' AMIN-UD-DIN KHAN, J.---Through this civil revision, petitioners-defendants have challenged the judgment and decree dated 13-4-2006 passed by learned Addl: District Judge, Nankana Sahib, whereby the appeal filed by them was dismissed, and the judgment and decree dated 28-10-2004 passed by learned Civil Judge, Nankana Sahib, whereby the suit filed by the respondent-plaintiff was decreed.
2. The facts, in brief, as leading to this civil revision are that the respondent-plaintiff on 21-1-2000 filed a suit for declaration challenging therein Mutation No,916 attested on 18-12-1998. The case of plaintiff is that the defendants are his step brothers and he was owner of land measuring 108- kanals fully mentioned in the head note of plaint. On their undue influence and threats he agreed to gift 28-kanals of land, therefore he got entered the mutation in question for 28-kanals as gift but fraudulently the land has been shown as 58-kanals as sale for a consideration of Rs,100000 in favour of defendants. The written statement was filed and suit was contested. It was pleaded that the defendants are real brothers of plaintiff and actually their father purchased the suit land. On the asking of respectable people of the family he agreed to transfer 58-kanals and received Rs,100000 on the pretext of expenses, whereas, actually the defendants were entitled 72-kanals. Out of the divergent pleadings of the parties, issues were framed and both the parties were invited to produce their respective evidence. Both the parties adduced their oral as well as documentary evidence. After the close of trial, vide judgment and decree dated 28-10-2004 the suit was decreed by learned trial court. An appeal was filed by the defendants before learned first appellate court, which was dismissed vide judgment and decree dated 13-4-2006. Hence, this civil revision by the petitioners-defendants.
3. Learned counsel for the petitioners argues that it is not a case of total denial by the plaintiff- respondent, as he has admitted the entry of mutation but he wants to take benefit of cutting made in the mutation by Patwari; that both the courts below failed to consider the important piece of evidence in shape of documentary evidence as well as the statements of witnesses, especially P.W.5/Javed Ahmad Khan Niazi, who attested the mutation. Learned counsel prayed for acceptance of this civil revision and setting aside the judgments and decrees passed by both the courts below.
4. On the other hand, learned counsel for the respondent-plaintiff argues that there are concurrent findings of facts recorded by two courts below; that these findings are in accordance with law and facts, therefore prayed for dismissal of this civil revision.
5. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
6. I have noticed that the copy of impugned mutation has been produced as Exh.P-4 and also as Exh.D-2. Learned counsel for the respondent-plaintiff when confronted to the position that whether there is any cutting in the order passed by the Revenue Officer the time of attestation of mutation.
Learned counsel has frankly admitted that there is no cutting in the order of Revenue with regard to the land, which was being transferred. There is clearly mentioned as 1160/20474 share and the share which is equivalent to 58-kanals, I have noticed that there are some cuttings made at the time of entry of mutation by the Patwari but there is no cutting in the order passed by the Revenue Officer at the time of attestation of mutation. The Revenue Officer appeared as D.W., who clearly made the statement that the vendor appeared before him, who admitted the receipt of money and also transferred 58- kanals in favour of defendants. The Revenue Officer also deposed that he has attested the mutation in accordance with the statement of plaintiff. This portion of statement has not been challenged specifically in the cross-examination. Under the law when a portion of statement remains unchallenged in the cross-examination, the same is presumed to have been accepted by the other party. I have observed that both the courts below ignored Exh.D-1, which is copy of Rappat Roznamcha. The mutation was entered on the basis of Rappat No, 239 dated 14-3- 1998. In this Rappat, there is absolutely no cutting in the share of property under transfer as well as 58-kanals of land. The application Exh.P-3 moved before the Deputy Commissioner is dated 23-11- 1999, which is after the attestation of mutation. The other application allegedly moved by the plaintiff before the Tehsildar on 2-9-1998 is the original application came from the custody of plaintiff himself. This is the only document on the basis of which plaintiff claims that he has agitated the matter before the attestation of mutation but I am afraid that this application has not come from the proper custody. If it was marked by the Tehsildar to Patwari, then it should have been in the custody of Patwari. As it came from the custody of plaintiff himself, therefore a question was put to P.W.3 that it has been marked in ante-date. When this document is not confidence inspiring, as it has not came from the proper custody, therefore whole reliance cannot be placed upon this document. The reliance made by both the courts below on this document is not in accordance with law. The plaintiff has admitted in his cross-examination that the possession of land i,e, 58-kanals is with the defendants since the attestation of mutation. Though afterwards the plaintiff tried to give some explanation but admission, remains there. When the plaintiff has challenged the entries of mutation attested in due course of law and the mutation itself as well as Ex.D-1, which support the attestation of mutation, and when the statements of witnesses of defendants fully prove the valid attestation, therefore the findings recorded by both the courts below on issue No,1 are not sustainable under the law, which are hereby reversed.
7. In the light of what has been discussed above, this civil revision is allowed and the impugned judgments and decrees dated 13-4-2006 and 28-10-2004 passed by both the courts below are set aside. The result would be the suit filed by respondent-plaintiff shall stand dismissed with no order as to costs.