' The petitioners have filed this revision petition to assail the judgments and decrees dated 27.10.2011 and 22.1.2014 passed by learned Civil Judge, Kot Addu and an Additional District Judge, Kot Addu, District Muzaffargarh, respectively, whereby the suit of Mst. Sardaran Bibi, Respondent No, 1 for declaration was decreed and an appeal preferred thereagainst was also dismissed.
2. The facts, in brief; are that Mst. Sardaran instituted a suit for declaration, contending therein that she had not got attested mutation of Tamleek No, 1478 dated 30.6.2001, and the same was procured by Manzoor Hussain and Khuda Bakhsh, her sons by carrying out deception and perpetrating fraud on her in collusion with the revenue authorities. As such the aforementioned mutation was not binding upon her and was ineffective upon her rights. She also prayed for consequential relief, restraining the alienees/alleged transferees from laying claim to the suit land.
3. The above-mentioned suit related to land measuring 8 kanals bearing Khewat No, 109 situated at Village Lal Mir, Tehsil Kot Addu, District Muzaffargarh. The mutation in question purportedly transferred this land to Khuda Bakhsh and Manzoor Hussain in equal shares.
4. As things, stand, Khuda Bakhsh, one of the donees under the aforementioned mutation filed a consenting w ritten statement, conceded to the claim of the plaintiff, while Manzoor Hussain contested the suit on merits. It was insisted by him that his mother, Mst. Sardaran had herself appeared before the Patwari Halqa and the Revenue Officer concerned and had made a 'Tamleek' in his favour as well as Khuda Bakhsh through Mutation No, 1478 dated 30.6.2001. As is borne out by the record, during the pendancy of the lis, Manzoor Hussain transferred the suit land to the extent of his own share to Mst. Husina Bibi, his wife. As a result, Mst. Husina Bibi was also arrayed as one of the defendants. Naturally, she supported the claim of her husband, Manzoor Hussain.
5. The pleadings of the parties gave rise to the following issues: ISSUES:
1. Whether the plaintiff is owner in possession of the suit land? OPP
2. Whether Mutation No, 1478 dated 30.6.2001 is against law and facts, ineffective upon the rights of the plaintiff and liable to be cancelled? OPP
3. Whether the plaintiff is entitled to the decree as prayed for? OPP
4. Whether the plaintiff has no cause of action to file the suit? OPD
5. Whether the suit is not maintainable in its present form? OPD
6. Whether the suit is less valued for the purpose of Court-fee and jurisdiction? OPD
7. Relief.
6. In the wake of the framing of the issues, the parties to the suit led pro and contra evidence in support of their respective pleas. Muhammad Aslam appeared as PW-1 and testified on oath that he is the special attorney of the plaintiff. He deposed that his mother is 80/90-year-old frail woman. She never appeared before any revenue official and did not get the impugned mutation attested in favour of Khuda Bakhsh and Manzoor Hussain. He was subjected to cross-examination but he stood the ground and did not budge an inch from the stance taken by the plaintiff in the plaint. Exh.P-1 to Exh.P-8 were tendered in evidence as well.
7. In order to rebut the evidence produced by the plaintiff's side Mst. Husina Bibi appeared as DW-1.
She stated on oath that her mother-in-law had transferred the suit land to two of her sons. She further deposed that her husband, Manzoor Hussain had transferred the suit land to the extent of 4 kanals to her in lieu of her dower. In the course of cross-examination, she admitted that she was not present when the alleged mutation was attested. She went on to admit that she had heard about the making of ' Tamleek' from other members of the family. In the face of her admissions, both the learned Courts below excluded her testimony declaring the same to be just hearsay.
However, it was admitted both by Mst. Husina Bibi (DW-1) and Manzoor Hussain (DW-2), the alleged beneficiaries under the mutation in question that the witnesses to the alleged mutation, Lal Khan son of Sultan Khan and Ghasiar Abbas son of Sultan Mehmood are alive. The defendants also tendered in evidence copies of Mutations No, 1478 and 1741 as Exh.D-1 and Exh.D-2.
8. Learned trial Court scanned the entire evidence, attended to the contentions raised by the learned counsel for the parties and after appreciation of the evidence produced by them reached the conclusion that the beneficiaries under the disputed mutation had failed to discharge the onus put on them. It was held by it that the non-production of two crucial witnesses, namely, Lal Khana and Ghasiar Abbas reflected adversely on the claim of the defendants, rather the withholding of their evidence struck at the roots of their case. The non-production of the Patwari Halqa and the Revenue Officer were also adversely commented upon by it. Consequently, the suit of Mst.
Sardaran was decreed, and both the mutations attested in favour of Manzoor Hussain and Mst.
Husina Bibi were declared invalid, holding the plaintiff to be owner in possession of the suit land.
9. As stated above, an appeal was preferred by Manzoor Hussain and her wife Mst. Husina Bibi, but the same was also dismissed by the learned Additional District Judge vide judgment and decree dated 22.1.2014.
10. Feeling aggrieved by the judgments and decrees passed by the Courts below, Manzoor Hussain and Mst. Husina Bibi have filed this petition on the grounds that both the Courts below did not appreciate that Mst. Sardaran Bibi had not herself entered the witness-box; that the suit was not instituted by her, rather it was the handiwork of Muhammad Aslam Khan who claimed to be her special attorney, that Mst. Sardaran Bibi had also made gifts of land to her other sons. This argument implied that since Mst. Sardaran Bibi had made similar -gifts to her other sons, it is to be presumed that she got the disputed mutation attested in favour of Man zoor Hussain and Khuda Bakhsh in the same way, but is not repudiating the same on the asking of Muhammad Aslam and her other sons.
11. L earned counsel for the petitioners has reiterated the afore-noted contentions, besides making the argument that the learned Appellate Court did not give issue-wise findings, rendering its judgment unsustainable in the eyes of law. According to him, both the impugned judgments and decrees suffer from mis-reading and non-reading of evidence produced by the petitioners' side.
He argues that the plaintiff failed to discharge the onus placed upon her that the impugned mutation was the outcome of fraud and misrepresentation. He elaborates that it was wrongly held by both the Courts below that she discharged the onus and the same shifted onto the beneficiaries of the mutation in question i,e, the petitioners herein.
12. I have heard the learned counsel for the petitioners at length and gone through the impugned judgments, besides perusing the record of the two Courts below annexed to the revision petition.
13. I cannot subscribe to the argument made by the learned counsel for the petitioners that the judgments passed by the Courts below suffer from the infirmity of misreading and non-reading of evidence. In point of fact, both of them took pains to appreciate the controversy in minutest details.
They took note of each and every aspect of the case, in addition to dilating upon the contentions raised before them by the learned counsel for the parties. It was rightly held by both the Courts below that it was incumbent upon the beneficiary of disputed mutation to prove that the transaction in question really took place, and the same was to be proved by adducing cogent, consistent and unimpeachable evidence. The petitioners have failed to produce even tenuous or slender evidence to substantiate their claim. The fact that one of the beneficiaries under the impugned mutation, namely, Khuda Bakhsh had filed the consenting written statement to confess the claim of the plaintiff had virtually sent a death knell to the case of the petitioners. Furthermore, they did not examine the two alleged witnesses to mutation, namely, Lal Khan and Ghasiar Abbas.
This is not all. They made no attempt at all to summon the Patwari Halqa and the Revenue Officer concerned, who entered and sanctioned the mutation in question. The withholding of evidence of so many crucial, critical and material witnesses was such a glaring fact that it could not be glossed over or covered up or overlooked or disregarded by the Courts below. They rightly attached the importance to this all-important fact to come to the conclusion that the petitioners have failed to discharge the onus put on them.
' As for the case of Mst. Husina Bibi, she claimed to have derived title under Manzoor Hussain, her husband. In the first place, she got the suit land transferred in her name during pendente lite, and her case, if any, stood hit by the doctrine of lis pendens embodied in Section 52 of the Transfer of Property Act, 1882, Secondly, it was admitted by Manzoor Hussain that she had again re-transferred the suit land to him, meaning thereby that her claim to the suit land stood extinguished during the very pendency of the suit. Thirdly, when the basic order is void, the superstructure built thereon is to come down crashing with it. i
14. This brings me to the argument of the learned counsel for the petitioners that the learned Appellate Court was bound to give issue wise findings. Probably, he had in mind the provisions contained in Order XX, Rule 5, CPC. On the other hand, the learned Appellate Court is not under an obligation to give issue wise findings, which is also evidenced from a perusal of the provisions contained in Order XLI, Rule 31, CPC. Furthermore, a similar argument was repelled by the Supreme Court in the case of "Muhammad Amir through L.Rs, V. Muhammad Sher and others" [2006 SCM R 185].
15. A careful study of the impugned judgment passed by the learned trial Court brings out that it dealt with all material aspects of the case. Therefore, it cannot be said to be falling short of the requirements of law. Even otherwise, such an irregularity, as alleged by the learned counsel for the petitioners, which does not cause prejudice to the case of a party, stands cured under the provisions contained in Section 99 of the, CPC.
16. The upshot of the discussion made above is that the petitioners have failed to bring their case within any of the Clauses of Section 115, CPC calling for interference of this Court. Both the impugned judgments have been passed with jurisdiction, and none of them has been found to be suffering from any material irregularity. They are unexceptionable. The revision petition being devoid of merits is hereby dismissed in limine.