear any date, month and year in the respective columns from which the exact date and year of the demise of Imran can be inferred. Moreover, a look over the death certificate Exh.P.W.3/1 would reveal that the parentage of late Imran is mentioned as Kamran, which is not the one given by the petitioners in their plaint as Mohran. Hence, this document would not be sufficient to be relied upon.
Rasool Khan attorney for the plaintiffs-petitioners has recorded as his statement as P.W.4 wherein he has categorically stated that apart from the death certificate, he has no other evidence to prove the death of Imran prior to attestation of the impugned mutations.
6. Patwari Halqa and ADK have been examined as P.W.1 and P.W.2, respectively. Both the witnesses have produced the revenue record in respect of the suit property. According to P.W.1, plaintiffs- petitioners are in possession of 28 Kanals of the suit property only. ADK has produced the impugned mutations and Jamabandi for the years 1915-16, 1919-20, 1955-56, 1963-64 and deposed that the impugned mutations had been duly attested by Imran in favour of Shaman and Gunbar etc. He further deposed that both these mutations have been incorporated in "Khana Kaifiat" and the record particularly the statement of Imran, prove that Imran was present in person at the time of attestation of the impugned mutations vide which he has transferred some property in the name of Niaz Bat, Kiramat, Jahan etc to the extent of half share each and some to his sons Shamran and Gunbar. The plaintiffs-petitioners have failed to prove through cogent and convincing evidence the attestation of the impugned mutations after the demise of Imran rather sufficient evidence oral as well as documentary is available on file which proves the attestation of the impugned mutations' by late Imran himself during his life time. Admittedly, presumption of correctness is attached to the long standing entries in the revenue record which can only be rebutted, through cogent and coherent evidence which is lacking in the instant case.
7. As regards the argument of the learned counsel for the petitioners that the petitioners had also sought amendment in the plaint before the appellate Court but the same was refused despite the settled principle of the apex Court that amendment can be sought and allowed at any stage of the proceedings. I agree to some extent with the argument of the learned counsel that amendment can be sought at any stage of the proceedings, but such amendment is subject to certain apparent formal defect in the plaint, in presence of which, no effective decree can be passed. In the instant case the amendment sought by the petitioners is that they want to mention all those subsequent mutations attested after the attestation of the impugned mutations. The learned appellate Court was quite justified by refusing the proposed amendment because perusal of the plaint reveals that the petitioners have specifically prayed for cancellation of all subsequent mutations in prayer (Bey) of the plaint and in the circumstances mentioning of each and every subsequent mutation was not inevitable.
8.Both the Courts below have exhaustively discussed each and every aspect of the case by properly appreciating the evidence and have rightly non-suited the petitioners. There is no illegality, irregularity or any misreading or non-reading of evidence which may warrant interference of this Court in the concurrent findings of facts recorded by the two Courts below. This revision petition being without any substance stands dismissed in limine.