MEHMOOD MAQBOOL BAJWA, J.---Suit for declaration and perpetual injunction was instituted by Sher Muhammad (hereinafter called "original plaintiff"), now succeeded by his legal heirs, against the respondent claiming proprietary and possessory rights in respect of land measuring 5-kanals 6-marlas comprising Khewats Nos.831, 1502 situated in Khudian, Kasur, in negation of mutation of gift No. 4237 attested on 11th of April, 1975 asserting that said property was never transferred by him in favour of respondent and stated alienation is result of fraud and mis-representation.
' Highlighting the element of fraud in the plaint, it was submitted that Sher Muhammad (predecessor-in-interest of petitioners) approached Halqa Patwari and got entered Rapt No. 354 on 16th of December, 1974 in order to sell part of his holding in favour of Abdul Ghafoor and. Present respondent, who was helping hand of Halqa Patwari, in collusion with the said revenue official got his signatures on certain papers which were used by the respondent and said Halqa Patwari in order to enter Rapt No. 355 dated 16.12.1974 upon the strength of which later on mutation of .Gift No. 4237 was attested on 11th of April, 1975.
' It was further asserted in the plaint that respondent was in. Occupation of the property as tenant prior to fake transaction who used to pay "Hissa .Bataar and the factum of fraud came to the knowledge of predecessor-in-interest of the petitioners, 8-months prior to institution of suit which was filed on 4th of April, 1998: Controverting the claim, of original plaintiff, it was alleged that said plaintiff alienated the property in favour, of respondent for a consideration of Rs. 1500/- by entering into agreement 12-years prior to attestation of mutation No. 4237. Further alleged that it was a transaction of sale but the Halqa Patwari got entered Rapt regarding alienation of said property by way of gift which fact was not in his knowledge. Alleged that respondent is in possession of property as an owner since long through his tenants, Divergent 'pleadings of the parties resulting in casting of eight issues 'including After recording pro and contra evidence, learned civil court non-suited the original plaintiff in view of the conclusion arrived at while dealing with issues Nos. 6 and 7 regarding his entitlement being owner.
2. Aggrieved by the judgment and decree dated 16th of March, 2002, original plaintiff preferred an appeal but it remained exercise in futility as the said appeal was also dismissed by a learned Additional District Judge, Kasur, through judgment and decree drawn on 4th of September, 2002.
' Learned Additional District Judge not only endorsed the findings of learned trial court on issues Nos. 6 and 7 but also reversed the findings of learned trial court on issue No.2 with reference to question of limitation.
3. Concurrent findings of both the learned courts below on issues Nos. 6 and 7 and conclusion at variance with reference to issue No. 2 has been called in question by the petitioners on legal as well as factual premises.
4. Submitting arguments with reference to legality of the judgment of learned appellate court, it was submitted that learned appellate court did not give findings issue-wise. Further submitted that said judgment cannot be said to be a judgment because evidence led by the parties was neither referred to nor properly appreciated.
' Disputing the legality of findings with reference to question of limitation, it was contended that issue No. 2 was decided by the learned trial court against the respondent and the said adverse findings were not assailed by, filing cross-objections and as such, it was not within the domain of learned first appellate court to reverse the findings. Argued that in view of the matter, conclusion of learned Additional District Judge treating the suit of original plaintiff as barred by time is legally not sustainable.
' Canvassing arguments on issues Nos. 6 and 7, it was submitted that in the plaint, a specific stance was taken by the original plaintiff and Falak Sher, his son, while appearing as PW-2 being his attorney categorically disclosed all the facts, sufficient to suggest fraud on the part of respondent in collusion with the Halqa Patwari .
' Making reference to the evidence of Falak Sher (PW-2), it was contended that attorney of the original plaintiff categorically deposed that respondent was working as ssistant with Halqa Patwari, who while exploiting the association of the said revenue official got his signatures on other papers, later on converted into Rapt of gift.
Submitted that neither there was any occasion nor justification for the said donor to alienate the property by way of gift in favour of respondent having children and wife, particularly when respondent got no blood relations with the said donor.
' Making reference to the contents of written statement, it was submitted that respondent in the written statement maintained that in fact, it was a sale and not a gift but despite getting knowledge of the nature of transaction as admitted by respondent (DW-1) in cross-examination, he did not agitate for correction of mutation, sufficient to suggest conclusiveness of the respondent with the revenue official and to substantiate the contention original plaintiff regarding fraud.
' Submitted that statement of attorney of Sher Muhammad (PW-2) as well as evidence of Nazir Ahmad (PW-3) was sufficient to discharge initial onus of the issue casting duty upon respondent to prove the genuineness of the Rapt as well as mutation being beneficiary. Further submitted that respondent being beneficiary of the transaction was not only obliged to prove that Sher Muhammad was a consenting party to Rapt No. 355 but also to establish that he agreed to sell the property in favour of respondent by producing convincing evidence independent of entering Rapt and attestation of mutation but failed to substantiate the same. Further submitted that respondent also remained unsuccessful to prove that Sher Muhammad put his signatures on Rapt No 355 (Ex.P-3), being conscious of the transaction and as such, the transaction was outcome and product of fraud but both the learned courts below failed to appreciate the evidence and as Rich, findings on issues Nos. 6 and 7 are result of misreading and non-reading of evidence.
' In order to substantiate the contentions, learned counsel for the petitioners sought help from the dictum laid down in "Muhammad Azam and others v. Muhammad Yar and others" (1988 CLC 2388), "Hakim Khan v. Nazeer Ahmad Lughmani and 10 others" (1992 SCMR 1832), "Mst. Raj Bibi and others v. Province of Punjab through District Collector Okara and 5 others" (2001 SCMR 1591), "Muhammad Akram and another v. Altaf Ahmad" (PLD 2003 Supreme Court 688), "Abdul Rahim and others v.
Muhammad Hayat and others" (2004 SCMR 1723) and "Muhammad lqbal of and another v. Mukhtar Ahmad through L.Rs." (2008 SCMR 855).
5. On the other hand, while defending the impugned judgments and decrees, learned counsel for the respondent while making an attempt to justify the conclusion of learned appellate court on the question of limitation, submitted that though no cross-objections were filed with reference to question of limitation which was answered against the respondent by the learned trial court but it was well within his right to question the findings of learned trial iourt on issue No. 2 even without filing objections. Help was sought from the dictum laid down in "Ghulam Rasool through L.Rs. And others ,v. Muhammad Hussain and others" (PLD 2011 Supreme Court 119).
Making reference to the rule of law enunciated in "Muhammad Sami v. Additional District Judge, Sargodha and 2 others" (2007 SCMR 621), it was submitted that the court is bound to take notice of question of limitation irrespective of the fact whether it was agitated or not.
' Replying the arguments with reference to findings on issues Nos. 6 and 7, while making reference to the contents of plaint, it was argued that Sher Muhammad admitted his signatures on the Rapt and as such, it was his duty to prove the element of fraud according to stance taken by him in the plaint but no convincing evidence was produced in order to substantiate his contention.
Referring to the cross-examination of attorney of original plaintiff i.e. Falak Sher (PW-2), it was contended that Sher Muhammad was alive but he did not appear in the witness box, sufficient to create adverse inference against him and attorney (PW-2) who at the time of recording evidence was not more than 35-36 years old keeping in view the age mentioned in his particulars was not in a position to explain and disclose the factum of fraud as he was not more than 10-years old at the time of attestation of mutation. Further submitted that evidence of Nazir Ahmad (PW-3) would not advance the plea of original plaintiff as he got no personal information in this regard.
' Continuing the arguments, learned counsel went on saying that respondent while appearing as DW-1 categorically maintained that Sher Muhammad entered into an agreement to sell the property in the year 1962, received Rs. 200/- as earnest money and in pursuance of that transaction, Rapt was entered in his favour in the year 1974. Submitted that the contention raised by learned counsel for the petitioners regarding non-production of Tehsildar and other witnesses would not be sufficient to substantiate the contention of the petitioner because transaction was materialized in the year 1974 while evidence was recorded in the year 2002 and no witness was alive at the time of production of evidence. Further contended that respondent in cross- examination categorically stated that witnesses present at the time of settlement of transaction in the year 1962 are dead.
' Argued that evidence of Muhammad Ishaq (DW-2) is sufficient to prove genuineness of the transaction. Making reference to the statement of Muhammad Iqbal (DW-3), it was contended that his statement also proves the contention of respondent who maintained that the original plaintiff intimated him regarding transfer of property in favour of respondent due -to which his sons were at dagger drawn with him.
' Continuing the arguments and making reference to the evidence of Muhammad Hussain (DW-4), it was submitted that the said withess is in occupation of the property as tenant under the respondent since long, sufficient to prove the ownership of the respondent and to negate the contention of adversary regarding concealment of ownership by the respondent.
Further submitted that reexamination and reappraisal of evidence is not permissible in revisional jurisdiction, even if conclusion is erroneous. Help was sought from the rule of law expounded in "Sahdeo Mauar v. Pulesar Nonia" (AIR 1930 Patna 598).
Placing reliance upon the dictum laid down in "Ghulam Nabi and others v. Mst. Zainab Bibi and others" (2005 MLD 153), it was contended that mutation of sale being old transaction incorporated in revenue record carries presumption of correctness.
' To substantiate overall contentions, help was sought from the dictum laid down in "Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs" (PLD 2011 Supreme Court 657), "Muhammad Arif and others v. Feroz Khan and others" (2011 CLC 929) and "Noor Din and another v.
Additional District Judge, Lahore and others" (2014 SCMR 513).
6. As observed earlier, the learned trial court answered issue No. 2 relating to limitation against the respondent and in favour of Sher Muhammad (predecessor-ininterest of present petitioners) but the findings of learned trial court were reversed by the appellate court though admittedly no cross objections were filed. With this background, learned counsel for the petitioners questioned the legality of said findings.
7. According to Order XLI, Rule 22 of The Code of Civil Procedure, 1908 (Act V of 1908), respondent upon hearing may object to the decree with reference to adverse findings on certain issues provided he has filed cross-objections. Admittedly, the respondent did not file any cross-objections and as such, the question before this Court is whether it was in the domain of learned appellate court to reverse the findings of learned trial court on issue No .2 .
' Similar proposition was moot point before the Apex Court in "Suba and others v. Abdul Aziz and others" (2008 SCMR 332) and it was held at page-334 as follow:-- "The findings of the trial Court on both issues were against the respondents/pre-emptors. However, the findings of the trial Court on all other issues were in favour of the respondents. Issue No. 4 was also of vital importance as to "whether the plaintiffs had got any superior right and pre-emptive right in respect of the suit-land as against the vendee-defendants? OPP". It is clear from the judgment dated 28-1-1999 passed by the Additional District Judge, Jampur, that the petitioners were Precluded from addressing arguments as to the correctness of the finding of the trial Court on other issues including Issue No. 4 merely on the ground that they had not filed any cross- objections or cross-appeal in the case. The course adopted by the Additional District Judge was violative of the provisions of Order XLI, Rule 22, C.P.C. And the judgment by a Full Bench of this Court in the case of Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74, authored by one of us (Faqir Muhammad Khokhar, J.). It was held therein that a party in whose favour a decree was passed, was not necessarily required to file an appeal or cross-objection as it could defend the decree on all the available grounds in support of the decree in appeal as provided by Order XLI, Rule 22, C.P.C., even though such grounds had been found against it. In Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and 2 others .1998 SCMR 2306 this Court had taken the view that where a respondent had neither preferred a petition nor filed an appeal, the Court had ample authority and full powers to extend relief to him provided that it was necessary either to do complete justice between the parties or the case otherwise involved invocation of Court's inherent powers. Beneficial provisions of Order XLI of Rule 23, C.P.C. Could also be invoked to do complete justice or to prevent the ends of justice from being defeated and to adjust the rights of the parties in accordance with justice, equity and good conscience as laid down in the case of Salah-ud-Din Butt and others v. Punjab Service Tribunal and others PLD 1989 SC 597." (underlining is mine) Similar proposition was dealt with by the Apex Court in "Ghulam Rasool through L.Rs. And others v. Muhammad Hussain and others" (PLD 2011 SC 119) cited at bar by learned counsel for the respondent wherein it was held that respondent can verbally challenge finding on any issue going against him at the time of hearing of appeal while supporting decree but it would not be legally ' permissible to assail the decree without cross appeal.
' In view of the above state of facts and law, objection raised by the learned counsel for the petitioners questioning the legality of findings of learned appellate court on issue No. 2 is legally not sustainable.
8. Now the question for consideration before this Court is whether the suit instituted by predecessor-in-interest of the petitioners was barred by time who instituted suit for declaration on 04.04.1998 assailing the vires of mutation No. 4237 sanctioned on 11.04.1975.
It is the case of predecessor-in interest of the petitioners in the plaint that factum of fraud came to his knowledge 8-months prior to institution of suit. In the same paragraph, it was mentioned that respondent used to pay "Hissa Paidawar" to Sher Muhammad due to which he could not get knowledge regarding the questioned transaction.
Specific plea has been taken by the petitioners in order to cover the question of lithitation. Attorney of original plaintiff while appearing as PW-2 stated that respondent refused to give Hissa Bataai 2- 1/2 years prior to institution of suit which part of deposition was controverted in cross-examination.
The respondent while appearing as DW-1 categorically denied the suggestion that he used to pay Hissa Paidawar to Sher Muhammad. Deposition of attorney of predecessor-in-interest of the petitioners was not only controverted by putting suggestion in cross-examination but also by respondent in cross-examination and as such "principle of oath against oath" is applicable to the facts of the case. The petitioners failed to produce convincing evidence in order to prove that respondent used to pay "Hissa Bataai" to Sher Muhammad. Nothing is available on record to substantiate the contention of the petitioners regarding receipt of Hissa Bataai by their predecessor. Even the revenue record produced is totally silent in this regard. In view of the matter, petitioners failed to prove this plea. Reference may be made to "Noor Din and another v. Additional District Judge, Lahore and others" (2014 SCMR 513).
9. Possession of the respondent is an admitted fact. Perusal of copies of Khasra Gardawri and Jamabandi produced by the adversaries (Ex.P-1, Ex.P-6, Ex.D-1 to Ex.D-3) reveals that after attestation of mutation, possession of the respondent was as an owner and the land was in cultivating possession of respondent through tenant. Muhammad Hussain son, of Ahmad Din (DW- 4) stated that he is tenant under respondent whose deposition finds support from the entries contained in copy of Khasra Gardawri (Ex.D-3).
In para-5 of the plaint, it is the case of predecessor-in-interest of petitioners that 8-months ago, the factum of fraud came to his knowledge but the source of information was not disclosed.
Similarly, though it is the case in the plaint that Hissa Paidawar was used to be given by respondent but the contents of plaint are totally silent when refusal was made by the respondent.
10. Since the petitioners raised the plea of fraud, therefore, question of limitation has to be examined and decided keeping in view the date of knowledge of the predecessor-in-interest of the petitioners but as discussed, evidence of the petitioners on this point is neither convincing nor worthy of credit and also does not fulfill the yardstick contained in "Noor Din and another v.
Additional District Judge, Lahore and others" (2014 SCMR 513).
11. Viewed from whichever angle, there is no convincing evidence to establish date of knowledge of original plaintiff about the questioned transaction and as such, suit instituted on 4th of April, 1998 disputing the legality of mutation attested on 11.04.1975 is barred by time.
12. Though I am in agreement with the contention of learned counsel for the petitioners that learned appellate court did not make discussion in a proper manner but conclusion for the reasons recorded by this Court has to be endorsed.
13. The original plaintiff was also non-suited with reference to issues Nos. 6 and 7 regarding his entitlement to get the decree claimed.
14. Statement of attorney of the original plaintiff which is though solitary stating and highlighting the facts with reference to alleged fraud according to assertion claimed in the plaint is sufficient to discharge the initial onus of the issue and it was the duty of respondent to prove it affirmatively that predecessor-in-interest of the petitioners agreed to sell the property and was consenting party to the transaction while getting the mutation entered.
' Great stress was laid down by learned counsel for the respondent that since signature of Sher Muhammad on the papers has not been disputed, therefore, genuineness of mutation cannot be assailed but I regret to share and endorse the opinion of learned counsel for the respondent.
Mere putting of signature or thumb mark by a person upon a certain instrument would not be sufficient to suggest execution of a document. Reliance is placed upon "Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujahid and others (PLD 2007 Lahore 254) and "Abdul Hameed v. Mst. Aisha Bibi and another" (2007 SCMR 1808).
Mutation admittedly does not confer any title in favour of the party and its genuineness has to be established by the person claiming benefit under the said transaction. Settled proposition of law was reiterated in the case-law cited by learned counsel for the petitioners.
15. This Court is also well conscious of the fact that transaction entered into through questioned mutation was incorporated in Jamabandi which carries presumption of correctness but nevertheless it was the duty of respondent not only to produce evidence to prove genuineness of Rapt but also that transaction of sale was settled between the parties to the lis which fact was required to be established independent of proving genuineness of mutation of sale.
16. In view of the statement of attorney of Sher Muhammad (original plaintiff), the onus shifts upon the respondent to prove affirmatively the genuineness of transaction. It is the case of respondent in the written statement that Sher Muhammad entered into agreement to sell with him for a sale consideration of Rs. 1500/- 12-years prior to attestation of mutation (which was attested on 11.04.1975). He while appearing as DW-1 stated the same fact further deposing that the mutation was not entered in his,' favour due to his inability to generate funds for making payment of balance sale consideration.
17. While examining the replies given in cross-examination, it becomes crystal clear that evidence of the respondent in order to prove the genuineness of transaction as well as sale agreement in the year 1962 is neither convincing nor worthy of credit. He in cross-examination maintained that they went to Halqa Patwari in order to get Rapt entered 2-days prior to attestation of mutation but the said part of evidence stands negated keeping in view the date of entry of Rapt No. 355 which is 16.12.1974 and the mutation was attested on 11.04.1975. The respondent in cross-examination further maintained that he paid balance sale consideration at the time of attestation of mutation but said part of deposition does not find support from the contents of mutation, copy of which is Ex.P-4.
Evidence of Muhammad Ishaque (DW-2) regarding payment of Rs. 1300/- at the time of attestation of mutation cannot be believed because he admitted that he was not present in the,office of Tehsildar at the time of attestation of mutation and remained outside. He is also not the attesting witness of said mutation.
18. It is further to be noted that Sher Muhammad was not identified by any person at the time of entry of Rapt which fact was frankly admitted by the respondent in cross-examination. No evidence was led by respondent that original plaintiff got the Rapt entered and made statement before Tehsildar with conscious state of mind understanding the nature of transaction and its consequence.
19. Credibility of attorney of original plaintiff was questioned on behalf of respondent on the ground that nonappearance of the original plaintiff will reflect adverse inference against him but in view of the explanation, given by attorney of original plaintiff in cross-examination that his father is not in a moving position which part of deposition was not questioned in cross-examination, justification was put at the instance of original plaintiff for his non-appearance and as such, his nonappearance would not suggest adverse inference as argued by learned counsel for the respondent.
20. As per respondent, agreement to sell was materialized in the year 1962 but it is not understandable, why the transaction was not finalized and was deferred for twelve long years.
Though attempt was made by the respondent to justify it by stating that due to insufficiency of funds, mutation was not attested in his favour but same does not appeal to the reason. The respondent in his statement disclosed that original plaintiff used to ask him to get the sale complete but he deferred the matter. However, according to him, in the year 1974, when he sold the property to Abdul Ghafoor, original plaintiff again asked him to get the sale complete upon which he sold his buffalo and also arranged amount otherwise. If the respondent had arranged the money in the year 1974 through means explained, why the same exercise was not done by him earlier particularly when original plaintiff used to ask him to get the property transferred.
21. Though it was argued with vehemence on behalf of respondent that statement of attorney of original plaintiff is not sufficient to prove element of fraud but facts and circumstances of the case also substantiate case of the petitioners.
' In the plaint, it has been asserted that on 16.12.1974, original plaintiff went to Halqa Patwari for entry of mutation as he agreed to transfer the property in favour of Abdul Ghafoor. It is the case of said plaintiff that respondent was working as helper with Halqa Patwari who got his signatures on the pretext to enter Rapt of sale in favour of Abdul Ghafoor. The respondent, in his statement as DW-1, stated that original plaintiff asked him to get the sale entered when he was going to transfer the property in favour of Abdul Ghafoor. Selection of time by respondent is significant and important. A person who was unable to generate resources within 12-years, suddenly was successful to arrange balance sale amount by selling buffalo and through other sources.
22. In view of the discussion, respondent failed to produce convincing evidence to prove the genuineness of transaction of sale statedly settled in the year 1962 and attestation of mutation in the year 1975. Genuineness of transaction of sale as such is under serious cloud and the respondent failed to get it removed.
23. There are concurrent findings of both the learned courts below against the petitioners on issues Nos. 6 and 7 and as such, it was vehemently argued that same though may be erroneous but are not subject to revisional jurisdiction.
24. Seeking help from the dictum laid down in "Abdul Mateen and others v. Mst. Mustakhia" (2006 SCMR 50), it was contended by learned counsel for the respondent that re-examination and reappraisal of evidence is not permissible in revisional jurisdiction, even if conclusion drawn by the subordinate courts on question of fact is erroneous.
The contention of learned counsel for the respondent would not advance his plea in view of dictum laid down in "Muhammad Idrees and others v. Muhammad Pervaiz and others" (2010 SCMR 5) in which it has been held at page-10 as follow:- "It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Muhammad Saleem's case 1994 SCMR 2213. It is also settled law that findings on question of fact or law, erroneous the same may be, recorded by the Court of competent jurisdiction, cannot be interfered. With by the High Court in exercise of its revisional jurisdiction under Section 115, C.P.C. unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC 26". (Emphasis supplied).
Same rule of law was expounded in "Brig. (R) Sher Afghan v. Mst. Sheeren Tahira and 6 others" (2010 SCMR 786), "Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another" (2010 SCMR 817) and "Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others" (2010 SCMR 984).
25. Pursuant to above discussion, there IN would be no cavil that the findings of both the courts below on both the issues are perverse, arbitrary and result of mis- reading and non-reading of evidence and as such, are not sacrosanct.
26. Epitome of the above discussion is that unanimous conclusion drawn by both the learned courts below on issues Nos. 6 and 7 cannot be endorsed and as such, same is hereby set aside.
27. However, conclusion drawn by this Court reversing the findings on issues Nos. 6 and 7 would be of little help to the petitioners in view of endorsement of findings of learned appellate court on issue No. 2 with reference to question of limitation and as such, conclusion drawn by both the learned courts below dismissing the suit and appeal of original plaintiff is hereby endorsed, resulting in dismissal of the revision petition.
28. Parties shall bear their own costs.