CH. MUHAMMAD MASOOD JAHANGIR, J. The facts necessitated for the disposal of instant case are that respondents/plaintiffs brought a suit for declaration before the learned trial court on 13.04.1980 with the assertion that they were joint owners in possession of the disputed property and mutation No. 385 dated 25.06.1979 (Exh.P/2) got attested by the defendant/petitioner (now succeeded by L.Rs) in his favour was liable to be cancelled as the same was illegal and also result of collusion. It is also pleaded in the plaint that defendant dispossessed the plaintiffs and the decree for possession was prayed for. The defendant/petitioner defended the suit and it was maintained in the written statement that the suit land was exchanged with that of defendant's land in pursuance of two deeds of exchange dated 28.05.1977 and possession was also exchanged by the parties and mutation in this regard was finally attested on 25.06.1979. After framing of issues, evidence of the parties was collected by the learned trial court. Then the suit was dismissed vide judgment and decree dated 23.07.1985 by the learned trial court. The appeal filed by the plaintiffs/respondents was however disposed of by the learned Addl. Judge, Rawalpindi vide judgment and decree dated 29.05.1986. Being aggrieved the plaintiffs/respondents filed Civil Revision No. 39-D/1987 before this Court, which was accepted vide judgment dated 06.03.2001 and the suit was remanded back to learned trial court with the following observations:- "The perusal of the agreement Exh.D/2 and the mutation bearing No. 385 would show that except Khushi Muhammad none else participated in the exchange and that Khushi Muhammad neither appeared before the revenue officer nor put his thumb impression or signatures on the agreement Exh.D/2 to prove that he entered into a transaction of exchange for the purposes of its incorporation in the revenue record. The mere execution of document without signatures on it would not be the proof of the completion of the transaction. It is not understandable that why the revenue officer avoided to sanction the mutation publically and did not feel the necessity of presence of Khushi Muhammad. There was no evidence of the handwriting expert on the record to establish that the document Exh.D/2 was either in the hands of Khushi Muhammad or he put his thumb impression on the said document, therefore, in the absence of any such evidence, the statement of respondent alone who was the beneficiary of the document, would not be sufficient to establish its genuineness or that Khushi Muhammad actually entered into the transaction of exchange and consequently the exchange to the extent of share of Khushi Muhammad would neither be valid nor create any right in favour of the respondent. The learned counsel for the respondent has argued that since the interest of respondent is confined to the extent of share of Khushi Muhammad, therefore, he would not contest the mutation against the remaining owners in land and submitted that the mutation to the extent of share of Khushi Muhammad was not changeable. Learned counsel for the petitioner on the other hand has submitted that since the evidence on the basis of which the petitioner was non-suited was not sufficient to establish the claim of the respondents even to the extent of share of Khushi Muhammad, therefore, the petitioner would have no objection if the case to that extent is remanded to the trial court for decision afresh after recording the further evidence."
In post remand proceeding in pursuant to the aforesaid judgment of this Court, the plaintiff/respondent adduced additional evidence, whereas, petitioners/defendants relied upon his previous evidence. Learned trial court after appreciating the same, decreed the suit of the plaintiffs/respondents vide judgment and decree dated 17.06.2002. This judgment was further affirmed, when appeal filed by petitioner/defendant was dismissed by learned Addl. District Judge, Gujar Khan vide judgment and decree dated 16.01.2006. Being dissatisfied instant civil revision was filed by the petitioner/defendant in the year, 2006.
2. The learned counsel for the petitioner/defendant has argued that both the courts below did not comply with the directions passed by this Court in remand order dated 06.03.2001, that the verdict of both the courts below is not free from taint of misreading and non-reading of evidence, that it was the duty of trial court for the dispensation of justice to summon the revenue Patwari as well as attesting officer, who entered and sanctioned the mutation but the trial court failed to pay heed to discharge its duty and committed material irregularity and illegality while decreeing the suit on this score. He has further mooted that petitioner also filed an application for comparison of thumb impression and signature of respondents/plaintiffs before the learned lower appellate court, but the said application was erroneously dismissed by him.
3. Conversely, learned counsel for respondents/plaintiffs has refuted the arguments of learned counsel for the petitioner while supporting the impugned judgments and decrees.
4. Arguments heard, record perused.
5. The basic claim of the plaintiffs/respondents is that they were owners of the disputed property measuring 11-Kanal and 7-marlas falling in Khasra No. 351 and attestation of mutation No. 385 dated 25.06.1979 (Exh.P/2) being collusive was liable to be cancelled, whereas, the petitioner/defendant maintained as per his written statement that the above referred property had been exchanged by the plaintiffs/respondents with his property falling in Khasra No. 991 and 992 vide two exchange deeds dated 28.05.1977 (Exh.D/1 and D/2) and in pursuant to that exchange mutation Exh.P/2 was duly attested with the mutual consent of the parties. Both the courts below vide impugned judgments and decrees concurrently answered pivotal issue No.1 in favour of the plaintiffs/respondents and for brevity sake, the said issue is reproduced hereunder :-
1. Whether the mutation No. 385 relating to the exchange of the suit land is collusive, illegal and as such in-operative against the rights of the plaintiffs? OPP
6. The plaintiffs/respondents to discharge the onus of said issue produced Lal Din PW/2, one of the attesting witnesses of disputed exchange mutation Exh.P/2, who deposed that he had not put his signatures over the disputed mutation. He also stated that he was not aware of any exchange of land settled between the parties. The statement of PW/2 was fully supported by Muhammad Siddique PW/1, one of the plaintiffs. In response to rebut the evidence of the plaintiffs/respondents, the petitioner/defendant himself appeared as DW/2 and produced Abdul Rehman as DW/1. Both of said witnesses did not depose any word regarding the transaction of exchange to explain that when where and before whom it was settled. The petitioner being beneficiary was bound to prove the alleged original transaction of exchange by producing the direct convincing evidence, but not an iota of evidence was produced by the petitioner/defendant rather he tried to build up his case on the strength of two deeds of exchange dated 28.05.1977 Exh.D/1 and Exh.D/2, which are available on file at pages 67 and 68. The perusal of Exh.D/1 reveals that it was unilaterally executed by petitioner/defendant in favour of Khushi Muhammad one of the plaintiffs, which was attested by Naseer ud Din and Abdul Rehman being marginal witness, whereas Exh.D/2 was unilaterally allegedly executed by Khushi Muhammad only in favour of petitioner and it was signed by Lal Din, Nazir Ahmad, Naseer ud Din and Abdul Rehman being its marginal witnesses. The said deeds cannot be believed on the following grounds:- i. The petitioner only produced Abdul Rehman DW/1 one of its marginal witnesses and rest of its witnesses were not produced by him despite their availability for the reasons best known to him whereas plaintiff/respondent by producing one of the other alleged marginal witnesses Lal Din PW/2 fully rebutted the stance of the petitioner. In such peculiar circumstances when one marginal witness deposed that Exh.D/1 and Exh.D/2 were executed and the other stated that these were not singed by him it was incumbent upon the beneficiary to produce the other marginal witness of the said deeds, especially when the other witnesses were available. ii. The petitioner neither produced the stamp vendor nor the deed writer, who scribed the same.
Even their relevant registers were also not produced/summoned from the safe custody by the beneficiary to strengthen his stance. iii. The plaintiffs by producing copy of mutation No. 384 Exh.P/1 proved the fact that disputed property came into their ownership on 25.06.1979 when the said mutation was attested whereas the alleged exchange deeds are found to be executed on 28.05.1977, meaning thereby at some prior point of time of attaining the ownership by the plaintiffs. iv. The disputed property falling in Khasra No. 351 along with other Khasra numbers was allotted to seven person jointly whereas Exh.D/2 was only executed by one person/owner Khushi Muhammad without having any authority/power on behalf of other remaining six owners. v. The deeds of exchange Exh.D/1 and Exh.D/2 being unilateral were not enforceable as per law and while considering above referred aspects it can safely be concluded that petitioner failed to prove the execution of Exh.D/1 and Exh.D/2 and on the basis of said arguments it cannot be declared that any transaction of exchange was settled between the parties.
7. The petitioner also failed to prove the valid attestation of exchange mutation Exh.D/2, on the following reasons:- a) The petitioner/beneficiary himself admitted in his cross examination that same was not attested in the common assembly rather it was attested in Gujar Khan. The revenue officer against the mandate of Section 42(8) of Punjab Land revenue Act, 1967 attested the same which is liable to be cancelled on the said sole ground. Reliance can be placed upon "NIAZ ALI VS. MUHAMMAD DIN (1993 CLC 1374), GHULAM HUSSAIN VS. IMAM BUKSH (1995 M LD 1165) and QASIM ALI VS. SHER MUHAMMAD (2007 YLR 1770). b) Perusal of exchange mutation Exh.D/2 further reveals that it was attested on the identification of the patwari against the spirit of law, whereas the same required the attestation in presence and identification of at least two notable of the concerned revenue estate. c) Petitioner/beneficiary again failed to produce the best witnesses i.e. Concerned patwari, who entered the mutation and allegedly identified the parties as well as the Revenue Officer, who attested the same despite their availability and inference has to be drawn against the beneficiary.
In this regard, I am fortified by the dictum laid down by the Superior Courts in the judgments reported as MIRAJ DIN VS. MST. SARDAR BIBI (2010 M LD 843), RAB NAWAZ VS. MST. SAHIB ZADI (2010 YLR 78), MUHAMMAD IQBAL VS. MUKHTAR AHMAD (2008 SCM R 855) and MST. NOOR JAHAN BIBI VS. ISLAM UD DIN (2012 M LD 1691).
8. The beneficiary cannot take any benefit from the mutation, which he failed to prove that it was duly attested. Even as observed supra the Revenue Officer had attested the same against the mandate and spirit of the law, which has rightly been struck down by the courts below and their findings on above referred issue No.1 being unexceptionable are affirmed.
9. The arguments of the learned counsel for the petitioner that learned lower appellate court erred in law while dismissing the application for comparison is without force. Such drill work could be adopted in the case where direct evidence was lacking due to its non-availability, but in the present case the direct evidence in bulk despite availability was not produced by the petitioner, who having failed to produce could blame himself and his request for comparison of signature/thumb impression was rightly declined by the learned lower appellate court. Even otherwise, the opinion of an expert cannot be declared a substitute of direct available evidence and it is always considered to be a weak type of evidence. The other submissions of the learned counsel for the petitioners have fully been repelled by the Courts below on eminent reasons and this Court fully endorses the same.
10. The learned counsel for the petitioners has failed to point out any illegality, perversity or jurisdictional defect and misreading or non-reading of the evidence in the impugned judgments and decrees passed by the courts below calling for any interference by this court in the exercise of revisional jurisdiction, the scope whereof is narrower and restricted only to the extent of correcting errors of law and facts, if are found to have been committed by the subordinate courts in the discharge of their judicial functions. Resultantly, the instant civil revision being devoid of any merit is dismissed with costs through out.