' AMIN-UD-DIN KHAN, J.---Through this civil revision, the petitioners-defendant have challenged the judgment and decree dated 1-4-1996 passed by learned District Judge, D.G. Khan, whereby the appeal filed by them was dismissed and the judgment and decree dated 17-11-1993 passed by learned Civil Judge, D.G. Khan, whereby the suit for declaration filed by the respondents-plaintiffs was decreed.
2. Briefly, the facts as leading to this civil revision are that the plaintiffs-respondents on 11-6-1991 filed a suit for declaration with the assertion that they be declared the owner of suit property and also challenged the Mutations Nos.13203, 13204, 13205 and 13206 attested on 13-1-1983. According to the facts pleaded by the plaintiffs that Mst. Allah Wasai died issueless and her husband died in her life time. At her death her sole brother Waddah was alive, who was the predecessor of plaintiffs and her brother Hassan died in her life time, who is the predecessor of defendants, therefore the inheritance given to Hassan and Waddah through the impugned Mutation No,13203 is against the law and all the subsequent mutations are nullity in the eye of law and be declared as such.
3. The defendants filed written statement and contested the suit. From the divergent pleadings of parties learned trial Court framed issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the closing of trial vide judgment and decree dated 17-11-1993 suit was decreed.
Feeling aggrieved by the said decree, an appeal was filed by the defendants before the first appellate Court, which was dismissed vide judgment and decree dated 1-4-1996. Hence, this civil revision.
4. Learned counsel for the petitioners-defendants argues that learned first appellate Court has recorded the findings on issues Nos.1 and 2 only and all other issues have not been touched in his judgment, therefore, the judgment is nullity in the eye of lap; that the plaintiffs have lodged claim with regard to the suit property that they be declared the owner of suit property and pleaded that Hassan, the predecessor of petitioners-defendants died in the life time of Mst. Allah Wasai, therefore they were bound under the law to prove this fact through direct, convincing and un- rebutted evidence but they miserably failed to prove their case as pleaded by them. Further states that the mutations in question have rightly been attested and prays for setting aside the decrees passed by both the courts below and dismissal of suit. While relying upon "2002 SCM R 1330 (Abdul Haq and another v. Mst. Surrya Begum and others) learned counsel states that the original claimant i,e, daughters of Waddah, namely Mst. Fatima and Balch& Bhari never challenged the attestation of mutation in their life time, therefore in the light of this judgment the plaintiffs were having no right to file the suit. It has been further argued that the certificates of death of Mst. Allah Wasai, Hassan and Waddah produced in additional evidence, cannot be. Considered. With regard to the condonation of delay while relying upon "2000 SCM R 847 (Mst. Sabiran Bi v. Ahmad Khan and another) argues that the revision was initially filed within the prescribed period of limitation and after office objection the same was re-filed within three days and there is no delay in filing of the revision petition, therefore C.M. No,1-C-1997 was filed just for precautionary measures.
5. On the other hand, leaned counsel for the respondents-plaintiffs argues that there are concurrent findings of facts in the matter recorded by two courts below. While relying upon "PLD 1990 Supreme Court 1 (Ghulam Ali and 2 others v. Mst. Ghulam Samar Naqvi) and 2010 SCM R 984 (Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others)" states that there is no bar or limitation in the matters of inheritance.
6. I have heard the learned counsel for the parties at full length and also gone through the record minutely as well as case-law with their able assistance.
7. This is a case filed under section 42 of the Specific Relief Act, 1877 for declaration of title of suit property by the plaintiffs-respondents. Undoubtedly the declaratory decree declares a pre-existing right and does not create or confer a new right upon the plaintiff. For getting a declaration the plaintiffs are required to prove the existence of fact for which they pray for issuance of declaration in their favour. In this case, most of the evidence with regard to existence of fact that at the time of death of Mst. Allah Wasai, the only survivor was her brother Waddah, and that Hassan, predecessor of defendants died in her life time, is in shape of oral evidence. I have noticed that oral evidence has been produced from both the sides. When a fact is pleaded by a party and according to the issues, onus is upon the plaintiff to prove that fact, whereas the oral evidence has been produced by both the parties in favour of pleadings. In this situation, the documentary evidence is required in support of claim of plaintiffs. The documentary evidence produced by the plaintiffs in shape of Exh.P-9 (certificate of entry of death of Waddah), Exh.P-10 (certificate of entry of death of Hassan) and Exh.P-11 (certificate of entry-of death of Mst. Allah Wasai) have been produced in additional evidence, that too have been got exhibited in the statement of learned counsel for the plaintiffs.
The certified copies of the same are not per se admissible in evidence, as the same have been issued allegedly by the Secretary, Union Council and do not qualify to be the certified copies of the record issued in accordance with the Qanun-e-Shahadat Order, 1984, therefore, these copies are not per se admissible in evidence. For their production in evidence and attaching evidentiary value with them, the summoning of original record as well as the Record Keeper was necessary. This documentary evidence has a little value.
8. Furthermore, when DW-1 appeared and made a statement with regard to the death entries of Hassan as well as Mst. Allah Wasai, his evidence is sufficient to find that these documents do not match with the original record available in the Union Council, specially the death entry of Mst. Allah Wasai. The certificate of death entry is bogus one. I have noticed that learned first appellate Court disbelieved the certificate of death entry of Mst. Allah Wasai. The other documents relied by learned District Judge, the copies of mutations, are not direct evidence with regard to determination of date of death of Mst. Allah Wasai. In these circumstances, the findings recorded by both the courts below that Mst. Allah Wasai died after the death of Hassan, predecessor of petitioners-defendants, are based upon no evidence, therefore the same are not sustainable under the law.
9. The other point agitated by learned counsel for the petitioners-defendants that learned first appellate Court has not recorded the findings on issues except issues Nos.1 and 2, therefore the case be remanded to learned first appellate Court for recording the findings on other issues. In the circumstances when this revision petition is pending since year, 1997 and except the academic discussion, for recording the findings on other issues the remand of case will not serve any purpose and even the findings on those issue will be academic in nature.
10. In the light of what has been discussed above, this civil revision is allowed and the impugned judgments and decrees passed by both the courts below are set aside. The result would be the suit filed by respondents-plaintiffs shall stand dismissed.